General — 02 October 2015 — by Rowland A. Parks
Man acquitted of murder due to faulty evidence

BELIZE CITY, Tues. Sept. 29, 2015–Lincoln Hemsley, Jr., 24, was acquitted of the March 2012 murder of David Hernandez, 21, in the Supreme Court of Justice Adolph Lucas, who heard the case without a jury and accepted a no-case-to- answer submission from Hemsley’s attorney, Anthony Sylvestre, today, after the prosecution had closed its case.

       Shortly before Sylvestre made the no-case submission, Justice Lucas had ruled not to accept the result of a group police identification parade in which Hemsley was purportedly identified as the man who shot and killed Hernandez.

       In deciding not to accept the police identification parade result, Justice Lucas noted that when a person has a right to refrain from doing something, he should not be forced to do it to provide evidence against, himself.

       In the evidence presented in court, Hemsley was told about his right to refrain from participating in the identification parade. According to the evidence of the officer who conducted the ID parade, Hemsley’s rights were explained to him and he decided that he did not want to participate in the ID parade which was held on March 13, 2012.

       After the prosecution closed its case with its identification parade evidence not being accepted, Sylvestre made the no-case submission, telling the court that “the Crown had failed to establish an important element of the offense.”

       “That is, that it is the defendant in the dock who caused the harm that resulted in the death of the deceased, David Hernandez,” Sylvestre submitted. “And in relation to this factual submission, I urge Your Lordship to the fact that the witness, Phillip Barrera, whose statement was admitted into evidence, did not identify in court the person he alleged to have seen on the night of March 11, 2012,” Sylvestre further stated.

       Sylvestre went on to tell the court, “The failure to identify an accused in court as a perpetrator is factual to the prosecution’s case.”

       He told the court that under such circumstances, a prima facie case did not exist against the defendant.

   Crown Counsel Portia Staine, who led the prosecution’s evidence, fired back, telling the court that a prima facie case had been made out against the accused.

   “The Crown is relying on Phillip Barrera’s statement to prove its case,” Staine submitted.

       Staine told the court that because Phillip Barrera was a hostile witness, he did not point out the accused in the dock.

       “He told the court that he does not know who Lincoln Hemsley, Jr., is, and neither did he know who ‘Rojo’ is.  Therefore, the Crown could not ask him to make, a dock, identification. However, the Crown brought PC Martin Bahadur, who came to court and pointed out the accused, Lincoln Hemsley, Jr. He said that it was in the process of filling out the accused man’s antecedent form that the accused gave him his name as Lincoln Hemsley, Jr., and his alias as ‘Rojo.’ The officer said the accused gave his address as 155 Kut Avenue,” Staine told the court.

       In the end, however, with the identification evidence successfully challenged, the prosecution’s case suffered the loss of one of the five elements required to prove the murder indictment.

       From the time of his arraignment on the murder charge on March 16, 2012, Hemsley had insisted that the police did not carry out a proper identification parade.

       At his arraignment, Hemsley told the Chief Magistrate Ann Marie Smith that the police had given pictures of him to the witnesses before he went into the identification parade.

       On the night of Sunday, March 12, 2012, David Hernandez was standing up along with a friend near the corner of Racecourse and East Canal Street when someone fired three shots at him.

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