December 2, 2019

A Cup of Joe | The Case of Willie Mack: “But Officers, It’s Not What it Looks Like!”

This week, we head up to Elmira, New York, in Chemung County. It is located in the southwestern part of New York State, along the Pennsylvania border, in a part of New York called the Southern Tier.  Elmira is a little over a 4-hour drive northwest from our Manhattan office and just under 2 hours south from Dean Whittle’s bar in Syracuse.

The name Chemung is derived from a Delaware Indian village whose name meant "big horn".

Elmira Correctional Facility, also known as "The Hill," is a maximum security state prison. Convicted murderers Timothy Vail and Timothy Morgan escaped on July 7, 2003, by digging through the roof of their cell. Vail seriously injured himself during the escape, and the two were captured by NYS Troopers three days later. The supermax prisonSouthport Correctional Facility, is located two miles away from Elmira. NY has shelled out $10 million to prisoners in 175 settlements over the past five years. The lawsuits all share the same details of abuse, torture, and mistreatment.

Many signs posted along roads in Chemung County refer to the area as "Mark Twain Country," because he lived and wrote there for many years. Mark Twain is buried in Elmira.

Elvis Presley’s spiritual advisor and personal hairstylist, Larry Geller was born in Elmira. He played a major role in shaping the King's iconic hair looks. Elvis hired him on April 30, 1964, during the filming of Roustabout. He became the man in whom Elvis confided in matters of the spirit.

This week’s case is about perception.

SCENE: On the evening of September 24, 2015, State Police responded to a report of "shots fired" in the area of Mt. Zoar Street and South Main Street in Elmira. Officers found a 35-year-old man with a gunshot wound to the leg. The Troopers spotted a figure in an alley adjacent to the Parley Coburn Elementary School. The troopers believed the man to be the shooter. The man was Willie Mack. He was 30 years old. He was arrested. This is his trial.


Q: After receiving the call to investigate the shots fired at South Main, what did you observe?

A: Well, after receiving the call with a description of the shooter, we turned onto South Main Street at Mt. Zoar Street. There, I observed the defendant, Willie Mack, running down an alley carrying a black sweatshirt.

Q: What did you do next?

A: We stopped Willie Mack at gunpoint. He obeyed and he dropped a sweatshirt to the ground. I cuffed Willie Mack and he was taken into custody.  In the pocket of the sweatshirt that Willie Mack had dropped to the ground. we recovered a loaded Glock 26 9mm pistol.

Q: What did you do after you found the Glock?

A: Willie Mack was arrested and subsequently charged with criminal possession of a weapon.

Q: Was the sweatshirt found belong to Willie Mack.

A: DNA evidence from the sweatshirt linked those items to Willie Mack.


Q: Was the sweatshirt yours, Willie Mack?

A: No, sir; it was not.

Q: Who did it belong to?

A: It belonged to the guy who got shot?

Q: What do you mean?

A: That guy who was shot had robbed me just a few minutes before the cops got there. You know, at South Main.

Q: What happened after he robbed you?

A: I chased the guy and I caught him and we got into it.  But the guy hit me in the face real good and I hit the ground hard. And the guy took off.

Q: Well what happened next?

A: As the guy ran away, I saw him dump his sweatshirt. I ran over and checked out the sweatshirt to see if it had the stuff that had just stolen from me. But, before I could search the sweatshirt's pocket, the cops pulled up and stopped me with their pieces pointed right at me.

Q: What did you do?

A: What do you mean, What did I do? I dropped the sweatshirt!

Q: Was there a pistol in the sweatshirt?

A: Yes. But I didn’t know there was a gun in the pocket until the trooper took it out.

Q: Was the pistol yours?

A: No, sir. I never had a gun, I never shot a gun…in my life! I swear!

TRIAL JUDGE: Okay members of the Jury, we have heard all the testimony. Before I give you your instructions I am going to speak to the lawyers about any special instructions they would like me to give to you. So we will see you after lunch.

[Jury exits courtroom.]

TRIAL JUDGE: Are there any special instructions that counsel would like me to provide to the jurors?

ATTORNEY FOR WILLIE MACK: Yes, Your Honor. Willie Mack is entitled to a jury charge for temporary and lawful possession of a weapon where, as here, he testified that he was unaware that the sweatshirt he possessed contained a loaded pistol.

TRIAL JUDGE:  Let me take a look at The Criminal Jury Instructions on that. Okay, it reads that a person has innocent possession of a weapon when they come into innocent possession of the weapon. The jury may consider any evidence which establishes the manner in which the weapon came into the defendant's possession, the length of time the weapon remained in his/her possession, whether the defendant had an intent to use the weapon unlawfully.

ATTORNEY FOR WILLIE MACK: That is correct, Your Honor.

TRIAL JUDGE:  No, I am not going to confuse the jury with that instruction. We are going to keep it nice and simple. They are going to decide whether he was in possession of the gun or not.

ATTORNEY FOR WILLIE MACK: Your Honor, with all due respect…..

TRIAL JUDGE:  I have made my ruling. If there is nothing else let’s bring back the jury and LET THEM finish this up.

THE  JURY’S VERDICT: We, the members of the Jury, find the defendant, Willie Mack, charged with second-degree criminal possession of a weapon, GUILTY.


TRIAL JUDGE:  I have heard enough out of you! Officers, remove the defendant from the courtroom!

THE SENTENCE: Willie Mack was sentenced, as a second violent felony offender, to a prison term of 10 years, to be followed by five years of post-release supervision.


THE APPEALS COURT:  Here, Willie Mack’s testimony provides sufficient facts from which a jury could have found a lawful basis for having temporarily and innocently possessed the subject pistol without having had any intent to use it in a dangerous manner or an opportunity to subsequently turn it over to police. Accordingly, the Trial Court should have provided a jury charge for temporary and lawful possession.

ORDERED that the judgment is reversed, on the law, and matter remitted to the County Court of Chemung County for a new trial.

WILLIE MACK gets new trial. A fair one.

See you next week.

Here is the case: http://www.courts.state.ny.us/reporter/3dseries/2019/2019_53930.htm

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