Lead counsel Jacob Hallam set the tone for three other defense attorneys when he spoke on behalf of Malik Mothen and called the Crown’s case speculation and theory about what happened on the night of Feb. 3-4 when two men were assaulted and shots fired outside a West Bay Road nightclub.
Mr. Hallam asked the jury of five men and two women to remember that the prosecution had to prove the case and nothing less than being sure would do.
“‘Maybe’ doesn’t get you to a guilty verdict,” he reminded them.
Mothen has pleaded not guilty to charges that include possession of an unlicensed firearm, assault causing actual bodily harm, two counts of attempted murder and causing grievous bodily harm with intent.
His wife, Tashika Mothen, has pleaded not guilty to making a threat to kill, assault causing actual bodily harm, two counts of attempted murder and causing grievous bodily harm with intent.
Kashwayne Hewitt has pleaded guilty to possession of the unlicensed firearm used in the shootings but has denied a charge of attempted murder and causing grievous bodily harm with intent.
Daniella Tibbetts has pleaded not guilty to possessing the firearm, with Hewitt, at her residence in West Bay six days after the shooting.
Mr. Hallam, instructed by attorney Prathna Bodden, described the evidence the Crown had put before the jury as two witnesses whose accounts did not add up, scientific evidence that did not help and CCTV that did not show what had happened.
The two witnesses he referred to were Daniel Alexander Bennett, one of the men assaulted and shot at, but the bullet missed him; and Carlney Campbell, who was assaulted and shot in his shoulder.
Mr. Bennett had said that Malik Mothen was the shooter, who had left the area outside the Fete nightclub and come back while Tashika Mothen kept his attention. The witness had had a fleeting glance of the gun and the man behind it. He said the bullet missed him because he ducked.
Mr. Hallam said even if the jury accepted that account, it did not add up to attempted murder because the gunman would have had the opportunity to shoot again if he had wanted to kill.
He reminded jurors that Mr. Bennett had been out celebrating his birthday and was intoxicated, which affected his recollection. He had given no evidence at all of being hit with anything metallic.
The attorney pointed out that only Hewitt’s DNA was found on the gun.
Malik Mothen had said in his interview that he had left the scene and returned with a knuckle duster because he had felt intimidated, fearful and provoked.
His case regarding Carlney Campbell was that Mr. Campbell was making a mistake when looking back on an incident that had been dramatic and traumatic. As to the second charge of attempted murder, whoever shot Mr. Campbell, it was not Malik Mothen, Mr. Hallam asserted, because Mr. Campbell himself had said he saw Mothen’s hands were empty just before he was shot.
Lead counsel Icah Peart, instructed by attorney Amelia Fosuhene, spoke on behalf of Tashika Mothen, who faced one charge on her own and other charges with other defendants.
She was alleged to have threatened to kill the man she believed had shot her a year earlier and she had made that threat to Mr. Bennett. But they both knew that the man was in England, “on the run from the law in the Cayman Islands and wouldn’t be back any time soon.”
In those circumstances, how could anyone believe that she was threatening to kill him? Mr. Peart asked. And even if she did threaten, how could anyone possibly be sure that she intended to cause fear in anyone?
As to the shooting, if Mothen had come up behind her as Mr. Bennett said, she could not have known about it until it happened. If the gun was fired close to her head, she would have been deafened and her face would have been burned, Mr. Peart argued. As to the assault on Mr. Campbell, there was no physical evidence on her shoes that they had been in contact with him when he was on the ground.
Lead counsel Paul Hynes, instructed by attorney John Meghoo, spoke for Hewitt, 20, who had arrived from Jamaica on Dec. 26, 2016. He had proved himself to be a man making very bad decisions in his short time on the island, the attorney said. He suggested that Hewitt had lied to police in his first two interviews because he was afraid.
Hewitt was not involved in anything to do with Mr. Bennett, Mr. Hynes pointed out. As to the argument that Malik Mothen had passed the gun to Hewitt, who had then shot Mr. Campbell, that was not a safe conclusion, Mr. Hynes said. Mr. Campbell had said he did not see anything in Mothen’s hands but, “You don’t know where the gun went.”
Hewitt had told police he took it from Mothen after Mr. Campbell was shot because he did not want him to get shot again. He admitted taking the gun to Tibbetts’s residence when he went home with her after the shooting and he admitted hiding it in the cistern of the toilet.
That was the point emphasized by attorney Crister Brady, who spoke for Tibbetts. She and Hewitt were the only people in the apartment, so who else would he be hiding the gun from, he wondered.
Possession requires custody, control and knowledge, he pointed out. Possession without knowledge was not enough. Jurors could not find her guilty because of what they thought Tibbetts knew or what she should have known, he said. He wondered when jurors had last looked in their toilet cistern. Unless something is broken, there is no need to check: “It’s not the kind of place you would look unless you have a reason.”
Mr. Brady said Tibbetts admitted in an interview that she had initially lied to police about even knowing what had happened outside the nightclub because she wanted to protect a relative. She had also lied about Hewitt staying with her. He was a recently married man and maybe she was ashamed, but the lies must not be over-interpreted, Mr. Brady said. Just because Hewitt was there did not mean she knew about the gun, he argued; if she had known, why would she not blame Hewitt when police came to her apartment? He expressed confidence that jurors’ answers to his questions would lead to a not guilty verdict.
Justice Roger Chapple was scheduled to begin his summing up and directions to the jury on Tuesday.