At about 10:30 p.m. on September 24, 1991, a gunman entered the Sam and Rose Deli on East 140th Street in Cleveland, Ohio, and fatally shot the clerk, Said Ali, in the head.
James Pope, 19, was working in the basement of the store and came upstairs when he heard the gunshot. The robber ordered Pope at gunpoint to open the cash register and took $2,000 from the drawer. When Pope begged for his life, the robber said, “I’m not going to shoot you, Boo,” which was Pope’s nickname.
Pope told police the gunman was a light-skinned black man in his mid-twenties around 5 feet, 8 inches tall with black hair, a goatee and mustache, wearing stone-washed jeans and white tennis shoes. He said the robber had a gold earring and a scar on his face.
Pope told a Cleveland police detective that the robber looked like a “guy named Darrell,” who was also known to him as “Dee,” and provided an address. Police went to the home, which was the residence of 23-year-old Darrell Houston, but he was not there. Houston’s mother provided a photograph of her son which was taken back to Pope, who identified Houston as “Dee.” Pope said he knew Houston from the neighborhood and that he had gone to Houston’s home to cut his hair.
At 2:55 a.m. on September 25, Houston came home, his mother called police and he was arrested. Police took a Polaroid photograph of him and his tan jacket which had a blood stain and was taken for testing. Houston told police he had gone to the delicatessen at 6 p.m., bought some beer and took it home. He said he spend the evening bar-hopping with friends until he arrived home shortly before 3 a.m. At the time of his arrest, he was wearing a brown hat, a tan jacket over a black hooded sweatshirt, brown pants, and black tennis shoes. He had an earring in his left ear.
The following day, Pope viewed the photographs taken by police and confirmed that the clothes Houston was wearing when arrested were the same clothes worn by the robber.
Several weeks later, Pope called police and said he saw someone who looked like the robber on the street. Police investigated, but were unsuccessful.
In 1992, Houston went on trial before a jury in Cuyahoga County Common Pleas Court. Pope testified that Houston was not the robber because he did not have a scar on his face. He said that if the mark were erased from the robber's face, "it would be Darrell."
The prosecution responded by summong a police officer who testified that Pope had failed to mention the distinctive mark when he described the robber at the time of the crime.
A crime lab analyst testified that gunshot residue was found on Houston’s jacket that was consistent with recent discharge of a weapon. The blood on the jacket was not the victim’s blood.
In Houston’s defense, a neighbor testified that he went to the delicatessen, but did not go in because a crowd was there and he learned there had been a shooting. He testified that he went to another store and when he returned home about 15 minutes later, Houston was standing on the front porch with some friends. Another witness testified that he was across the street from the delicatessen when he heard a shot and saw a young man come out and jog away wearing a hooded jacket or sweater and white tennis shoes.
Houston was convicted of aggravated murder with a firearm, aggravated robbery and illegal possession of a firearm. He was sentenced to 33 years to life in prison.
His conviction was upheld in 1994 by the Eighth District Court of Appeals of Ohio.
Over the ensuing years, Houston filed a variety of state and federal petitions seeking a new trial on the basis of newly discovered evidence—primarily that Pope had recanted his identification of him. Pope provided a sworn affidavit saying that he knew who the real gunman was, but was afraid to identify him for fear of retaliation. In fact, Pope didn’t know the man’s real name—only a nickname.
Houston’s petitions were all denied or dismissed.
In 2007, Houston filed an application for leave to file a motion for new trial, asserting for the first time that Pope could identify the gunman as Eugene Demarr Ware, an inmate in the Georgia Department of Corrections.
A judge allowed the petition and a hearing was held on Houston’s motion for a new trial. Evidence showed that sometime around the time of the trial—the date was not certain—Houston’s mother had obtained a photograph of Ware, which she gave to prosecutors to investigate as the real gunman. Prosecutors had no record of the photograph in their files.
Pope testified that the gunman was Ware, whom he knew as “Popeye.”
Moreover, a neighbor of Houston’s testified that he knew Ware and that Ware was living in the neighborhood of the delicatessen at the time of the crime.
On November 13, 2007, Common Pleas Judge Nancy Fuerst granted Houston’s motion for a new trial, noting that there was little evidence to support a conviction beyond Pope’s pre-trial identification. The judge commented on the photograph of Ware given to prosecutors by Houston’s mother: “That nothing ever came of the photograph and it did not appear in the state’s file could cast doubt on the thoroughness of the police investigation leading to the state’s prosecution of Houston.”
The Cuyahoga County District Attorney appealed the ruling and on January 22, 2009, the order granting a new trial was affirmed.
A new trial was convened for Houston in August 2010. A jury was selected and Pope was called to testify. On August 19, 2010, after Pope testified that Houston was not the gunman, the prosecution dismissed the charges and Houston was released.
– Maurice Possley