A Madison County jury found twin brothers guilty Tuesday of being felons in possession of a handgun, but the case is not over yet.
The jury recommended that Elton and Eltron Bailey, 23, serve eight years behind bars for possessing a handgun that is alleged to have been used in an April 12 shooting on East Main Street. The Baileys also were charged in the same incident with attempted murder and first-degree wanton endangerment.
No one was injured in the shooting.
The handgun-possession charge was tried separately because the court found that trying it in conjunction with the charges of wanton endangerment and attempted murder charges would be prejudicial.
“The remaining counts in the indictment will still need to be resolved,” Assistant Commonwealth’s Attorney Jennifer Smith said after the trial.
Eltron Bailey also has two other felony cases pending in Madison Circuit Court, one in which he’s accused of firing a gun at a woman while she was pregnant with his child, and the other for allegedly tampering with his prisoner-monitoring device while out on bond.
On Monday, the jury heard testimony about the April 12 shooting from Richmond Police Department Detective Eric Long, who was on the stand for nearly three hours. During his testimony, jurors watched video of the incident that was captured by surveillance cameras from a nearby tobacco discount store.
In the video, two men can be seen walking up to a Chevrolet Monte Carlo as it is pulling out of the tobacco store’s parking lot. One man hands the other one something, and that man starts running toward the Monte Carlo as it heads down East Main Street.
At the same time the incident was filmed at 6:06 p.m., police received a report of gunshots heard in the same area.
Elton and Eltron Bailey were later found in a nearby Linden Street apartment with two other men. It took two hours before the men came out of the apartment and surrendered to police, according to Long’s testimony.
Police reported finding clothing in the apartment consistent with clothes the men in the video were wearing, along with a Bryco 9 mm pistol in a hole near the apartment’s back door.
Police recovered seven spent 9 mm casings and one live 9 mm round at the scene of the shooting.
A fingerprint analysis by a Kentucky State Police expert, who testified at the trial, found Eltron Bailey’s fingerprint on the gun in a position that was consistent with firing the weapon.
Although it took several days, police were able to locate the target of the shooting – Jonathon “Pookie” Harris. Harris was uninjured, but he did not cooperate with police on identifying his assailants, Long testified.
The Baileys’ attorneys argued the surveillance video did not clearly show the shooter’s face, and it also did not show what item was being handed off. No witnesses or even the intended target had positively identified the Baileys as being involved in the shooting, said Brian Barker, who represented Eltron Bailey.
“Not one person has ever identified Eltron Bailey as being in possession of a handgun April 12,” Barker said. “This is not a crime that occurred in the dark of night in a deserted area.”
Timothy Despotes, who represented Elton Bailey, said there was no fingerprint evidence that his client had touched the gun, and even if he was one of the men seen in the video, he could have been handing anything – a cell phone, money or a cigarette – to the other man.
Jennifer Smith focused on what she said the evidence proved beyond a reasonable doubt.
“These two men, these two convicted felons, want you to believe that they’re not the two men involved in that shooting,” she said.
However, the totality of evidence presented during trial showed “that is not only not reasonable … that is utterly unbelievable,” Smith said.
Verdict and sentencing
The jury deliberated for a little over an hour before reaching the guilty verdicts. During the sentencing phase of the trial, Commonwealth’s Attorney David Smith presented information about the Baileys’ prior criminal history.
Elton Bailey was sentenced in Fayette County Circuit Court in 2009 to a total of 10 years in prison on charges of second-degree assault, felony theft and carrying a concealed deadly weapon. Eltron was sentenced in the same case to five years in prison on charges of first-degree and second-degree wanton endangerment.
The twins’ father, Elton Bailey Sr., asked the jury for leniency when recommending a sentence. He said Elton and Eltron both were on the honor roll in junior high but had fallen in with “the wrong crowd” while growing up in Lexington.
The charge of being a convicted felon in possession of a handgun carries a sentence of five to 10 years in prison. The commonwealth’s attorney asked the jury to give more than the minimum sentence based on the Baileys’ history.
Elton and Eltron did not fall in with the wrong crowd, David Smith told the jury, “... they are the wrong crowd.”
After an hour and a half, the jury returned with a unanimous recommendation that each man serve eight years in prison.
Judge William G. Clouse set final sentencing for 1:30 p.m. March 7.
Sarah Hogsed can be reached at firstname.lastname@example.org or 624-6694.