Court of Appeal
Criminal Appeal No. 22 of 1993
9th May, 1994
KENNETH ST. L. HENRY, P.
SIR LASCRLLES ROBOTHAM, J.A.
PROFESSOR TELFORD GEORGES, J.A.

Mr. Y. Gaznabbi, for the Appellant
Mr. S. Gamalath, for the Respondent.

Court of Appeal - Criminal Appeal against conviction for murder - Appellant alleged to have acted with a common design or in a joint enterprise with two other accomplices - Witnesses - Whether there is an obligation on the prosecution to call witnesses who are not listed as prosecution witnesses.

J U D G M E N T

On 16 December, 1993, this Appellant was convicted by a Jury for the murder of Marcos Antonio Tzul, and sentenced to death.

The deceased was the manager of the Gold Button Ranch, and the evidence as to the circumstances under which the deceased met his death was given mainly by Modesta Polanco, also an employee of the ranch. She testified that on the night of 4 November, 1992, at approximately 6:45 p.m. she and the deceased were returning in her car driven by deceased from Orange Walk to the Ranch. There was a full moon, and the car lights were turned on.

As they approached the precints of the ranch deceased came out of the car for the purpose of opening the gate, and was immediately approached by three men. They were about five feet away from her, were dressed in camouflage suits, and each carried a firearm, looking like a rifle with a bayonet attached. She then heard four shots, and Tzul fell dead. The Police subsequently recovered six empty shells on the scene.

After Tzul was shot two of the men came to her side of the car; one of these men was the Appellant and he took her out from the front of the car and placed her in the rear seat. It is of importance that she also testified that her car was equipped with a roof light which lights up when the door is opened, and in addition she could see all three persons by means of the car lights, and the bright moon light. Having got her in the car they drove off and after about half an hour, they stopped, undressed her and in turn sexually assaulted her inside the car. Thereafter, they broke the roof lights, stole her jewellery and taking with them her car keys, they walked away from the scene. She left the spot walking and met up with a Customs Officer who took her home.

On 17th November 1992, she was shown some twelve photographs by the Police, and she identified the accused as one of the persons involved in the shooting of Tzul.

Rigoberto Lima also gave evidence to the effect that Appellant was living at his house on 4th November, 1992, and that when he went home on that evening after hearing of the death of Tzul, he discovered that Appellant had left. He returned about four days later for his clothes.

Daniel Itza, a Sergeant of Police on that same night found Polanco's car by the Mexican border with Belize, about 40 miles away. On 17th November, 1992, he showed Polanco twelve different photographs and he said that without hesitation she pointed to a photograph of the Appellant as one of their assailants that night. It was on the basis of the totality of this evidence that the Appellant was convicted by the Jury and sentenced to death.

The Appellant at the trial gave sworn evidence and stated that on 4th November he left the home of Rigoberto Lima looking for work. He met two armed men near a bridge and they invited him to accompany them. They walked along a fence line and on arriving at a gate he was told to sit down. After about 1 hour a car arrived with its lights on and stopped by the gate. The driver came out and the shorter of the two men, with him went face to face with the driver of the car who was the deceased. There was a scuffle, and then he heard shots. He confirmed the story given by Polanco that she later was removed from the front seat to the rear of the car and then he heard shots and that the car was driven away by one of the men, after they had sexually assaulted Polanco.

The Appellant denied agreeing with the two men to shoot anyone. He denied having sexual intercourse with Polanco. On 21st November he said he gave a statement to the Police which he identified in Court. In that statement he admitted being at the scene but denied that he was responsible for the shooting. He confirmed Miss Polanco's story that she was sexually assaulted but denied having any part in that. He confirmed that the car was driven to the Mexican border and abandoned. In short, on the totality of the evidence, the Appellant's account on the shooting of Tzul confirms to a large degree the account of the incident as given by Polanco. The learned trial judge gave adequate directions on the law relative to a joint enterprise, or common design. It is not therefore surprising that Counsel for the Appellant was unable to launch on the hearing of this appeal any semblance of an argument in support of the two grounds of appeal filed by him.

These read:?

1. (a) The ballistics expert was not called to testify on behalf of the Prosecution and/or made available to the defence for cross examination with respect to the different calibers of shells found at the scene, including the one live round of ammunition.

The necessity to call the ballistic expert never arose and no argument was or could successfully have been presented to support this ground and indeed no attempt was made by Counsel before this Court to do so.

1. The witness Emeterio Cruz also known as "Met" was neither called by the Prosecution nor made available to the defence for cross examination. At the trial the defence repeatedly contended both to the Court and the Prosecution that this person Emeterio Cruz also known as "Met" would have been a vital witness for (1) the Prosecution: to corroborate the virtual complainant's (Modesta Polanco) testimony in the witness stand to the extent that the alleged three gunmen were acting in pursuance of a "joint enterprise" or that "the accused acted jointly in connection with others to commit the crime": (Page 45)

2. For the Defence: to support the defence's contention that "Met" should have been properly investigated and charged as an "accessory before the fact" or as "the Principal" with the other three gunmen being merely "agents".

3. To support the defence's contention that "Met" was the sole person with "motive" or "interest" in the murder of Tzul, deceased, (since "Met" acceded to the Manager's post at the ranch upon the death of Marcos Antonio Tzul, dec'd), allegedly engineered and masterminded by "Met". (vide. page 41: By Prosecution: It was suggested "You know very well that this "Met", the person referred to, if he would pay them the money is the same Emeterio Cruz").

2. The learned trial judge erred in law when he ruled that the onus is on the defence to summon any witness (for the defence) which the Prosecution may see fit not to call. This displaces the "presumption of innocence" and places the onus on the defence to summon witnesses to prove the accused is innocent."

The name "Met" (Emeterio Cruz) only surfaced at the trial in the Appellant's evidence when he said he knew Emeterio Cruz otherwise called "Met". He apparently was second in charge at the ranch which the deceased ran.

Counsel in his appeal had the conduct of the defence of the Appellant at his trial. If he had knowledge peculiar to him or his client that this "Met" could have been helpful to the case of the defence it was obligatory on his part and not the Crown, to put forward "Met" as a witness. He did not see it fit to do so and "Met" was not on the list of witnesses for the Crown. There was therefore no obligation on the Crown to produce him as a witness and there the matter ends.

Counsel in fact was unable to mount any semblance of an argument in support of these two grounds of appeal, and after a very brief and perfunctory effort, he took his seat. Counsel for the Crown was not called upon and the appeal was accordingly dismissed and the conviction and sentence affirmed.

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