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Court rules man responsible for FBI informant's death will be resentenced
ANNIE YAMSON
Special to the Legal News
Published: August 7, 2014
A Cleveland man convicted of the murder of an FBI informant and the assault of several FBI agents recently had his sentence reversed when a panel of three judges in the 8th District Court of Appeals ruled that the Cuyahoga County Court of Common Pleas did not make the statutorily required findings necessary for imposing consecutive sentences.
The defendant, Gary Ervin, was charged with 14 crimes in 2004 stemming from his role in a kidnapping. Ervin was tried by a jury with his codefendant, Aubrey Waller.
Trial evidence revealed that the victim, Darnell Lester, was an informant.
Lester had been arrested in Cleveland for drug charges in New York so he began working with the FBI in New York but remained living in Cleveland.
His handler was Special Agent Brian O’Rourke, who was stationed in New York City.
Case summary states that, on Dec. 22, 2003, Lester was in Cleveland driving a white GMC Safari van.
Four of his friends — Vernon Black, Andre Glasgow, Clifford Gillespie and Antawan McPherson — were also in the van.
Lester drive to a Mo’s Deli to meet with someone and got out of the vehicle.
Black was in the front seat and the others remained seated in the back of the van, which had no seats.
While Lester was outside, a scuffle ensued against the driver’s side of the van.
Black testified that Ervin then opened the driver’s side door, brandished a gun and told him to get out. Black complied and ran from the scene.
McPherson testified that the back doors of the van were opened and he saw chrome and guns.
People were yelling at the passengers to get out of the van while trying to shove Lester inside.
Glasgow was able to get out but the van drove off with McPherson and Gillespie still inside.
McPherson told the trial court that Lester was in the middle of the van on the floor “tussling” with someone.
At some point, the van stopped and he and Gillespie were let out. It was the last time that McPherson saw Lester alive.
Lester’s friends informed his family that he had been kidnaped by Ervin and Waller.
His mother tried repeatedly to call Lester’s cellphone but was never able to speak with him.
Lester, however, was allowed to use his cellphone to contact his “dealer.”
He called Special Agent O’Rourke and spoke to him as if he was a drug dealer.
At first, O’Rourke was unable to understand what was going on; he stated that Lester had never spoken to him in “street lingo” before.
O’Rourke began to question Lester in a manner that required only yes or no answers.
Eventually, he was able to figure out that Lester had been kidnapped and his captors were demanding ransom in the form of either drugs or money.
The special agent contacted the FBI in Cleveland. They mobilized their SWAT team and attempted to track Lester by using his cellphone signals from his calls to New York.
That evening, 36 calls were made between Lester and O’Rourke, setting up an exchange with Lester’s “dealer.”
A meeting was arranged in a Rally’s parking lot and the SWAT team knew only that the kidnappers would be driving a green GMC Jimmy.
The plan was to have a decoy vehicle in the Rally’s lot early so that the kidnappers would park next to it, then other SWAT vehicles would converge and box the Jimmy in.
However, the kidnappers arrived before the decoy vehicle could get there.
The FBI SWAT team converged on the Jimmy anyway, boxing it in with their own vehicles.
Ervin was driving the Jimmy and began ramming the vehicles surrounding him in an effort to break the containment.
He was able to break through and proceeded to drive directly at Special Agent Todd Werth, who was on foot.
Werth fired three shots while attempting to get out of the way.
Ervin was hit twice, once in the face and once in the hand. Lester, who was in the passenger seat, was hit by one fatal bullet to the chest.
Ervin drove out of the Rally’s parking lot and then crashed into a fence across the street.
FBI vehicles pulled up behind the van, at which point Waller opened the back door and started shooting at the agents with a 9-mm handgun.
Waller got off two shots before the gun jammed and he surrendered.
The jury convicted Ervin of felony murder and one count each of kidnapping, aggravated robbery, grand theft of a motor vehicle, carrying a concealed weapon and six counts of felonious assault.
He was sentenced to consecutive prison terms for a total of 31 years to life.
In August 2006, Ervin’s convictions were upheld by the 8th District but the case was remanded for resentencing.
The trial court issued three orders requesting that Ervin be returned from prison to Cuyahoga County for resentencing.
The prison, however, did not comply and it wasn’t until 2013 that Ervin’s resentencing actually took place. He received the same 31-years-to-life term.
In his recent appeal from that decision, Ervin contended that the seven-year resentencing delay violated his constitutional rights.
“When reviewing a delay in resentencing, the appellate court must consider whether the delay prejudiced the defendant,” wrote Presiding Judge Larry Jones on behalf of the appellate panel. “This court has previously not found prejudice in instances where the defendant was incarcerated during the delay and would not have been eligible for release during that time period.”
Though Ervin was serving the sentence imposed by the Cuyahoga County court, he had also been sentenced to 101 years by a federal court.
The appellate panel concluded it was impossible for Ervin to have been released within the seven years he had been waiting for resentencing.
Ervin also argued, for a second time, that the trial court erred in sentencing because it did not make the proper findings.
“We agree,” wrote Judge Jones. “The court failed to find that the sentence was necessary to protect the public from future crime or to punish Ervin, and it failed to make the disproportionality finding.”
The case was therefore remanded for the trial court to make the required findings and for another resentencing.
Judges Sean Gallagher and Eileen T. Gallagher joined Judge Jones to form the majority.
The case is cited State v. Ervin, 2014-Ohio-2981.
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