Appeals court affirms conviction


By Ed Runyan

runyan@vindy.com

WARREN

The 11th District Court of Appeals has affirmed the 2009 conviction of Eugene Cumberbatch of Warren on two counts of aggravated murder for his role in the murders of Lloyd McCoy Jr., 11, and Marvin Chaney, 26.

The same court also upheld a Trumbull County jury’s verdict that found Cortland police patrolman Jason Smith not liable in a wrongful-death lawsuit filed by the estate of 16-year-old Cassandra Thompson, who died after Smith’s cruiser hit her while Smith was responding to a police call in 2006.

Cumberbatch, 28, was convicted of participating in a retaliation murder of Chaney at Chaney’s house on Wick Street Southeast on April 13, 2009, that also killed McCoy and injured another young relative of his.

Cumberbatch was sentenced to 38 years to life in prison.

Police said Eugene Henderson, 26, also of Warren, drove Cumberbatch and a third man to the house Chaney shared with McCoy’s sister, Brittnay McCoy, to kill Chaney for allegedly stealing money and drugs from Henderson.

Henderson fired an AK-47 dozens of times into Chaney’s house, while Cumberbatch is believed to have fired only once because his gun jammed. Both men exited a borrowed car and fired from the street in front of the house.

Henderson also was convicted in the murders and was sentenced to life in prison with no parole.

Cumberbatch appealed on the grounds that his convictions were not supported by evidence.

The three-judge panel unanimously disagreed, saying evidence included DNA on sunglasses and a cell phone found in the street, Cumberbatch’s admission that he was “regularly around Eugene Henderson” and testimony from the third man in the car, Marcus Yager of Warren, which the appeals court said appeared to be credible.

Meanwhile, the court, in a decision released Friday, said it did not agree with attorneys for Thompson’s estate who argued that Visiting Judge Thomas P. Curran erred in excluding the testimony of “expert witness” Glenn McHenry, a former police officer trained in traffic investigation.

McHenry would have told jurors that Smith didn’t have the right to speed on his way to a police call unless he was operating his emergency lights and siren, the appeals court said.

Conversely, the “ultimate question to be determined by the jury in this case was whether the officer’s conduct was willful, wanton or reckless, not whether he had the discretion to operate the [cruiser] in the manner he did,” the appeals court said.

The problem with McHenry’s “expert testimony” was that it would have been “a jury instruction as to the law, couched as an expert opinion. The trial court recognized it and excluded it,” the appeals court said.

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