S. Ct. Crim. No. 2012-0071

In a prosecution that led to judgments of the defendant's guilt of a number of crimes, including assault, reckless endangerment, various firearms offenses, and first-degree murder, leading to a sentence of life imprisonment without the possibility of parole, challenges to the sufficiency of the evidence, and allegations of errors made at trial, are rejected. The testimony of two key witnesses was impeached, but was not inherently unbelievable, and the jury's credibility assessments will not be overturned. Although there was no direct evidence of the defendant's intent, there was sufficient evidence from which a jury could conclude that he participated in the shooting with the requisite intent. A photo array from which defendant was identified was not shown to be impermissibly suggestive. While the trial court acted improperly when it responded to a note from the jury without first sharing it with counsel and defendant, the error here was harmless beyond a reasonable doubt. Its instruction regarding credibility of witnesses was substantially similar to the one requested by defendant, and its instruction on motive should have made it clear to the jury that they could consider the lack of evidence of motive as a relevant factor in evaluating the defendants' guilt, but the error was harmless. When a cautionary instruction on the possible infirmities of eyewitness testimony is requested and not given, appeal will focus on the facts of each case to determine whether the instruction was required to fairly present the case to the jury. Here, the court's instructions drew attention to the care with which the jury should evaluate the eyewitness testimony, highlighting certain critical factors to consider. The defense had adequate opportunity-of which it took certain advantage-to challenge the identification testimony and to argue to the jury its unreliability, and no harmful, reversible error was shown. A camcorder video recording of a computer video file played on a monitor was admissible because if an original is lost or destroyed-through no bad faith on the part of the proponent-the proponent is not required to present either the original or a duplicate, and here technological limitations of the system prevented the police from preserving the original recording, which was also not unduly prejudicial under Federal Rule of Evidence 403. The convictions are affirmed.