The trial for a Batavia man accused of breaking into a house on Park Avenue in January got under way today. Akeem M. Simmons, 23, is one of two men accused of first-degree burglary in the crime.
He is also accused of first-degree criminal use of a firearm for allegedly possessing a loaded weapon during the commission of a crime, even though the weapon was allegedly found on the other defendant, 18-year-old Nathaniel R. Davis. Both are Class B violent felonies. The Davis case is still pending. They are also accused of fourth-degree conspiracy.
During opening statements this morning, District Attorney Lawrence Friedman told jurors that two people were seen running out of the house.
"On January 14 of this year, a resident at (X) Park Ave., Batavia, was looking out her window and noticed two people go up the driveway of (X) Park Ave., go around the back part of the house and break in," Friedman said. "She then called 9-1-1 to report the incident."
According to a witness, two people ran out the back in a southwesterly direction along a path behind St. Paul's Lutheran Church. WIth law enforcement converging on the scene, the duo split up -- one ran east toward State Street and the other ran west toward Lewis Avenue.
Davis, who ran east, was apprehended immediately. Simmons, on the other hand, was chased by police and lost during the chase. When officers failed to catch him a manhunt ensued with Batavia PD, the Sheriff's Office, State Police, a K-9 and a helicopter. He was apprehended in about 45 minutes.
Deputy Brian Thompson and his K-9 Pharoah found Simmons hiding under a tarp at a nearby residence, Friedman told the jurors. Furthermore, a black hoodie, gloves, a black and white bandana, and a baseball hat with red trim on the brim, was also found in Simmons' possession.
According to the DA, when Simmons was interviewed, he gave alternate excuses of why he was running from police and denied knowing Davis.
"Search warrants for both men's phones found that Davis had a contact nicknamed Kemo," Friedman said. "Upon investigation, it was found that the number in Davis' phone belonged to Simmons. This suggests that the phone evidence links Simmons to Davis, as well as the crime committed."
He wound up his opening statement telling jurors that testimony from Davis is a possibility.
"Davis's credibility will be attacked," Friedman said. "Don't get hung up on Davis, listen to the proof to find the defendant guilty of the crime."
While they didn't get a chance to steal anything, according to a previous statement by a detective in the case, it is still burglary by virtue of the two breaking into the house with the intent to commit larceny.
"When all is said and done and the proof is in," Friedman said. "I will ask the jury, based on the evidence, to find Simmons guilty as charged."
Subsequently, Defense Attorney Thomas A. Burns told jurors that it makes perfect sense that they were told that opening statements are not evidence.
"Consider the court process, listen to the facts of the testimony and evidence to prove that Simmons did not commit the crime he is charged with," Burns said.
The defense attorney told the jurors to keep an open mind and see the evidence showing Davis, alone, entered the house; it was Davis who was apprehended running away from the house, and it was Davis who was Tased and when that did not stop him, it was Davis who was tackled by police.
In addition, Davis was also found with a loaded weapon -- which, when examined by police, was found to be capable of causing injury or death -- plus a screwdriver, Burns continued. And upon examination of the gun, no DNA links Simmons to the weapon, nor do any of the fingerprints found on it.
"The neighbor will testify that she saw two people at the Park Avenue home, yet she cannot describe them," Burns said. "She told police that she heard a sound of two people going in and coming out."
Burns also informed the jury that at the time Simmons was found, he had an outstanding parole warrant.
"The people have the burden of proof in this case," the defense attorney said. "If you listen to Davis's testimony, not only listen to what he is saying, listen to what is behind what he is saying.
"You are asked to judge the credibility of people. Davis is not on trial at this point, Simmons is," he continued. "When you hear all the evidence, at the conclusion I ask that you return a verdict of not guilty."
Testimony continues today with Judge Robert Noonan presiding.