People v. Davis

• Decision Date: 21 March 2014
• Citation: 115 A.D.3d 1167,2014 N.Y. Slip Op. 01851,982 N.Y.S.2d 230
• Parties: The PEOPLE of the State of New York, Respondent, v. Jabre DAVIS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 1167

982 N.Y.S.2d 230

2014 N.Y. Slip Op. 01851

The PEOPLE of the State of New York, Respondent,

v.Jabre DAVIS, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

March 21, 2014.

Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of Counsel), for Defendant–Appellant.

Jabre Davis, Defendant-Appellant pro se.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS AND WHALEN, JJ.

MEMORANDUM:

On appeal from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the second degree (§ 265.03[3] ), defendant contends in his main and pro se supplemental briefs that the verdict is against the weight of the evidence. We reject that contention. As defendant concedes, he was present when the victim was shot in the head at close range, and he was identified as the shooter in separate showup procedures by two eyewitnesses to the shooting, both of whom later identified defendant in a lineup. Moreover, one of the eyewitnesses also identified defendant in a surveillance video taken at a store that defendant had entered shortly before the shooting occurred. The video showed defendant and the three other men who were with him when the victim was shot, one of whom defendant claims to have been the shooter. Upon observing the four men in the video, the eyewitness informed the police that, although he initially doubted whether he had correctly identified defendant in the showup procedure, he was now certain that defendant was the person he had seen shoot the victim. At trial, both eyewitnesses unequivocally identified defendant as the shooter. The eyewitnesses did not know defendant prior to the shooting, and neither had any apparent motive to accuse him falsely.

In addition to the eyewitness testimony, the People introduced evidence that, after the shooting, defendant ran from the scene and hid in a nearby house, which was surrounded by the police. Defendant refused to come out of the house for approximately 30 minutes and, when he eventually emerged, he was wearing a different shirt than the one he had been wearing when the victim had been shot. Defendant then lied to the police, stating that he had not heard any shots being fired and that he had not observed the victim involved in an altercation immediately before the fatal shot was fired. Defendant's actions following the shooting evinced a consciousness of guilt.

As defendant correctly notes, both eyewitnesses testified that the shooter had been wearing a white T-shirt with air brushing on the front and back, and the surveillance video showed that defendant was wearing a white T-shirt with air brushing on the front only, while another man present at the time of the shooting had been wearing a white T-shirt with air brushing on the front and back. The other man in a white T-shirt was not apprehended and was not identified. Defendant also points to the fact that the police searched the house into which defendant fled, as well as the surrounding neighborhood, and did not find any firearms. We note, however, that the prosecutor argued that defendant had sufficient time in which to hide the murder weapon before he entered the house and that, given the chaotic scene following the shooting, the eyewitnesses were simply mistaken regarding the presence of air brushing on the back of the shooter's T-shirt.

This case turned largely upon the reliability, as opposed to the credibility, of the two eyewitnesses who repeatedly and consistently identified defendant as the shooter, and neither of whose identification was influenced by the other. We are mindful that “mistaken eyewitness identifications play a significant role in many wrongful convictions” ( People v. Santiago, 17 N.Y.3d 661, 669, 934 N.Y.S.2d 746, 958 N.E.2d 874), and we are cognizant of our duty to conduct an independent assessment of all of the proof ( see People v. Delamota, 18 N.Y.3d 107, 116–117, 936 N.Y.S.2d 614, 960 N.E.2d 383). In our view, however, this is not an appropriate case to substitute our reliability determinations for those of the jury, inasmuch as the identifications of defendant by the eyewitnesses were not “incredible and unbelievable, that is, impossible of belief because [they were] manifestly untrue, physically impossible, contrary to experience, or self-contradictory” ( People v. Rumph, 93 A.D.3d 1346, 1347, 940 N.Y.S.2d 769,lv. denied19 N.Y.3d 967, 950 N.Y.S.2d 119, 973 N.E.2d 217 [internal quotation marks omitted]; see People v. Wallace, 306 A.D.2d 802, 802–803, 760 N.Y.S.2d 702). “Sitting as the thirteenth juror ... [and] weigh[ing] the evidence in light of the elements of the crime[s] as charged to the other jurors” ( People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that, although a different verdict would not have been unreasonable, it cannot be said that the jury failed to give the evidence the weight it should be accorded ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;People v. Kalen, 68 A.D.3d 1666, 1666–1667, 890 N.Y.S.2d 877,lv. denied14 N.Y.3d 842, 901 N.Y.S.2d 148, 927 N.E.2d 569).

Defendant further contends that the identifications of him by the two eyewitnesses were the product of inherently suggestive showup procedures, and that County Court therefore erred in denying his motion to suppress their identification testimony. We reject that contention as well. Although showup identification procedures are generally disfavored ( see People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337), such procedures are permitted “where [they are] reasonable under the circumstances-that is, when conducted in close geographic and temporal proximity to the crime-and the procedure...