Friday, 14 March 2014

Home Invasions                  

      Everyone in their home has the right to presume that they are safe inside their home but unfortunately, that isn’t always so. The crime of home invasion is usually committed by a forceful entry to an occupied, private dwelling with the intent to commit a crime against the occupants, such as robbery, assault, rape, murder, or kidnapping. Everyone convicted of a home invasion where a crime is subsequently committed should be severely punished.

      One well-known home invasion is the November 15, 1959, quadruple murder of the Clutter family by Richard Dick Hickock and Perry Edward Smith during a home-invasion robbery in rural Holcomb, Kansas. The murders were detailed in Truman Capote's nonfiction novel, In Cold Blood. However, the perpetrators were convicted of murder, not home invasion. The two murderers were hanged.       

      Two paroled criminals were each charged with three counts of capital murder during a home invasion into the Petit family home in Cheshire, Connecticut on July 23, 2007. During the invasion, the mother died of asphyxiation due to strangulation and the two daughters died of smoke inhalation after the suspects set the house on fire. The men were charged with first-degree sexual assault, murder of a kidnapped person, and murder of two or more people at the same time. The state attorney sought the death penalty against the suspects. The first defendant, Steven Hayes, was found guilty of 16 of 17 counts including capital murder on October 5, 2010 and on November 8, 2010 was sentenced to death. His co-defendant, Joshua Komisarjevsky, was convicted of all 17 counts against him in October 2011, and was also sentenced to death. Currently they are still on death row.

      Another home invasion occurred on November 26, 2007 when Washington Redskins star Sean Taylor was murdered during an overnight home invasion of his suburban Miami home. Four defendants were charged with this crime.          Eric Rivera Jr. who fired the fatal shot was convicted in November of second-degree murder and armed burglary. The 23-year-old was sentenced to more than 57 years in prison for his role in Sean Taylor's death. The other three men are still waiting for their trials.

      Twenty-four-year old Lewis Arnold, of Cleveland, is behind bars charged with soliciting two others to commit a home-invasion robbery at a home in Ashtabula, Ohio. The suspects entered an apartment duplex in January 2014 but according to published reports, that home wasn't the intended target. The robbers hit the wrong house, and wound up shooting and killing 43-year old Lydia Colon and her son 20-year old Alexis Mook Colon.  His brother, 23-year old Benny Mook Colon was also shot, but survived. Police are still on the lookout for 21-year old suspect Marcus Lashley who is believed to be one of the men who forced his way inside the home. Murderers are still executed by lethal injection in Ohio.

      The rest of this article is going to be about Brandon Wills, who was actively involved in a home invasion that took place in the small community of Woodbridge, just north of Toronto, Ontario. The home was owned by Mr. Sacchetti and Mrs. Sacchetti, ages 78 and 75 respectively. Neither of the two victims was killed but they were both severely injured. What is interesting about this case is how Wills tried to wiggle out of his conviction and his sentence of ten years in prison.
Background of the home invasion
      At about 7:30 p.m. on a February evening, Mr. Sacchetti heard loud banging on the front door of his house followed by shouting.  He opened the door and two men rushed forward into the house.  Let me say right from the get go. He shouldn’t have opened the door at night when he didn’t know who the two men were especially when they were both masked and wearing hoods. He should have looked out of a window first.
       One of the robbers (the first robber) pushed Mr. Sacchetti backward into a closet door, shattering the glass on the door.  A struggle ensued.  The first robber pulled Mr. Sacchetti outside into the snow and beat him severely with a stick-like weapon.  Mr. Sacchetti pulled a white mask from the first robber’s face during the struggle. He may have had difficulty is seeing the robber’s face as it was dark outside.                              
      Inside the house, the second robber confronted Mrs. Sacchetti in the kitchen.  He ordered her to the floor and when she had difficulty getting down because of her scoliosis, the second robber put his foot on her back and pushed her to the floor. 
      The second robber left Mrs. Sacchetti lying on the floor for a moment but then returned with what appeared to be a handgun.  Pointing the handgun at Mrs. Sacchetti’s neck, and then at her face, the robber said, “Mrs., you see this? Where is the money?”  Mrs. Sacchetti directed the robber to a drawer in the buffet containing a small amount of cash.
        The second robber left Mrs. Sacchetti and joined the first robber, who was continuing the assault on Mr. Sacchetti at the front of the home.  The second robber pushed snow into Mr. Sacchetti’s mouth in an effort to keep him quiet.  The first robber indicated they should leave and both men fled off through a nearby ravine.  The home invasion lasted five to ten minutes. 
       The Sacchettis were terrorized by the incident.  They thought they were going to die.  Mr. Sacchetti was taken to the hospital and treated for a broken nose, cuts to his head, and injuries to his torso.
        Mr. Sacchetti could not identify either robber.  He described the first robber as: possibly black, slim and between 5 foot seven or eight. Mrs. Sacchetti didn’t know if the second robber was black or white. She also couldn’t identify either robber.
Evidence found that tied Brandon Wills to the crime
       The police found the white bandana Mr. Sacchetti had pulled from the face of the first robber.  There was blood on that bandana.  The police found a second blue bandana in the ravine along the escape route followed by the robbers.  An impression of a footprint found very close to that bandana matched an impression of a footprint taken from the Sacchetti’s house.  It was a fair inference that both bandanas were worn during the robbery by either or both of the robbers. 

