Matus v The Queen
| Jurisdiction | Belize |
| Judge | Sosa, J.A. |
| Judgment Date | 20 October 2010 |
| Neutral Citation | BZ 2010 CA 26 |
| Date | 20 October 2010 |
| Court | Court of Appeal (Belize) |
| Docket Number | Criminal Appeal No. 8 of 2009 |
Court of Appeal
Mottley, P.; Sosa, J.A.; Barrow, J.A.
Criminal Appeal No. 8 of 2009
O Twist and E Kaseke for the appellant.
C Ramirez, Senior Crown Counsel, for the respondent.
Evidence - Identification — Dock identification — Whether trial judge failed to direct jury on absence of identifications parade — Whether directions on identification were inadequate.
The village of Cristo Rey (“the village”) lies no more than some four miles of unpaved road away from the centre of San Ignacio, which joins with Santa Elena to form the only twin towns of Belize. On the evening of 3 October 2006, the birthday of Mrs. Teresa Tzib, her 17-year-old daughter, Pricila Tzib (“the deceased”), was slain in cold blood in the family yard in the village when one of two home invaders put a gun to her head and fired once. On 18 November 2008, after having been detained and released more than two years earlier in October 2006, Miguel Matus (“the appellant') was arrested and charged with the murder of the deceased. No other pertinent arrest having been made, the appellant went on trial alone before Gonzalez, J. and a jury on 8 June 2009; and, on 18 June 2009, at the end of a trial which occupied seven working days, he was found guilty of murder by the jury after less than two hours of deliberations and sentenced by the judge to life imprisonment. In the present appeal, the appellant challenges his conviction.
The principal Crown witnesses at trial were Mrs. Teresa Tzib, Mr. Richard Aguirre and Mrs. Consuelo Tzib, the mother (as already stated above), brother-in-law and sister-in-law, respectively, of the deceased. (For the sake only of convenience, and meaning no disrespect, the court shall, in the remainder of this judgment, refer to these witnesses as Teresa, Richard and Consuelo, respectively.)
Teresa's evidence demands to be described before that of Richard and Consuelo since, although she testified after they did, she, unlike them, claimed, albeit only during cross-examination, actually to have seen the appellant shoot the deceased.
It was the evidence-in-chief of Teresa that, at half past seven on the evening in question, she was washing the dishes in her kitchen (lit by electric light) when, alerted by the barking of the dogs, she saw two persons approaching the nearby house of Consuelo (situate in the same yard as the kitchen). When she asked them what they were looking for, one of them, who was carrying a gun, told her she would be shot if she went “there”, whereupon she returned to her kitchen. The “guy” with the gun, having presumably followed her into the kitchen, then grabbed her. In the meantime, the deceased had emerged from another house in the yard, the sleeping quarters of some family members (“the big house”), but, heeding Teresa's instructions had quickly gone back in. Richard then went from the big house into the kitchen but, as soon as he arrived there, the “next man” placed a machete at his neck or throat. After having asked for one Angel and been told by Teresa that no Angel lived there, the man with the gun took her to the big house (lit also by electric light), where her daughters (Antonina and the deceased) and Consuelo happened to be, and ordered them to step outside. When that order was obeyed, the man with the gun grabbed the deceased and took her “behind the bathroom”. (It was to become clear in her cross-examination that the “bathroom” in question was an outdoor toilet.) Teresa followed them, protesting the taking of the deceased, until “they” threatened to kill her if she continued following them. She heard them questioning the deceased, whose answer was “I don't knout, and then heard a gunshot. At this point, in Teresa's words: “I went running to see her but she was already dead.” Richard picked up the body and Teresa's other son-in-law, Santos, arrived to transport it to the hospital.
Teresa further stated in evidence-in-chief that she knew the man who had the gun on the night in question and that his name was Mikey Matus. She went on to give evidence as to her acquaintanceship with him. He used to visit her nieces, who lived “not so far” from her house, during the week and on Saturdays over the course of the previous two years.
It was the estimate of Teresa that the total period of time during which she had the man with the gun under observation on the evening in question was around 5 minutes. Her view of him was, furthermore, unobstructed at all times.
The judge having earlier ruled that dock identification of the appellant by Richard was admissible, defence counsel refrained from objecting to the like identification of the appellant by Teresa.
