The victim in Reed was "shot three times at close range in broad daylight on a public street in Rochester" in front of seven eyewitnesses. (P v Reed at *3.) One witness "testified that the shooter bent over the victim immediately after the shooting," but none of the eyewitnesses saw the shooter take anything from the victim.
The defendant in Reed was ultimately convicted of felony murder*1, but he was not the shooter; it was alleged he drove the Lincoln that the shooter got into after the shooting. At least some of the witnesses identified the defendant as the driver of a Lincoln that was seen leaving the scene.
The car was not found until the day after the shooting. As described in the dissent,
The interior of the Lincoln was, as defense counsel aptly noted on summation, "in a state of disarray" at that time, and in that vehicle the police discovered various grocery items, including "one or two packages of sausage biscuits," an empty Snapple bottle, and a number of lottery tickets. Police also took from the Lincoln a plastic Tops supermarket bag, the handles of which were knotted and the bottom of which appeared to have been "ripped out."
(P v Reed, at *3.)
The plastic bag turned out to be the key piece of evidence in the case. Why? Because the shooting vicitm's girlfriend told the police that, about 30 minutes before the shooting, she had put $40,000 in a plastic shopping bag, knotting it at the top before sending her boyfriend out to buy drugs. The bag found in the car was knotted, but other than that it was unremarkable; as described by the dissenters:
No fingerprints or bodily fluids were found on the bag, nor was any hair. Moreover, defense counsel noted on summation, without objection, that there are "thousands, tens of thousands of Tops bags in [Rochester]," some of which were even carried by jurors during the trial.
(P v Reed, at *3.)
The mere presence of the bag in the car was enough for the majority to conclude that the shooting victim had been robbed during the shooting, thus transforming a straight murder to felony murder, and putting the defendant on the hook for murder without having to prove that he actually shared the shooter's intent to kill the victim. According to the majority,
It has long been the law in New York that evidence that a defendant possessed a wrapper or container that had held property before it was stolen is sufficient to support a conviction for stealing that property. Consequently, "this evidence, although circumstantial, was nevertheless more than sufficient to lead a reasonable person to conclude that defendant" or one of his accomplices stole the cash from the victim. The evidence also establishes that the victim was shot and killed while that cash was being taken from him, thus providing legally sufficient evidence with respect to the remaining elements of the charges of which defendant was convicted.
(P v Reed, at *2.)
Justices Fahey and Martoche dissented, relying on the special care taken by fact-finders in purely circumstantial evidence cases. As noted by the dissenters, "[w]hen the evidence is circumstantial the jury should be instructed in substance that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence." (P v Reed, at * 2.) The supermarket bag "is a common item," and it could not be said that the bag found in the car was the same one used by the victim to carry his drug money. Coupled with the fact that "none of the seven eyewitnesses to the shooting--many of whom also saw the assailant's departure from the area of the shooting--saw the taking of property from the victim . . . none of those witnesses saw anyone walk from the vicinity of the victim's body carrying anything other than a gun." (P v Reed, at *3.) No evidence of the robbery, hence no underlying felony to support the felony murder conviction, says the dissent.
It is probably good that the Fourth Department does not hear argument on cases during the summer. There were a lot of lengthy dissents this packet, and I imagine some of the panel conferences were getting pretty frosty. Maybe a nice break, some summer downtime, and the Justices will come back in the fall ready to get back to the normal business of affirming convictions unanimously.
*1 Basically, felony murder may be charged where somebody dies during the commission of a felony, whether or not the felons intended to kill anyone. Think security guard dropping dead during a bank robbery where the robbers were armed with realistic squirt guns.
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