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Gunman acquitted of assault in shootout that seriously injured 11-year-old

The only man charged in connection with the gunfight that left an 11-year-old boy critically wounded was found not guilty Thursday of assault in the boy’s shooting.

Detavion Magee, 22, had been accused of assault and criminal possession of a weapon on the basis of his participation in a shootout June 29 on Humason Avenue, a residential street close to Buffalo’s border with Cheektowaga. Gunfire injured Magee and Juan Rodriguez, who was two days shy of his 12th birthday at the time.

But, as Erie County Judge Sheila A. DiTullio said before announcing her verdict, “both sides agree that ... after four days of trial and 14 witnesses, we still do not know who shot 11-year-old Juan Rodriguez. But we do know it was not this defendant.”

A bullet from a high-powered rifle struck Juan in the head as he tried to get his brother and sisters to safety. Witnesses said Magee fired a handgun.

The judge added that it was clear that someone shot a lot of bullets that day, but “the evidence presented does not answer the critical question: Who shot Juan?”

The judge found Magee guilty of the weapons charge, for which he faces a possible prison term of up to 15 years when he returns to court July 13.

The judge – not a jury – decided the case.

"This was not a typical assault case,” DiTullio said.

She called the legal issues in the case complex and unique.

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Former Acting District Attorney Michael J. Flaherty Jr. recently indicated he believed the District Attorney's Office was right when it sought to have Magee indicted on the assault charge last year. He cited a 1998 appellate decision that also involved a bystander caught in the crossfire of a gunfight.

In that case, People v. Russell, the victim died and all three men involved in the shooting were convicted of second-degree murder. They were found guilty of behaving with "depraved indifference” regarding human life, and with reckless disregard for others, even though it was never determined who fired the shot that hit the victim.

Flaherty said the opinion in that case also applied to Magee, who he saw as “acting in concert” with those shooting at him to endanger the neighborhood.

Prosecutors were willing to make a deal with Magee in exchange for the name or names of the people shooting at him that day – who also were the people who shot Juan.

Assistant District Attorney Eugene T. Partridge, who led the prosecution, previously said that Magee was resolute in his refusal to cooperate. In the end, his conviction was the same as the one he would have received in the plea deal.

Magee sustained a chest wound in the shootout and left the area after he was released from the hospital. He was arrested in October in Erie, Pa.

'I remember my mom screaming': Girl describes gunbattle, shot that hit little brother in the head

Those familiar with the case said he may have been fleeing his attackers as much as avoiding law enforcement.

Meanwhile, Juan continues to recover. He is able to stand and walk. He is learning to get along with limited use of his left arm. His injured brain is healing. His memory of the day he was shot ends a few minutes before the gunfire began, but as he told the court when he testified in Magee’s trial, he’s feeling great.

Defense attorney Jeremy Schwartz said Thursday that he was pleased with the verdict regarding the assault but “respectfully disagrees” that his client had a gun that day and plans to appeal that portion of the verdict.

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