DeMario Ware is shown on tape robbing, and running from – but not killing – former world champion boxer Vernon Forrest. So why was Ware convicted for murder?
This is the question Ware's attorney, Michael Mann asked. And he said, this was the quandary faced by the Fulton County jury that handed down Ware’s verdict Thursday.
The count of felony murder – participating in a felony that causes a killing, either directly or indirectly, and in particular in this case, during an armed robbery – isn’t uncommon in Georgia criminal trials. But it was the sticking point in this one.
And that's why Mann is appealing the verdict.
"After speaking to the jurors, a number of them said they were confused by the language of the indictment, that stated that the felony murder was committed during the commission of the armed robbery," Mann told the Atlanta Journal-Constitution after Ware was convicted and sentenced to life imprisonment without parole. "He got the same sentence as if he put the gun in Vernon Forrest’s mouth and pulled the trigger."
While unable to see what goes on in the jury room, legal professionals recognize the challenge set before jurors.
"The concept of felony murder is an acquired understanding," Fulton County Superior Court Judge Alford J. Dempsey Jr., said in court Wednesday responding to a jury question about the charges. "For a lay person, it's a difficult thing to grasp."
Certainly, the 22-year-old Ware robbed Forrest at gunpoint on the night of July 25, 2009. Ware has admitted as much for the record.
But a different man, allegedly Charman Sinkfield, pulled the trigger, minutes after Ware's stick-up, nearly a mile away from the scene of the robbery and following a chase in which Ware found himself fleeing his victim.
Ware and Sinkfield are two of the three men, along with alleged getaway driver Jquante Crews, accused of playing some role in the 2009 robbery-turned-murder. With the three being named in a seven-count indictment that includes malice murder, the felony murder counts, armed robbery, aggravated assault, and gun possession while committing a felony, the jury has a lot to consider.
“The state has to prove that the defendant committed the underlying felony, and that it was foreseeable that anybody committing that felony could cause someone to lose their life,” said Don Samuel, a defense attorney asked about this case. “Even if the death was unintentional.”
But former DeKalb County district attorney J. Tom Morgan countered that it is likely Ware’s actions tie him to the murder under Georgia’s party to a crime laws.
“If the jury finds that he was committing a felony such as aggravated assault or armed robbery, whether the defendant meant for him to die or not, he was committing a felony that resulted in [Forrest’s] death,” Morgan said.
Thursday afternoon, Mann complained that this tactic was misleading to jurors.
"The felony murder is used abusively by the state of GA when (prosecutors) are unable to get a conviction of murder," he said.
The night of Forrest’s death, he was approached by Ware at a convenience store on Whitehall Street. Forrest had stopped in this poor neighborhood just outside downtown Atlanta to put air in one of the tires of his Jaguar sports coupe. He had planned to take home his godson, who was riding with him, then go out to meet with friends.
Sinkfield and Ware targeted the boxer because of his flashy car, according to testimony, and Ware robbed Forrest at gunpoint, taking Forrest’s gold championship ring and a diamond-encrusted Rolex watch.
When Forrest produced his own gun, he chased Ware across an I-20 overpass to an apartment building on Fulton Street, where Ware strong-armed his way in to hide.
Returning to his car, Forrest met Sinkfield, who had been with Ware at the convenience store. The two men exchanged words and Forrest turned his back on Sinkfield to leave.
Sinkfield allegedly fired 10 times at Forrest’s back, connecting seven times and killing the boxer.
Sinkfield was picked up by Crews, who drove away in Ware’s car, according to testimony, and met at Ware’s home, where Crews was given the stolen items to dispose of.
Both Crews and Sinkfield are awaiting trial on the same charges as Ware, with Sinkfield facing the death penalty.
Although Ware admitted to firing on a chasing Forrest, his shots never connected.
Even so, in closing arguments for the prosecution, Fulton County assistant district attorney Peter Johnson told jurors Ware was responsible.
“Mr. Ware set this all in motion,” Johnson said.
Samuel said the defense should have painted Sinkfield’s actions distinctly different from Ware’s actions.
“Somehow, the defense attorney is going to have to divorce the armed robbery from the death,” he said.
That may have happened.
Testimony has Sinkfield encountering Forrest some minutes after Ware was able to lose the boxer. Sinkfield even arrived at the place where he and Forrest meet in a different car than the one Crews was driving to rescue a frightened Ware.
Gwinnett County District Attorney Danny Porter, however, said time lapses between the initial felony and the killing don’t separate the parties involved if they are acting on the same plan.
“When they first met up and agreed to commit the crime, the first step in the conspiracy is satisfied,” Porter said.
Atlanta defense lawyer Bill Morrison said that a jury could look at Ware as somewhat of a victim since when he did actually shoot at Forrest, the prize fighter was chasing him with his own gun.
But, Morrison pointed out, “the fact that Ware had a gun makes his case that much more difficult.”
Morgan noted that the jurors, who are asked not to consider penalties, are unaware that felony murder carries the same sentence as malice, or premeditated murder: life imprisonment.
“The jury, in their mind is thinking it’s less than malice,” Morgan said of felony murder. “Prosecutors will argue [to the jury], ‘if you find him not guilty of malice murder, certainly he committed felony murder.’”
University of Georgia law school endowed chair Ron Carlson said the state’s party-to-crime law is broad, but said the jury has to focus on the overall plan – or lack thereof – by the defendants.
“The jury is going to be asking themselves, ‘Did these guys plan to kill anybody that got in their way?’” Carlson said. “In a deal like this everybody is culpable. The question is; what is the level of culpability of each individual actor?”
Carlson depicted a sort of “good robber/bad robber” scenario:
“If one of the two guys going into a bank and says to the other, ‘in and out, nobody gets hurt,’ and the second guy, who is a hot head, shoots up the place and somebody gets killed, surely they are both responsible under the party to a crime laws. The jury will assess both the level of seriousness of each actor, and they’ll likely give some leniency to the one who was not bloodthirsty.”
But Samuel said things could become even trickier.
“Even if the victim shoots your codefendant in self defense, and your codefendant dies, you’re culpable,” he said.
In the bank robbery scenario, Porter’s sees that even Crews, the alleged getaway driver in Forrest’s slaying, deserves his place on the murder indictment.
“The guy who’s outside waiting in the getaway car is just as much an armed robber as the guy who goes into the bank,” he said.
What the jury will do, however, is anybody’s guess.
“If trial lawyers knew what juries thought, we’d sell shoes for a living,” Porter said.
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