VIENNA — The witnesses for a man charged with felony driving while intoxicated (DWI) last week in the courtroom tried to convince a group of 12 men and women that he was not guilty because his girlfriend was actually driving the vehicle and not him. But, the jury didn’t buy it and found him guilty of the class D felony of aggravated DWI. 

Kevin L. Ellis, 35, of Rolla, was the defendant in a jury trial held in the Circuit Court of Maries County last Thursday and Friday with Judge William Hickle presiding.

Maries County Prosecuting Attorney Terry Schwartze represented the State at the trial, calling seven witnesses to prove the defendant guilty. The witnesses Schwartze called to the stand to testify included Sheriff’s Deputy Greg Andrews, property owner Shawn Breeding, Sheriff Chris Heitman, Missouri State Highway Patrol Trooper Jonathan Fariole, Sheriff’s Deputy Mark Morgan, Sheriff’s Deputy Lt. Scott John, MOAD RN Toni Parks, and MSHP Criminologist in Toxicology Craig Bishop.

The attorney for Ellis, Stephen W. Daniels, called two witnesses, Whitney Derrick who is the girlfriend of Ellis who said she was driving and not Ellis, and Christina Hock, a friend who said she came and picked up Derrick that night after Ellis was arrested.

After the trial, Prosecutor Schwartze said she was happy with the outcome of the jury trial.

“I am pleased that the jury found sufficient evidence beyond a reasonable doubt that Mr. Ellis was driving while intoxicated. It took the efforts of the Sheriff and several deputies, MSHP personnel , and private citizens to

obtain this conviction. The law does not allow us to tell the jury that this is Mr. Ellis’ fifth DWI conviction  because it is too prejudicial. He is facing a sentence of up to ten years in the Department of Corrections. The sentence will be decided by the Judge,” Schwartze said. 

Ellis was not granted a bond and remains in the Maries County Jail until his sentencing on November 5.

Girlfriend distressed with verdict

In the courtroom last Friday after Ellis was found guilty by the jury, Judge Hickle said the presumption of innocence no longer applies and he ordered Ellis be taken into custody. He was placed in handcuffs to be taken to the jail.

A few rows away from him, his girlfriend and her friend began to cry with Whitney Derrick sobbing openly and loudly. Ellis, too was visibly distressed. His girlfriend had to leave the courtroom, crying as she left the room and ran into he hall. She was very upset and half an hour later her cries still could be heard outside.

State’s opening statement

In her opening statement and the testimony of the witnesses she called, Prosecutor Schwartze put together the story of what happened on the evening of August 27, 2017. Deputy Greg Andrews was on patrol on US 63 near the Vichy Airport heading north when he met a southbound white truck traveling about 85 mph in a 65 mph zone. All of this and the subsequent chase was recorded on the dash camera in the deputy’s patrol vehicle. He turned around and chased the truck, which continued to travel at a high rate of speed, turning onto Highway FF, which further on turned into a gravel county road. Deputy Andrews searched the county gravel roads for the white truck without success.

A landowner, Shawn Breeding of MCR 523, Schwartze said, will testify that he saw a white truck speeding 85 to 100 mph on his private driveway as it traveled past his home toward Mill Creek and Spring Creek. Deputy Andrews found the private driveway and followed it. He spoke with Breeding and walked up the creek about a half a mile and found the truck stuck in mud and brush. There were no people or keys in the truck. 

The truck plates were ran and it was found the truck belonged to Kathleen Ellis with transfer on death to Kevin Ellis. Besides Deputy Andrews, law enforcement assisting with the search for Ellis were Deputies John and Morgan and Trooper Fariole. They searched for a couple of hours. Sheriff Heitman obtained Ellis’s phone number and called him, leaving a message. Ellis called him back and said he was lost and the sheriff said he sounded agitated. He told the sheriff he had been drinking earlier but was not drunk, and they could not get him for anything other than speeding and driving without a valid license. Heitman told him to go to a road and find a mailbox, report to the sheriff the address and to stay there. Ellis did this and Trooper Fariole was the first officer to see him. He had Ellis lay on the ground and he handcuffed him and read him the Miranda.  Custody of Ellis was turned over to Lt. John who patted him down and obtained the keys to the truck. Deputy Morgan transported Ellis to the county jail. The search began at about 6:30 p.m. and Ellis was taken into custody about 9 p.m. The truck was towed. Deputy Morgan said Ellis was belligerent, using obscenities, called him a raciest because his girlfriend is Mexican, and he smelled of intoxicants. Morgan said Ellis had watery, bloodshot eyes, was swaying and smelled of alcohol. 

Schwartze told the jury if a person refuses the breath alcohol test they can lose their drivers license. Ellis refused to take the test and the sheriff’s office applied for a search warrant to get a blood alcohol test. The prosecutor was contacted. She did her part and Judge Kerry Rowden signed the warrant and by midnight they were ready for the blood draw. Toni Park of MOAD came to do the blood draw. A MSHP chemist said the first blood draw tested above the .08 limit at .123 and a half hour later the second draw tested at .120. 

