Henderson J
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN IN GEORGE TOWN, GRAND CAYMAN
IND. NO. 19 OF 2004 - Criminal
REGINA
- VS -
SHELDON BROWN
REASONS FOR JUDGMENT delivered by
THE HONOURABLE MR. JUSTICE HENDERSON on the 3rd
day of August 2004, at George Town, Grand Cayman.
APPEARANCES:
For the CROWN: Mr. P. Patterson
For the DEFENDANT: Represents self
Amicus curiae: Mr. D. Schofield
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REASONS FOR JUDGMENT
HENDERSON, J. (Orally):
The defendant, Sheldon Brown, is charged that "on a day between the 12th and 23rd days of February 2004, with intent to pervert the course of public justice, he did an act which had a tendency to pervert the course of public justice in that he made threats against James Fernando Martin, a potential witness, in order that the said James Fernando Martin would make a false statement to the police investigating the murder of Joseph Williams."
Cast that way, it may be thought that the charge alleges a continuing course of threats and threatening conduct between the 12th and 23rd days of February. In fact, the case put for the Crown was of a single instance of a threat.
The defendant represented himself throughout the trial. I am, of course, able to convict him if, but only if, I am sure of his
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guilt. Put another way, I must be satisfied beyond any reasonable doubt that each essential element of the charge contained in the indictment has been proved by the Crown.
The only evidence implicating this defendant was given by the witness James Fernando Martin. There was no independent, supporting or confirming evidence for Martin's testimony.
Mr. Martin has a long history of criminal behaviour. It is clear, both from his criminal record and from the tenor of his evidence, that he associates with the criminal element on Grand Cayman Island. One need only mention that he was a witness, by his own testimony, to two murders in the course of three days to see the truth of what I have just said. In addition, Mr. Martin was taking cocaine, ganja and alcohol at the time at which he is alleged to have been threatened and when he gave his first statements to the police.
Bearing all that in mind, I must warn myself, as I do now, that it is dangerous to convict on the unsupported or uncorroborated evidence of James Fernando Martin.
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His evidence is best approached by considering, first, his various statements to the police.
On February 18th, 2004, he gave a statement regarding the murder of Chadwick Bush. That murder happened on February 14th, 2004, Valentine's Day. His statement was quite detailed and specific.
On the same day, he gave a second statement to the police regarding the murder of Joseph Williams, which happened around 8:00 p.m. on February 12th, 2004. Again, there is significant circumstantial detail in the statement. That statement implicates a man known as "Skinny" as the person who shot Williams, but also implicates Mateo Dinnal and one Derek Stewart as accomplices. It is significant that Mateo Dinnal is a friend and associate of the defendant Sheldon Brown.
On February 20th, 2004 (that is to say, some 48 hours later), Mr. Martin gave two further statements to the police.
In the first, he says that he saw a man known as Debo, whose full name is Damean Seymour, participate in the Williams murder.
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Aside from naming Seymour as a participant, this statement is reasonably consistent with the statement given on February 18th about the Williams murder.
In the second February 20th statement, Martin says that he previously gave two statements to the police regarding the murder of Williams. In context, that must mean the statements given on February 18th and February 20th. There is no evidence before me of any additional statement provided by Martin, unless one considers that his conversation with the police around midnight on February 14th could be termed the giving of a statement.
In this second February 20th statement, Martin says that Debo was the man who shot Williams. Martin implicates Mateo Dinnal again, and Skinny again, as accessories to the murder. Some of the language used in that statement is important, and I quote from it now. Martin says in his statement:
I am the above-named person and I would like to give a further statement regarding the murder
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of Joseph Williams. I had previously given the police two statements before, but those statements were not true. The reason why I gave those statements to the police was because I was fearful for my life and my family's life. After the murder of Killa, Sheldon Brown came to me and told me what to say to the police and told me to lie to them. Sheldon told me if I didn't tell the police the lies, he would kill me. The day after the murder, when Sheldon Brown came to me, he told me to tell the police that Skinny was on the porch with us and that Skinny had the gun, but all that is a lie. Skinny came on the scene after Joe was killed.
Later in the statement, Mr. Martin says:
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I don't know Skinny very well, or what time he had come in the area, but all I know is that after the explosion he came to where we were by the porch and gave Dan a silver object. I believe it was the said gun, but I am not sure, because when he was handing the object to Dan I never really got a good look at it.
Thus, in this statement, Martin alleges that, on the day after the murder, February 13th, 2004, Mr. Brown threatened to kill Martin if he did not tell the police lies. Further, Martin says that Brown instructed him to tell a specific lie, that is, that Skinny was on the porch "with us" and that Skinny had the gun. Martin says that the truth is that Skinny came on the scene only after Williams was killed. It is the allegations in that statement which form the gravamen of the Crown's case.
