Villanueva, Villanueva and Baeza v R
| Jurisdiction | Belize |
| Judge | Mottley, P.,MOTTLEY, P.,SOSA, J.A.,MORRISON, J.A. |
| Judgment Date | 13 March 2008 |
| Neutral Citation | BZ 2008 CA 11 |
| Docket Number | Criminal Appeal Nos. 19, 20, 21 of 2006 |
| Court | Court of Appeal (Belize) |
| Date | 13 March 2008 |
Court of Appeal
Mottley, P.; Sosa, J.A.; Morrison, J.A.
Criminal Appeal Nos. 19, 20, 21 of 2006
Mr. O. Twist for first & second appellants.
Mr. A. Sylvestre for third appellant.
Ms. M. Moody for the respondent.
Evidence - Admissibility — Confession — Whether the trial judge failed to warn the jury of the special need for caution.
Criminal Practice and Procedure - Fairness of trial — Whether the trial judge too freely expressed his views — Summation examined as a whole — Finding that trial was fair — Whether withdrawal of attorney prejudiced the 3 rd accused — Trial judge did not adequately protect the 3 rd accused's interests in the circumstances.
On 5 October 2006, the first appellant Giovanni Villanueva (GV) was convicted of the murder of Wilfredo Baeza which occurred on 19 July 2003 at Corozal. He was sentenced to life imprisonment. On the same day, the second appellant Javier Villanueva (JV) was convicted of abetment to the murder of Wilfredo Baeza and was sentenced to 15 years' imprisonment. The third appellant Sharim Baeza (SB) was convicted of conspiracy to commit murder and was sentenced to imprisonment for life.
Shortly after the conclusion of the hearing of the appeal, we dismissed the appeal of GV and affirmed his conviction. We allowed the appeal of the JV, quashed his conviction, set aside his sentence and entered a verdict of not guilty. In respect of SB, we allowed the appeal quashed his conviction, set aside his sentence and ordered a new trial on the charge of conspiracy to commit murder. At that time, we promised to put into writing the reasons for so doing.
The deceased Wilfredo Baeza (Wilfredo), also known as Fidos, was married to Tomasita who is the sister of GV and JV. SB is the son of Wilfredo and Tomasita. The case for the prosecution was that on 19 July 2003 GV went to the home of the deceased at 4th Avenue, Corozal Town at about 6pm and shot him while he was in his bathroom resulting in his death. On the count of abetment to murder the prosecution's case was that on 20 July 2003, the day following the death of Wilfredo, JV, still unaware that Wilfredo had been shot on the previous day, encouraged a fisherman by the name of Luke Tate to kill the deceased by offering him the sum of $6,000 to kill Wilfredo.
The evidence in support of the count of murder came by way of a conversation which GV had with his sister Maria Catzim (Maria). Maria said that GV came to her home on 20 July 2003 and asked her if she was aware that Wilfredo was dead. He told her that he had killed Wilfredo and that Tomasita had asked him to kill him and he had done so because Tomasita had promised to pay him $6,000. During the conversation, he asked Maria to lend him some money as he wanted to leave Belize. After the shooting, GV said that he had thrown the gun in the sea. While GV was speaking to her, Maria said that he appeared as though he had been drinking as she could smell “the aroma of alcohol”. In his statement from the dock, GV said that on 19 July he went to work at about 12 o'clock and remained there until 3 o'clock. He returned home after work where he then watched TV until 9 o'clock at which time he went to bed. On 20 July 2003, someone by the name of Manuel came to his home and informed him that Wilfredo had been killed. He went to his parents' home. His mother informed him that his father had gone to the sea side where he joined him about 9 o'clock. After spending some time with his father, he took a taxi and went and purchased three six-pack of Mexican Beer. He drank beer by the sea-side until 12:30 o'clock. Later, he met his father, Javier Richard and they drank four beers each. GV and his father then drank about one quarter of Caribbean, presumably rum. By 2 o'clock, his father appeared to be “kinda drunk”. However, as his father wanted to drink some more, they decided to go to his mother's house. He again bought some more Mexican Beer. At about 3 o'clock he took beers and returned to his home where he remained until the following day. He denied speaking to Maria on 20 July. He denied telling Maria that he had shot Wilfredo. He denied killing Wilfredo.
