Modesto vendor's killer gets life sentence

rahumada@modbee.comApril 15, 2013 

  • ABOUT THE REPORTER
    Rosalio Ahumada
    Title: Courts reporter
    Coverage areas: Criminal cases, breaking news
    Bio: Rosalio Ahumada has been a reporter at The Bee for more than seven years, previously covering crime and public safety issues. He also has worked at the Merced Sun-Star, covering education.
    Recent stories written by Rosalio
    On Twitter: @ModBeeCourts
    E-mail: rahumada@modbee.com

— A 20-year-old man convicted of murder sat quietly in a courtroom Monday morning as a judge sentenced him to spend the rest of his life in prison for shooting an ice cream vendor during a botched robbery.

Stanislaus County Superior Court Judge Linda McFadden told defendant DeWalter Mitchell that she hopes he spends his time behind bars helping other inmates make better choices in their lives. She told the young man he acted selfishly, attacking 44-year-old Modesto resident Martin Ham.

“You took advantage of someone who couldn’t defend himself,” McFadden told Mitchell. “I’m sorry to sentence someone of your age to such a lengthy term.”

The prosecutor argued that the crime’s intent was to rob cash from Ham, who was drunk at the time and an easy target. Mitchell has no chance for parole.

Martin’s family attended Monday’s hearing but asked Deputy District Attorney Annette Rees to read in court a victim impact statement on its behalf before Mitchell was sentenced. The statement said the family feels sorry for Mitchell’s family, but not the defendant himself.

“It is something we will never get over,” the family wrote about Ham’s death. “All Martin had was a few dollars, and you didn’t even get that. Was it worth it?”

Mitchell’s family and supporters were upset, and many of them were crying outside the courtroom after the hearing. One woman yelled out, “Why?” when she heard the judge sentence the defendant. Bailiffs ushered her out of the courtroom.

Before the hearing started, McFadden warned the courtroom audience that she would not tolerate any disturbances. She said she understood that it might be emotional for some but that she did not want any outbursts.

A jury nearly seven months ago found Mitchell, of Modesto, guilty of murder and attempted robbery and enhancements for using a gun in the murder and causing death during the failed robbery.

Ham was found, with a gunshot wound, not far from his ice cream bicycle cart about 4 p.m. Oct. 8, 2011, near North Madison and Linden streets, about two blocks north of Maze Boulevard. He died at a Modesto hospital.

Lavell Whitfield, Mitchell’s accomplice in the attempted robbery, agreed to a plea deal with the district attorney’s office in exchange for his testimony. He was sentenced to serve 13 years, eight months, in a prison facility after he pleaded no contest to voluntary manslaughter for his role in the death of the ice cream vendor.

Witness doesn’t show

Before Mitchell was sentenced, Chief Deputy Public Defender Sonny Sandhu had one final opportunity to present new evidence he said would have produced a different verdict had the jury heard it. The witness with the new information, however, never showed up in court.

Sandhu told the judge that Stephan Johnson had been subpoenaed to testify in court Monday, but he had no idea where Johnson was. The defense attorney said Johnson heard Deshawn Woody confess to killing the ice cream vendor, and he sent Sandhu a letter describing the alleged confession.

Authorities tried six times to serve Woody with a subpoena at his home, but they were not able to find him. Sandhu said he obtained a photo of Woody, whose description is similar to Mitchell. He also said Woody used to live along Spencer Avenue in 2010, not far from the shooting scene, but he didn’t know for sure whether he lived there when the murder occurred.

The prosecutor argued that Johnson’s testimony can’t be considered reliable because he did not appear in court even after he was subpoenaed. She also said there was plenty of evidence that linked Mitchell to the shooting, including Mitchell’s DNA found on the murder weapon.

“There is overwhelming evidence of the defendant’s guilt,” Rees told the judge.

The defense attorney argued that the DNA evidence was not conclusive and shows only that Mitchell may have touched the gun at some point, but not when. Sandhu also said one of the independent witnesses testified she saw someone else at the shooting scene, not Mitchell.

Sandhu asked the judge to postpone the sentencing hearing again and issue a bench warrant for Johnson’s arrest. The judge denied the request.

“There’s a big difference from putting something on paper and testifying under oath,” the judge said in court. “I really don’t have any belief that Mr. Johnson will appear.”

McFadden told Sandhu that the totality of the evidence pointed to his client’s guilt, including a matching shoe print and text messages before the shooting that indicated Mitchell had a gun and was looking to commit a robbery. She said there has to be evidence that supports this alleged confession.

The judge said she believes the jury made the right decision in convicting Mitchell and that Johnson’s testimony wouldn’t change the trial’s outcome.

Bee staff writer Rosalio Ahumada can be reached at rahumada@modbee.com or (209) 578-2394.

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