Jury fails to make a decision; will continue deliberations Monday

MAYVILLE – After eight hours of deliberation and multiple questions, the jury did not make a decision on the fate of Benjamin Wassell.

Judge Michael L. D’Amico announced Friday morning during jury instruction that he changed the indictment charges due to confusing repetition.

He reduced the original five class D felony charges down to three – two counts of third-degree criminal sale of a firearm and one count of third-degree criminal possession of a firearm.

He explained the jury must decide if there is proof of possession, possession with the intent to sell and possession and sale.

He told the jury Wassell is considered innocent throughout the trial and it is the burden of the prosecution to prove otherwise. He said it is the jury’s decision to determine whether evidence proved beyond a reasonable doubt whether Wassell was guilty.

He explained to be found guilty of criminal possession, there must be proof that Wassell possessed the weapon on Jan. 24, 2013, that he knowingly possessed it and that the weapon was operable. To be guilty of criminal sale – with the intent to sell – the jury must decide if it was proven that Wassell was not authorized to possess the assault weapon on Jan. 24, 2013, that he knowingly and unlawfully did so, that he possessed it with the intent to sell and the weapon was operable. For the criminal sale charge to be proven, the jury must determine if Wassell was not authorized to possess the assault weapon, if he unlawfully sold, gave away or disposed of the weapon, if he knowingly did so and if the weapon was operable.

The judge added that the defense has not made this an entrapment case and that it is up to the jury to determine the truthfulness of testimonies and whether Wassell’s statement to police was “voluntarily” given.

The jury began deliberations around 11 a.m. About an hour later they sent a note to Judge D’Amico with the questions: why was a warrant not issued and why was Wassell not told the charges against him when he was handcuffed?

The judge said a warrant is not required and there could be many reasons why there was time between the incident and the arrest. He said it is also not required that charges be made known at the time of arrest; that is why there is a formal arraignment. He said that the jury should not speculate why these things were not done, but could take into consideration Wassell’s lack of knowledge of charges to determine his state of mind when signing the statement for police.

The jury sent out three more notes between noon and 4 p.m., asking about how Pennsylvania gun laws come into play with the NY SAFE Act, how the exchange of money affects possession of a weapon, to hear testimony Wassell made about whether he knew the gun was illegal and what to do if the jury is not unanimous in its decision.

Judge D’Amico told the jury Pennsylvania law is irrelevant in this case and that money can but does not have to be exchanged for a person to possess a weapon. Wassell’s testimony was read by the court reporter.

At 4 p.m., the judge asked the jury to keep an open mind and remember they swore to be “completely objective,” and sent them back to deliberate again.

Court usually closes at 4:30 p.m., but the judge allowed the jury to deliberate until 7 p.m.

During that time, the jury sent out notes with four more questions.

Twice the jury asked to hear parts of Wassell’s testimony again and it was read by the court reporter.

The jury also asked for the information on the SAFE Act, which the prosecution attempted to enter into evidence but was not accepted by the court. For this D’Amico told the jury that presentation of evidence is over and this is not a SAFE Act case.

“Many of these questions have focused on the SAFE Act. This case is not about the SAFE Act. It is about the alleged possession and sale of an assault weapon,” he said.

He again encouraged the jury to try to come to a consensus.

With just a half hour left to deliberate the jury sent out another question on the definition of “knowingly.” In Wassell’s testimony he said he thought he was acting lawfully and that it was not his intent to break the law.

D’Amico quoted the adage, “Ignorance of the law is no defense.”

It was also asked if the jury can discard testimony. D’Amico said it is up to each juror to prioritize testimony and determine what is true based on the evidence.

Right at the deadline the jury sent a message that it could not reach a verdict. The judge asked if they thought a verdict cannot be reached or if more time was needed.

The lead juror said with more time the jury could reach a unanimous decision.

D’Amico scheduled further deliberation for Monday beginning at 9 a.m.

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