Poging gekwalificeerde doodslag K. Carti, subsidiair bedreiging van K. Carti
Diefstal met geweld, de dood van G. Benjamin ten gevolge hebbende
Vernieling taxi nr. 35;
“Vigilant and committed to serve and protect all, in a decisive and professional manner”. This is the motto of KPSM and every police officer on the force: To protect and to serve. And that is exactly what officers Benjamin and Carti did that day, when they did not hesitate to run towards the robbery that was going on in Oro Diamante. While every civilian went into hiding, these brave police officers did what we expect them to do. Officer Benjamin paid the highest possible price; he paid with his life. Before he fired his first (and last) shot, he already got hit by one of three bullets that would cost his life. Ruthlessly killed by the man who is sitting here before you today. Many witnessed this event, because it was broad daylight, all the stores were open and Frontstreet was filled with tourists from several cruiseships and working people during their lunch break. People were scared and ran for their life.
The news of the shooting travelled fast and there are many who can still recall where they were exactly when they heard it was officer Benjamin who was shot. Benji, as he was affectionally named, was loved and respected by many; he was kind, big hearted and an excellent police officer. While leading the bike patrol, he gave the bike patrol it’s face, he formed the team, he set the example. Besides that, he was a son, a father, a husband, a member of a loving family, a colleague and a friend to many. He can never be replaced, but he will always be remembered.
“To protect and to serve”; that is what we expect from our police officers. Police officers have to do their job often under difficult circumstances. While civilians in general may avoid danger, it is expected from a police officer to instead approach the danger. The death of police officer Benjamin, killed in the line of duty, has outraged all law enforcement agencies and the Sint Maarten community alike, followed by feelings of unrest and unsafety. The bike patrol lost their beloved mentor, their ‘big brother’, and now they have to do their work in the same street where he was killed. Every day they have to pass the spot where Benji brutally was gunned down. This is extremely traumatizing, because we all still expect them to do their job and guard our safety. Since Benji’s death, police work on the island has changed. Now they have to perform their duty with Benji’s death in the back of their minds.
Today, we deal with the criminal case. For the Prosecutor’s Office it is clear who is responsible for Benjamins death and the attempt to kill his colleague, and we present you with the evidence for this and for the other crimes the suspects are charged with. We will give a summary of the chain of events and the course of the investigation that led to the arrest of the suspects. Based on the crimes that we find proven and the personal circumstances of the suspects, we will then propose the court the appropriate punishment.
First let me make the following introductory remarks: Between January and August 2015 a total of eight (8) armed robberies took place on Jewelry stores mainly in the Frontstreet but also in the Pelican and Maho area. The majority of these robberies were carried out in the same manner, with the use of one or more firearms to threaten the staff of the stores. In at least one robbery a shot was fired by the robber but luckily no one was injured. The robbers used a hammer and/or a heavy object to smash the showcases, grab the jewelry and use a motorbike as a getaway vehicle. In a small number of these cases arrests were made which also led to convictions. The majority of these robberies however are to date unsolved. All of these robberies were committed during broad daylight and the robberies in the Frontstreet were carried out with one or more cruise ships in port meaning that the street was filled with tourists.
The sense of insecurity rose to a very high level on the island. This called for extra security measures to be taken. Not only to protect the people of the Island but also to protect the tourist industry that the island is highly dependent on. A police force that is already severely understaffed was called upon to be even more vigilant and alert and to work even more hours to ensure a bit more safety for the Island. A lot of this work for the town area came down to the bike patrol since they are the ones who controls the town area. The spate of robberies on the jewelry stores came to an abrupt halt after the 5th of August 2015. On that day the unthinkable happened.
Based on the interrogations of the suspects, the statements of several (eye)witnesses, the videotapes of Oro Diamante and other jewelers in Front Street, telephone records of the suspects and the results of the crime scene investigation this is what we know now.
