Americans lose cocaine appeal

Three Americans whose photographs with cocaine were part of the evidence against them in Summary Court saw those photos produced again in Grand Court, where they lost their appeals last week.

Brothers Thomas and Anthony Watson were appealing their sentences of 15 years imprisonment, handed down in July 2007. They had pleaded guilty to simple possession of 4.5 kilos of cocaine, which they maintained they found along Seven Mile Beach in October 2005.

The brothers came to Cayman after Hurricane Ivan in 2004 and were helping rebuild a damaged condominium complex, where they were also living

They denied possession with intent to supply, but were found guilty after trial that concluded in September 2006.

Cindy Jo Hair, Thomas’ fiancée had come to visit him. After being found guilty, also of possessing cocaine with intent to supply, she was sentenced to 10 years. She appealed both sentence and conviction.

Justice Norma McIntosh heard the appeals 24-25 September and gave her decision 8 October. She said the Chief Magistrate, who conducted the trial, had been correct in her findings and analysis of the evidence. Full reasons were released two days later.

Howard Hamilton QC, instructed by attorney Margeta Facey-Clarke, represented the Watsons and said their sentences were excessive.

As summarised by Justice McIntosh, he argued that the brothers’ conduct did not fit the profile of drug dealers. He said taking photographs clearly revealing themselves in the presence of cocaine was not the behaviour of drug dealers, who would opt for anonymity.

Mr. Hamilton further pointed out that the brothers were hard workers and had kept the cocaine in their residences – both behaviours not typical of drug dealers.

Finally, he said, the brothers should not be penalised according to the quantity of cocaine. They had acquired the cocaine by chance and this put them in a different category from a courier, who takes drugs into his possession and knows the amount.

Crown Counsel Kirsty-Ann Gunn replied that the taking of photographs was not inconsistent with the behaviour of drug dealers. She said the photographs were of a confident man in an enterprise with his brother and his girlfriend.

She further submitted that the brothers should be held responsible for the amount of cocaine they took into their possession because it was entirely a matter of their free will to decide what amount to take.

Mr. Hamilton brought two witnesses to give evidence of the work Thomas and Anthony have done since their incarceration. They had been involved in several construction and refurbishing jobs on the prison compound and were willing to assist whenever called on. They attended church services regularly.

Mrs. Gunn replied that these matters were more suitable for consideration by the Parole Board and the judge agreed.

Attorney John Furniss argued that Cindy was merely Thomas’ guest, was not in control of the premises and gave no encouragement in any activities relating to the possession of drugs. He conceded there was temporary possession when she held up some of the packages for a photograph.

He argued if that was encouragement, it could only be encouragement to possess the cocaine, not have it with intent to supply. She had no control over the cocaine, Mr. Furniss argued.

Mrs. Gunn replied that Cindy had lived with Thomas in the US and occupied the same room with him in Cayman; she was an occupier of the room within the meaning of the law. Evidence had disclosed there were unoccupied rooms at the complex that she could have used. Instead, she remained and even participated in the picture-taking activities.

There were seven photographs of Cindy in various poses with the cocaine, not just one.

Justice McIntosh referred to the photos in her judgement, noting that Cindy ‘participates in a photo session or sessions with the drug, posing with such a sparkle in her eyes that the inescapable inference must be that she was thereby putting her seal of approval on the possession of that drug. It was the kind of image one sees in photographs of persons who are the beneficiaries of some award or prize.’

The judge said the law is clear that the element of control required in proof of possession can also be established by evidence of encouragement or of agreement to commit an offence. ‘In this case the photographs were accepted by the Magistrate as evidence of that encouragement and she was quite entitled so to do.’

The judge said Cindy must have known that crack cocaine had been prepared because the photographs taken of her with the drugs clearly exhibited a bag of crack being held up right beside her. Thomas had said he tried to spend as much time as possible with her and it defied belief that she would not have been present at some point when the crack was being prepared.

Cindy could have removed herself if she really disapproved, the judge pointed out.

She quoted a 1988 case in which it was held that ‘Inactivity may sometimes constitute encouragement, particularly where a person refrains from exercising any right he has to intervene.’

The judge said Cindy had that right ‘and as there was no credible evidence that she exercised it, she encouraged Thomas in his possession with intent to supply. As a spouse her continued presence there with no expression of disapproval and no insistence that the drugs be moved from their small bedroom, that no preparation of the drug for supply was undertaken in their bedroom, amounted to wilful encouragement. That sufficed to ground her conviction,’ Justice McIntosh concluded.

As to sentence, Mr. Furniss referred to the local case of a husband who received 14 years for possession of two kilos of cocaine with intent to supply, while his wife received five years. The wife had played a more direct role in the offence, driving around with her husband to make arrangements for the drug and then wrapping it.

Mr. Furniss said Cindy’s sentence of 10 years was excessive for the role she played and as a visitor suffering the hardship of being separated from her family.

Justice McIntosh said that with a tariff sentence of 15 years or more for the quantity involved, the Chief Magistrate clearly took account of Cindy’s role in the reduced sentence she imposed.

It was not known at press time whether there will be a further appeal to the Court of Appeal.