Trial judge can’t say he’s sure
Acting as judge and jury in the four-week trial of Josue Carrillo-Perez for murder, Justice Roy Anderson returned a verdict of not guilty Tuesday.
Josue, 29, was accused of murdering Martin Joseph Gareau between the 16th and 20th of May 2008. Martin, 47, was a Canadian national who came to Cayman after Hurricane Ivan in September 2004 to work in his cousin’s construction company.
His body was found in the garage of his home in Beach Bay on the Tuesday after the Discovery Day long weekend. His cousin had spoken to him on Sunday, 18 May, around 1pm and Martin was expected at a family gathering that evening but did not show up. Another cousin went to look for him after he did not attend work on 20 May.
Josue, a Honduran national, came to Cayman in 2000. He married a Caymanian, but was divorced last year. He lost his job with Caribbean Utilities in February 2008.
Evidence was that the two men met around March 2008. Josue’s girlfriend was a roommate of a woman in whom Martin was romantically interested. Josue and the two women went to dinner at Martin’s house three or four weeks before Martin died.
Josue was arrested for murder on 5 June 2008. When he was brought to court after being charged, Senior Crown Counsel Trevor Ward said the evidence included two fingerprint impressions in blood on an inner door that led to the garage area of Martin’s residence. The impressions matched Josue’s.
Before trial began on 14 September 2009, Defence Attorney Anthony Akiwumi advised that his client had chosen to be tried by judge alone.
Burden of proof
This week, before announcing his verdict, Justice Anderson said that, as jury, he had to look at the evidence in its totality and be satisfied that the Crown had established its case ‘beyond a reasonable doubt and to the extent that I am sure that this accused is guilty of the particular offence for which he has been charged.’
Repeating the need for the prosecution to satisfy the burden of proof to the required standard, the judge stated: ‘Regrettably, however much I may believe that there is a possibility that the accused may have been involved in this most dastardly act, I cannot say ‘I am sure’ that he murdered Martin Gareau and must accordingly return a verdict of not guilty.’
He noted that Mr. Ward had said the Crown relied on circumstantial evidence, including the fingerprints and a footprint impression found at the scene.
Two fingerprint experts offered their opinion that the two fingerprints were those of the accused man.
‘Acting in my capacity as jury, I have to give serious consideration to the presence of a defendant’s fingerprints at the scene of a crime, as this would normally be powerful evidence of his presence there,’ Justice Anderson said.
‘Where the Crown relies upon fingerprint evidence as the substantial plank in the chain of circumstantial evidence linking the accused with an offence, it is necessary to warn the jury, and I so warn myself, that fingerprint evidence is evidence of opinion, that the evidence is not conclusive and that it is for the jury to determine guilt or otherwise in light of all the evidence.’
Pathologist Dr. Bruce Hyma said Martin’s death would have occurred sometime between 24 and 72 hours before his body was found. He had died of multiple blunt and sharp force injuries, with multiple impacts to the skull being the fatal wounds.
The judge said there was no evidence to contradict the testimony of Josue, his girlfriend and his sister that he was with the girlfriend from before 4pm on Sunday, 18 May, when they checked into a hotel until Tuesday morning, 20 May, when they checked out.
Josue had told the court that, until he picked up his girlfriend, he had spent the day at the home of his sister, with whom he lived. According to the sister, however, there was a period of about two hours on Sunday when she did not see him and then when she did see him he was in wet clothes, having gone to the beach nearby.
The judge noted he had also been asked to consider the fact that, of the numerous samples and swabs from the scene that were sent for DNA testing, there was no match with Josue’s DNA.
‘In looking at the detailed account of the injuries outlined by Dr. Hyma, it is a clear inference that the deceased was severely beaten by his assailant or, one may be entitled to wonder, assailants…. There was some evidence that the investigators had suspected that the assailant or assailants had probably received an injury in the attack. There was no evidence led in this court, however, which indicated a struggle between the deceased and his assailant or assailants.
‘Without seeming to speculate, it is clearly open to a jury to consider the circumstances in which an attack of such brutality could have been carried out with no other evidence except the two latent fingerprints,’ Justice Anderson said.
He agreed that the Crown was not obliged to prove a motive for the crime, but it had been suggested that Josue was short of money.
‘The theory that this vile act, some amount of tidying up and the disposal of the instruments used to inflict the wounds, took place, possibly within the two-hour timeframe on that fateful Sunday afternoon with the intention of robbing the victim, who we are told had been paid on the Friday and had cashed his cheque on the Saturday, is plausible,’ the judge said.
‘Plausibility, however, is not an adequate basis for a criminal conviction,’ he pointed out.
The judge emphasised that nothing he had said during the trial or in his summing up should be interpreted to cast doubt on the validity or admissibility of fingerprint evidence and indeed footprint impression comparisons, where properly executed, being accepted as good evidence.
After finding Josue not guilty, Justice Anderson commented that these islands, like other small societies worldwide, were witnessing the end of the Age of Innocence
‘Caymanians must resolve at this time that they will not allow the monster of crime to intimidate and overwhelm them,’ he said. ‘But that resolve must remain ever rooted in an abiding commitment to the principle that while wrongdoing must be turned back, justice must be done though the heavens fall.’