Damisse had called Leon the day before and had asked him if he was interested in commiting a robbery in town. Damisse and Leon knew eachother from prison. Both came out of prison in November 2014 after they being acquitted for robbery charges. Leon said yes to the robbery plan of Damisse because he needed the money. Damisse picked Leon up in the morning of August 5th in Cole Bay by car. After that Damisse and Leon went to Mike Azor in Suckergarden to pick up clothes and a hammer that they would use during the robbery. Then they picked up a stolen and self painted motorbike near Damisse his house in Suckergarden and went off to Oro Diamante. Leon knew at that time that Damisse had a firearm with him. Damisse was the driver of the motorbike.1
When Damisse and Leon arrived at the targeted store of Oro Diamante they stopped right in front and walked in the store with their helmets on and an extra layer of clothes to prevent recognition. Leon, wearing a white and blue striped shirt with long sleeves, walked in first, holding a big hammer in his hand. He immediately started smashing the glass showcases on the left side of the jewelry store, just like Damisse had instructed him. The jewelry in these showcases contained the most valuable items in the store. Leon shouted “Everybody down”. Damisse followed him right after, holding his gun, pointing it at the people in the store and shouting to them “down, down.2 Leon at one time dropped the hammer, it was heavy, but picked it up again and continued smashing the glass. Both Leon and Damisse grabbed as much jewelry as they could, filling their pockets with it. The sound of breaking glass was loud and heard by many witnesses, even outside the store. And it was this sound that made the bikepatrol, in this case Benjamin and Carti respond. Benjamin was there first, he was across the street, more or less in front of the entrance of Oro and with his gun drawn he shouted “Freeze”.3
Damisse gave Benjamin no chance: he walked out of the store in the direction of Benjamin and he shot immediately at Benjamin. Benjamin backed up against the wall and was able to only fire one shot. Damisse continued shooting and hit Benjamin four times. One shot struck the reserve magazine holder attached to Benjamins belt, one shot struck his arm, one shot struck his leg and one shot struck his head. This turned out to be the fatal shot; the bullet struck him behind his left ear and went into his brain. Benjamin fell down directly to the ground. He was motionless, but Damisse ruthlessy just kept on shooting.4 Nobody could come to Benjamins help.
With Benjamin disabled, he now had to take out the other bikepatroler Carti. Damisse turns in the direction of Carti and shoots another seven times in his direction. Carti, who had seen his colleague fall on the ground right before him, went to the ground himself and made himself as small as possible in an attempt to cover himself. Meanwhile he shoots at Damisse. As soon as Damisse emptied his weapon, he throws it on the street and jumps on the motorbike. Leon who at first tried to escape by foot, turns around and jumps on the back of the bike. They almost fall, Leon injuring his foot. They try to drive away, but Carti managed to hit Damisse with two bullets: one in his leg and one in his stomach.5
Damisse and Leon then throw the motorbike against the gate of the courthouse and try to escape on foot. Meanwhile taking off their shirt and vest, thus altering their appearance. Carti goes after Damisse, firing his last shot in the air in an attempt to make Damisse stop, which he doesn’t. But near the old Firestation in Cannegieterstreet Damisse is not able to go any further, wounded as he is. He gets arrested by Carti. In his pockets Damisse has stolen diamants and chains from Oro Diamante.6
While Damisse gets medical help on the spot, Leon managed to get away, hiding under some shrubs on Nisbeth road until he gets picked up by a bus as he later declared7, or maybe he got a ride from Azor, as is suspected. Leaving behind him a very hectic scene in Philipsburg: Police officers had been responding from the policestation and were everywhere. There were several crime scenes. Benjamin was down on the street receiving CPR in Front street. Damisse was down receiving medical help on Cannegieter street. Benjamin and Damisse were both transportated to SMMC. Witnesses were in shock, people were crying, tourists, afraid, wanted to go back to their cruise ships as quick as possible. Police officers, while worrying about Benjamin, started the immediate hunt for the suspect who got away, and whose identity we did not know at the time.
