The Akron Legal News

Man who murdered victim after dispute loses appeal

ANNIE YAMSON
Special to the Legal News
Published: March 24, 2016

A Cincinnati man who murdered his friend over a missing cellphone lost his appeal when the 1st District Court of Appeals recently reviewed his case.

Terry Clark was convicted of murder with accompanying weapon specifications, felonious assault and having a weapon under disability after a bench trial in the Hamilton County Court of Common Pleas.

He was sentenced to 18 years to life in prison.

In his appellate brief, Clark raised four assignments of error.

He contended that his constitutional right to a public trial was violated as was his right to be present during all stages of his trial, that his convictions were against the manifest weight of the evidence and that his due process rights were violated when the trial court used felonious assault as the predicate offense for his felony murder conviction.

“Finding no merit to Clark’s arguments, we affirm the trial court’s judgment,” Presiding Judge Sylvia Hendon wrote in the opinion she authored on behalf of the court of appeals.

The evidence presented at trial established that Clark and the victim, Lamont Adams, were at a party on Oct. 12, 2013 along with Essense Jones and several other people.

The group dispersed once police arrived in response to a noise complaint, though Adams remained on the scene.

When the police left, those who had fled returned to the party. Clark apparently arrived to find that his car keys and his cellphone were missing from his car and he embarked on a search for the items, asking everyone at the party if they had seen them.

The following evening, still searching for his keys and phone, Clark called Jones.

At the time, Jones was with Adams and their friend, Daniko Mizell, in Adams’ car traveling along St. Elmo Street.

After Jones told Adams where they were located, he arrived within minutes and started asking the group about his missing items.

Court documents state that the discussion began to escalate and Jones exited the vehicle after Clark said, “You better quit playing before I shoot one of you all.”

As she walked away, Jones heard a gunshot and then saw Clark and Mizell run from the scene as Adams lay on the ground near his car.

Shortly after the shooting, Jones received a phone call from Clark that she did not answer.

In a voicemail that Clark left, he could be heard saying, “I shot his a---. Well, he knew I was gonna shoot him, they keep lying.”

By the time police arrived on the scene, Adams was dead.

Clark was apprehended almost two weeks after the shooting and charged with Adams’ murder.

At the bench trial that followed, he claimed self defense, stating that Adams pulled a gun first and that he believed Adams was about to shoot him.

The self defense claim was raised again when Clark appealed.

According to him, his convictions were against the manifest weight of the evidence because the record established that he acted in self defense.

“A defendant is entitled to rely on the affirmative defense of self defense when he establishes that he was not at fault in creating the violent situation, that he had a bona fide belief that he was in danger of imminent death or great bodily harm, that the only means of escape was by use of force and that he did not violate any duty to retreat or avoid the danger,” Hendon wrote.

On review, the appellate panel found that Clark failed to prove that he acted in self defense because he was at fault in creating the situation.

He sought Adams out and initiated the confrontation about his missing belongings.

“Second, other than Clark’s self-serving testimony, the record contains no evidence that Clark was in danger of imminent death or great bodily harm,” Hendon wrote. “Jones never saw Adams threaten Clark or produce a weapon while speaking with him.”

The appellate panel also pointed out that no weapons were found on or around Adams after he was killed.

In another assignment of error, Clark claimed that the “closure of the courtroom” violated his right to a public trial.

The court of appeals, however, held that the courtroom was never actually closed.

Case summary states that the trial court became aware of an episode of witness intimidation when, mid-trial, a witness was videotaped entering and exiting the courtroom.

The video was posted on social media with a caption that labeled the witness a “snitch.”

After learning of this incident, the court ordered that anyone entering the courtroom present identification and banned cellphones.

The appellate panel disagreed with Clark’s characterization of the trial court’s actions as “closing” the courtroom.

“After becoming aware of an episode of witness intimidation, the court implemented a measure to protect the safety of all witnesses and to prevent further witness intimidation,” Hendon wrote. “No actual closure of the courtroom occurred.”

The reviewing court held that the measures were narrowly tailored, allowed the room to remain public and were “well within the discretion accorded to the trial court to control the proceedings before it.”

Clark also argued that his right to be present at all stages of the proceedings was violated when the trial court decided to hold a probable cause in order to determine whether or not to charge with contempt the person that posted the intimidating video.

Clark’s absence from this hearing formed the basis of his assignment of error.

But the court of appeals sided with the trial court when it determined that the hearing was completely unrelated to the proceedings against Clark.

“Because the probable-cause hearing was a collateral proceeding unrelated to Clark’s trial, his absence did not violate Crim.R. 43(A),” Hendon wrote.

Clark also argued that the predicate offense of felonious assault for his murder convictions violated his right to due process.

The court of appeals quickly dismissed that argument when it found that Clark provided no argument, reference to the record or citation of legal authority to prove his point.

“Having overruled all of Clark’s assignments of error, we affirm the judgment of the trial court,” Hendon concluded.

Judges Penelope Cunningham and Patrick DeWine joined Hendon to form the majority.

The case is cited State v. Clark, 2016-Ohio-948.

[Back]