Ashelle, Karim freed

Government senator Ashelle Morgan, a lawyer, and Karim Nelson, an assistant director of public prosecution, were today (Thursday) freed on charges in connection with the April 13 shooting of Cornelius John, 63, at his Diamond Estate home. 

Magistrate Bertie Pompey handed down his decision at 9:44 a.m., less than 24 hours after Nelson’s lawyer, Duane Daniel, as well as Morgan’s counsel, Ronald “Ronnie” Marks, made no case submissions after six days of evidence at the Mesopotamia Magistrate’s Court, sitting in Calliaqua. 

Pompey said that in Morgan’s case he preferred the evidence of the defence rather than the complainant’s because of the issue of credibility.

He said that Mr. John’s wife said she was just across the road from her husband, the magistrate was saying when the prosecutor, S. Stephen Brette, who is also deputy director of the public prosecution in St. Lucia, rose and said there was no evidence given by Morgan under oath.

Pompey, however, said that Morgan denied in the statement, and a sidebar conversation ensued between Brette and Duane Daniel, Morgan’s lawyer.

“Counsel, you have a recourse to the Appeal Court, you know,” Pompey told the prosecutor, who responded, “Very well.”

Pompey continue giving his reasons for his decision, saying that Mr. John’s wife — Nicole John — testified that she was just across the road at the time of the shooting and was able to see the taller man push her husband but did not see Morgan push out a gun and push it in Mr. John’s face.

The magistrate commented that this is possible, adding that one can see one thing but not the other.

Pompey also upheld the no case submission because of John’s failure to mention the alleged assault by Morgan to the first responder, Roshel Franklyn, an auxiliary police officer who is his neighbour, and Police Sergeant Prescott, who later attended the scene. 

The magistrate also said that Mr. John did not tell the police that Morgan used expletives during the commitment of the alleged criminal assault.

“The court finds that the criminal assault charge against Morgan cannot be sustained. She is, therefore, acquitted of criminally assaulting Cornelius John,” the magistrate said.

Regarding the charges against Nelson for unlawfully and maliciously wounding Mr. John and unlawfully discharging a firearm at him, Pompey said that there was absolutely no doubt in his mind that Mr. John sustained gunshot wounds to his left leg, inflicted by someone on April 13.

The question for the court was, “Who is that someone?” Pompey said.

He noted that 11 witnesses testified on behalf of the Crown and at no time was any of them able to link Nelson to the offence of wounding John.

The magistrate noted that the burden falls on the prosecution to prove its case beyond reasonable doubt.

“There was not one iota of evidence linking the first defendant to wounding Mr. Cornelius John and discharging a firearm at him.”

The magistrate said that he was “absolutely in doubt as to who this tall man was.

“The being said, these charges are, therefore, dismissed,” Pompey said.

The prosecutor responded, “Guided by the court. 

On Wednesday, in his response to the no case submission, Brette had conceded that there was no identification of Nelson on the scene.

Brette, however, asked the court to consider “other pieces of circumstantial evidence” as he said that the refusal of the court to summon a final witness for the Crown resulted in denying the prosecution the opportunity to put Nelson directly on the scene. 

The defence made no case submissions after the court visited the locus in quo — “scene of event” — which Pompey had agreed to do amidst strong objection from defence counsel the previous day, Tuesday.

Before making his no case submission, Daniel told the court that even if it does not agree with him on the no case submission, he was going to “show my hand” by saying that his client would give no evidence in the matter.

“And, essentially, the very submissions and arguments that will be proffered in relation to the no case submission, I intend to rely on in relation to why there ought to be no conviction,” Daniel said. 

In making the statement, Daniel noted that under cross-examination, the investigating officer, Corporal Henry Hoyte averred that the only evidence against Morgan comes from the complainant.

The officer further told the court that there was no other witness in relation to Morgan having a gun or making any threats, Daniel said.

“This is a correct and astute observation by the investigating officer and in keeping with the evidence, or lack thereof, before the court.” 

