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Attorneys ask to dismiss murder indictment
By Joe Gorman
YOUNGSTOWN
An attorney for a man charged with a 2003 murder asked a Mahoning County Common Pleas Court judge Monday to dismiss the indictment against his client and reinstate a guilty plea and sentence in the same case.
Damon Clark, 30, is facing a charge of aggravated murder in the death of 29-year-old Robert Smith of Eliot Lane in December 2003. Clark’s attorney, William Mooney of the state public defender’s office, asked Judge Shirley J. Christian to dismiss an indictment prosecutors filed against Clark in 2009 in the death of Smith.
Mooney said Clark originally was charged with complicity to commit murder and aggravated robbery in Smith’s death. He pleaded guilty to a charge of receiving stolen property, and the complicity and other charges were dropped in exchange for his testimony against another person charged with Smith’s death, Darrin Moore, 28.
Clark was sentenced to a year in prison on the receiving-stolen-property charge after Moore’s trial was over.
Clark testified, and Moore was convicted, however, the case was overturned on appeal and sent back to common pleas court. Clark did not testify the second time, and he was charged with Smith’s murder in 2009. Prosecutors said Clark reneged on his plea agreement by not cooperating in the second case against Moore, who was retried and convicted for Smith’s death without Clark’s testimony.
Mooney argued that under a ruling in a recent state Supreme Court case, Clark’s murder indictment should be dismissed. Mooney said the high court ruled in State vs. Gilbert that once a defendant takes a plea and is sentenced, the court loses jurisdiction over the case and can not get it back once a defendant is sentenced.
“Nothing can create jurisdiction that doesn’t exist,” Mooney said.
He said in Moore’s second trial, Clark never was asked to testify, and it was clear his testimony was not needed anyway because Moore still was convicted.
Assistant Prosecutor Dawn Cantalamessa said that because Moore’s conviction was overturned, that means the case starts all over again as if it never happened, so there was never a question of the court losing jurisdiction over Clark. She said that when Moore was tried the second time, Clark refused to talk with prosecutors. Cantalamessa said that Clark’s agreement called for him not only to testify but also cooperate, and the fact that he refused to talk to prosecutors meant he was not cooperating and therefore he breached his plea agreement.
Judge Christian said she will study the case further and rule at a later date.
Clark already is serving a sentence of 25 years to life in prison after he was convicted of complicity to commit murder and other charges in the May 5, 2007, shooting death of 3-year-old Cherish Moreland on Stewart Avenue.
Clark was the driver of a car that drove by a home where the girl was playing in the front yard, and a passenger, Stoney Williams, fired a shot because he was upset that he had been kicked out of a party there. The girl was killed. Williams pleaded guilty to aggravated murder charges and was sentenced to 28 years to life in prison.