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Accomplices, killers pay same price



Published: Mon, October 12, 2009 @ 12:00 a.m.

Cases in Youngstown and Warren reinforce centuries-long tradition of like punishments

By ED RUNYAN

VINDICATOR STAFF WRITER

WARREN — The concept of an accomplice to a crime getting the same penalty as the primary offender goes back hundreds of years in the U.S.

Yet, a large segment of the population fails to realize that concept, said Atty. J. Dean Carro, a professor at the University of Akron School of Law.

In Mahoning County, for example, gang violence produced many murders in the 1990s in which groups of young men retaliated against others, sometimes with people along for the ride who felt they hadn’t done anything wrong — except “hang out with the wrong people.”

Such a case made headlines in Youngstown in 1996 when Leslie Johnson, a member of the Crips street gang, was convicted of assisting fellow gang member Sidney Cornwell in the aggravated murder of 3-year-old Jessica Ballew at the Oak Park Lane Apartments.

Lawyers for Johnson, 33, serving a life prison sentence, argued he was innocent because he was little more than an innocent bystander.

The day before Jessica was killed, June 11, 1996, Johnson and fellow Crips members were fired upon twice by a members of the rival Bloods gang, court documents say.

Johnson and others went looking for a particular Blood member and stopped at the Oak Park apartments looking to kill him.

Cornwell, now on Death Row, asked people on a balcony if they knew where the man was and then opened fire on them, killing the child, who had come out onto the balcony asking for a drink of water.

The Ohio courts that reviewed Johnson’s conviction by a Mahoning County jury were divided on whether Johnson was guilty of complicity to aggravated murder. But the Ohio Supreme Court eventually upheld Johnson’s conviction.

In Trumbull County this year, Eugene Cumberbatch, a then 26-year-old aspiring rapper from Front Street Southwest, befriended 25-year-old Pearl Street Southwest man Eugene Henderson.

Cumberbatch was convicted Sept. 25 of complicity to aggravated murder in the deaths of 11-year-old Lloyd McCoy Jr. and 26-year-old Marvin Chaney and was sentenced to 38 years to life in prison. Henderson’s trial is Nov. 2.

A third accomplice, Marcus Yager, testified at Cumberbatch’s trial that Cumberbatch only fired one time at the house on Wick Street Southeast where McCoy and Chaney were fatally wounded. He quit shooting when his gun jammed, Yager said.

Yager said Henderson used an AK-47 and fired most of the 25 shots at the house over money Chaney allegedly stole from Henderson. Yager is hoping to get one year in prison after Henderson’s trial is over.

At his sentencing, Cumberbatch said: “I’m not a murderer, not a killer. I didn’t kill little Lloyd or Marvin,” he said. “But for hanging out with people who probably made bad decisions, I’m guilty as charged.”

Carro said average folks with a limited knowledge of the law frequently don’t understand that an accomplice to murder can be held just as accountable as the primary offender.

The message that Carro says a young person might want to consider if he finds himself with someone planning a criminal act is to find a way to get out of the car or away from those people, he said.

The penalty for complicity to aggravated murder is exactly the same as the penalty for aggravated murder, Carro said, and that holds true everywhere in the United States. The concept goes back to the very founding of our country more than 200 years ago, he said.

Cumberbatch received a sentence of 30 years to life for complicity to aggravated murder and eight additional years for other crimes connected with the assault.

The most severe penalty he could have gotten was life in prison without any parole. Cumberbatch will be 65 years old before his first parole hearing.

Carro said there are cases in which defendants have a legitimate argument as to whether they deserve to be convicted of complicity to aggravated murder.

As director of his law school’s legal clinic, he filed an appeal in the case of Youngstown man Bertrum Moore, convicted of complicity to aggravated murder in the 2006 death of Martwain Dill in Youngstown.

Moore testified that he only drove the car during the killing but had no malice against Dill and only went along because he feared the other men in the car.

“Twenty years, and he didn’t even do the crime. I think that’s really ridiculous,” said Mark Barnes of Youngstown, brother of Bertrum Moore, who was 18 at the time of the offense.

Moore was sentenced to 20 years to life in prison.

In Moore’s case, Carro argued that the jury was not properly instructed that in order to find Moore guilty of the crime, it had to be convinced that Moore had the same “mental element” as the people who fired the gun.

The appeals court refused to overturn Moore’s conviction.

Carro said he has no problem with the concept of an accomplice’s getting the same penalty as the primary offender as long as the accomplice has the same mental state as the primary offender and the accomplice aids the primary offender in some way.

In the case of Johnson, prosecutors said he participated in the plan to kill a rival gang member. In the case of Moore, prosecutors argued that the murder would not have occurred without Moore’s driving his accomplices to the murder scene. In the case of Cumberbatch, prosecutors said he fired a weapon at the house, even though his bullet apparently didn’t hit anyone.

“There is one theory that your mere presence is supportive,” Carro said. If an accomplice knows what’s going to happen and assists, the person is culpable, he said.

runyan@vindy.com


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