While Teresa in her evidence-in-chief had admittedly placed both intruders at the spot where the deceased was shot, there is no gainsaying that she was clear that it was the appellant alone who actually “took” her there (p 179, line 14, record). Mr. Twist's plan, as revealed on pages 189–190 of the record, was to procure the variation of that testimony as early as possible in cross-examination. The successful execution of this plan, however, proved costly, a classic pyrrhic victory. Teresa somehow agreed with Mr. Twist that it was “two men” who carried the deceased towards the “toilet”; but, when he sought to capitalize on this success by suggesting to her that she could not, in the circumstances, tell the court who shot the deceased, the obviously discomfiting reply was that she certainly could. The exchange, which cannot have been less than dramatic, was recorded as follows:
“Q. And then when the two men took [the deceased] by the toilet, you heard a single shot?
A. Yes.
Q. You cannot tell this court; Mrs. Tzib who it was that fired that shot?
A. Yes.
Q. You can tell who or you can't tell who?
A. Yes.
Q. I want to get that clear because I don't know what she is saying if she can tell or if she can't tell. Let me ask her again. You can't tell this court who fired the shot?
A. I can say it.
Q. You can say who fired the shot? With your own eyes you saw somebody put the gun and fire the shot? Is that what you are saying?
A. Yes.”
Mr. Twist understandably, if inappropriately, indicated to the judge at that point that he thought the witness was confused; but the judge quite rightly reminded him that he was in the middle of his own cross-examination (apparently in tangential allusion to the fact that advocacy is not without its occupational hazards). Mr. Twist proceeded to refer the witness to a statement, said to have been recorded from her by the police, in which there was no mention of her having seen who shot the deceased. This, however, only served to introduce a new twist into matters since the statement produced in court was written in English while Teresa claimed to have spoken to the police in Spanish, the only language she spoke. Teresa's position in cross-examination, even when confronted with this dubious purported statement, was that, while that document did not reflect her evidence that she saw the appellant shoot the deceased, she did witness the shooting and that her omission to say so in evidence-in-chief the day before was essentially the result of her not having been feeling well on that day. The relevant portion of the evidence-in-chief, as shown in the record, is as follows:
“Q. What happened?
A. Then I heard they were asking her questions.
Q. Were you able to hear what they were asking her?
A. No. I heard she said, ‘I don't know.’ And then I heard the gunshot.
Q. Who did she hear saying ‘I don't know’?
A. Pricilla (sic).
Q. What did you do when you heard the gunshot?
A. I went running to see her but she was already dead.”
On a careful reading of these questions (put through an interpreter), the court considers that counsel's suggestion to Teresa that she had had an opportunity in evidence-in-chief to say she saw the deceased shot was without foundation. (It is noteworthy that, later in the trial, following the visit to the locus in quo, Mr. Twist would, unusually, resume his cross-examination on this topic.)
Teresa was also cross-examined as to the fact that she had identified one of the two intruders in question as Mikey Matus in the statement purportedly recorded from her by the police on 10 January 2008 but not in that purportedly recorded from her on 3 October 2006. Her explanation of her conduct was that her fear of naming the man who shot the deceased, which had yet to go away at the time of trial, had been too great on 3 October 2006.
Counsel's suggestions to Teresa that she was mistaken in her identification of the appellant as one of the two intruders in question and that he was nowhere near her premises on 3 October 2006 were firmly rejected by her.
It is convenient to note at this point that during the visit to the locus in quo already referred to, Teresa pointed out the spot from which she claimed to have seen the shooting of the deceased as well as the “bathroom” in question and the residence next-door which the appellant used, according to her, to visit.
Richard stated in his evidence-in-chief that he was inside what he called the living room (evidently the big house) at around 7.30 pm on 3 October 2006 in the company of his wife, Antonina, and her sister, the deceased. They were engaged in making church decorations when Consuelo ran in and reported that two “guys” had entered one of the other buildings. He went into the brightly-lit building called the kitchen, situated some 5 to 7 feet away from the big house, where he found a man pointing a gun at Teresa's head. He had stood there still for a minute before another “guy” entered and walked up to him. This “guy” grabbed him and, placing a machete against the back of his neck, forced him to face one of the kitchen doors. Despite being so held, Richard was able to see the gunman...
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