The advocate said that at best, two witnesses gave evidence in relation to the event and Morgan’s presence on the scene. 

Daniel pointed out that Roshel Franklyn — an auxiliary police officer — claimed to have identified Morgan on her way to and from the scene. 

“She does not see Ms Morgan with any gun, nor did she see or witness the transaction at the time of the shooting,” Daniel pointed out to the court.

He further stated that Franklyn did not claim to have heard Morgan’s voice at all while Morgan was in Mr. John’s yard.

“In fact, the only time she claims to have heard Ms Morgan’s voice at all, is when Ms Morgan was leaving and saying something to the ‘tall guy’ as she was trying to catch up with him. Whatever it was that she said at the time was inaudible.”

Daniel pointed out that Nicole John, the complainant’s wife, also claimed to have seen Morgan.

Mrs. John said that she saw the three people, including Morgan, in Mr. John’s yard.

“She does not give any evidence in relation to Ms Morgan having a gun, nor Ms Morgan adopting a posture over Mr. John in keeping with his evidence — or at all — of her pointing a gun to his head, nor does she indicate hearing Ms Morgan’s voice at all, let alone making any threatening words to Mr. John.’

Daniel noted to the court that the investigating officer said that Morgan denied having a gun, denied making any threats toward Mr. John, and denied telling anyone to shoot anyone.

He further noted that Hoyte said that Morgan has no known criminal record or conviction.

“This is an important facet when it comes to considering the likelihood of Ms Morgan to commit the offence,” Daniel said, and argued that his client is to be taken as a person of good character and that that stands her in good stead. 

The lawyer noted Mr. John’s allegation that Morgan had her own gun. Daniel, however, pointed out that no gun was recovered from Morgan. 

“… when we juxtapose the evidence of the Commissioner of Police [Colin John] who, by implication, indicates that lawyers and public figures such as senators in the ordinary course of things would be favourably considered for a firearm licence, the clear picture which emerges is there is no good reason or purpose for Ms Morgan, a person of good character who could easily have a licensed firearm, to resort to the risk of an unlicensed firearm.”

John, a non-violent, ‘godly’ man? 

The lawyer then moved to what he said is the only evidence against his client: the evidence of Mr. John himself.

He said that for the court to convict Morgan, the court will have to place all its faith in Mr. John’s credibility.

Examining Mr. John’s credibility, Daniel said that the complainant gave evidence to say he is not a violent man and that he is a godly man. 

“He denied being violent, he also specifically denied having made any threats to anyone on April 13, 2021,” Daniel noted. 

Daniel however, told the court that on the contrary, under cross-examination of Mr. John, and as elicited from Mrs. John, as well as from documentary records the following emerged:

1. A conviction for an offence against Mr. John, albeit decades old.
2. A report made to the police by Mrs. John on April 14, 2021 for threatening language he made on April 13, 2021.
3. Evidence that on April 13, 2021 he threatened to chop the neck of his wife, and sacrifice her head and blood to the devil.
4. Threats on April 13, 2021 made in respect of killing Mrs. John’s children who are also Mr. John’s own children.
5. Threats made on April 13, 2021 to kill his own grandchild.
6. Threats made on April 13, 2021 involving the use of firearm (machine gun) and a grenade.
7. A station diary entry of a call by Ms Morgan that Mr. John was making threats on April 13, 2021 and she needed the assistance of the police.

“This greatly and significantly shakes the fabric of the credibility of Mr. John as a witness of truth, since he, under oath, stated categorically that he made no threats to his wife. 

Daniel noted that during his examination-in-chief, John told the court, I did not threaten her”, referring to his wife.

Daniel said that John had also destroyed things in his home because he was “disrespected”. 

“We must add that to the fact that he asserts he is not physically violent,” Daniel said, and noted that Mr. John had also told the court that he was not abusive to his wife.