There were, however, more statements.
Tuesday, August 3, 2004 (car)
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At some point early in May 2004, Martin signed a letter addressed "To whom it may concern" which was sent to Crown Counsel's office. Martin says he did not read the letter and signed it because he was high on ganja at the time. The letter is a complete repudiation of his accusation that Sheldon Brown had threatened him.
Shortly afterwards, on May 10th, 2004, Martin gave another statement to the police. He began by addressing the topic of the letter. He said, and I quote:
If I had read the letter before signing it, I would not have signed it because it is not true.
He then refers to a statement, eight pages in length and dated February 20th, 2004, signed by himself. (We have two statements given by Martin on that date and neither is eight pages in length.) Martin goes on to say:
I gave that statement of my own
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free will. I was never threatened by the police, neither was I arrested by them, so there was no talk of me getting bail. Sheldon Brown did threaten to kill me if I did not tell the police lies about Skinny by the Zodiac Club on Saturday, 14th February, during the evening just before Chadwick Bush got shot. Sheldon and I both ran when Chadwick got shot. After being threatened by Sheldon, I felt really scared for my life and fearful of Sheldon. Because of this, I would hide out in my house and would see Sheldon driving past my yard in his white Toyota, two-door pick up truck, which is tinted very dark. It was because of this that I gave the police two statements implicating Skinny.
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He concluded by saying:
I have not spoken with Sheldon since he threatened me, and no one has threatened me since then. I believe that I signed the letter Henny gave me to sign because I was high from smoking ganja.
Thus, in this May 10th statement, Mr. Martin repeats that Mr. Brown made a specific threat to kill him if he did not tell the police lies about Skinny. He adds that this happened at the Zodiac Club, a location not mentioned in his earlier statement of February 20th. He also says that the threat was on Saturday, 14th February, during the evening just before Chadwick Bush got shot.
The fact that Martin witnessed the murder of Chadwick Bush on February 14th would be an excellent reason for thinking that the occasion and the date would be cemented in Martin's recollection. The date that he gives, though, in his May 10th statement, is inconsistent with
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the date he gave in his February 20th statement. Since the February 20th statement was given only six days after Chadwick Bush got shot, one would expect Martin's memory to have been clearer on that occasion.
Finally, Mr. Martin gave a statement to the police dated June 11th, 2004. He begins by referring back to his February 20th statement and then says this, and I quote:
When the murder happened,
Sheldon saw me about two or three days later around 3:00 p.m. at Jim Woods' bar, called The Globe on Martin Drive off Shedden Road. I was standing up in front of the bar's front door when Sheldon drove up in a white Toyota pick up truck, which is darkly tinted. He was alone, but I do not recall if there were anyone else around at the time.
Sheldon pulled down his window, right hand side, and said to me
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"Fernando, come here, I need to see ya." I walked up to the truck, to his window, and Sheldon said to me, "Fernando, you must tell the policeman them lies about Debo and Mateo knowing anything about Joe Williams' murder. If you don't tell them lies, I will get rid of you." He didn't say anything else and I walked off. I took the threat to mean that he would kill me and I got very scared because his voice was very aggressive and he seemed very serious. I then went and gave the police two statements which did not implicate Debo, Damean Seymour, or Mateo Dinnal. When the police came back to me the third time, I decided to confess to them that I had lied in the other two statements and why I had done so.
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His statement of June 11th goes on to recount a meeting at Denzel Barnes' bar about two weeks after the first threat, on Mary Street around 7:30 a.m. On this occasion, he says the defendant asked him if he told the police what the defendant had told him to say and Martin said "yes". Then, after describing that encounter, Martin said "I have not spoken to Sheldon after this encounter and neither have I been threatened again." He refers to both encounters, making it clear (in this statement at least) that he is saying that there were two conversations of significance with the defendant.
It will be noted in this June 11th statement that he repeats that there was a threat to kill him if he did not lie to the police. He says it was two or three days after the murder of Williams, which would put it on the 14th or 15th of February, and he says it happened at Jim Woods' bar called the Globe.
There was other evidence in the case that Jim Woods' bar is also known as "the Globe" and "the Zodiac".
He says he went and gave the police two
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statements which did not implicate Damean Seymour or Mateo Dinnal. That is somewhat puzzling because each of the two statements, as I have indicated earlier, given on the 18th and 20th of February, implicate Mateo Dinnal as an active participant in the shooting of Williams. In addition, the second of the two implicates Seymour as a participant in the shooting of Williams. Unless Martin has given further statements which are not in evidence, one cannot make much sense of his assertion that he gave the police two statements which did not implicate Seymour or Dinnal.
