Jurors to weigh murder charge in fatal shooting at a crowded ABQ nightclub

Attorneys made closing arguments Friday in the trial of a man charged with fatally shooting 40-year-old Kenneth Ellis in a crowded Albuquerque nightclub in 2024.

Theodore Toney, 46, is charged with first-degree murder for allegedly shooting Ellis in the head on April 6, 2024, as dozens of people milled nearby at the Navajo Elks Lodge, 525 San Pedro NE. Ellis was killed shortly before midnight by a single 9mm gunshot to the back of his head.

Jurors will begin deliberations Monday in 2nd Judicial District Court. Judge Lucy Solimon is presiding.

Prosecutors say the investigation was hampered by the reluctance of witnesses to speak with police or testify at Toney’s trial. Assistant District Attorney Jolanna Macias told jurors that witnesses feared retribution if they testified.

“Why? They do not want to suffer the same fate as Kenneth Ellis,” Macias said in closing arguments. An estimated 30 to 40 people were in the club at the time of the killing, she said.

“Nobody saw anything,” Macias said. “That’s because witnesses are scared. They are scared, and they have every reason to be scared.”

Prosecutors allege that Toney killed Ellis in revenge for Ellis’ testimony in the 2016 murder trial of Toney’s son, Oshay Toney, who was convicted on lesser charges and is now in prison.

“This case is about intimidation,” Macias told jurors.

Much of the case centered on surveillance video from the Navajo Elks Lodge, located just west of Expo New Mexico, that shows a crowded and chaotic scene inside the club at the time of the shooting. The club was hosting a birthday party at the time.

Toney’s attorney, Jonathan Schildgen, told jurors that the videos show only that many people with guns were inside the club at the time.

“Why are all these people in there with firearms?” Schildgen said in closing arguments. The videos also offer no evidence that Toney was armed or that he fired the fatal gunshot, he said. “This is a dangerous place with dangerous people, where dangerous things happen. There’s no way to know how many people are there and how many have firearms.”

Schildgen also said the lack of eyewitness testimony indicates only that no one saw Toney fire the fatal gunshot.

“The prosecutor mentioned many times that the witnesses were afraid,” he said. “That’s pretty much her opinion. I don’t know anybody that likes talking to police about these kinds of investigations.”

Ellis testified in the murder trial of Oshay Toney stemming from the 2015 killing of Ellis’ uncle, Marvin Ellis.

Oshay Toney, 29, was convicted in 2016 on lesser charges of aggravated battery and shooting at a motor vehicle and is serving an 18½-year prison sentence. He filed a lawsuit in February against the New Mexico Corrections Department, alleging he lost sight in one eye after he was shot in the face by a corrections officer in 2024.

Kenneth Ellis’ wife testified this week that Theodore Toney threatened at his son’s sentencing hearing in 2016 to kill Ellis and his family. Macias said Toney formed the intent to kill Ellis at that time.

“He formed that intent in 2016 and he had the opportunity on April 6, 2024, and he carried it out,” she told jurors.

Toney’s attorney called it unrealistic that Toney would have held a grudge against Ellis for a decade without making any effort to take revenge.

“In 10 years it never boils over until now,” he told jurors.