The prosecution was on Monday given the go-ahead to recall two witnesses in its ongoing bid to have the statement of a dead witness admitted as evidence in the trial of 25 alleged members of the so-called Tesha Miller faction of the Klansman gang.

Trial judge Justice Dale Palmer, who has been trying the matter sitting alone, however, imposed seven “restrictions” on the Crown which will act as safeguards while further evidence is elicited.

The ruling follows several bouts of legal submissions as the prosecution jousted to have the statement of the dead woman, Shanice Roberts, regarding the February 2020 murder of a man called Noah Smith at Yarico Place in St Andrew, tendered into evidence.

The application to recall the two witnesses, who had earlier in the trial given testimony of their interactions with Roberts before her death, forms part of submissions by the Crown in the course of making a Section 31 (D) application under the Evidence Act. The application in effect allows the introduction of statements as evidence in court when the witness cannot testify live — usually due to death, illness, being abroad, or being unable to be found after reasonable efforts. The offences to which the statement is connected are contained in counts 15 and 16 of the indictment.

Roberts died of health complications in February 2021 but had provided a statement to cops ahead of her demise regarding the Friday, February 7, 2020, murder of Smith.

Justice Palmer, in giving the reasons for his ruling, said “The narrow question to be considered in the application is not whether the statement of Shanice Roberts is admissible” at this stage, but whether having closed its evidence from the two, the Crown should be permitted to recall them to address the issue of the nexus between the person from whom the detective constable took the statement and the person that the other witness, a close acquaintance of the dead woman, identified as Roberts.

The defence, during their submissions, had argued that the evidence of a detective constable who had been the one to record Roberts’ statement on the night of the incident was inadequate. The defence contended that the woman in the photo, which was entered as an exhibit, was not the same woman the cop spoke to on the night of the murder.

In battling to keep the woman’s statement out of the trial, the attorneys had insisted that the photo was too blurry for the cop to distinguish her features.

The second witness, who knew the dead woman personally, in identifying her from the photograph had told the court that while the quality of the photo was dubious, she was certain that it was Roberts.

On Monday, Justice Palmer acknowledged the validity of the points raised by the defence; however, he said that “this not a case where the defence has closed its case, nor is it a case where the Crown seeks to respond to a fully developed defence case. It is true that the defence has exposed the weakness of the blurry image through cross-examination, and that is a factor which weighs against the Crown and is a fact that I should consider in the substantive determination of the
voir dire, but it does not make the application automatically unfair”.

In emphasising that “all the other evidence has been led” by the Crown, Justice Palmer said “the difficulty arose because the photograph became an uncertain vehicle by which this nexus could be created on the two strands of evidence — that is the strand that spoke to the fact of a statement being taken from a Shanice Roberts and the strand that speaks to a Shanice Roberts, who is deceased, were not adequately connected. The proposed recall is therefore not to introduce an entirely new factual foundation, but to address a confined evidential gap in the foundation already laid”.

Justice Palmer outlined the seven areas of restriction to be placed on the Crown, saying, “I therefore find that the probative value of the recall outweighs the risk of prejudicial effect, provided that recall is subject to the strict safeguards that are imposed”, while adding that the defence will have full opportunity to cross-examine the witnesses.

He, in the meantime, forbade the prosecution from making any direct contact with the two witnesses before they reappear, while at the same time indicated that his ruling on the application to recall the witnesses does not mean the Section 31 (D) application is at an end.

“The Crown still bears the burden of satisfying the court of the statutory requirements… and the defence remains free to make their submissions…” Justice Palmer stated.

The accused — Michael Wildman, Jerome Spike, Nashuan Guest, and Geovaughni McDonald — are being tried for “knowingly facilitating the commission” of the robbery and murder of Smith.

The trial continues on Tuesday morning at 10:00 in the Home Circuit Division of the Supreme Court in downtown Kingston.