In his first ground of appeal, he complained that the judge failed to give the jury directions on the danger of acting upon the unsupported confession of GV who it is alleged was in a state of intoxication. Mr. Twist submitted that judge ought to have told the jury to consider the effects of alcohol on the mental state of GV in determining whether he was speaking the truth when he told Maria that he had murdered Wilfredo or whether he was play acting due to his mental state.
The law governing the admissibility of a confession in criminal cases is contained in section 90 of the evidence Act, Cap. 95. Confession that a defendant has committed a crime is admissible in evidence against that defendant if the admission is freely and voluntarily made. However, before the admission can be admitted into evidence, the prosecution has to prove, to the satisfaction of the judge, that the admission “was not induced by any promise of favour or advantage or by use of fear, threats or pressure by or on behalf of a person in authority (section 90(2)). If the admission of guilt or confession is admitted into evidence, that admission is sufficient evidence upon which the defendant may be convicted. (section 91(1)). If the case against a defendant depends wholly or substantially on a confession made by him and, the court is satisfied that he is mentally handicapped and the confession was not made to an independent person, the Court is required to warn the jury that there is a special need for caution before the jury may convict the defendant acting in reliance on the confession. In addition, the Court must explain to the jury that the need for special caution arises because the prosecution's case against the defendant depends wholly or substantially on the confession and that defendant is mentally handicapped and that the confession was not made in the presence of an independent person.
Section 91)2) of the Evidence Act states:
91(1) …
(2) Without prejudice to the general duty of the Court at a trial on indictment to direct the jury on any matter on which it appears to the court appropriate to do so, where at such a trial–
(a) the case against the accused depends wholly or substantially on a confession by him, and
(b) the court is satisfied–
(i) that he is mentally handicapped; and
(ii) that the confession was not made in the presence of an independent person,
the court shall warn the jury that there is a special need for caution before convicting the accused in reliance on the confession, and shall explain that the need arises because of the circumstances mentioned in paragraph (a) and (b).
Counsel for the appellant conceded that the statement to Maria was properly admitted into evidence. However, he submitted that a warning along the lines set out in section 91(2) ought to have been given. This submission was based on the contention that the appellant had been drinking and was so drunk that he was not in control of his faculties.
No evidence was led to show that he suffered from any mental handicap. In an effort to show that the appellant was not in control of his faculties, Mr. Twist relied on the evidence of Maria and the unsworn statement of the appellant given from the dock. In her evidence-in-chief, Maria, in reply to a question from counsel for the Crown, said that the appellant appeared as though he had been drinking. She reached this conclusion because she smelled “the aroma of alcohol” on his breath. In cross examination, Maria said that she and GV got on well except when he was drinking. On the occasions when GV was drinking, Maria said that he used to “talk things out of the way”. By this, Maria said she meant that would be cursing and saying things to offend others. When pressed further by counsel, she said when he was drunk he used to make up things – make up stories. When asked if GV used to drink a lot, Maria replied “a bit”. While she did say that she could smell the aroma of alcohol on GV's breath, no questions were put to her as to what was his state of sobriety or whether she considered that he was drunk. However in response to a question posed by the court, Mr. Twist conceded that Maria's evidence did not show that GV was drunk when he admitted to her that he had killed Wilfredo for money.
Mr. Twist also relied on the unsworn statement of the GV from the dock. In his statement the appellant said:
“I spoke with my father at the sea side and then I told my father if he wanted some beer and he told me, yes. So, indeed I take a taxi and I went to buy some Mexican beers. I bought three six-packs. When I returned back again where my father was, he was not there, so I sit there at the sea-side. I begin to drink there at the sea-side until 12:30 when I decided to go to Bumpers where I met my father, Javier and Richard and my father. We drank all about four beers each, and then me, and my brother, Javier begin to argue.”
He continued:
“Yes. Then Javier, he went outside. I don't know where he went, and then I told my father, “Let's go to Campecino Bar. We drink almost about one quarter of Caribbean there. We stayed there until almost two o'clock. From there, my father was ready kinda drunk and he wanted to drink more so I told him, “Let's go buy some Mexican beers and go home.” When we get the Mexican beers, we arrived at my mother's house about three o'clock then I left my father there. I tek four beers with me, I went to my wife's house.”
At no stage during his unsworn statement from the dock did GV say that when he spoke to Maria he was drunk. Indeed, he denied that he spoke to Maria on 20 July 2003.
Mr. Twist referred us to the summation where the...
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