NOTE: Jurors are instructed by Judge Robert C. Noonan not to read media accounts of the trial. This story contains information not available to jurors. Certainly, no jurors should read the story nor should the case be discussed with jurors.
There's no physical evidence putting a gun in the hand of Dashawn Butler the night shots rang out on State Street 14 months ago, defense attorney Thomas Burns told jurors during opening arguments today in a criminal trial in Genesee County Court.
Three witnesses testified before jurors were sent home for the day, but the most unusual moment of the case came when one of the witnesses scheduled to take the stand refused to testify.
In his opening statement, Burns told jurors that there were no shell casings, no bullet holes in any building or car, no victim shot, nothing to demonstrate clearly that Butler either possessed or fired a gun the night of Sept. 27, 2013.
District Attorney Lawrence Friedman kept his opening remarks brief -- to match the briefness of the incident that allegedly took place on State Street in Batavia.
"When all is said and done, through the use of common sense and the collective experience you have in the world to evaluate evidence, you will find beyond a reasonable doubt that the defendant is guilty of these crimes," Friedman said.
Butler is charged with attempted assault, attempt to cause serious physical injury, and criminal possession of a weapon.
The charges stem from an incident near 117 State St. when gunshots were reportedly fired at a person standing on the sidewalk.
Butler was named as a suspect not long after the shooting and a warrant was issued for his arrest. It took several months to locate him before he was arrested.
Called to the stand today were Julie Ann Carasone, a resident of State Street, Lisa Strong, a former State Street resident now living in Oakfield, Tracy Leubner, a former girlfriend of Butler's, and Kelly Rhim, the purported target of the alleged gun fire.
The case was moving along briskly, after a late start because of a juror's mistaken belief that court was closed today, until it came time to call Leubner, the third witness of the day, to the stand.
When Friedman went into the hall to retrieve the witness, he wasn't heard from for a minute or two, and then he stuck his head in the door and told Judge Robert C. Noonan that it would be another minute.
As the minutes ticked by, a woman could be heard sobbing outside the courtroom.
After at least 10 minutes of waiting, Noonan sent the jury into recess and Friedman entered and said that his witness, Tracy Leubner, was refusing to testify. Friedman held a document that he said was a police report detailing how Leubner had been threatened by a man whom he believed is an associate of Butler's.
Leubner is reportedly an ex-girlfriend of Butler's and has knowledge of both the incident Sept. 27 and Butler's purported gang ties.
In lieu of Leubner's testimony, Friedman requested using the transcript of her grand jury testimony.
Burns objected on the grounds that there was insufficient evidence to make his client culpable in the alleged threats, and at the least, there should be a hearing on the matter to establish such evidence. The case in point, Burns said, was People vs. Smart.
That case (and previous cases) establishes that a criminal defendant surrenders his right to confront witnesses against him if the defendant threatens the witness.
With the jury out of the room, Friedman called Det. Thad Mart, with Batavia PD. Mart was involved in the criminal investigation against Butler, did the initial interview with Leubner, served a subpoena on her Nov. 7, and retrieved her from her home this morning.
Leubner had to be coaxed out of her house and to the court building, Mart testified.
He claimed that Leubner had told him that when she lived with Butler, Butler used to beat her. The detective said that she told him previously she had been tricked into attending a party hosted by Butler at a residence on Holland Avenue. At the party, according to Mart, Butler confronted Leubner and said he would have "kicked the sh--" out of her if he had known about her grand jury testimony, and that he would "kick the sh--" out of her if she testified at trial.
Mart testified that a third party also contacted Leubner and threatened her.
"He told her he heard that she had snitched on Butler," Mart said. "She denied this and he went on and said that he found out she had snitched on him. He said that if Butler wanted her dead, he would be willing to take care of it himself."
During cross examination, Burns asked Mart questions about any follow-up investigation and Mart said he didn't talk with the third party and never confirmed that Butler and this other person even knew each other.
After a lunch break, Burns called witness Gina Bell to the stand.
Bell testified that she was friends with both Leubner and Butler. She was at this trial, in fact, in support of Butler. She said she was also friends with the alleged intended victim of the reported shooting, Kelly Rhim.
Contrary to Mart's testimony, Bell said that it was Leubner's idea to go to the party on Holland Avenue. Bell didn't even know about the party, she said, until Leubner invited her.
She testified that there was no apparent conflict between Leubner and Butler at the party, though she admitted she wasn't with either of them throughout the evening, and that Leubner didn't seem distressed or bothered after coming by Butler's house once she left the party.
"She seemed fine," Bell said. "She seemed like she had a good night. She was happy. She said nothing about any problems at the party."
Bell also said that in all the time she's known Leubner, Leubner never gave any indication that Butler ever harmed her.
Noonan ruled that there was sufficient evidence that Butler was involved in threats against Leubner and the grand jury transcript could be read to the jury. He said the only thing Bell's testimony established was whose idea it was to go to the party, which wasn't material to the substance of establishing why Leubner was unwilling to testify. He said nothing in her testimony directly refuted the alleged threats against Leubner.
To read Leubner's testimony, Friedman read the questions he asked in front of the grand jury and the Assistant District Attorney sat in the witness stand and read Leubner's answers.
She testified before the grand jury that somebody supplied Butler with a small, black handgun prior to the shooting. It was a revolver, she said (which wouldn't leave behind shell casings).
She said that Butler heard some people arguing near 117 State St., and then he heard his name mentioned. She said that a person was calling Butler a fake, a phony.
"'You want to see fake,'" she said Butler said. "He pulled out a gun and proceeded to shoot the man."
She later clarified that she meant to say that Butler shot at the man.
She said she heard four or five shots and then the gun jammed.
