Metropolitan News-Enterprise


Friday, August 30, 2019


Page 1


Murder Convictions Reversed Based on Technological Gaffe

C.A. Says Defendants Were Put to Disadvantage Because Surveillance Video Shown in Courtroom Did Not Match Quality of the Version Viewed in Jury Room, Revealing More Detail


By a MetNews Staff Writer


The Court of Appeal for this district has reversed the conviction of two men for murder because a surveillance video shown in the courtroom did not contain the detail that a “movie quality” version viewed in the jury room did.

Justice Maria E. Stratton of Div. Eight wrote the opinion, filed Wednesday and not certified for publication. It reverses judgments of conviction of Tony Smith and Kevin Black, who had been charged with first degree murder and convicted of murder in the second degree.

Jurors viewed the video on a laptop in a Windows Media Player, set up to display 30 frames per second. What was viewed in the courtroom—and what the prosecutors and defense lawyers had seen prior to trial—was at one frame per second.

Most Frames Ignored

It was not realized until after the verdict that the playback software used in the courtroom skipped over 29 frames out of each 30 frames.

One defense lawyer reported that he had attempted to play the DVD on a Windows Media Player but was unable to make it run. It appeared that a codec had not been installed on his device which was needed to play the file.

Although the duration of the video shown in the courtroom and that viewed in the jury room were the same—about 30 minutes—the video quality was markedly disparate. There were 1,800 frames in the courtroom version and either 53,926 more frames or a total of 53,926 frames (the opinion is contradictory) in the jury room version.

“[T]he jury was able to view 53,926 additional frames of visual information that Black and Smith never knew existed,” Stratton said. “Many of these frames of video footage revealed information to the jury that was not observable in the footage on the disc admitted at trial.”

Stratton’s Opinion

The jurist disagreed with Los Angeles Superior Court Judge Kathleen Kennedy—who denied a motion for a new trial—that Smith and Black were not prejudiced by the error. Stratton wrote:

“The right to confront all the evidence against a defendant at trial, and to work with counsel to make strategic decisions about how to confront that evidence, lie at the very core of what constitutes a fair trial. Black and Smith were essentially ambushed by tens of thousands of additional frames of visual evidence they did not even know existed. Accordingly, their fundamental rights to confrontation, cross-examination, and counsel were significantly undermined.

“Additionally, we conclude there is a reasonable probability that Black and Smith would have obtained a more favorable outcome if either the jury never saw the 30 frame-per-second video, or if the 30 frame-per-second video had been available to all parties before and during trial. Without the additional frames, the jury would not have observed many of the subtle instances of nonverbal communication between Smith and Black. Given that the jury deliberated for three days even with this additional information, we cannot conclude they would have reached the same verdict without it.”

Parking Lot Incident

The victim, Mark Tyree, was shot by Black in a restaurant parking lot. He was in the company of Smith, who had been engaged in a sexual relationship with Imani Bakari-Tyree, Tyree’s estranged wife.

Smith and Bakari had recently had an argument. He drove off with her gun in the trunk saying he was going to sell the weapon because she owed him money.

Tyree and Bakari were eating in a restaurant when Smith entered; as they left, Tyree shouted angrily at Smith; in the parking lot, Tyree continued to shout at Smith, and at Black, as well; it appeared that Tyree had gone to his car to get a gun; the encounter ended with Black fatally shooting Tyree.

Stratton pointed out:

“The 30 frame-per-second video appears to show Tyree moving in Black’s direction right before Black fires the shot, a fact which can support Black’s imperfect self-defense theory.”

Smith was convicted as an aider and abettor, who urged Black to shoot. Stratton pointed out:

“[T]he 30 frame-per-second video shows Smith exhibiting a startled reaction after the gun is fired, which he could have argued to the jury was evidence he had no idea Black was going to shoot Tyree.”

The case is People v. Smith, B286716. 


Copyright 2019, Metropolitan News Company