UPDATE: Despite backtracking victim's refusal to ID defendant in court, jury convicts Deandre Harris of robbery, assault

After hours of deliberation, verdict delivered at 3 p.m. today

tchitwood@ledger-enquirer.comApril 30, 2013 

The victim’s refusing in court to identify Deandre Harris as the man who robbed and shot him March 17, 2012, did not keep a jury Thursday from convicting Harris of armed robbery, aggravated assault and using a firearm to commit a crime.

But it took time: The jury began deliberating the case against Harris at 2 p.m. Thursday, quit for the day at 5 p.m., resumed this morning at 9, had pizza delivered for lunch in the jury room and delivered its verdict at 3 p.m.

The case before them had taken an about-face: Lajay Jenkins, the victim who the day after he was shot confidently identified Harris as the man who robbed and wounded him, took the witness stand Tuesday and denied it.

Prosecutors claimed Jenkins, who because of a probation violation is now in jail along with his assailant, had been threatened, and feared both for his safety and that of his wife and two small children.

Assistant District Attorney Wesley Lambertus had to rely on what Jenkins told police while in the hospital on March 18, 2012. In a recorded interview, Jenkins told police the man who shot him was called “Boo”; the assailant was the brother of “Day-Day”: and he lived off Bond Avenue with his grandmother.

Sampson that day showed Jenkins a photo lineup, from which the victim picked as “Day-Day” Darius Harris, Deandre Harris’ brother. A patrol officer later showed Jenkins a second picture lineup from which he picked Deandre Harris’ photo, identifying him as the man who had robbed and shot him.

Jenkins in court Tuesday told defense attorney Mike Garner that Deandre Harris was not the man who shot him and that he was so heavily medicated he couldn’t remember what he had told police at the hospital.

So Lambertus hammered on Jenkins’ next-day recollection of what had happened, playing the tape-recorded interview and showing jurors the photo lineups Jenkins had signed.

The jury decided that was enough for a conviction.

The defense did not think it was. “It’s the most unbelievable case I’ve ever seen,” Garner said as he left the courtroom Thursday.

“Here’s the thing: These pictures that they show people, these are investigative tools,” he said. “This is a procedure that’s used to help a victim or a witness lead police to possible suspects, and they’re not used as identification to convict a defendant in court.”

Garner said the only evidence sufficient to convict a defendant is a live police lineup with the suspect present, or a victim or other witness identifying the defendant in court, he said.

He said it was “incomprehensible” that photos chosen by a victim under the influence of hospital medication could be considered adequate for a conviction “beyond a reasonable doubt.”

Countered Lambertus: “He’s just wrong: A photo lineup is a real lineup.”

He said Jenkins backtracked on his earlier identification because he was threatened “either by the defendant or a third party.”

The jury must have understood that, he said: “They had a choice of which Lajay Jenkins they wanted to believe, and I believe they decided that the right Lajay Jenkins was the one who gave a statement to the police the day after the shooting.”

That day Jenkins told detectives he had been near the dead end of Marathon Drive east of South Lumpkin Road about 1:30 p.m. when someone behind him said, “Give it up, Jay.”

He turned around and faced a pistol, and surrendered about $30 he had in his pockets, he said. Everyone in the area knew that in the lottery he recently had won “30 stacks,” meaning $30,000, he said.

The robber told him to “get on,” he said, but before he could turn back, the gunman shot him, the bullet going through his right arm, crossing his chest cavity and lodging behind his heart, where it remains. He had broken ribs and a punctured lung, he said.

With Harris’ first three charges resolved, the jury today is to consider a fourth: Being a convicted felon in possession of a firearm. That count is tried separately to avoid prejudicing the jury on the other offenses. Jurors who know a defendant already has a criminal record may be biased toward convicting him.

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