Clearly, all the statements which were disclosed to the defendant have been put to Martin in cross-examination and entered in evidence. I have referred to all of these in this ruling.
In summary, then (and before I even touch upon the oral evidence of Martin), one can infer this from his statements: First, he says he gave a statement after the alleged threat. The statement was given on February 18th. It implicated Mateo Dinnal, a friend of Sheldon Brown's, although Martin says that Brown's
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threat was to the effect that he should do nothing to implicate Dinnal. On February 20th, two days later, he gave another statement to the police, which implicated Dinnal, but also implicated Seymour. He resiled from his allegation that Brown had threatened him, in the letter he wrote to Crown Counsel. He referred at one point to an eight-page statement, which we do not have in evidence, and there are some inconsistencies between the various statements.
On the basis of the disclosure of these statements, the defendant, who represented himself, gave notice of alibi evidence and presented a rather elaborate alibi defense.
I turn now to the oral evidence of Martin.
I instruct myself that what Martin said in his prior statements is not evidence unless and until he expressly adopts the statement in question or some passage in it.
In his oral evidence, Martin began by saying that the police spoke to him about midnight at the police station on the day of the Williams' murder. He was then asked, and I quote:
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"Now, after this incident did you see the defendant Sheldon Brown at some point?
Answer: I didn't saw him that night.
Question: When next, when did you see him after the incident?
I seen him like two days after.
Question: And where were you when you saw him?
Answer: By the Globe, what they call Club Zodiac."
So that bit of evidence places the evidence to come at the Globe, also known as Club Zodiac, on February 14th. Martin said:
"I was standing up in the door, the front door.
Question: Tell us what happened when you saw him.
Answer: When I saw him, he call me.
Question: And what did you do
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when he called you?
Answer: I went to him."
We then dealt with the identification of the defendant. Then, Crown Counsel asked:
"And what happened when you went to him?
Answer: When I went to him, he started to ask me if I give the police a statement.
Question: And did you respond? What did you say to him if anything?
Answer: The tone of voice, how he was talking to me, had me scared and I told him "no".
Question: Was anything else said?
Answer: Well, all I did was walk away from him because I was scared, and I am still scared.
Question: And did he speak you again?
Answer: And he speak to me at
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Denzel bar about two weeks after."
So, on the first occasion when he is asked about it, in response to non leading questions from Crown Counsel, Martin gives no evidence whatsoever of any threat to kill him and no evidence of any specific direction from the defendant that Martin was to tell a specific lie to the police (that is, that neither Dinnal nor Seymour was involved in the Williams murder).
Crown Counsel went on in this vein:
"Question: After the question to you as to whether you had given the police a statement and you said no, did he speak further to you on that evening?
Answer: He didn't speak to me further on that evening.
Question: You say you saw him at Denzel's bar. Did you speak to him on that occasion?
Answer: He came and asked me if
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I did what he said and I said yes.
Question: And what was it that he had said?
Answer: To tell the policeman lies which I did in the first two statements because I was scared of my life and my family.
Question: And what were the lies that you had been asked to tell the police?
Answer: To say that Damean and Mateo didn't know nothing about Joe murder.
Question: Anything else?
Answer: Nothing. He didn't say nothing else."
Here, Martin, for the first time in his evidence, testified that the defendant gave him a specific direction to lie to the police about Damean and Mateo. He places the occasion at Denzel's bar some two weeks after the first conversation and outside the dates alleged in the indictment.
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"Question: Did he say anything to you about any other person apart from Damean and Mateo?
Answer: No.
Question: When had he told you to tell those lies? When did that take place?
Answer: That take place at Denzel bar.
Question: Was there an occasion before you saw him at Denzel's bar where he had asked you tell the police lies or told you to tell the police lies?
Answer: Repeat that, sir.
Question: Yes. Was there a time before you saw him at Denzel's bar where you had seen him and he had told you to tell the police lies?
Answer: If there was a time?
Question: Yes. Before you saw him at Denzel's bar, did you speak to him before that?
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Answer: No.
Question: Was anything else said to you by Sheldon Brown at Denzel's bar?
Answer: All he said to me was 'pussy'.
At this juncture, despite repeated questioning from Crown Counsel, there is still no evidence from Martin of threats by the defendant to kill Martin.
A little later, Crown Counsel persisted in this manner:
"Question: And when you went to the station, were you interviewed by the police?
Answer: Yeah, they say they need another interview from me because I telling lies.
Question: So when you spoke to the police, what was it that you told them?
I told them the reason why I told the lie because my life was
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threatened, and it's still being threatened while I on the street.
Question: What was the lie that you told the police?
Answer: That Damean and Mateo didn't know nothing about the murder."
He said (in answer to questions) that he was scared of Sheldon Brown. Then, he was asked by Crown Counsel:
"Question: Do you know of a bar called Jim Woods' bar?
