A court has dismissed an appeal against a conviction for firearm possession by Marcus Steve Manderson, who was found guilty in 2022 in his absence after he jumped bail and went on the run.
Manderson, 35, had removed his electronic monitor and disappeared while on bail on 5 April 2022, three weeks before his trial was scheduled to begin. A jury subsequently found him, and his co-defendant Thalia Barnes, guilty of possession of an illegal firearm and ammunition.
The trial judge, Justice Cheryll Richards, had agreed to hold the trial in Manderson’s absence, finding that there was a public interest in proceeding, and that it was also in Barnes’ interest to go ahead as she was subject to strict conditions of bail.
On 2 Dec. 2022, both Manderson and Barnes were convicted. Manderson was sentenced to 11 years and six months, and Barnes received a 10-year prison sentence.
Both had been charged after an unlicensed loaded Hi-Point semi-automatic pistol had been found in the couple’s home.
Manderson was eventually arrested in February 2023, when he was found hiding in a George Town home. During his arrest, he was bitten by a police K-9 dog.
In a Court of Appeal hearing this week, on 17 Sept., Manderson’s lawyer, Jonathon Hughes, argued that the Grand Court had no power to try Manderson in a jury trial in his absence. He had also argued that, in the trial, Manderson’s defence lawyer, Keith Myers, had failed to refer to the defendant’s allegation to police that the gun had been planted by his own father.
‘Absconding plagues the criminal justice system’
In their ruling, issued on Friday, 19 Sept., the Court of Appeal judges stated that the Constitution confirms that there is a power to conduct a criminal trial if a defendant “having had reasonable notice of the hearing and of the nature of the offence charged he or she is voluntarily absent from the proceedings”.
They added, “Absconding is a difficulty that plagues the criminal justice system. There does not seem to be any good reason for exempting defendants in jury trials from the possible consequence of being tried in their absence.”
Regarding the competence of Manderson’s defence during the trial, the Court of Appeal judges stated, “We have not been provided with any record of the speech by defence counsel and Mr. Myers has not provided any information as to its contents. The only information that the court has been provided with is that the Crown made a mental note that the closing speech on behalf of the Appellant did not touch upon the issue of the alleged planting of the firearm.”
The judges, however, noted that the Crown had pointed out that the summing up of the case had made specific reference to the allegation of the planting of the firearm, on which Manderson’s DNA had been found.
The Court of Appeal justices said Myers may have made a “deliberate forensic choice” not to mention the alleged planting of the weapon in the closing speech “in the light of the need to explain the presence of [Manderson’s] DNA on the firearm”.
“It was within the range of possible responses for the defence to focus on the evidence dealing with the possibility of the transfer of DNA rather than the provenance of the firearm,” they said.
They added, “The defence case of plant was also not capable of being advanced without some evidence from [Manderson]. Some evidence was given by Ms. Barnes to the effect that Mr. Manderson’s father was not a nice character, but she said she would not have given him access to the house.
“Accordingly, defence counsel might reasonably have considered that the defence of plant could not sensibly be urged on the jury without any evidence from the appellant.”
The judges stated that it was counsel’s responsibility to make forensic decisions and to devise strategy, and that lawyers are “not merely a defendant’s mouthpiece”.
“Even if there were grounds for criticising the conduct of counsel at the trial, any difficulty was remedied in the summing up,” they said.
“The issues were fully and fairly explained to and left to the jury, and the necessary process of reminding the jury of the defence of plant was carried out. Any difficulties for which counsel was responsible did not undermine the trial process, which remained fair overall.”
They concluded, “For these reasons, this appeal is dismissed.”