       A forensic expert examined both bandanas for DNA.  Three sections were cut from the white bandana.  On one section, the expert detected the DNA of at least one individual.  There was insufficient DNA to allow a comparison.  The DNA of at least three unidentified people was found on a second cut-out section.  Once again, that DNA was not suitable for comparison.  The DNA of at least two individuals was detected on the third cut-out section from the white bandana.  One of the DNA samples matched the appellant’s DNA profile.  The expert opined that the chance that two different persons could share that DNA was something in the order of one in 48 billion. Since only fifty billion people have been born since Man walked on two legs and only six billion are currently alive in this current era, the chances as extremely slim that two persons in the world have the same DNA.  In fact, there are eight trillion combinations of DNA in just one offspring of his or her mother and father so you can see why were are all different when it comes to possessing DNA.
      The expert cut one section from the blue bandana found in the ravine.  Testing of that section revealed DNA from at least two individuals.  The DNA from one of the individuals matched the DNA of Brandon Wills.  The chance of a random match with another individual other than him was one in 9.2 billion. Obviously it was very stupid of Wills to throw away the bandana so close to the scene of the invasion.
      The expert testified that he could not say when the DNA was placed on the bandanas and he could not estimate how long the DNA may have been on the bandana. The expert also agreed that the person or persons wearing the bandana during the robbery may not have left his or her DNA on the bandana.
      Mr. Sacchetti described the weapon used by the first robber in some detail.  He described it as having what appeared to be a wooden handle that was about eight inches long and a metal end that was about 12 inches long.  Mr. Sacchetti testified that the handle was black or brown and the metal end of the weapon was silver.  He described the metal end of the weapon as flexible, comparing it to the microphone attached to the witness box and to a piece of BX wire.  He also described the metal end as “like a whip.”                                                              