Answer: That the same bar you call the Globe.
Question: And that bar is on Shedden Road?
Answer: Yes.
Question: And the other bar that you've referred us to, is that Denzel Barnes' bar?
Answer: Yes, that's on Mary Street."
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There was more examination which covered some of the same ground again. Then, the Crown concluded its direction examination by asking these questions:
"Question: Now, you mentioned to us that you were scared when you were being spoken to by Sheldon Brown. Could you describe how he was behaving when he was speaking to you? What can you tell the Court about his behaviour?
Answer: He was talking, like, in an angry way to me in a loud tone of voice.
Question: Was anything specific said to you that made you feel scared?
Answer: By the way how he talk to me, that get me scared, because I know how close him and Damean is and the relationship between the two of them."
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Again, the witness fails to give any evidence of a specific threat to kill.
Mr. Patterson, who did his admirable best for the Crown, returned to the task again with another question:
"Well, was there anything specific that he said to you that made you feel afraid?
Answer: Well, the thing that he said, right, is I mustn't tell the police the truth about Daman or what had happened.
Question: And what would happen?
Answer: I mean he -- the way how he was talking like he want to do me something.
Question: Did he tell you what would happen?
Answer: Not really come out and say what's going to happen, but I know by the way he talk, I know how he speak."
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So, despite all of that probing, the witness not only failed to repeat the evidence in his statements, which was the theory of the Crown presented in this case that there was a specific threat to kill, but he contradicted that by saying that the defendant did not really come out and say what was going to happen; rather, Martin inferred it from the way the defendant was talking.
Finally, Crown Counsel said:
"Question: And he told you to tell the police certain lies. In relation to the first statement, when was it did you speak to Sheldon?
Answer: That was before I made the statement then.
Question: Before you made any of the statements?
Answer: Yeah, before I made any of the statements."
The defendant, representing himself,
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conducted a lengthy cross-examination of Martin. Some of that was probably unwise. In certain respects Martin, during cross-examination, adopted passages in his statements and gave evidence of a more specific nature than anything he said in direct examination. For example, Mr. Brown said:
"Question: I am putting it to you that you did tell the police I threatened you at the Globe.
Answer: You did threaten me at the Globe."
In another point in the cross-examination, Mr. Brown read this passage from one of the statements:
"Sheldon Brown did threaten to kill me if I did not tell the police lies about Skinny by the Zodiac Club on the 14th of February, during the evening, just before Chadwick Bush was shot."
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The witness agreed that that was something he had said in his earlier statement. Then, Brown asked this question:
"Why is it that you did not tell the Courts that earlier?
Answer: Because I didn't recall."
He also gave a second explanation - it was because he was not asked about it.
I do not need to dwell further on the cross-examination of Martin because I am satisfied that those pieces of evidence adduced from Martin in cross-examination which serve to enhance the Crown's case are lacking in credibility, given that they were not adduced in direct examination despite the admirable efforts of Mr. Patterson.
In summary, in his direct testimony, Martin said the police spoke to him about midnight on the day of Williams' murder. Two days later, on February 14th, at the Globe, also known as the Zodiac, he had a conversation
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with the defendant. The defendant's tone of voice scared him. There was no specific threat made. Two weeks later, at Denzel Barnes' bar, he had a second conversation with the defendant. The defendant asked Martin if he had done as he was instructed. No threat was made on this occasion either. It was only when it was specifically suggested to Martin in cross-examination that the defendant had threatened him that Martin adopted the suggestion and agreed with it.
I can only convict this defendant if I am sure of his guilt. I am not permitted to convict him on the basis of a guess or speculation. I am not permitted to convict him because I consider he leads a criminal lifestyle, or because I suspect he may have been involved in other crimes of violence or threatening. I can convict him only if I am convinced beyond a reasonable doubt that he did utter a specific threat or threats against Martin with a view to inducing Martin to make a false statement to the police regarding the murder of Williams.
The unsatisfactory nature of Martin's
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evidence, the lack of independent support or confirmation for it, the danger of convicting on Martin's evidence alone, the inconsistencies between his statements and the sworn testimony, and my observation of Mr. Martin's demeanour in the witness stand, all (collectively) cause me to have a reasonable doubt as to the defendant's guilt. I must, therefore, give him the benefit of that doubt and find him not guilty of this charge.
Henderson, J.
REPORTER'S CERTIFICATE
I, CAROL A. ROUSE, Official Court Reporter, hereby certify that the foregoing pages are, to the best of my skill and ability, a true and accurate transcript of the proceedings had in the said Court and reported in machine shorthand by me on the date and place aforementioned.
DATED THE 25th DAY OF AUGUST 2004