In Grand Court on Friday, Walter Jordan McLaughlin was sentenced to 12 years imprisonment after a jury found him guilty of possessing an unlicensed .38 revolver.
The same jury found Keith Rohan Montaque guilty of possessing the .38 revolver and a 9mm pistol. He received two sentences of 15 years, to be served concurrently.
In passing sentence, Justice Paul Worsley said it was an aggravating factor that both firearms were loaded when police found them in a house occupied by both men at the time of the officers’ search in February 2015.
“The rise in gun crime over recent years has been a curse to the peace-loving community of Cayman,” the judge said.
The mandatory minimum sentence is 10 years unless there is some exceptional circumstance. The judge found none. He agreed with defense attorneys that the guns were not out on the street, they were not used to threaten anyone, they were not used in the course of a crime. These facts, however, were not mitigating; they were only an absence of further aggravating features.
McLaughlin, now 29, was represented by attorney Alice Carver. Montaque, now 28, was represented by attorney Lee Halliday-Davis.
The jury had not been told that this was a retrial.
The men had been tried in October 2015 after pleading not guilty. After the prosecution’s case was completed, defense attorneys successfully argued that there was no case to answer because, although the defendants’ DNA had been found on one or both of the guns, there was no evidence as to how or when it came to be there. They pointed out that it could have happened through secondary transfer (such as shaking hands with someone who then touches the gun) rather than direct transfer.
Justice Seymour Panton agreed and the men were acquitted.
In August, 2016, senior Crown counsel Candia James argued in the Court of Appeal against that decision. The higher court judges agreed and ordered a retrial. They said Justice Panton’s approach was erroneous in law because it failed to give weight to other, circumstantial, evidence.
For this second trial, there was much evidence that was agreed. Police went to the residence with a search warrant around 5 a.m. on Sunday Feb. 8, 2015. McLaughlin lived there with his father; Montaque had been staying there about four days and sleeping there, in a middle bedroom, every other night; he was there when police arrived.
Officers discovered the guns in the lining of a box spring under the mattress in the room where Montaque slept.
The officers who discovered the guns did not touch them. Two other officers were called to deal with the guns and they did not have any dealings with the defendants.
The guns were swabbed and tested. No fingerprints were recovered from either gun. The revolver was found to have the DNA of both men; the pistol had Montaque’s, but not McLaughlin’s.
In her summing up, Ms. James pointed out that the guns were not in an area where someone could have casually deposited them. She agreed that nobody saw either defendant holding a gun. But “there is no reliable evidential reason to ignore what is staring you in the face – the obvious, inevitable conclusion is that their DNA is there because they handled the guns,” she said.
In reply, Ms. Carver argued that there were multiple opportunities for secondary transfer of the defendants’ DNA, such as from sheets or towels, and it was not known how many people had keys to the house. Ms. Halliday-Davis pointed out that because Montaque had occupied the middle bedroom did not mean that no one else had.
Justice Worsley emphasized the jurors’ need to be sure of guilt before they could convict. Neither defendant gave evidence, but that was their right, he pointed out. “Do not assume simply because they kept quiet that they are guilty,” he said.
There was no explanation as to why their DNA was on one or both guns, the judge noted.
Montaque had been interviewed by police and said he knew nothing about the guns. McLaughlin was interviewed with his attorney present and exercised his right to make no comment.
Justice Worsley said the jury was entitled to conclude that the defendants’ silence at their trial was because they could not answer the prosecution’s case. But, he cautioned, jurors could only reach that conclusion if they were sure that the case was so strong it called for an answer; and that the only sensible explanation for not giving evidence was that they had no defense to put forward.
After the jury’s unanimous verdicts, Ms. Carver and Ms. Halliday-Davis spoke in mitigation. Both pointed out that the men had been released from custody after Justice Panton acquitted them; they had found jobs and stayed out of trouble, but were taken back into custody after the Court of Appeal’s decision. They asked for credit for that time and the judge agreed.
Ms. Carver pointed out that 10 years for a firearm conviction means a full 10 years, with no opportunity for early release on license. Ms. Halliday-Davis asked the judge to consider that for a man of 28, 10 years is a long, long time.
The men had faced a third charge involving possession of a pouch with eight rounds of live .38 ammunition found in the living room of the house. No fingerprints were recovered from the ammunition and no forensic tests were conducted on the pouch. On this charge the jury found both men not guilty.