Notwithstanding this, Mrs. John “grudgingly admitted” that her husband has struck her in the past, Daniel told the court.

He noted that when it was to put to her that in her statement to the police, she said that Mr. John is verbally, emotionally and physically abusive, Mrs. John agreed to the verbal and emotional abuse but distanced herself from the allegation of physical abuse, indicating the statement was not read back to her and she did not say that.

‘doctors will prove to you what happen’

“Perhaps, most telling and the brightest beacon lighting the path to the conclusion we invite the court to make, that Mr. John is not a witness of truth, is the harrowing detail of the physical assault which he claims was visited on him by the taller guy on the evening of April 13, 2021,” Daniel said. 

Daniel quoted a section of Mr. John’s testimony where he said:

“While I was speaking, the taller guy run off and kick me off the blocks. I fell on the ground. The blocks fell on the ground. The tall guy off balance and went into the plywood I had by the window sill. He got up and began to stamp me over my chest and belly. While stamping me stool come out of my inside mess up my skin.”

The lawyer noted that Mr. John had reaffirmed during cross-examination and stated that he was in hospital for four days as a result. 

“’The doctors will prove to you what happened’,” Daniel said, quoting John, but noted that the medical evidence of Dr. Charles Woods, is that when Mr. John presented to Accident and Emergency at the Milton Cato Memorial Hospital, on April 13, he presented with no complaints to his abdominal or chest area. 

John reported no such complaints, was diagnosed with no such complaints, was neither treated for, nor managed for any such complaint, Daniel pointed out.

“The medical evidence does not support the bold assertions in his evidence,” the lawyer said. 

“This single fact is of such momentous proportion, that it is enough to completely destroy and obliterate his credibility. It is respectfully submitted that the court cannot ignore this glaring fact and a fortiori should conclude he is not a witness of truth.

“His credibility is further crushed when we look at the accusations which he makes in the immediate aftermath of having been shot.”

‘it is clear what Ms Morgan’s intent was that night’

Daniel noted that the evidence suggests that after the three people left the yard after the shooting, the first person with whom Mr. John interacted was Auxiliary Police Officer Roshel Franklyn. 

“…Ashelle Morgan bring her hit man dem to shoot him,” was how Franklyn recalled what Mr. John had told her.

Daniel said that Mr. John never mentioned to Franklyn that Morgan had a gun, pointed it at him or used any words that can be construed as an assault. 

The lawyer further said that when the police attended the scene, John spoke about the shooting incident but did not tell them that Morgan had a gun, pointed it at him or used any threatening words to him. 

“Yet, this was in the immediate aftermath. The inexorable conclusion that the court is invited to draw, is that this was because no such incident took place and further, it is clearly a subsequent fabrication and invention of Mr. John in an attempt to address the ‘disrespect’, as he described it, earlier that day,” Daniel reasoned.

The lawyer said that the incident was unfortunate but “it is clear what Ms Morgan’s intent was that night. 

“The evidence shows that she was out with Mrs. John. She was made privy to threats made by Mr. John. She was present in her vehicle in the road when he continued his threats. She spoke to Mrs. John about the threats. She called and reported the matter to the police. She sought assistance to speak to Mr. John about his threatening behaviour. Mrs. John was of the opinion that Ms Morgan and police were coming; she did not deny that she did not discourage that course of action, and when it was put to her if she understood that they were coming to see Mr. John because of the threats he was making against her, she did not deny that purpose.”

He said that the trio had stopped and enquired if Sergeant 6 Alexander was at home on their way to Mr. John’s. 

“While no qualification was given in evidence as to why Corporal Alexander was asked for, Mrs. John, in evidence, admits that Ms Morgan had asked her if the police had come to Diamond already. 

“The clear implication and thrust of the evidence, when we put the fact that Ms Morgan reported the matter to the police, Ms Morgan enquired of Mrs. John if the police had come yet, and the party stopped and asked if a police officer was at home, are all indicators that lawful intention and purpose were foremost in the mind of Ms Ashelle Morgan.”

