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United States v. Carmichael

July 2, 2003

UNITED STATES OF AMERICA
v.
CORY CARMICHAEL, DEFENDANT.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

On January 15, 2003, defendant Cory Carmichael was convicted by a jury upon a one-count indictment of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Defendant then filed a motion for a Judgment of Acquittal notwithstanding the verdict, pursuant to Federal Rule of Criminal Procedure 29(c), and, in the alternative, a new trial based upon newly discovered evidence, pursuant to Federal Rule of Criminal Procedure 33. The new evidence consists of a subsequent confession and testimony before this Court at a hearing on June 18, 2003, by Shavar Harvey admitting to the possession and placement of the gun in question which, if true, exonerates Carmichael of the crime for which he was convicted. For the following reasons, defendant's motion for a Judgment of Acquittal will be denied, and his motion for a new trial will be granted.

BACKGROUND

In the early hours of May 2, 2002, defendant was arrested for the unlawful possession of a weapon which was found on the floor of the front porch of defendant's friend, Julia Young, at 1623 Pulaski Street in Camden, New Jersey. At trial, Ms. Young testified that when she arrived home from work on May 1, 2002 at approximately 11 p.m., she noticed Shavar Harvey, a juvenile, standing on her porch. See Tr. 1/14/01, at 76, 78. She told Mr. Harvey to get off of her porch and went into the house. Id. at 80. Shortly after, a Camden Police Officer, Officer Pike, observed Carmichael and Harvey in the vicinity, and he came to Ms. Young's door and told her that he had found a weapon on her porch and asked her if she was expecting anybody. Id. at 83. Young told the officer that she was not expecting anyone, and that the handgun found on her porch did not belong to her. Id. Officers Pike and Ramos both testified at trial that they had observed Carmichael at or just inside the front porch door, bending down, to the spot where the gun was found. Carmichael testified that he knew nothing about the gun and that his purpose for being in the vicinity was to look after Julia Young's house, since she had told him earlier that juveniles had been on her porch that night. He testified that he was indeed near the front door and had chased a juvenile named Shavar off her porch as the Camden police officers came on the scene. The police arrested Carmichael, without detaining Harvey. Harvey, then a juvenile in violation of curfew, has since turned 18 years of age.

The trial testimony may be summarized as follows, as it illuminates the background of both the motion for judgment of acquittal and the motion for a new trial.

a) Testimony of Officer Pike

Officer Pike testified that on the evening of May 1, 2002, he was on routine patrol of the area of Sheridan and Pulaski. See Tr. 1/13/03, at 6. That evening he witnessed three to four individuals standing on the southwest corner of Sheridan and Pulaski. Id. at 9. He testified that he heard someone in the crowd yell, "Yo!" very loudly before the individuals dispersed. Id. Shortly after, Officer Pike returned to the area with two other officers, Officer Ramos and Officer Tatem, to determine if there was any further suspicious activity. Id. at 11. Officer Pike testified that he again witnessed three individuals standing on the corner, one of whom was a juvenile, Mr. Harvey, and one of whom was the defendant. Id. at 12, 35. According to Officer Pike, as he turned his car onto Pulaski, defendant was standing on the corner, and once defendant saw the patrol car he began to walk away slowly towards Ms. Young's house. Id. at 42. Officer Pike testified that he parked his car on Pulaski, approximately four car lengths from Ms. Young's home, exited the police car, and observed the defendant and the juvenile walking towards him. Id. at 14, 17. At this point Officer Pike stated that he was approximately 20 feet from defendant. Id. at 22. After observing defendant knock on the door of Ms. Young's house, Officer Pike asked defendant if he lived there, to which defendant replied no. Id. at 14, 16. The officer testified that he then observed the defendant walk up the steps to the screen door, open the door, walk onto the porch and bend down. Id. at 18. Officer Pike testified that defendant then came off the porch and stood in front of the home, at which point Officer Pike was approximately five to ten feet away. Id. at 21. He asked defendant what he was doing, to which the defendant replied, "Nothing." Id. at 22. Officer Pike then entered the porch and found a handgun on the lower left portion before the column, leaning up against the wall. Id. at 25, 27.

b) Testimony of Officer Ramos

Officer Ramos also testified at trial. His version of events was similar to Officer Pike's, though the defense does point out some inconsistencies, such as the fact that Officer Ramos had testified that when Officer Pike got out of his car, the defendant began to walk away from him, whereas Officer Pike had testified that the defendant was walking towards him. See Df. Br., at 7. Further, Officer Ramos testified that defendant only put his left arm onto the porch, whereas Officer Pike testified that his entire body was on the porch. Id. at 8. Defendant also points out that discrepancies exist with regard to the distance that defendant was from Officer Pike when he allegedly entered the porch. Id. at 5.