      The police seized a metal baton from a gym bag found in the appellant’s bedroom closet about two months after the robbery.  The officer who seized the baton described it as “an asp.  It is an asp what the majority of police officers carry.  It is a metal baton, it is a metal stick.”                                                               
      It is similar as to what Mr. Sacchetti described but you have to keep in mind that his description was slightly different but that is because it was dark outside when he was struck with it. The police officer who found the baton in Will’s closet testified that police batons can be purchased over the Internet and in certain “self-defence stores.
      Mr. Sacchetti pointed out three differences between the baton seized from Will’s bedroom closet and the weapon used in the robbery. The end of the baton seized from the Will’s closet was black, although specks of the black paint had come off the tip of the end, exposing the silver coloured metal underneath.  The end of the weapon used in the attack was silver. The end of the baton shown to Mr. Sacchetti was firm.  That end of the weapon used against him moved and was like a whip. The tip of the end of the baton seized from the appellant’s bedroom closet had a mushroom-like shape.  The weapon used in the robbery had a more pointed tip. Obviously, these two batons are different or they seemed so to Mr. Sacchetti.
      Counsel for Wills submitted that the evidence could not reasonably support a finding that Wills was one of the perpetrators.  He maintained that, without that finding, his client could not be convicted on any of the charges of robbery and assault.
      Admittedly, the evidence was circumstantial but it was also highly coincidental considering that Wills possessed a baton similar to some degree from the one the robber who used on Mr. Sacchette and Wills also possessed a blue bandana similar in colour to the one of the robbers used. Also an impression of a footprint found very close to that bandana matched an impression of a footprint taken from the Sacchetti’s house.  It was a fair inference that the bandana was worn during the robbery by Wills.
      He was convicted two counts of robbery with a firearm (counts 1 and 2), one count of unlawful confinement (count 3), one count of disguise with intent to commit an indictable offence (count 4), and two counts of possession of a weapon for the purpose of committing an indictable offence (count 5 – a baton; count 6 – a firearm).  The trial judge stayed count 6, relying on the R. v. Kienapple decision in which the Supreme Court of Canada ruled that a person can’t be convicted twice for the same kind of offence) He received sentences totaling 10 years which after credit for pre-trial custody thereby resulting in a net sentence of seven years and four months.  He appealed his conviction and sentence.            
Were the verdicts and the sentence unreasonable?        
      His lawyer argued that the evidence could not reasonably support a finding that his client was one of the perpetrators.  He maintained that, without that finding, his client should not have been convicted on any of the charges.   
      Jury verdicts are regarded as the gold standard in criminal law.  However, as with any human institution, juries can make mistakes.  Where the mistake is a wrongful conviction, the cost to the accused can be measured in years of imprisonment during his or her life. This is why it is important that jury verdicts have to be as reasonable as is feasibly possible especially when there is no eyewitness evidence submitted to the jury and the evidence presented to the jury is purely circumstantial.
      In appeal court cases, three judges hear those cases. One of the judges, Justice Pepall in Brandon Will’s appeal disagreed with colleagues that the conviction appeal should be dismissed.  In his view, the evidence could not reasonably support a finding that the appellant (Wills) was one of the perpetrators of the crimes for which he was convicted and, as such, the verdict was unreasonable. 
      He pointed out that neither of the victims identified the appellant as one of the robbers.  He said that the case against the appellant was based solely on circumstantial evidence.  As such, in order to convict, the jury had to be satisfied beyond a reasonable doubt that the only rational inference that could be drawn from the circumstantial evidence was that the appellant was guilty.  
He said that the Crown’s case rested solely on DNA evidence connecting the appellant to two bandanas used in the robbery and evidence of a baton seized from the appellant’s apartment—a baton that differed in description by the victim. The victim, Mr. Sacchetti, did not identify the baton found in Wills’ apartment as the baton used during the crime. No one else did either. Subsequently, there was no evidence connecting the apartment baton to the crime.
      Justice Pepall however agreed with the other two judges that the DNA evidence does establish that the appellant, among others, had direct or indirect contact with both bandanas at some point in time before the police found them.  He added that the timing of when the appellant’s DNA was placed on the bandanas could not be determined.  The expert had testified that there was no way to determine how long any of those DNA profiles had been on that bandanna. Furthermore, both bandanas contained the DNA of multiple individuals and had DNA from more individuals than there were perpetrators to the offences. 
      The judge said. “Based on the evidence, I do not believe that a properly instructed jury acting judicially could reasonably render a guilty verdict.  The Crown’s evidence in this case amounted to inconclusive DNA evidence coupled with a baton that was identified as being dissimilar to that found in the closet of the appellant’s apartment and as dissimilar from a police baton and that bore no identifiable connection to the crime scene.  In my view, the guilty verdict in this case was unreasonable.  The evidence could not reasonably permit the conclusion that the appellant was the perpetrator of the crimes for which he was convicted.”
      Based on his reasoning, one can easily conclude that the circumstantial evidence against Brandon Wills was weak—too weak to justify a guilty verdict. But wait, you haven’t read what the other judge’s conclusion were. Their decision was written by Justice Doherty.