It would take five days before we could make the arrest of Leon. A large team of detectives from KPSM, RST, KMAR and Landsrecherche and two Prosecutors were working on the case non stop. Off course, Damisse could have made it easy for us by telling us who he was with. But he never did. He denied and remained mostly silent until now. To give you some significant quotes of his first interrogation in SMMC “You are all detectives, detect“ and “When you coming back, walk with my release papers.”8
During those first five days witnesses and camera footage lead us to believe that the identity of the 2nd suspect was Leon. An import eye witness spoke about a boy of 17 to 20 years of age, dark skinned, very short hair and a plat on one side of his head, with white beads in it.9 Based on this despriction and the camera footage, two police officers stated that they believed this was Leon. 10And although Leon was usually found at his favorite spot in Colebay, he was nowhere to be seen after the robbery.11 After ordering his arrest on Sunday he was tracked down and arrested on Monday evening. During a housesearch at his aunt’s place we found the shirt and shoes that Leon had been wearing during the robbery. His aunt stated that Leon indeed had a plat, but that he had cut it of the day after the robbery, probably at a barbershop.12 First Leon decided to remain silent during his interrogations, but later on he confessed that he commited the robbery with “Kilo”.13 He also declared that when he managed to escape the crime scene, he still had some of the stolen jewelry in his pockets. He later sold them to a Spanish guy and received USD 2.500,- for it. Four bracelets he gave to Jason Green to hold for him.14 He also admitted that he indeed had a plat with white beads, and that he had cut it off the day after the robbery.15
At the crime scene forensics found many traces during an extensive crime scene investigation. They found the weapon that Damisse had left on the ground. It was a Smith & Wesson firearm and the sledge was fully pulled back, thus indicating that it was fired untill the magazine was emptied completely.16 Furthermore they found several items of clothing, the motorbike, the helmets and the hammer that was used during the robbery. DNA of Damisse was found on the silver helmet, both pair of gloves (his own gloves and on the ones Leon was wearing), both sweathers (the blue vest and the striped sweater of Leon) and on the motorbike. DNA of Leon was found on the red helmet, the black pair of gloves and on the striped sweater, that he took off as seen on the camera footage.17 No usable DNA trace was found on the firearm and the hammer, most likely because of the fact that Damisse and Leon had worn gloves.
Forensics also found 28 (!) bullet shells and several bullet fragments. Ballistic research by the NFI pointed out that Damisse had fired his gun at least 11 times, Benjamin had fired at least 1 time and Carti had fired at least 13 times. The NFI also concluded that the fatal bullet killing Benjamin was fired by the Smith & Wesson firearm of Damisse.18
Police further found several jewelry items on the scene and in the pockets of Damisse. According to the owner of Oro Diamante, mr. Budhrani, all these items were taken by the robbers. The value of the jewelry that was taken by the robbers was USD 119.000,-.19
At the crime scene police also found a damaged taxi. It was taxi nr. 35, belonging to mr. Arrindell. Two windows of this taxi were broken and parts of the bodywork was damaged by bullets. Arrindell filed a complaint because of this.20 Although a ballistic research wasn’t done, it is clear that this taxi was damaged by bullets fired by Damisse. I come to this conclusion because of the shooting direction (trajectory of his shots) in comparison to that of Carti.
During the investigation Damisse his house was searched. In his house police found the clip of a GLOCK firearm (patroonhouder)21, a handwritten piece op paper of what appears to be a wishlist stating “500.000USD by December” and a drawing of a map of Front street, with a marked spot “Bikepatrol”. 22
These findings indicated some sort of planning and during our investigation we find out that there were also other people involved in this crime. Although we never got down to the ones who helped Damisse paint the stolen motorbike red, we did found out that it was no coincedence that it was Oro Diamante that was targeted. Later during the investigation we made the arrest of Cangieter, who on the 27th of july had the mother of his godchild film the showcases at Oro Diamante. We believe that the filming was a preparation for Damisse and Leon so that they would know exactly where the most expensive jewelry was laid out: on the leftside of the store. In November we also made the arrest of Azor, who later confessed that he indeed had provided Damisse and Leon with a hammer and a long sleeved sweater. He knew they were about to commit a robbery. He also confessed that he drove through Frontreet together with Damisse before the robbery took place, because Damisse told him to do so. The cases of Cangieter and Azor will be dealt with this afternoon. The case of Jason Green, the one who hid 4 stolen bracelets for Leon, will be dealt with as part of other criminal charges against him on another court date.
This part of my requisitoir I will do in Dutch in order to express meself the right legal way.