Morgan ‘has the cloak of good character’

The lawyer further pointed out that when Mrs. John spoke to Ms Morgan in the aftermath of the shooting, Mrs. John said she asked Ms Morgan about the shooting of Mr. John. Mrs. John said Ms Morgan replied:

“Really? I thought it was a warning shot.”

Daniel said this bolsters the fact that Ms Morgan had no untoward intent. 

“The implication being she was not even aware that he had been shot, because ‘everything happened so fast’,” Daniel said, quoting what Mrs. John said Ms Morgan had told her in the telephone conversation. 

Daniel said that his client holds no firearm licence and has the cloak of good character on which she may rely. 

“She has denied having a gun, denied pointing a gun at him, and denied telling anyone to shoot Mr. John. 

“On the contrary, for the varied and many demonstrable instances cited herein, Mr. John upon whose shoulders the prosecution’s case rests, is not to be trusted as a witness of truth,” Daniel argued.

“The evidence is tenuous and unsafe, further, or in the alternative, the prosecution has failed to discharge its burden to satisfy its burden to the requisite degree, beyond reasonable doubt that Ms Morgan is guilty of the offence as charged. The evidence of the sole witness, Mr. John, is manifestly unreliable and the prosecution’s case when taken at its highest fails to discharge its burden,” he told the court. 

Journalist could be ‘tall fella who wear glasses and had on a mask’

Meanwhile, Marks told the court that his task is even easier than Daniel’s because his client’s application is quite obvious.

Marks made the no case submission under the legal principles that makes provisions for no case submissions where there is an absence of evidence.

He said that John gave three statements, in addition to evidence in court. His wife gave four statements before the trial and a fifth during the trial and also gave evidence. 

Marks noted that Franklyn gave three statements to the police and gave evidence in court. 

He said that these are the only three persons able to assist the court in identifying who was the tall man in a mask and a hat.

“No one places Karim Nelson on the scene,” Marks said, adding that the prosecutor had tried with circumstantial evidence.

Marks, however, pointed out that the police said that what they found that night was a 9mm shell and Nelson was issued with a .40, which is a larger calibre weapon.

The lawyer said that point is moot as the identification evidence is totally and completely absent from the case. 

He said there was no nexus between his client and “this tall man with glasses, a cap a jacket and a mask on.

“I told my friend Kenton Chance that there is just as much evidence against him as they have against Karim, because he is a tall fella who wears glasses and had on a mask. And it is true. There is just as much evidence against him as against Mr. Nelson.”

Daniel joked that that was probably why Chance, who covered most of the case, was absent on the day of the closing submissions.

Volcanic ash ‘further obscured visibility’

Marks said that the prosecution had failed to adduce evidence that links Nelson to the shooting, adding that the court has to bear in mind that the conditions were not ideal for observation, contrary to the evidence of the police.

The lawyer said that the “so-called witnesses placed the time of the shooting between 6:30 and 7 p.m.”

The counsel noted that Franklyn had to use her phone light to see and further noted that the incident occurred some days after the eruption of La Soufriere, which resulted in a lot of ash being in the air, which further obscured visibility.

He said that Mr. and Mrs. John as well as Franklyn were unable to identify the tall man in the cap.

There was no other evidence that creates a nexus between Nelson and the charges against him, Marks said. 

“In the circumstances, we are saying that the prosecution, having closed its case, has failed to put Karim Nelson on the scene and as a consequence, he has no case to answer before this honourable court.

‘no corroboration is required’ to convict — prosecutor 

But Brette said that when Daniel argued that there is only the evidence of Mr. John in relation to the words allegedly uttered by Morgan, he was quite correct.

“But the law is no corroboration is required and the court can convict on the evidence of one witness alone in the trial.” 

Brette cited cases in support of his argument, adding, “This court can convict the defendant on the evidence of Mr. John alone.” 

