CELL-PHONE MURDER CONVICTION UPHELD APPELLATE COURT SAYS PROSECUTORS FAILED TO PROVE GANG ENHANCEMENT.Byline: KAREN MAESHIRO Staff Writer LANCASTER -- An appellate court A court having jurisdiction to review decisions of a trial-level or other lower court. An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed. has upheld the murder conviction of a reputed gang member who fatally shot a teenager in an argument over a cell phone. The 2nd District Court of Appeal rejected arguments by Jerry Kelly Jerome Patrick Kelly (born November 23, 1966) is an American golfer. Kelly was born in Madison, Wisconsin. He graduated from the University of Hartford in 1989 and turned professional that year, but didn't make it onto the PGA Tour until 1996. III that there was prosecutorial misconduct In jurisprudence, prosecutorial misconduct is a procedural defense; via which, a defendant may argue that they should not be held criminally liable for actions which may have broken the law, because the prosecution acted in an "inappropriate" or "unfair" manner. and court errors during his trial. However, the court did rule that prosecutors failed to provide evidence that he'd committed the crime in association with or for the benefit of a gang. ``There is insufficient evidence insufficient evidence n. a finding (decision) by a trial judge or an appeals court that the prosecution in a criminal case or a plaintiff in a lawsuit has not proved the case because the attorney did not present enough convincing evidence. to support the criminal street gang enhancement and we therefore reverse the true finding on that enhancement and remand To send back. A higher court may remand a case to a lower court so that the lower court will take a certain action ordered by the higher court. A prisoner who is remanded into custody is sent back to prison subsequent to a Preliminary Hearing before a tribunal or magistrate for resentencing,'' the ruling said. However, the decision will not reduce Kelly's sentence of 50 years to life in prison. ``The sentence he was given on the basis of this (gang) enhancement was supposed to run concurrently with his sentence for murder and that still stands. The fact that it was concurrent means no time will now be subtracted from Mr. Kelly's sentence,'' Deputy Attorney General Jack Newman Jack Newman may refer to:
Kelly was convicted of first-degree murder in the May 2004 killing of 19-year-old Devontay Oats. Kelly received 25 years to life for the murder charge plus another 25 years to life for using a firearm firearm, device consisting essentially of a straight tube to propel shot, shell, or bullets by the explosion of gunpowder. Although the Chinese discovered gunpowder as early as the 9th cent., they did not develop firearms until the mid-14th cent. causing death. Kelly had a prior conviction of possession or purchase of cocaine for sale in 2001 and was paroled in January 2003, state records show. Kelly's mother and sister testified that he was at home at the time of the shooting, which occurred during a weekend party at a home in the 1800 block of East Avenue H-12. Oats' friends said the gunman arrived with a group of gang members who crashed the party. Soon after their arrival, the man claimed that his cell phone was missing and began searching partygoers. ``He was angry, and yelled `Nutty Block' (referring to a Crips gang) and that he was from Compton several times. Appellant A person who, dissatisfied with the judgment rendered in a lawsuit decided in a lower court or the findings from a proceeding before an Administrative Agency, asks a superior court to review the decision. asked the 60 to 70 people present to line up at the door so he could search them one at a time on the front porch. He said that if he found someone with his cell phone, he would be `popping' him,'' the ruling said. ``When appellant reached for Devontay Oats's pocket, Oats said he did not have the phone and pushed appellant's hand away. Appellant backed up, pulled out a black semiautomatic handgun, and the gun discharged. Oats was hit in the head and fell to the ground. Appellant shot Oats two more times, although accounts differed as to whether these shots followed the first immediately, or occurred after appellant had fled and returned,'' the ruling said. Kelly argued that the evidence presented at trial did not establish a pattern of gang activity as required and that there was insufficient evidence that the crimes were committed for the benefit of that gang. ``We find merit in appellant's contention that the prosecution failed to prove two predicate In programming, a statement that evaluates an expression and provides a true or false answer based on the condition of the data. offenses were committed by Nutty Block Crips gang members for the benefit of the gang,'' the ruling said. karen.maeshiro(at)dailynews.com (661) 267-5744 |
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