Justice Paulette Williams sentenced David A Whorms to 10 years imprisonment last Thursday after a Grand Court jury found him guilty of possessing an unlicensed firearm.
Whorms, 28, had pleaded not guilty to having a Smith and Wesson .38 revolver and three rounds of ammunition in the Cayman Kai area of North Side on New Year’s night, 1 January.
The jury heard that police were responding to a report when they saw a car moving very slowly along a nearby road in the residential neighbourhood. They passed the car and the occupants did not look at them, even though the police car’s blue lights were flashing. The officers thought this unusual and stopped the vehicle. They smelled ganja and requested a search of the driver – Whorms – and his two passengers.
After finding nothing, the officers requested a search of the vehicle. The loaded gun was found partly under the front passenger seat on the side near the driver’s seat. Whorms told the officers he did not know anything about the gun and did not have it in his possession.
Whorms and his passengers were arrested. The gun was swabbed for DNA and DNA samples were taken from all three men.
In opening the case for the jury, Crown Counsel Nicole Petit said only Whorms’ DNA was found on the gun. The Defence, conducted by Attorney Nicholas Dixey, accepted that the DNA belonged to Whorms, but said he did not place it on the gun.
As Justice Williams instructed the jurors, it was for them to decide how Whorms’ DNA got there.
Whorms gave evidence and said one of the officers had taken hold of him under his arm and led him to the car to show him the gun. After touching him, the officer touched the gun, Whorms said.
One officer told the court this did not take place. The other officer said he could not recall, but if it had happened it would have been in his statement.
The officer who handled the gun said his partner saw it first and he then went to look. He came back to where the men were, told them they were under arrest and instructed all three to get on the ground with their hands above their heads. All three were lying down when he removed the gun and made it safe.
Justice Williams emphasised it was not for Whorms to prove his innocence; he did not have to prove anything at all. The Prosecution had to prove his guilt by making jurors sure of it. If they were not sure, they had to find him not guilty.
The judge explained that if a defendant attempts to prove his innocence and succeeds, he must be found not guilty. If he attempts to prove his innocence and fails, jurors still have to go back to the Crown’s case.
The Defence called an expert witness, Dr. Ruth Ballard, who gave her evidence via video link from California.
She explained that DNA is a highly complex material found in the cells of all living things. Human DNA is different in every person except identical twins or triplets. The differences can be used to tell one individual from another.
DNA can be transferred from an individual to the environment. The transfer is most easily made from body fluids such as saliva, blood and sweat.
Mr. Dixey pointed to a microphone in the courtroom. He asked what Ms Ballard would expect if he shook hands with a sweaty person and then touched the microphone.
Ms Ballard said he could find the DNA of the person he shook hands with; he might find his own; or he might find neither. Asked about a person wearing sterile gloves and touching a sweaty person, she said the DNA of the sweaty person could be on the microphone.
Questioned specifically by Ms Petit about handling a gun, Ms Ballard said the hypothetical situation would depend on different circumstances. Some of the variables she listed were how heavily the first person was sweating, how long the contact was, when the parties had last washed their hands.
She pointed out that laboratory studies were done under optimal conditions.
Ms Ballard submitted a report in which she cited several studies about the ease with which cells are transferred from a person to the environment. She said the studies highlighted the need for caution when interpreting DNA results.
‘DNA analysis cannot indicate how or when the DNA was transferred onto an item or person and therefore multiple explanations should be considered and carefully weighed with other available evidence,’ she concluded.
Ms Ballard never gave an opinion as to what happened on the night Whorms was arrested.
Justice Williams summed up the evidence, including the presence of gunshot residue on a shirt belonging to one of Whorms’ passengers and the lack of fingerprints.
She said the defence had been frustrated because there were no fingerprints. Police Inspector Gerald Joseph told the court examination for fingerprints would reduce the chances of getting DNA off the item. Further, the surface of the trigger and trigger guard are small, so it is difficult to get prints. He said it was a judgment call.
After completing her review of the evidence and explaining the law, the judge again posed the question for jurors to consider – Were they satisfied that the DNA got on the gun by Whorms handling it or had the Defence given them reasonable doubt? If they were not satisfied, if they had reasonable doubt, they had to resolve that doubt in Whorms’ favour and find him not guilty.
After the guilty verdict, Mr. Dixey urged the court to say there were exceptional circumstances in the case that would not require the court to pass a sentence of 10 years, as the Firearms Law otherwise requires.
He said the jury must have found that Whorms handled the gun, knew about it and let it into the vehicle. If Whorms’ culpability was allowing the gun in the vehicle and driving around, was it really commensurate with 10 years? There was no evidence the gun was used or brandished, Mr. Dixey pointed out.
He agreed the sentence has to be strong and send a message; he suggested three to four years.
Justice Williams said she could not agree there were exceptional circumstances. She recognised Whorms’ previous convictions, noting they were for controlled drugs and said it appeared he had graduated.