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Fontaine's Fate in Hands of Homicide Jury

It was his "depraved heart" and "callous disregard" for human life that put 22-year-old Richie Fontaine at the center of a vicious gun battled that claimed the life of Philip George and turned "Smith Bay into Baghdad" during the early morning hours of March 7, 2009, prosecutor Claude Walker told jurors Friday.

Fontaine is charged with being among the group of shooters that gunned down Philip George and critically wounded local fisherman James C. King during the gunfight about a year ago.

Wrapping up the third day of Fontaine’s trial in Superior Court, Walker’s closing arguments laid all the government’s evidence on the table one final time, focusing for the most part on a police statement given by the victim’s brother Reuben George and surveillance camera footage that shows Fontaine and two others with guns in their hands just minutes before a hailstorm of bullets sprayed Club Lexus.

While Reuben George’s testimony on the stand Wednesday didn’t identify Fontaine as the shooter, Walker’s move to get the judge to treat him as a hostile witness allowed for much of the police statement to be read when George was recalled to the stand Thursday.

In the seven-page statement, George described an exchange that took place between Fontaine and his brother earlier in the evening over some money, and recalled seeing Fontaine outside the club with a gun in his hand.

"I saw Richie on the ramp of the club with a pistol in his hand. When he saw us coming outside, he went across the street and began to open fire on us from across the street," Walker read again Thursday from a copy of George’s statement.

Walker said the particulars of the statement were corroborated in the club’s surveillance footage, which showed Fontaine and two unidentified men with guns leaving the club just minutes before the gunfight started. Though the faces of the shooters were not caught on tape, Walker urged the jurors to use their "common sense" and "human experience" to connect the dots.

"It’s circumstantial evidence," Walker explained. "If you say, I see Fontaine walking up and down the ramp with a gun in his hand, basically stalking his prey, and minutes later there’s shooting, you can use human experience to determine what happened."

He said the findings of a subsequent police investigation, such as the abundance of shell casings found across the street from the club, also back up Reuben George’s statement. George identified Fontaine as the shooter for police about 10 days after the shooting occurred, singling his picture out of 300 that were shown to him, Walker said.

Meanwhile, the government does not have to prove that the bullets that killed Philip George or critically injured local fisherman James C. King came from Fontaine’s gun, Walker explained. As long as Fontaine was working in tandem with a group of individuals and participated in the crime, the charges still apply, he said.

On Friday, the defense’s only witness, Solomon Fulero, spoke for hours on advances made in the area of eyewitness evidence, memory retention and retrieval of information. Fulero, a psychology professor at Sinclair College in Ohio, said that eyewitness testimony is best when collected right after an incident. Otherwise, as time goes on, whatever memories someone has can be altered by various circumstances.

Additionally, he said, a witness’s perception of what happened during a crime can be affected while the crime is occurring, depending on such things as lighting, distance, the perpetrator’s skin tone, stress or whether a weapon is being pointed at them.

"Memory doesn’t work like a video recorder," Fulero said. "Instead, when something happens in front of someone, especially something complex, what we do is take bits and pieces of information. That’s what you put in your memory, and later, when you reconstruct, you fill the gaps the way you think they ought to be."

Recently convicted in two separate robbery cases — and awaiting trial on a couple of other matters — Fontaine is no stranger to the legal system. In this case he faces charges of first-degree murder, attempted first-degree murder, first-degree assault, reckless endangerment and four counts of weapons charges.

In his closing arguments, Fontaine’s defense attorney, James Bernier Jr., used several pieces of Fulero’s testimony to make a final case. While on the stand, Reuben George, for example, said he didn’t see the faces of the shooters because his brother was standing in front of him, obstructing his view. What George did remember seeing was the spark of the bullets as they flew by, hitting the walls of the club and chipping the building.

"He focused on the flashes of the gun — that’s weapons focus," Bernier said, adding that the night was also dark, with minimal lighting outside the club.

While on the stand, Reuben George also said that when he was talking to police after the incident, he did identify Fontaine, but was "distressed," saying "a lot of things" that he doesn’t remember. And in his testimony Friday, Fulero said that the more stressful or violent the situation, the less accurate an eyewitness identification can be, Bernier pointed out.

So why did George supply Fontaine’s name? To give the police what they wanted, Bernier said.

He explained that Reuben George was in prison when he made the identification, charged with shooting at police during a high speed chase on March 14, 2009. When the case went to trial at the end of last year, Fontaine became a major player, as prosecutors argued that Reuben and his other brother, Isaiah George, allegedly took to the streets in an attempt to kill him for gunning down Philip.

While on the stand Wednesday, Reuben George said he picked Fontaine’s photo out of the mix only to show police that he knew who Fontaine was, and was not "mistaking him" for anyone else.

"This case shows the reality of what can be considered to be the strong-arm tactics of the V.I. Police Department," Bernier told the jury as he recalled Reuben George’s testimony. Adding that the police were out to get Fontaine, Bernier said, "Reuben George told the government what they wanted to hear because he was in jail on pending charges and wanted to get out without any more trouble."

Then, rather than face perjury charges, Reuben George tried to cooperate on the stand Wednesday by saying that the officers weren’t telling the truth when they said he had given a written statement that identified Fontaine as the shooter, Bernier said.

Meanwhile, the government’s argument that Fontaine and group of friends gathered across the street and waited for the George brothers and their party to come out of the club before opening fire is not supported by any physical evidence, Bernier argued.

There’s nothing on the surveillance tape to indicate Fontaine was "with" anyone that night — just footage of him talking briefly with a couple of men — and no fingerprints, DNA analysis or ballistics to prove that Fontaine was the killer. He may be on tape with a gun, but that gun was at his side the whole time — a defensive tactic Fontaine used to protect himself from the two other guys he saw with guns, or from something that was already happening outside, Bernier said.

Whatever the conclusion, a final decision should not be based on speculation, and there’s too little evidence in the case, Bernier told the jury.

"Please do not let speculation serve as evidence," he said.

Jurors will begin deliberating around 9 a.m. Saturday.

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