Evidence lacking against two co-accused
Michael Travis McLaughlin was sentenced to 16 months imprisonment after pleading guilty to the robbery of two tourists at Barefoot Beach in East End on 7 February.
Two co-accused pleaded not guilty; they were acquitted earlier this month due to lack of evidence.
McLaughlin was 18 when the robbery occurred. Defence attorney James Stenning said the teen initially denied the offence when interviewed by police, but then remorse set in. He realised what he had done was wrong and, after discussing the matter with his grandmother, turned himself in and made a full confession.
“Had he not pleaded guilty, he very likely would have been acquitted,” Justice Alexander Henderson said.
He noted at a previous court session the sole issue was identification.
A police report issued shortly after the incident indicated two tourists, a man and his wife, had gone to the area to snorkel, parking their rental car in a pathway off the Queens Highway next to Bare Foot Beach. A short time later, as they sat on the beach, they were suddenly confronted by three men. All three had their faces covered by T-shirts; one man was armed with a baseball bat and another with a knuckle duster.
Police said one of the men grabbed the male tourist, placed him in a headlock and demanded cash. The victims then handed over a wallet containing a small sum of cash. As the three were leaving, one smashed the window of the couple’s car with the baseball bat and stole a camera.
In court, Justice Henderson said the description given of the three assailants by the male victim was reasonably general, not very useful. One of the defendants would match one or more of the descriptions, “but so would many young men of his age on the Island,” the judge said.
The only identifying evidence of substance was a statement made by a person now deceased, Asher McGaw of East End. Mr. McGaw, 21, was fatally shot in September. He gave a signed witness statement on 2 March.
Justice Henderson held a hearing in November on the question of whether Mr. McGaw’s statement should be admitted as evidence. Under the Evidence Law, he ruled it was admissible.
Mr. McGaw’s statement implicated Trent Zachary Bodden, Michael Travis McLaughlin and Cody McLaughlin as the robbers. He said on the day of the robbery, roughly an hour after it happened, Trent told him that he, together with two other men who were present, had just robbed a white man on the beach. The other two made no denial. At the time, Trent was 20, Michael was 18 and Cody was 17.
At trial, Trent was represented by attorney Ben Tonner. Cody was represented by attorney John Furniss.
After hearing their arguments, Justice Henderson said he was satisfied that Cody had to be discharged.
“There is complete absence of evidence concerning his reaction to Trent Bodden’s [alleged] statement that the three men committed a robbery shortly beforehand … We have no evidence of his facial expression, any gestures he may have made, or any other non-verbal behaviour, which could have indicated assent or dissent,” the judge said.
On one view, he said, it might be expected that if Cody were innocent of the robbery he would have said so. But it was equally possible that Cody would “consider his standing amongst his peers to be enhanced by his acquiescence in the suggestion that he had participated in a robbery even though he had not done so.”
The situation with Trent Bodden was different, since he was allegedly the maker of the statement to Mr. McGaw. The one bit of evidence that tended to support Mr. McGaw was the guilty plea of Michael McLaughlin, one of the three men he in effect accused.
But there were other factors the judge said he had to take into account when weighing Mr. McGaw’s credibility. The young man had a criminal record, he had been a suspect in this case and he had agreed he had a baseball bat in his car on the day in question. It was shorter than normal and the male victim had described the bat used in the robbery as shorter than normal.
“Had I seen Mr. McGaw under cross-examination I would still have had to warn myself that it is dangerous to convict on the uncorroborated evidence of a witness of unsavoury character with a motive to lie. Unfortunately, he has never been cross-examined,” Justice Henderson said.
He emphasised cross-examination is more than a formality — “it is a bedrock principle of criminal litigation. Every experienced judge and barrister will have experienced many cases in which a favourable impression made during direct examination becomes entirely unfavourable after effective cross-examination,” he said.
He said he could only convict Trent Bodden if he were sure that Mr. McGaw was telling the truth in his witness statement.
“Not having seen him in cross-examination, I am simply unable to reach such a conclusion,” the judge said.
At the sentencing of Michael McLaughlin, Mr. Stenning told the court that his client had been the driver but did not have any weapon. His only previous convictions were for ganja, having started drug use at the age of 12. After a troubled upbringing, he needed supervision to help him organise his life. He wanted to make restitution to the victims and make good some of the damage.
In passing sentence, Justice Henderson said Michael and two associates had approached two tourists in a remote area. Whatever the associates did, Michael participated by his willing presence.
Referring to a social inquiry report, the judge said Michael had not wanted his friends to think he was soft. But after the robbery, when his grandmother heard gossip about it, she told him that if he did it he should turn himself in and clear his mind and soul.
Mitigating factors included his confession, without which he would likely have never been convicted, his expression of remorse and the steps he was taking in prison to rehabilitate himself through studies.
The crime was aggravated by the fact that he was on probation at the time for ganja offences, the judge said. He also considered the fact that Cayman’s economy is highly dependent on tourists and their coming here is highly dependent on their perception that Cayman is safe and has relatively low crime, the judge observed.
The mitigating factors convinced him that two years was the starting point, with one-third deducted for the guilty plea.