At the end of her opening statement, Schwartze said, “I believe after you hear the evidence you will find Kevin Ellis was driving while intoxicated and resisted a lawful stop.”

Defense opening statement

The attorney for Ellis, Stephen Daniels, told the jury just because the prosecutor says something does not mean its evidence or that it is true. “Kevin Ellis was not driving the truck. Someone else was. He is guilty of bad manners and being intoxicated. You will find he’s not guilty of what he is accused of simply because he was not driving,” Daniels told the jury.

Defense witnesses testify

All of the State and defense witnesses took an oath to tell the truth before sitting in the witness stand to testify.

Ellis’s girlfriend, Whitney Derrick, was the first defense witness Daniels called after the State completed its testimony by its witnesses and rested. “I was driving,” she told the court, saying they were at Bell Chute and traveling south when they met the officer and after she saw the red lights, she turned onto Highway FF. “I was nervous and scared and kept going” at speeds of 75 to 80 mph, turning and driving by a house and driving to a creek bed. Asked why she did not stop for law enforcement, Derrick said she was scared because she was speeding. She was not drinking. She wanted to turn herself in but Ellis said no because she has kids. They took off, leaving the truck and spit up when he went to turn himself in. She stayed away, hiding about an hour and a half until it was clear. She called a friend who came and picked her up at about 1:30 a.m.

Derrick said she doesn’t drink but Ellis had a 12 pack of beer in the refrigerator and drank before they went to Bell Chute. She said it was not right for her to be speeding as she was and it was scary. She didn’t want to be in trouble and her adrenalin was high. Later, when Ellis was in court, she wanted to come forward and say she was driving but Ellis said no. It was the same when they were in the woods that night and Derrick said she did what the person she loves told her to do and let him take responsibility for the chase. She stayed in the woods until it was clear. She said she saw the red and blue lights of law enforcement vehicles in the distance and sounds, too, but she could not make them out. The truck was left in the creek bed and Derrick said she had to get in the water to get out. She called a friend to come and get her when the coast was clear.

Derrick said she came forward at this time to “say what I did” and not let Ellis take the fall for her mistakes. “I can’t let him go to prison for something I’ve done. I can’t do that,” she said.

Derrick’s friend, Christina Hock, said Derrick called her that night at about 12:30 a.m. asking for a ride, which she did and brought her back to her house. She used Google maps to find MCR 519 and actually found her on MCR 520. She said Derrick’s clothes were wet. Daniels asked her what state she found Derrick to be in that night and Hock said, “Just tired.” 

States’s closing statement

In her closing statements, Prosecutor Schwartze restated the evidence presented by witnesses. She said the case comes down to who was operating the motor vehicle. Deputy Andrews did not see the person driving the truck and Ellis on the phone with Sheriff Heitman did not mention another person nor did he tell the sheriff he was not driving, only that what he could be charged with. “For a whole year he didn’t tell anybody he wasn’t driving. The day before the trial, he says he wasn’t driving,” Schwartze told the jury. “Is it believable she thought speeding was worse that a DWI?” Derrick also said she saw red and blue lights and the trooper said his front lights were on but not the emergency lights. Schwartze noted the inconsistencies in the testimony by Derrick in regard to the county road numbers, wet clothing versus torn clothing, and not being able to tell which way the truck turned during the pursuit. Schwartze said the State has shown Kevin Ellis was DWI and ran as far as his vehicle and his feet would go until he was frustrated and drunk in the woods and the sheriff talked him out. “Find him guilty,” she said.

Defense closing statement

In his closing statements, Daniels said the prosecutor was trying to nitpick because other law enforcement vehicles at the scene may have had red and blue lights on. “In a creek” has a different meaning to different people. Also, Derrick did not go stomping through the woods but stayed put. “Making her a liar is assuming a lot. The times match. These people aren’t lawyers and don’t think like lawyers,” he said. Derrick told them she panicked. If Ellis was that drunk, how did he drive that fast down Highway FF with its twists and turns and navigate all the way down and outrun law enforcement as it seems improbable that he didn’t run off the road.  Daniels said the State can’t put Kevin Ellis in the truck and there is a lot of doubt whether or not he was driving that truck. Daniels said, “People do funny things when police lights go on.” He said that common sense finally prevailed in this case. “Kevin Ellis was drunk as a skunk and close to the time of reckoning the truth came out.” Both witnesses were straight forward and Daniels said if they aren’t convinced, then Ellis is not guilty. “Kevin Ellis for all his faults was not driving that truck.”

Schwartze then pointed out some inconsistencies in Derrick’s testimony who did what Ellis said for a whole year. “Would she come in here and lie for him?” Schwartze said all the facts find Ellis guilty of DWI beyond a reasonable doubt. 

Later, after the court was over, Schwartze said, “The charge of perjury requires more proof beyond a reasonable doubt that witnesses were lying in their testimony at trial than the fact that 12 jurors voted not to believe them. Charges against them will probably not be filed.”