Usually the number of charges at the beginning of a trial is the same number of charges at the end of a trial…not this time. There is a rarely used court rule that allows a prosecutor to add charges in the middle of a trial. In fact, in my 10+ years as a trial attorney I’ve never seen it used. Well, there’s a first time for everything.
Initially my client was charged with single counts of felony firearm and felonious assault. It was alleged that my client pointed and threatened a man with her gun. However, after the prosecutor called her last witness, she requested that an additional count of felonious assault be added. The request was based upon a statement the witness claimed my client made, that she had possessed a knife and not a gun. Over a 15 minute objection, wherein I had to educate both the prosecutor and the judge on the law, the judge granted the request (though at least the judge did concede that I was correct on the law). Interestingly, in her closing, the prosecutor then argued that my client that my client did make the statement about the knife, but that she was lying when she made the statement. Huh?
The allegations against my client were made by her mother’s roommate. There was even a 911 call where you could hear my client in the background, threatening to put a bullet in his head. Unfortunately for the complainant (and the prosecutor), I was able to bring out the multiple inconsistencies of the man’s story. In particular, the man claimed my client tried to shoot him, but somehow he failed to mention that to any of the police officers on the scene. Further, by breaking down the 911 call, I was able to show the jury how calm the man seemed, though he claims he had a gun pointed at his head.
Once deliberations started the jury came back with a question, about the definition of “possession.” When the judge told us of the question I knew what the verdict would be. There was no way the jury believed the claims against my client if they were asking about “constructive possession” (possession something while it’s not in your hand). Sure enough, 2 minutes after the judge answered the jury’s question, there was another knock on the door.
Nothing is more stressful than the moments between knowing that there’s a verdict and waiting to find out what that verdict is. But nothing is sweeter than when the foreperson reads that “not guilty” verdict.