ELYRIA — The fear that has hovered at the edges of Bohannon Miller’s aggravated murder trial was in the open Thursday as prosecutors told Lorain County Common Pleas Judge James Miraldi that two witnesses were refusing to testify because they were worried about retaliation.
One witness, Raymond Fowler, told authorities that he would rather face a murder charge and possible life in prison than take the stand against Miller, who is accused of gunning down Marquis McCall during a June 22, 2009, drive-by shooting in Lorain.
“His exact quote was, ‘At least I’ll still be breathing,’ ” Lorain police Detective Buddy Sivert testified.
Assistant County Prosecutor Sherry Glass has asked that Sivert be allowed to tell the jury what Fowler and Larry Blake, who also faces murder and other charges in the McCall shooting, would have testified to if they were to take the stand. Blake also is refusing to testify in Miller’s trial.
Defense attorney Denise Wilms has argued that allowing someone else to testify about what Fowler said would deny Miller his constitutional right to confront his accusers. Glass countered that because Miller was responsible for the threats keeping Fowler off the stand, he had forfeited the right to confront the man.
Assistant County Prosecutor Tony Cillo, the county’s chief criminal prosecutor, testified that he was involved in cutting a deal with Fowler in which he agreed to cooperate in helping prosecute both Miller and Brady Phillips, who faces murder charges in an unrelated 2009 home invasion in Elyria that left two people dead and another wounded.
Prosecutors agreed not to charge Fowler in connection with the McCall shooting in exchange for his testimony. Fowler was expected to testify that he was in the car when Miller carried out the drive-by shooting in Lorain that left McCall dead and Craig Roberson wounded. Police believe that shooting was retaliation for the killing of Christopher Hill only hours before.
Cillo said Fowler, who is serving an eight-year prison sentence for drug, robbery, gang and other charges, told him during a meeting this week that while he has been in prison he has been attacked several times by members of the Heartless Felons, a gang Miller is allegedly connected to. Fowler believes those attacks were motivated by him being a “snitch,” Cillo said.
Miller is serving prison time on gang, weapons and other charges.
Sivert testified that Fowler told him that since his arrival at the Lorain County Jail last month he has had two encounters with Miller through glass partitions that separate the different areas of the jail where they are housed.
Fowler told Sivert that Miller had shown him court documents and told him that he would be the only witness to testify against him. Miller also allegedly told Fowler that he knew the names of his three nieces, something Fowler took as a threat against his family, Sivert said.
Jail Administrator Andy Laubenthal said Thursday that when Fowler arrived at the jail, he requested to be placed in protective custody because he feared for his safety. He also said that Fowler had found urine thrown under the door of his cell at the county jail.
Cillo said Fowler made it clear to him what would happen if he were called to the stand as a witness against Miller.
“He would lie and submarine our entire case,” Cillo said.
Miraldi said he plans to meet privately with Fowler to discuss his concerns about taking the stand before making a decision on allowing Sivert to testify in his stead. The judge also said the two sides will be able to address the issues surrounding Blake’s refusal to testify during a hearing today.
The hearing on the alleged intimidation consumed most of the day Thursday and one of the few witnesses called, Terry Atkinson, said he didn’t want to be there and didn’t remember anything having to do with the McCall shooting.
“I don’t want to be involved ‘cause I feel he didn’t do it,” Atkinson said.
As the lawyers and the judge were discussing the situation, Miller became upset that Atkinson was still on the stand.
“He already pled the Fifth (Amendment),” Miller called out as Wilms tried to get him to be quiet.
Miraldi pointed out that Atkinson wasn’t trying to claim he could face charges if he testified, but was rather saying he didn’t remember anything.