YOUNGSTOWN Manslaughter conviction overturned on appeal

The man was convicted of a lesser crime.
By BOB JACKSON
VINDICATOR COURTHOUSE REPORTER
YOUNGSTOWN -- Two appellate judges have reversed the voluntary manslaughter conviction of John Perdue and ordered him to be released from prison.
A third judge disagrees with the ruling, calling it "unsupported and troubling."
Perdue, 22, of Bruce Street, was indicted on a murder charge in June 2000 and went on trial four months later in Mahoning County Common Pleas Court. After nearly two days of deliberation, a jury convicted Perdue of the lesser crime of voluntary manslaughter.
Judge Jack Durkin sentenced Perdue to eight years in prison.
Perdue was charged with the shooting death of Raymond Ortiz, 21, in May 2001. Police said the two had argued over a $5 bet in a craps game behind a Shehy Street market. Perdue argued it was self-defense.
Perdue's lawyer, John B. Juhasz, appealed, arguing that the evidence presented at trial did not support a conviction for voluntary manslaughter.
Judges Mary DeGenaro and Gene Donofrio of the Ohio 7th District Court of Appeals agreed with Juhasz. In a decision handed down Tuesday, they overturned the conviction and ordered that Perdue be set free.
Judge DeGenaro wrote in her opinion that under Ohio law, murder requires proof only that a person purposefully caused the death of someone else. Voluntary manslaughter, however, requires specific proof that the killer was provoked to act under a sudden fit of passion or rage.
Trial testimony showed that Perdue was afraid because Ortiz pulled a gun on him, but there was no proof that Perdue was ever enraged or angry, Judge DeGenaro wrote on the majority opinion.
She said fear alone is not sufficient to prove that Perdue acted in a sudden fit of rage when he later took the same gun and used it to shoot Ortiz.
Lone dissenter
In a 10-page dissenting opinion, Judge Cheryl Waite said the conviction and sentence should stand. She said Perdue does not dispute that he killed Ortiz.
"The jury apparently did not believe the self-defense theory," Judge Waite wrote. "Therefore, we are left with a defendant who has undeniably committed murder but is upset with the jury for convicting him of a lesser crime."
Judge Waite said prosecutors did not have to present proof of a sudden fit of rage because they were trying to convict Perdue of murder.
"It cannot be error for the state to fail to prove something that it never had a duty to prove in the first instance," Judge Waite wrote.
Juhasz had not yet seen the ruling, but said he is both surprised and pleased.
Prosecutor Paul Gains said he will appeal the decision to the Ohio Supreme Court. Assistant prosecutor Janice T. O'Halloran filed a motion Tuesday afternoon asking the appellate court to delay Perdue's release from prison while the appeal is pending.
bjackson@vindy.com