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2 convictions upheld as high court says juries can contradict themselves

The convictions of two Buffalo men on separate assault counts were upheld Thursday by the state's highest court, even though juries found them not guilty of illegally possessing the weapons they used to beat and shoot their victims.

In a sharply divided decision, the court ruled that it is not "inconsistent" for a jury to clear someone of illegal weapons possession but guilty of hurting someone with those weapons.

Three dissenting judges accused the four in the majority of ruling in a way to "solely" preserve the convictions of the two men.

In the case of Shahid Muhammad, the weapon was a gun. Timothy Hollis was shot five times during a street brawl in Buffalo in 2002.

In the case of Gregory Hill, the weapon was a hammer. The hammer was used in 2006 to strike the head of Brian Dudas, who had angered Hill by knocking over an ashtray onto a couch while they watched a hockey game on television, according to court papers.

In both cases, the Court of Appeals rejected the defense counsel's argument for the two men: that it is "impossible to intentionally injure a person with a weapon that a jury has found the accused did not possess with the intent to use unlawfully."

Instead, the court accepted prosecutors' contentions from the Erie County District Attorney's Office that the "jury instructions in these cases allowed the jurors to consider the state of mind of the accused at the time the weapon was initially possessed or acquired and before the formation of an intent to use it unlawfully against another."

In writing for the majority, Judge Victoria A. Graffeo said the U.S. Supreme Court has previously held that the Constitution "does not prohibit a jury from rendering a verdict that is inherently inconsistent."

Both sides on the court in the decision said trial judges should do a better job of instructing juries to avoid the seemingly inconsistent verdicts.

In the two Buffalo cases, juries heard similar instructions from judges about the definition of illegal weapon possession, including having the "intent to use it unlawfully against another."

"In Hill's case, for example, the jury may have thought that he possessed his weapon -- a common household hammer -- for an extended period of time with the intent to use it as a tool rather than as an instrument of harm and acquitted him on that basis," Graffeo wrote.

"Even assuming this to be true, however, an initial period of innocent possession, no matter how long in duration, is not determinative of a person's guilt for weapon possession because a criminal intent can arise moments before the item is used for a criminal purpose -- but Hill's jury may have been unaware of this fact."

Still, the judge wrote, "Jurors are allowed to compromise, make mistakes, be confused or even extend mercy when rendering their verdicts -- a principle not acknowledged by the dissent."

As a further example, the judge noted that someone can be convicted of throwing someone in front of a bus or subway train without "possessing" the bus or train.

But Judge Carmen B. Ciparick, in arguing that the convictions should have been set aside, said acquittals of the illegal weapons possession in the two cases were "essential" elements of the more serious crime: assault. She dismissed the bus and subway example, saying such defendants would never have been charged with illegally possessing a weapon.

Ciparick said the majority's decision creates "an overly abstract rule" done "solely in an effort to preserve these convictions."

Ciparick said the juries logically should have found the Buffalo defendants guilty of weapons possession if they found them guilty of assault.

"It should go without saying that Muhammad could not have shot the victim with a firearm if he did not possess one," the judge wrote of the Buffalo man given a 20-year prison sentence for the 2002 shooting.

Hill, found guilty in the hammer assault case, was sentenced to seven years in prison.