Addressing the issue of credibility, Brette recalled that the court had overruled objections he had made when Marks was cross-examining Mr. John.

Brette said that Marks had asked Mr. John about his religious beliefs and he objected to that. He cited a case which says “a witness may not be asked questions about his religious beliefs for the purpose of discrediting him”. 

The prosecutor said that Mr. John was asked questions and to make comments about his violent past and action he had taken against his wife and children.

Brette cited that same case as saying a court should not be able to draw inferences that are discreditable to the witness.

He asked the court to “disabuse its mind from” the answers that John gave as the defence tried to discredit him.

The prosecutor noted that he had objected to John’s past conviction being entered into evidence. He further argued that it should not be regarded when the court is evaluating John’s credibility.

Brette said that he had found — and he went on to cite — legal authority that says that the court should have disregarded that conviction. He said that in the case cited, as is the case in the current trial, the conviction was over 10 years ago.

Brette also asked the court to disabuse its mind from that.

But Marks rose and said that Brette was addressing a matter that the court had already ruled on.

He said that the prosecution was asking the court to re-exercise its discretion on the admission of the evidence.

Mr. John’s word against Morgan’s 

But Brette said that the prosecution submission was that if the court were to disabuse its mind of the points he had just addressed, what is left is Mr. John’s word against Morgan when she made the representation to Hoyte, the investigating officer.

The prosecutor said that John’s words were spoken in court, on oath, and Morgan’s denial was made to the police officer, out of court. 

But the magistrate noted that Daniel had submitted in bullet form seven “variables” and all of them are not concerned with John’s conviction. 

But Brette responded that the report made by Mrs. John on April 14, which was captured in the third bullet point, also encapsulates the points three through six. 

“So, in effect, it is one bullet point,” Brette siad.

But Daniel said that that is not the case as each threat was put to John, who denied each of them.

The lawyer said every time the evidence comes to the contrary, every one is a fresh challenge to John’s credibility.

The prosecutor, however, disagreed, saying that it was one use of threat, all being multiple threats.

Brette argued that with John’s conviction set aside, it can be posited that John has lied about one event — where he denied threatening his wife.

He said the court would have to decide whether to believe the evidence of Mr. John where his wife alleged that he threatened her and he said he did not.

Brette, however, argued that the threat cannot be looked at in a vacuum.

He said that the court had the evidence of Franklyn, who testified that she could not hear what anyone else was saying at the scene on April 13 because when John spoke, he did so loudly, Brette said. 

Mrs. John told the court that when the incident was unfolding, when she saw Mr. John, he was quiet.

Brette noted that both Franklyn and Mrs John told the court that they did not see the shooting.

“Mr. John’s evidence is that it was after the shooting that the defendant, Ms Morgan, uttered the words to him.”

He said that the inference to be drawn is that only Morgan and Mr. John witnessed this.

The prosecutor noted that John said, on oath that the words were utter. He also said on oath that he was shot, something that the medical evidence proved.

“He was telling the truth,” Brette said and asked the court “not to be selective” in what it believes of Mr. John’s testimony but that the court should take the evidence as a whole.

Daniel, however, said that the prosecutor was engaged in “a fundamental misconstruing of a principle of law in relation to the tribunal of facts.”

He said that the standard direction to a jury from a High Court judge in relation to an issue of fact from a witness is that the jury can accept it wholesale, reject wholesale or choose certain elements from it.

“It is an aberration for any counsel with experience in criminal practice to make the assertion before any tribunal that just because one aspect … is true that it must be wholesale that the whole thing is so.”

But Brette recounted that in a High Court, as in a magistrate’s court, the job of the prosecutor is to persuade the jury to take the prosecutor’s version of events.

“I am entitled to tell the court that they can accept the witness’ evidence as a whole, they could reject it totally or they could reject part of it. The same way he is entitled to do this.” 

He said that he is asking the court to believe that in the same way that Mr. John was truthful about being shot, that it should also accept that Mr Morgan made the threats were made to him.

