A judge on Friday directed the jury in the case of a Feb. 4 shooting and assault outside a West Bay Road nightclub to find one of the five defendants not guilty.
Jurors were told why defendant Leshawn Shaheem Forrester was leaving the dock, after Justice Roger Chapple explained the legal meaning of “No case to answer.”
Trial was scheduled to continue on Monday for the remaining four defendants.
The jurors had been selected on Friday, Nov. 17, and began hearing evidence the following week.
Witnesses included Daniel Alexander Bennett, who said he was struck with a pistol and shot at, but the bullet missed; and Carlney Campbell, who described being assaulted and shot in his shoulder.
It had been alleged that Forrester kicked and/or punched Mr. Campbell while he was on the ground. He was never charged with any offense relating to a firearm.
Deputy Director of Public Prosecutions Patrick Moran closed the case for the Crown last Tuesday and the jury was released early that afternoon, returning on Friday after a break of two days.
Justice Chapple told jurors there had been submissions of no case to answer and that he had upheld some.
He said, “The law requires me to apply this test: Has the prosecution failed to establish an essential ingredient of the offense that they must prove, or is the state of the evidence such that no reasonable jury properly directed and applying the law could find the defendant guilty?”
Justice Chapple emphasized that he was not deciding whether a defendant was guilty or not guilty. His decision was “whether the prosecution has established the basic foundation on which, if you heard no further evidence and were driven there, you could find the defendant guilty. It’s no indication of what I think. What I think doesn’t matter two hoots,” he said.
For defendant Forrester, the judge decided there was no case for him to answer. Forrester had faced a single count – causing grievous bodily harm to Mr. Campbell with intent to do him grievous bodily harm.
Other defendants charged with this same count were Malik Wilford Mothen, Tashika Makeba Mothen and Kashwayne Hewitt and they remained so charged.
The judge then directed the jury to return a verdict of “not guilty” for Forrester, which the foreman did. The judge discharged Forrester and told him he was free to leave the dock.
Mr. Moran provided copies of a revised indictment for the four defendants remaining.
On count one, Tashika Mothen is charged with making to Mr. Bennett a threat to kill a named person.
On count two, her husband, Malik Mothen, is charged with possession of an unlicensed firearm in the vicinity of Fete Night Club on Feb. 4.
Tashika Mothen had originally been charged with him, but Justice Chapple reminded jurors that it had not been suggested that she was ever in physical possession or control of the firearm. The Crown’s case was that possession of the firearm started with her husband and passed to Hewitt, so he had decided there was no case for her to answer.
Hewitt was also originally named in this count, as well as a later count alleging possession of the firearm six days after the shooting. What happened, the judge explained, was that Hewitt pleaded guilty to possessing the gun on Feb. 10. He submitted a written basis of plea which effectively extended the period of his possession, on the basis that he came into possession of the handgun on Feb. 4 and had it continuously in his possession until Feb. 10.
For that reason, the jury was not required to return a verdict for Hewitt on this count.
On count three, Malik Mothen is also charged with assault causing actual bodily harm to Carlney Campbell.
On counts four and five, the Mothens together are charged with causing actual bodily harm to Mr. Bennett and attempting to cause his death. As an alternative to attempted murder, they are charged on count six with attempting to cause him grievous bodily harm with intent. The judge explained that for attempted murder, there must be an intention to kill. If jurors were unsure about intent to kill, they could go on to consider the attempt to cause grievous bodily harm with intent.
Malik Mothen, Tashika Mothen and Kashwayne Hewitt are charged on counts seven and eight with attempting unlawfully to cause the death of Mr. Campbell and causing him grievous bodily harm with intent to do so.
The final count on the indictment relates to Daniella Tibbetts. Details of the charge are that she, together with Hewitt, on Feb. 10 in West Bay, had in their possession an unlicensed firearm.
Tashika Mothen was giving her evidence when court adjourned on Friday and she was scheduled to continue when the trial resumed.