c) Testimony of Defendant

Defendant Cory Carmichael's testimony at trial sets forth a different version of events. Carmichael testified that on the evening of May 1, 2002, he was bowling when he received a call from Ms. Young, who told him that someone was standing on her porch when she arrived at home. See Tr. 1/14/03, at 153, 155. Carmichael then left the bowling alley at approximately 11 p.m., took a co-worker home, and drove to Ms. Young's house. Id. at 155-57. According to defendant's testimony at the December 19, 2002 pre-trial hearing, Carmichael, who has a key to the front door, regularly stops by Ms. Young's house to check on her home and her children. See Tr. 12/19/02, at 63. This was confirmed by Julia Young's testimony, discussed below. Defendant testified at trial that when he arrived at Ms. Young's house that evening, he parked on the southwest corner of the intersection of Sheridan and Pulaski. See Tr. 1/14/03, at 157. He stated that he then got out of the car, walked towards Ms. Young's house, and saw Mr. Harvey and another individual coming out of the door of Ms. Young's porch. Id. at 158. According to defendant, after telling the individuals to get off the porch, the individuals walked away and "not even" two minutes later police officers came around the corner from Sheridan onto Pulaski, stopping at about the fifth house on the block, three past Julia Young's. Id. at 158-59, 175. *fn1 The defendant claimed that he started walking towards Officer Pike and met him somewhere between his police car and the door to Ms. Young's house. Id. at 160. At this point defendant claims he was three house lengths away from Ms. Young's house. Id. at 166. Defendant testified that it was at that point that Officer Pike asked him what he was doing, to which he replied that he was telling the other individuals to stay off Ms. Young's porch. Id. Defendant claims that Officer Pike then instructed him to stand approximately three houses away from Ms. Young's house while the officers went onto the porch. Id. According to defendant, after the officers retrieved the gun from Ms. Young's porch, they spoke to Mr. Harvey for a short time, and then Officer Pike handcuffed defendant and put him in the back of the patrol car. Id. at 161. Defendant testified that the gun did not belong to him and at no point that evening did he knock on Ms. Young's door. Id. at 161, 163.

d) Testimony of Julia Young

Julia Young testified at trial that she lives at 1623 Pulaski Street with her three children, and that Cory Carmichael lives and works in the neighborhood. On May 1, 2002, she worked at her job at Bancroft Neuro Health until about 10:15 p.m. and picked up her children from her grandmother's house and brought them home. See Tr. 1/14/03, at 75-76. She got home about 10:45 p.m. and noticed someone standing on her porch, a juvenile named Shavar, whose last name she did not know. Id. at 77-78. She told Shavar to get off her porch, and he passed her coming off her porch as she entered. Id. at 80. Ms. Young saw Shavar go back towards the corner of Sheridan and Pulaski, two houses away. Id. at 81, 93. She was mad at Shavar but not scared of him; she did not know him but saw him hanging around the neighborhood. Id. at 82.

Julia Young testified that Carmichael was like a big brother to her, and that he comes to her house approximately three times a week to watch her children sometimes while she works. Id. at 84-85, 100. Defendant also cuts the children's hair at his barber shop. Id. at 91. Ms. Young testified that she and defendant speak often, and that she called him from work on his cell phone that evening, before 10:00 p.m., while he was bowling. Id. at 84-85, 90. Ms. Young testified that Carmichael said that he might come by, using his key to her house. Id. at 84-85. Ms. Young testified that she did not believe Carmichael knows Shavar, and did not believe that Carmichael hangs out at the corner by Sheridan. Id. at 93, 99.

Young testified that the police came and knocked on her door after she had put the children to bed, perhaps an hour or hour and a half after arriving home from work. Id. at 82-83, 93. The police told her that they found the gun on her porch and asked if it was hers. Id. at 83-84, 94. She had no knowledge of a gun and had never known Carmichael to have a gun.

e) Testimony of Shavar Harvey before Grand Jury

Shavar Harvey did not testify at trial. However, he did testify before the Federal Grand Jury on August 20, 2002, about his role in defendant's case, and he set forth yet another version of events. See Def. Letter, Ex. B at 2. *fn2 At the time of his testimony, Harvey was 17 years old and had known defendant for five years, as the defendant cut his hair on occasion. Id. at 6. Mr. Harvey testified that on the evening of May 1, 2002, he was on his way home when defendant picked him up to give him a ride to his aunt's house. Id. at 9. He stated that on the way, defendant parked his car on the corner of Sheridan and Pulaski to stop by Ms. Young's house. Id. at 9-10. The two got out of the car, and, according to Mr. Harvey, defendant was on the front step of Ms. Young's house with his hand on the door when the officers pulled up, stopped them from entering the house, searched them, and then went onto the porch and found a gun. Id. at 10. Mr. Harvey stated that at the time defendant approached the door, he was approximately four feet behind defendant. Id. at 12. He testified that he did not see defendant open the screen door, and that he later told police officers that he did not know to whom the gun belonged. Id. at 14. Mr. Harvey also denied being on Ms. Young's porch at any time that evening. Id. at Ex. C, Tr. 8/20/02 III at 3. Neither party called Mr. Harvey as a trial witness.

As will be discussed in a moment, Shavar Harvey has now testified that much of what he stated to the grand jury was a lie, designed ...


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