‘We are asking the court not to fall for it’

Brette addressed the point that Mr. John did not tell the police or Franklyn that Ms Morgan threatened him, and, therefore it is not true.

He said there is no rule in law that says if something is not said at a particular time that it is not true, or that the court ought not to believe it.

The prosecutor asked the court to consider and appreciate that John had just been shot in the foot and that his omission came under the stress of being shot. 

He noted that the police said they had to assist Mr. John because he could not walk, it appeared to them that he was bleeding a lot, and they had to try to stop the bleeding.

“So we are asking the court that that could have been operating on the mind or the psyche of Mr. John and that is a possibility why he did not say anything further beyond saying he was shot by somebody and that Ms Morgan had brought gunmen to shoot him.”

The prosecutor said that Franklyn’s evidence that she heard a rumbling is consistent with Mr. John’s evidence.

He said that Mr. John said there was a “cranking” of a gun before he was shot. Mrs John and Franklyn also testified to this.
“The defence wants you to believe all of that, but when it come to the utterance of Ms Morgan to say that Mr John is lying. We are asking the court not to fall for it,” Brette said. 

circumstantial evidence puts Nelson on the scene — prosecutor 

Regarding the concession that there was no identification of Nelson at the scene, Brette said that at the risk of being chastised by the court, the prosecution was constrained to make that concession because the court ruled that “it couldn’t wait for some evidence.

“The concession here is that there is no direct evidence putting Mr. Nelson on the scene because we were not given the opportunity–” Brette was saying when Marks said that his comments were “unfair”.

Marks said that the prosecution had since April to get its witnesses together. 

Brette continued, saying there is an abundance of circumstantial evidence that puts Mr. Nelson on the scene. 

He said that in relation to the firearm, the commissioner of police testified that he had issued Nelson with a 9mm firearm and 24 rounds of ammunition. 

The police chief, however, did not say in his evidence what kind of ammunition.

Brette said that one of the officers who first responded to the shooting said there was a spent shell from one round of 9mm ammunition and the other did not give the calibre.

“However, there is a photograph of that round in evidence in court. That evidence is uncontradicted so the court would have to [consider] that spent shell found at the scene.”

He said that Nelson submitted to Hoyte what turned out to be the same firearm given to him by the commissioner to police.

The firearm that Nelson submitted had two magazines and 23 rounds of ammunition.

Brette said that the court could properly draw an inference that Nelson, or someone using his firearm, fired one round of ammunition. 

But Marks noted that the firearm was issued in January 2020 and the incident occurred in April 2021.

“So. Mr, Nelson fired one bullet in that whole time and that one bullet—” Marks was saying when Brette asked him if was giving evidence from the bar.

The magistrate asked Brette what the connection between Nelson’s weapon and the round was.

The prosecutor said he was prevented from asking the commissioner whether Nelson had a licence to carry the firearm or if he was issued with the firearm.

Brette said that he could now show the court the importance of the question.

“If you have a licence to carry a firearm, you are at liberty to buy any number of rounds you want and to fire any number of rounds,” Brette siad.

“In St. Lucia,” Marks commented, and Brette said, “All over the world.” 

But Pompey — a retired deputy police chief — said there are some restrictions.

Brette, however, was saying that when one has a police- or government-issued firearm, the rounds are issued by the authority and one has to account for it.

“We are submitting that the fact that Mr. Nelson submitted the firearm to the police and there was one round missing and he was given 24 rounds, the court can infer that the spent shell found on the scene came from this firearm. 

“Other than that, what reason would Mr. Nelson have to give the police the firearm?”

The prosecutor also said that the Crown is submitting that the firearm is the connection between Nelson being on the scene. 

The prosecutor said that his examination-in-chief was always being fettered by the defence counsel “with unfair objections”, adding that most of the time those objections were upheld.

Brette said he was saying that based on the evidence of the firearm, Nelson has a case to answer.