BASSETERRE, St. Kitts - WYCLIFFE LIBURD of Market Street, who is currently serving a life sentence for murder, has had his appeal against the conviction and sentence dismissed by the Eastern Caribbean Court of Appeal (CoA).
The dismissal was handed down yesterday (Nov. 27) at the Basseterre High Court where the CoA is presently sitting.
Liburd was convicted and sentenced to life imprisonment for the cold blooded murder of 32-year-old Charles 'Abaloo' Mitcham, which took place on April 18, 2008 at Lower Shaw Avenue.
Liburd stood unrepresented at his appeal hearing and his grounds for appeal, penned by him, were:
1. The trial judge failed to accentuate inconsistencies and discrepancies of witnesses’ testimonies;
2. The trial judge directed jurors to disregard the conflicting witness testimonies; and
3. Identification was not satisfactory to prove guilt.
Liburd began his argument with the issue of Turnbull identification (guidelines for judges in trials where identification evidence was disputed).
He argued that the police officer, Julia Smithen, who gave evidence at the trial claiming to have witnessed the murder, did not properly identify him, noting that she testified that on the day in question she was "very hysterical and there were things she could not recall".
When put to him by the Justices that the police officer positively identified him, Liburd replied by saying the fact that Smithen said the day was hysterical could have clouded her judgement on who she really saw gunned down Mitcham.
He stressed that Smithen, in spite of all who were there, was the only person to identify him as the person who shot Mitcham and that there were other witnesses who testified - one on behalf of the prosecution - and all stated that they could not identify the shooter.
The convict argued at length on the identification issue, claiming that the evidence given by Smithen was poor. He went on to stress that in her testimony she said that she was concentrating on the things.
The Justices of Appeal, headed by Chief Justice Janice Pereira, countered Liburd by asking, "Does that mean she did not see what she said she saw?"
The Justices told Liburd that a person could be identified by many means.
Liburd however went on to argue that another witness, Alvan Buttler, testified that he was close to the crime scene but did not see the shooter's face.
He also argued that Smithen, when giving her evidence, said her only surety was the trousers worn by the shooter.
The Justices then told Liburd that the trial judge did go through all of the evidence and testimonies at length during his summation, and that they did not see any error of him not making proper use of the Turnbull guidelines.
"Alvan Buttler and Julia Smithen were not standing side by side and what persons see from their vantage point may be different," the Chief Justice said.
Liburd then argued that while Smithen gave evidence that she saw him do the shooting, other eyewitnesses testified that the shooter could not be identified.
He further argued that Smithen claimed she knew him for some 15 years - since her school days - but when asked which school she knew him from, she could not say.
The Justices of Appeal then told Liburd that all of the evidence regarding the identification was left for the jury to decide whether or not they believed what Smithen said. They said it was open for them to accept or reject the evidence.
"You have not told us anything to satisfy us that the identification was not satisfactory to prove guilt," one of the Justices said.
Liburd was then asked to move on to the other grounds of his appeal.
The convict proceeded to argue that one of the discrepancies in his case which was overlooked was the fact that the trial judge, during his summation, told the jury that they have to be careful with witnesses who are not trained to give testimonies as they are laypersons and that there are a number of reasons they could cause discrepancies, as they could forget, be unsure or they could be nervous due to the circumstances of the case.
Liburd said that Smithen said she was a trained police officer and argued that she should not have been included in that capacity.
The Justices told Liburd that while Smithen was a trained officer, she did not say she was an expert where giving evidence was concerned, therefore, it was not a discrepancy.
They also told Liburd that the trial judge did identify the discrepancies in the matter and guided the jury accordingly, warning them that they should weigh them [discrepancies] and decide if they were of importance.
Liburd then tried to argue the prosecution's questions to a witness who gave evidence on his behalf.
He said the fact that the prosecution put to the witness that they [Liburd and witness], along with other persons, hang out together in the vicinity of a known gang hot spot could have had an effect on the jury which could have hindered their verdict.
The convict claimed that tactic by the prosecution was "a blow to drive me in prison".
Liburd also tried to argue an inconsistency between the testimonies of Smiten and another eyewitness.
He argued that an eyewitness testified that after the shooting took place, Smithen came out of her house screaming and asking "who shoot Abaloo”?
When the Justices told Liburd that all of that evidence was put to the jury and after deliberation they decided he was guilty, the appellant said the trial judge should have gone into detail about that inconsistency.
After going back and forth for almost two hours, the Justices told Liburd that indeed there were discrepancies and inconsistencies in his matter, all of which were pointed out by the trial judge in his summation and guided the jury accordingly and it was left to them to decide what they believed.
One Justice told Liburd: "You are not establishing your grounds, you are all over the place," referring to the fact that, apart from the identification argument, his other points were not related to his other grounds for appeal.
"The Court of Appeal would not overturn your conviction just because you felt the jury should have accepted your version of what happened, unless you can show some error in which the jury could have accepted your version," the Chief Justice said.
Liburd moved on to add another ground to his appeal which was related to his sentence.
He asked the CoA for a reduction in his sentence so that he could have hope, noting that when one is given life behind bars they are stuck in prison until death.
He stated that they are given no reason to try to rehabilitate themselves because no matter what, they would not be given the opportunity to be readmitted into society.
Also noting that there is no parole system in the Federation, Liburd requested a sentence in years instead of life.
He also mentioned that the trial judge, at sentencing, did state that after he had served the maximum number of years in prison and if shown rehabilitated, he could be readmitted into society.
Attorney Dennis Merchant, who was leading the respondent team, submitted that the sentence by the trial judge was thoroughly considered, especially since the prosecution was seeking the death penalty in the matter.
With regards to a sentence in years, he did however make reference to the appeal of William Benjamin who, just earlier this year, was given a minimum of 25 years by the CoA before he is considered for review.
When passing judgement, with regards to Liburd's appeal against conviction, Chief Justice Pereira said there was no merit in any his grounds raised.
His appeal was dismissed and the conviction upheld.
With regards to his appeal against sentence, the Chief Justice said the trial judge conducted a balanced exercise.
She said the trial judge described the murder as brutal, cold blooded and brazen and that it was done in a somewhat execution style, but that he did not see it as the worst of the worst so he did not impose the death penalty.
She said he did not give a fixed time period for when Liburd should be considered for review and for that he was given a minimum of 25 years to be served before there is any consideration for him to be reviewed for release.
