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What they saw and heard; Who fired the fatal shots? Witnesses' credibility vital for jury in murder verdict

The case against Riccardo M. McCray all comes down to identification of the shooter.

That's what Joseph J. Terranova has said since becoming McCray's defense lawyer.

So among the 49 prosecution witnesses, one stands out.

Rickita Latham said she saw McCray fatally shoot Willie McCaa III and Tiffany Wilhite and severely wound DeMario Vass outside City Grill on Main Street downtown at about 2:30 a.m. last Aug. 14.

"I seen him shoot Will in the head, and he shot DeMario Vass, as well," Latham said in Erie County Court earlier this week.

And then she recalled seeing McCray run across the Metro Rail tracks toward Wilhite by the City Grill entrance.

"The next thing you know, he shot Tiffany," said Latham, 26.

Her testimony is among the most damning, and it could send McCray to prison for the rest of his life.

But will jurors believe her?

Latham did not tell police about what she saw until months later. She's in drug court in Clarence. Last year, police in Amherst, Clarence, Hamburg and Niagara Falls arrested her on a variety of charges, mostly stemming from allegedly stealing clothes at malls. Some charges are still pending.

Terranova asked Latham whether she testified against McCray to get a deal to lessen her own problems with the law. She denied that but said she had kept quiet about what she saw because "I was scared somebody was going to kill me."

Latham is not the only witness prosecutors relied on, but she ranks as one of the most important.

"It's going to be a matter if the jurors feel that witness is credible and had an accurate opportunity to make an identification," said Paul J. Cambria Jr., a prominent criminal-defense lawyer not involved in the City Grill case.

"If they do, it's over," Cambria said of McCray's chances for acquittal. "If they have reservations, then obviously the defense has an opportunity to achieve an acquittal."

McCray is charged with fatally shooting McCaa, 26; Wilhite, 32; Danyell Mackin, 30; and Shawntia McNeil, 27; and wounding Vass, 30; James Robbs Jr., 28; and Shamar Davis, 30. Charges against McCray, 24, now include three counts of first-degree murder, one count of second-degree murder, three counts of first-degree attempted murder and weapons possession.

After the lawyers' closing arguments today, the 12-member jury will evaluate the credibility of witnesses such as Latham.

Several other key witnesses also have criminal records.

Terranova counts on their testimony not hurting his client as much as prosecutors hope, if jurors believe that it comes from people who will say anything to stay out of jail.

But a criminal record doesn't affect someone's ability to see or hear what happened, said defense lawyer Anthony J. Lana, who also is not involved in the City Grill trial.

What's more, chief homicide prosecutor James F. Bargnesi -- who's handling the McCray case with prosecutor Mary Beth DePasquale for the Erie County District Attorney's Office -- did a good job during jury selection preparing prospective jurors for witnesses with checkered pasts and weeding out those who can't see past that issue, Lana said.

Among those who delivered compelling testimony was Gerry Davis, 20.

He described how McCray, whom he knew then only by his street name, "Murder," shot a man in the back of the head.

"Any question 'Murder' did it?" Bargnesi asked.

"No, sir," Davis replied.

But Davis also brings baggage.

He told police early on about what he saw of the City Grill shooting.

But he did not originally tell police about being in the getaway car with McCray, as he told the jury last week.

Nor did he tell police about being handed the "silver and gray" handgun that Davis said he had seen McCray fire and being told to throw it off a bridge, as he also told the jury last week.

Not only did he hide all of that from police, he didn't tell the grand jury, either, Terranova said in court last week.

"Lied to the grand jury?" Terranova asked Davis last week.

"Yes, sir," Davis replied. "I lied."

Davis has been more forthcoming to authorities since his arrest last October on a second-degree robbery charge, which has kept him in jail for the last five months.

If convicted of that felony, Davis could face a 15-year prison sentence.

Terranova asked Davis whether he is now providing more details about McCray to help himself with prosecutors in his robbery case.

"I brought it up to get the complete story out," Davis replied.

Still, witnesses with pending charges are more problematic than those with criminal records, Lana said.

"I think that affects a jury even more than a prior record," he said, because of the appearance of a "vested interest" in obtaining a plea deal.

Robbs, 28, doesn't have any pending charges, but prosecutors had to have him arrested to get him in court.

Robbs said he "didn't want to be put in this situation" of testifying. "I didn't want to come to court," he said.

He admitted lying to police four days after the shootings.

Though he remained a reluctant witness, Robbs identified McCray as the City Grill shooter more than a week after the massacre.

He identified McCray in photographs, writing "shooter" on the ones that showed McCray. Robbs also wrote, " 'Murder' is the person who shot me,' " and signed a photo that prosecutors have from the scene.

When asked to explain his reluctance to testify, even though Robbs himself was shot and his close friend killed, Robbs said life "is different in my world and your world."

e-mail: plakamp@buffnews.com

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