The Crown was on Tuesday forced to pause the testimony of its second witness in the trial of 25 alleged members of the so-called Tesha Miller faction of the Klansman gang, in relation to the robbery and murder of St Catherine man Zamari McKay.

The interruption followed a ruling by trial judge Justice Dale Palmer after defence objections to the prosecution’s method of eliciting evidence from a police constable on counts 28 and 29 of the indictment. Those counts accuse Carlos Williams, Jermaine Clarke and Owen Billings of knowingly facilitating McKay’s robbery and killing. McKay’s body was found on August 11, 2022, with his feet bound in a rubbish heap along the Lake’s Pen main road.

Ahead of the ruling, the prosecution, through that cop, had attempted to lead evidence detailing a series of events leading up to the disappearance and gruesome discovery of McKay’s body.

According to the constable, on August 10, 2022 at 11:00 pm he was “home sleeping” when he heard the voice of an acquaintance calling him. He said after he woke up he had a conversation with the individual, who appeared “worried in her face”.

The cop, who said he had spoken to McKay on August 10, some three to four hours before the individual came to his house to call him, said he immediately left for the Spanish Town Police Station where a missing person report was lodged.

Asked if he had ever called McKay after that date, the witness said a first attempt resulted in the call going to voicemail. He said another attempt by the individual to call McKay’s cellphone resulted differently.

“His phone was answered and she was speaking to someone on the phone,” he said, telling the court that the individual then handed the phone to him at which point he was “about to speak” when he heard a male voice which he did not recognise. He said that voice caused him to feel “suspicious” while the individual who was with him had that “same fearful, concerned look”.

The cop, who said after the phone call ended he still felt suspicious also testified he had heard McKay’s voice on that second call aside from the other male voice he did not know. He told the court that he was familiar with McKay’s voice as he knew him “all his life” and also spoke to him several times weekly in person and via telephone at times.

The witness’ evidence was disturbed on several occasions by objections from the defence who, among other things, argued that the prosecutor marshalling the evidence was “leading” the witness and was bordering on eliciting hearsay. Furthermore, the defence raised questions about the voice identification evidence, stating that no foundation had been laid to allow the Crown to do so and that the “prejudicial effect” of that evidence “outweighed the probative value”.

“The Crown is trying to disguise hearsay as background evidence,” defence attorney Kimberli Whittaker charged.

The assistant director of public prosecutions leading the evidence, cited case law and said the “prejudicial effect” reference was being “misused”.

Arguing further that the Crown was quite within its rights to introduce the evidence as “it is admissible at this stage”, the prosecutor contended that there was also no requirement in law for evidence to be elicited with respect to “distinguishing factors of the voice”.

The defence had postured that the witness had no way of saying whose voice he had heard and that the Crown had led no evidence about the voice of the cousin to highlight any peculiarities if any. The Crown, however, maintained that the questions asked of the witness to verify how often and when and how he spoke with McKay were sufficient to establish that familiarity.

“It is not a requirement for any peculiarities in the voice to be stated,” the prosecutor maintained in citing several authorities (case law).

The defence, in further submissions through attorney D’ondre Buchanan, argued that the Crown should “be limited to only elicit evidence” linked to people who can be identified.

The Crown, responding to further questions from the trial judge regarding the helpfulness of the contents of that alleged phone call to its case, said the conversation was the “precursor to the series of events that led to the death of McKay” while adding that other witnesses to come on the counts would give evidence which would go to the “truth” of the contents.

“The conversation this witness had is essentially the first domino… what is said on the phone call creates the domino effect on this particular count,” the assistant director of public prosecutions stated.

However, Justice Palmer, in ruling on the submissions, said, “I believe more foundation needs to be led at this time,” adding that he was “particularly cautious”, given that there is no evidence led by the Crown as yet to establish that McKay was dead.

Justice Palmer, who sits alone without a jury, pointed out that he is not privy to the facts and statements in the case until they are laid in court. He said he had weighed the potential risk of prejudice to the defendants on the counts and as such could not approve the Crown’s application to elicit that evidence from the cop. Furthermore, he said there was no evidence as to who the witness was speaking to on the call.

The trial judge, however, noted that this was not to mean that the Crown could not make future applications.

Following the ruling, the Crown paused its evidence and indicated that it would continue with the cop “sometime after the main witness”.

The Crown’s two main witnesses, who are yet to take the stand in the trial to testify against their former allies, are both currently serving time for other offences. The defence, in the meantime, said it would postpone its cross examination of the constable until that time. The Crown will, however, continue to call other witnesses in relation to the incident.

The constable, before being released by the trial judge on Tuesday, said he and other individuals had mounted a search for McKay until a call from the Greater Portmore Police Station yielded information about his whereabouts. He said the next time he saw McKay, he was “not alive”.

His evidence comes following that of a police sergeant who on Monday told the court that he was the first responder at the scene where McKay’s body was found.

The matter resumes at 10:00 am on Wednesday.