Later, at a residence in the city, Butler told a friend, she said, to flush the spent shells down the toilet.
"Dashawn was talking with friends about the gun jamming," she reportedly told the grand jury. "He was upset because he thought the bullets might be too big or something."
It was then that the subject came up that perhaps the bullets were blanks.
It was the only explanation Butler could think of, she said, for why Butler missed the person standing in front of him.
"He didn't understand why he missed," she reportedly said. "He said he was aiming right at him and if it was actual ammunition he wouldn't have missed."
Testifying in the afternoon was Kelly Rhim, the person Butler is accused of intending to shoot.
He said he's known Butler since about 2001 or 2002 and they're nearly the same age.
The night of the alleged shooting, Rhim said he went to his aunt's house at 117 State St. to pick up some CDs. He said he had recently moved to Buffalo and that he worked as a DJ and needed the CDs for a gig later that night.
He arrived on State at about 10:30 p.m. He was accompanied by his brother-in-law.
There were two people on the porch and Rhim and the other two people had words.
The group had a confrontation the night before, Rhim said.
Rhim was upset because one of the men, he said, had been going around telling people that Rhim had been in town the night before with a group of gang members from Buffalo.
"They're not even close to gang members," Rhim said.
He then saw Butler run up from behind the house with a youth.
He said Butler accused him of saying that he, Butler, was fake.
"We fake now. We fake now," he said Butler screamed.
Rhim said, he replied, "Yes, you're fake. You're recruiting a bunch of teenagers to be part of all that B.S."
He said Butler then pulled out a gun and told him to back up.
"I just stood there," Rhim said. "I never moved. He shot three times. I started feeling myself, because I watch a lot of crime shows on TV, to make sure if I was hit or not. I wasn't sure if I was struck or not."
He was talking fast and the court reporter couldn't keep up.
He repeated, "I watch a lot of crime shows. You're not supposed to move if you think you've been hit by a bullet."
He said he couldn't believe what just happened.
"I was shocked because I've been living in Batavia since '85," Rhim said. "That kind of violence doesn't go on here, period."
He said Butler ran off after firing the three shots. He then left with his brother-in-law and drove to Ri-Dans, a bar on West Main Street Road, where they had some drinks.
During cross, Rhim said he never saw a gun, just "flashes of light" coming from Butler's sleeve.
He admitted later that he was arrested for DWI that night and later convicted in Town of Batavia Court of the charge.
He said he didn't have anything to drink prior to driving to State Street in his brother-in-law's white Cadillac and having the alleged confrontation.
After Ri-Dans, he and his brother-in-law sat in the Caddy and lit up a blunt, he testified.
“After I got shot at I smoked some weed,” he said, rolling his eyes and looking as if any reasonable person would have done the same thing.
His previous convictions over the past decade include disorderly conduct (twice), criminal sale of a controlled substance and unauthorized use of a motor vehicle.
During cross examination, Rhim also conceded that he was driving that evening without a license, which was suspended because of late child support payments.
After leaving the bar, sometime after 2 a.m., he was pulled over so Sheriff’s deputies could asked him about the State Street incident. He said nine deputies with nine guns drawn descended on him and his brother-in-law and had them lie down on the ground. He said one of them asked him who he shot.
He said he didn’t shoot anyone and there was no gun on the two men or in the vehicle. He was found, however, to be intoxicated and was arrested for DWI. Officers found one “dime bag” of weed on him (enough to roll three blunts he says) and nine more “in the console” of the vehicle.
Continuing with questions possibly intended to cast the prosecution's witness as having less than sterling character, Burns then asked Rhim if had been arrested for allegedly stealing meat from Top’s Market. The case is still pending.
“It was not no meat. It was $240 worth of stuff,” the witness said. “Roses for my mom’s tombstone, paper goods and stuff. I thought I lost my money. I backtracked out the store and before you know it I was outside the store at my car.”
He claims his clarity of mind had been affected by medication he had been given for an abscess, which made him “disoriented and delusional.”
But going back to the matter on trial -- whether Dashawn Butler used a gun to try and shoot Rhim on Sept. 27, 2013 -- the witness stood by his testimony, even though it varied from what he had signed in a sworn statement to Batavia PD.
“They switched the words on me,” he told the jurors.
Burns asked if he remembered telling police that the incident with Butler was related to something posted on Facebook.
He replied that he never said the derogatory remarks about him on Facebook came from Butler. He said he doesn’t know who posted them.
Lastly, Burns asked him if he remembers telling officers when they pulled him over after he left the bar, “You don’t know what the f--k you’re getting into.”
No, the witness said, “They were making things up.”
State Street resident Julie Ann Carasone testified that she was in her daughter's room watching "Law & Order" while her daughter and a friend played a game on the Xbox hooked up to the living room TV when she heard the possible gunshots.
"I heard somebody say, 'get down mother f--ker, get down mother f--ker' and then I heard, pop-pop-pop, and I thought 'oh, my God, it's gunshots,' " Carasone said. "I turned down the TV to make sure it wasn't on TV and then I heard a female saying, 'I can't believe you shot him.' "
She said she ushered the children into the bathtub, thinking they would be safer there if there were any more shots fired, and called 9-1-1.
Asked how she recognized the sound of gunshots, she said her father was a military veteran and the family spent a lot of time on military bases, near firing ranges, and that her father had taught her about guns.
Lisa Strong testified that she was sitting on her porch smoking a cigarette five doors down from 117 State St. when she heard what sounded like people arguing. She heard the gunshots and then saw a white car, possibly a Cadillac, speed away. She said from two to six people then ran in various directions.
She did not call police. She went in her house and locked the door.
The trial resumes tomorrow at 10 a.m.
Billie Owens contributed to this report.