| On May 31, 2012, 27-year-old Tara Owens called police in Rochester, New York and reported that her estranged husband, 26-year-old Phillip Owens, had fired a gun at her while she and their three-year-old son drove near a convenience store at the intersection of Magnolia and Genesee Streets.
On June 5, 2012, Owens, a full-time student at Monroe Community College, who was working two jobs, was arrested and charged with first-degree attempted murder, first-degree attempted assault, reckless endangerment, and three counts of criminal possession of a weapon.
In September 2013, Owens went to trial in Monroe County Supreme Court. Prior to the trial, the prosecution had turned over surveillance videos from cameras located inside and outside of the convenience store. Owens’s defense attorney had difficulty opening the electronic disk, so a defense investigator went to the police station and only recorded the video frames from cameras outside the store, not inside the store.
Tara Owens testified that she called 911 about an hour after the shooting. She said she was driving down a street in a green Lexus with the couple’s three-year-old son. She said that as she was approaching the intersection where the convenience store was located, Owens fired gunshots from a vehicle in the convenience store parking lot.
Evidence showed that during the hour before Tara made the 911 call, she had made a significant number of phone calls, including to her divorce attorney.
Although the surveillance videos had been admitted in evidence, the full content had not been played until the prosecutor, William Gargan, began his closing argument. When Owens watched the video play in full, including camera angles from inside the store, he recognized Tara as she purchased items, then left the store with two children, and got into a blue-gray Nissan. Owens realized that what he was seeing occurred less than two minutes before Tara claimed she was fired upon while in a Green Lexus with just their son.
Owens’s defense attorney, James Hinman, asked the trial judge, Supreme Court Judge Gail Donofrio, to reopen the evidence portion of the trial so that Tara could be brought back and cross-examined about the discrepancies. Donofrio refused on the ground that Hinman had the video in his possession for several months and that “[i]t was incumbent on the defense to notify the prosecutor that he was not able to access all of the frames of the disk.”
On September 13, 2013, the jury acquitted Owens of first-degree attempted murder and reckless endangerment. The jury convicted him of first-degree attempted assault and three counts of criminal possession of a weapon. He was sentenced to 11 to 13 years in prison.
Owens appealed. More than four years later, in March 2018, the Appellate Division, Fourth Department reversed the conviction and ordered a new trial. The court noted that the prosecution had conceded that Owens deserved a new trial.
“Although it is undisputed that defense counsel could have, with the exercise of due diligence, viewed the video in its entirety and reviewed it with defendant pursuant to his pretrial requests… the court erred in failing to recognize defendant's constitutional right to present a complete defense and confront his accuser with evidence that, under these circumstances, would certainly influence the jury's determination of guilt,” the court said.
In June 2018, Owens went to trial a second time. Prior to the trial, Assistant District Attorney Gargan offered Owens a chance to plead guilty for time served and be released. Owens refused.
On June 13, 2018, Tara had to be picked up and brought to court on a material witness warrant. She asked for a lawyer and after consulting with the attorney, Tara at first answered questions by saying she could not remember. Ultimately, she invoked her Fifth Amendment protection against self-incrimination and refused to answer questions.
After that, Gargan rested the prosecution’s case. The defense then moved for a trial order of dismissal, which the trial judge, Alex Renzi, granted, and Owens was released.
Attorney Elliot Shields filed a claim in the New York Court of Claims seeking compensation for Owens. The complaint was accompanied by a sworn affidavit from Tara dated in December 2019. She said that prior to the first trial, she told Gargan, the prosecutor, that her allegation was false—the shooting had not occurred.
“In response, Mr. Gargan told me that if I did not testify and say exactly what I had told the police, that I would be arrested and prosecuted for making a false statement and that the Administration for Children’s Services would take away my child,” she said. “The only reason I testified against Phillip at his first criminal trial is because Mr. Gargan told me that if I didn’t testify that my child would be removed.”
Tara said that when she learned that there was going to be a retrial, she told the prosecution that, “they had already forced me to testify for them once before, and that I would not testify for them again.”
The claim was initially dismissed, but in December 2021, the Appellate Division Fourth Department reinstated the claim. Shields also filed a federal civil rights lawsuit on behalf of Owens.
– Maurice Possley
|