The Akron Legal News

Man who killed bystander in gunfight loses appeal

ANNIE YAMSON
Special to the Legal News
Published: January 29, 2014

In a recently released opinion, the 8th District Court of Appeals partially affirmed the judgment of the Cuyahoga County Court of Common Pleas, convicting L’Ddaryl Ellis of murder, involuntary manslaughter and two counts of felonious assault, all with attached firearm specifications.

However, the appellate panel ruled that the Cuyahoga County court improperly found Ellis guilty of aggravated riot because Ellis was accompanied by only three other men when he committed his offenses.

The law requires that a person charged with aggravated riot to have participated with at least four others in a course of disorderly conduct so the court of appeals determined that the state did not meet the basic element of that charge.

Ellis waived his right to a jury trial and, on March 6, 2013, a bench trial including 17 witnesses began.

Several of the witnesses participated in the shooting incident that led to Ellis’ arrest and they were already serving their sentences at the time of the trial.

A.B. Tipton, one of the participants, testified that on the night of March 13, 2012, he and his friend Jimeel Germany left a group of friends and decided to ride their bikes to a gas station.

On the way, they passed by Ellis and three other men and Tipton noticed that Ellis had a gun in his hand.

On their way back from the gas station, Ellis fired shots in the air.

In response to the gunshots, Tipton and Germany ran for cover and returned to East 95th Street to regroup with their friends.

A few minutes later, Ellis and his companions arrived at the south end of the street and began shooting.

A gun fight ensued between the two groups of men during which a bullet struck Elissa Hereford, who had been looking through her window at the gunfight.

Hereford’s body was found in a pool of blood that trailed to the adjoining room, where responding police found a bullet hole in the wooden window frame.

Det. Ignatius Sowa of the Cleveland Police Homicide Unit testified that the coroner had determined that the gunshot penetrated Hereford’s upper thigh and traveled to her femoral artery, causing her to bleed to death.

Of the many shell casings recovered from the scene, Sowa testified that eight of them were from a 9mm handgun that was never recovered.

He also told the court that those eight casings were located in a direct line to Hereford’s house across the street.

Another detective testified that a morgue pellet recovered from Hereford’s body matched the eight casings from the 9mm gun that was not recovered.

Roderick Burnett, a companion of Ellis during the gun fight, testified that Ellis had a semiautomatic handgun on the evening of the altercation.

On April 15, 2013, Ellis appeared for sentencing.

The involuntary manslaughter, felonious assault and aggravated riot counts were merged with the murder and the trial court imposed a term of 15 years to life in prison, to be served consecutively to a mandatory three years for the firearm specifications.

Upon appeal, Ellis challenged the sufficiency and manifest weight of the evidence supporting his convictions.

The district’s three-judge appellate panel ruled that there was insufficient evidence to support the riot charge but affirmed the remainder of Ellis’ convictions.

“Although the evidence is largely circumstantial, we note that circumstantial evidence has the same probative value as direct evidence,” wrote Judge Patricia Ann Blackmon for the court of appeals.

“As such, in reviewing the evidence in a light most favorable to the prosecution, we find that any rational trier of fact would conclude, from the testimonies of the witnesses and the physical evidence collected, that Ellis, while attempting to cause physical harm or death to the members of the other group, caused Hereford’s death.”

The appellate panel determined that the logical conclusion was that Ellis fired the bullet that killed Hereford.

It noted that several handguns were recovered from the other defendants and none of them discharged the eight shell casings from the missing gun or the pellet removed from Hereford.

Ellis also argued that Tipton’s testimony was unreliable and that the court admonished the witness when he was reluctant to answer the prosecutor’s questions.

According to the trial record, when Tipton took the stand he immediately became uncooperative and refused to respond to questioning.

“This was not part of my plea bargain so why do I have to do it?” Tipton asked the court. “I got my time already, this is not benefiting me in no circumstances.”

The trial judge proceeded to explain to Tipton that his testimony was not related to his plea bargain.

He stated that Tipton had been subpoenaed, placed under oath and was required to answer the questions.

Tipton replied by saying, “I’m done with this, I got my time, this is not by the benefit of me so, I’m done.”

Later, he told the court that he did not remember what happened.

The trial judge then stated that if Tipton refused to answer the questions, he would be held in contempt of court.

He also clarified that he was not threatening Tipton but that, under Ohio law, a subpoenaed witness is required to answer the questions.

Ellis claimed that the exchange proved Tipton was coerced into testifying in conformity with his police statement, but the appellate panel disagreed.

“Despite Ellis’ assertions that Tipton’s testimony was procured by threats, the trial court specifically told Tipton that it was not threatening him, but just instructing him as required under the law,” wrote Judge Blackmon. “We find nothing in the above exchange or elsewhere in the record that is indicative of coercion.”

The court of appeals also overruled claims from Ellis that he was provoked and acting in self-defense and that he received ineffective assistance of counsel.

The judgment of the Cuyahoga County court was affirmed with respect to all of Ellis’ convictions except the aggravated riot, which was vacated.

Presiding Judge Sean Gallagher and Judge Mary Eileen Kilbane concurred.

The case is cited State v. Ellis, 2013-Ohio-116.

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