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Jury to decide if witness identified two twins or one in slaying, judge rules

In a pretrial hearing, defense attorneys argued that a witness identification of the brothers should be suppressed because it's not clear if she was identifying both or just one of them - and, if it was just one, nobody knows which one.

Brian Barham, left, and Lydell Barham on Oct.

Brian Barham, left, and Lydell Barham on Oct. 9, 2018. Credit: Suffolk County Sheriff's Office

The identity of who committed a crime — a key factor in any criminal case — is more of a puzzle than usual in a Suffolk murder case in which identical twin brothers are charged.

In a two-day pretrial hearing that concluded Wednesday in Riverhead, defense attorneys argued that a witness identification of the brothers should be suppressed because it's not clear if she was identifying both of them or just one of them — and, if it was just one, nobody knows which one. But State Supreme Court Justice Richard Ambro ruled that a jury can decide the value of the identification procedure.

Charged with second-degree murder in the December 2015 shooting deaths of Blake Chambers, 28, and Codi Chambers, 22, are twins Brian and Lydell Barham, both 34. They are accused of bursting into the Mastic Beach home where the Chambers brothers lived and shooting both. Police and prosecutors have not offered a reason for the attack, but after the shooting neighbors said the house was well known as a place to buy marijuana, cocaine and opiates.

The hearing before Ambro was to determine whether police acted properly on March 22, 2018, when they asked a witness, Kimberly Rodriguez, if she could identify the shooters in two separate photo arrays. In both arrays, Det. John Focas said, she quickly picked out photos of the defendants.

During questioning by Assistant District Attorney Daryl Levy, Focas said he didn't know who the suspects were at the time because he knew none of the facts of the case then. That was deliberate, he said, so that he could not improperly suggest to the witness which photo to pick.

After the second photo array, Focas said Rodriguez told him, "I am almost positive, again, I would say 100 percent, but it's been two years" since the shooting.

Because Focas knew nothing about the case, he said he didn't know how many suspects there were or that they were twins. The brothers are identical except that Lydell's hair is longer and braided differently  from Brian's.

"So we don't know if she identified the same person from the photo spreads, or a different person?" said Brian Barham's attorney, Jonathan Manley, during cross-examination.

Focas said he learned later they were two different people in each photo array. He also learned that Rodriguez had identified a different person earlier as a shooter.

Manley and Lydell Barham's attorney, John Halverson, urged Ambro to suppress the identification procedure because it was so confusing.

"We don't know if she was identifying two separate people, or she was identifying one of them two times," Manley said. "And if she's identifying one person, we don't know if it's Brian or Lydell."

As a result, Halverson said, the identification procedure was improper, despite detectives' efforts to do things the right way. He noted Rodriguez' use of the word "again" to suggest she thought both photos were of the same person, not two different people.

But Levy argued that, because the procedure was done correctly, he should be allowed to present it to a jury. If the witness was confused about whom she was identifying, that's something the jury can consider, he said.

Ambro agreed.

"If the witness was identifying one brother or the other are questions to be explored at trial," he said.

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