      Let me first give you a primer about reasonable tests in determining guilt or innocence.
Section 686(1)(a)(i) of the Canadian Criminal Code requires the appellate court to independently weigh the totality of the evidence.  The court weighs the evidence, however, not with a view to making its own assessment as to the appropriate verdict, but for the more limited purpose of determining whether the verdict is beyond the reasonableness limit.  In making that assessment, the court must give due weight to the advantage a jury gains from actually seeing the witnesses and hearing the narrative unfold.
      In this particular case, the “lens of judicial experience” must focus both on the nature of the crime and the nature of the evidence.  This was a terrible crime committed against innocent and particularly vulnerable members of the community.  Law-abiding members of the community could easily see themselves as the victims of this kind of random violent crime.  A jury’s understandable concern that criminal activity of this kind does not go unpunished could subconsciously influence the jury’s assessment of whether the circumstances—which no doubt pointed the finger of suspicion at the appellant—were sufficiently compelling to justify a finding of guilt beyond a reasonable doubt. It must be remembered that the jury is sworn to render a verdict based upon what they have learned during the trial of an accused. Their decisions can often be arrived at by their gut feelings that they experience during the trails. However, those feelings must be reasonable and not whimsical. The reasonableness of the verdicts must be assessed with regard both to the inferences reasonably arrived at from the totality of the evidence and to the Crown’s ultimate burden to demonstrate that guilt is the only reasonable inference to be drawn from the totality of that evidence.
The evidence detrimental to the appellant’s defence
      Justice Doherty pointed out that “The DNA evidence was obviously important evidence.  The jury could readily infer that one or both of the robbers had worn the bandanas during the robbery.  The DNA evidence also established, almost to an absolute certainty, that the appellant, among others, had direct or indirect contact with both bandanas at some point in time before the police found the bandanas at the robbery scene. “ unquote
      Now that by itself doesn’t necessarily mean that the appellant had contact with the bandana when it was at the scene of the robbery or that it was actually at the scene of the robbery when the robbery was committed. The DNA evidence alone could not support the inference that the appellant was even one of the perpetrators or that either bandana belonged to the appellant. What is really interesting is that there was no DNA found on the white bandana that matched the victim who was being assaulted by the robber who was wearing that particular bandana.
      A verdict from a jury can certainly be considered unreasonable if the decision of the jury cannot be supported by the evidence.  The traditional test for unreasonable or reasonable verdicts apply to cases in which the verdict is based on an assessment of the evidence presented at the trial. In applying the test, an appellant court must show great deference to the jury’s assessment of the evidence presented to the jury and their opinion on the expertise of expert witnesses. This applies with particular force to verdicts reached by juries. It is for the jury to decide, notwithstanding difficulties with the testimony of expert witnesses how much, if any, of the testimony it accepts.
      The jury in this particular case didn’t have the advantage of hearing Brandon Wills’ testimony (which was his right to remain silent) so they had to arrive at a conclusion that would appear as being a reasonable one.
      In my respectable opinion, there was no reasonable possibility that the jury could have misunderstood what evidence was presented to them in order for them to return guilty verdicts on the charges of robbery and assault.
      As I said earlier in this article, the evidence presented to the jury was highly circumstantial but I am not convinced that it was overly speculative.
      With respect to the weapon used to assault Mr. Sacchetti, it is conceivable that as he was being assaulted and thought that he was going to die, he erroneously described the baton that he was being struck with.  But the fact that Wills had a baton in his possession in his home that to some degree was similar to the one that Mr. Sacchetti was struck with, could reasonably lead the jury to believe that Wills used his baton to strike Mr. Sacchetti with.
With respect to the impression of a footprint found very close to that bandana that matched an impression of a footprint taken from the Sacchetti’s house surely must have convinced the jury that either Wills or his accomplice were at both locations.
      Wills also possessed a blue bandana similar in colour to the one that one of the robbers used and the DNA on the blue bandana from one of the individuals wearing it during the home invasion matched the DNA of Brandon Wills.  The chance of a random match with another individual other than him was one in 9.2 billion. It was in my opinion, reasonable on the part of the jury to presume that Wills was one of the robbers in the home invasion on that fact alone.
Now I realize that this evidence is speculative but in my respectful opinion, the jury’s decision to accept the evidence presented by the experts to the 12 members of the jury wasn’t unreasonable. The court of appeal came to the same conclusion.
      The sentence remained the same—ten years in prison less time served while waiting for his trial and appeal.

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