An error in the instructions given to a Summit County jury could result in less prison time for an Akron man convicted of murder.
The instructions didn’t make it clear that jurors — in order to find Kennae Baker guilty of aggravated murder in the shooting death of another man — had to find that he did so while committing another crime. In this case, the crime was aggravated burglary.
The jury found Baker guilty of aggravated murder in May but acquitted him of aggravated burglary.
The parties didn’t catch the omission in the jury instructions until after the jury returned its verdicts.
Defense attorneys now argue that Baker, who was convicted of murder and felonious assault, should either be granted a new trial or the guilty verdict on the aggravated murder charge should be vacated. Prosecutors counter that the instruction error wasn’t prejudicial to Baker, and the verdict should stand.
Summit County Judge Alison McCarty heard from the opposing sides in a hearing Wednesday afternoon and plans to make a ruling by the end of the week.
The stakes are high for Baker, 21, who could face a life sentence without parole for the aggravated murder charge. The most he could get for the murder charge is life in prison with possible parole after 18 years.
Baker shot and killed D’Andre Pete, 24, on July 13, 2018, in Pete’s apartment in the Spring Hill complex where both men lived. Prosecutors allege Baker went to Pete’s apartment intending to rob him of money and drugs but ended up shooting him.
Baker claimed he shot Pete in self-defense. He testified that Pete thought Baker had shorted him in a marijuana sale and started to pull a gun out of his pocket to shoot him, so Baker fired first.
Jurors deliberated for about six hours before returning a split verdict May 20. They found Baker not guilty of aggravated murder involving a death during an aggravated robbery but guilty of aggravated murder involving a death during an aggravated burglary.
Jurors also found Baker guilty of two counts each of murder and felonious assault and not guilty of aggravated robbery, two counts of aggravated burglary, theft and a third count of felonious assault that involved Pete's girlfriend, who was in the apartment during the shooting but wasn’t injured.
The murder and felonious assault charges included gun specifications.
Joe Gorman, who represented Baker with attorney John Greven, immediately questioned the jury’s guilty verdict on the aggravated murder charge and later filed a motion asking McCarty to vacate the verdict or grant Baker a new trial.
Gorman said the instructions for the aggravated murder charge should have said the murder happened during an aggravated burglary and that the aggravated burglary was done with the “purpose to commit any criminal offense.” He said the instructions read to jurors by McCarty and provided to them in writing didn’t include this reference to “any criminal offense.”
“This is an error of law and caused an irregularity in the proceedings which denied the defendant his right to due process and his right to a fair trial,” Gorman said in his motion.
Assistant Prosecutor Kevin Mayer, however, said the verdicts returned by the jury were supported by the evidence. He said the error in the jury instructions was “insubstantial” and didn’t deny Baker any rights.
“This did not prejudice the defendant,” Mayer said during the hearing. “That is the standard by which the court must render its decision.”
McCarty said she will consider the arguments and make a written ruling. She said she will hold either a status conference or sentencing in the case at 2:30 p.m. Sept. 18.
The courtroom was crowded Wednesday with family members of Pete, many who wore T-shirts with pictures of Pete on the front and “Justice for D’Andre” on the back.
Pete’s family members expressed frustration with the process, which has now lasted for more than a year.
"I feel like they just don't care," said Dajourna Hall, a cousin of Pete. “It’s not our fault they messed up the paperwork."
Stephanie Warsmith can be reached at 330-996-3705, firstname.lastname@example.org and on Twitter: @swarsmithabj.