Om tot een bewezenverklaring van medeplegen door Leon te komen, dient sprake te zijn van een nauwe en bewuste samenwerking tussen Leon en Damisse. Dat dit het geval is voor wat betreft de overval (feit 3) en het vuurwapenbezit (feit 5) behoeft geen nader betoog. Leon kan echter ook als medepleger van de gekwalificeerde doodslag op Benjamin (feit 1), de poging daartoe op Carti (feit 2 primair) en het schieten op de taxi (feit 4) worden aangemerkt. Daarvoor dient dubbel opzet van Leon te worden aangetoond, namelijk op de onderlinge samenwerking en op de verwezenlijking van de feiten. Het opzet op de onderlinge samenwerking is in de onderhavige zaak een gegeven. Ten aanzien van het opzet op de verwezenlijking van de feiten geldt het volgende:
Vast staat dat bij Damisse het opzet op het plegen van de gekwalificeerde doodslag op Benjamin en Carti aanwezig was. Door op korte afstand minimaal 11 maal gericht te schieten op Benjamin en Carti heeft Damisse bewust de aanmerkelijke kans aanvaard dat deze politieagenten dodelijk zouden kunnen worden getroffen, hetgeen in het geval van Benjamin ook daadwerkelijk is gebeurd. Dat Carti niet is overleden, is niet aan Damisse te danken.
Het OM gaat er vanuit dat Leon ook opzet heeft gehad op deze feiten. Leon heeft immers samen met Damisse plannen gemaakt om op klaarlichte dag over te gaan tot het plegen van een gewapende overval op een juwelier in een drukbezochte Frontstreet. Leon wist dat Damisse een vuurwapen bij zich had tijdens de overval en heeft in Oro Diamante ook gezien dat Damisse het aldaar aanwezige personeel daarmee bedreigde. Leon is op dat moment niet gestopt met de overval. Sterker nog, zelfs toen Damisse zijn vuurwapen had leegschoten op Benjamin en Carti heeft Leon zich niet gedistantieerd, maar heeft hij getracht er samen met Damisse op een motorbike vandoor te gaan.
Indien men samen een overval pleegt waarbij de mededader een vuurwapen ter afdreiging hanteert, bestaat de aanmerkelijke kans dat degene die wordt overvallen weerstand biedt. Tevens bestaat in zo'n geval de aanmerkelijke kans dat daardoor een hectische situatie ontstaat waarin met dat vuurwapen schoten worden gelost, en dat ten gevolge daarvan de overvallene en/of een omstander die tracht de vlucht te belemmeren overlijdt. Dat besef en die aanvaarding treft niet alleen degene die het vuurwapen hanteert, maar ook diegene die de overval medepleegt. Dit is onlangs nog bevestigd door de Hoge Raad. 23
Door zich met deze wetenschap omtrent het vuurwapen naar de Oro Diamante te begeven teneinde een overval te plegen zoals eerder beschreven, heeft ook Leon die aanmerkelijke kans bewust aanvaard, althans op de koop toe genomen.
Mitsdien dient Leon ook als medepleger ter zake feit 1, 2 primair en 4 te worden aangemerkt.
Gelet op het voorgaande vordert het OM voor wat betreft Damisse bewezenverklaring ter zake alle ten laste gelegde feiten: de gekwalificeerde doodslag op Benjamin (feit 1), de poging gekwalificeerde doodslag op Carti (feit 2 primair), de diefstal met geweld, de dood van Benjamin tengevolge hebbende (feit 3), vernieling (feit 4) en vuurwapenbezit, meermalen gepleegd (feit 5).
Ook ten aanzien van Leon vordert het OM de bewezenverklaring ter zake alle ten laste gelegde feiten: de gekwalificeerde doodslag op Benjamin (feit 1), de poging gekwalificeerde doodslag op Carti (feit 2 primair), de diefstal met geweld, de dood van Benjamin tengevolge hebbende (feit 3), vernieling (feit 4), vuurwapenbezit (feit 5) en witwassen (feit 6).
In short, the law concurs that both Damisse and Leon were co conspirators in committing the crime and are equally responsible for the shooting of Benjamin and Carti.
We have established that the criminal charges against both suspects are legally and convincingly proven. Both suspects are also fully accountable for their crimes. Leon had a psychological evaluation and was found fully accountable. Damisse had both a psychological and psychiatric evaluation and was also found fully accountable. Both suspects are therefore punishable by law.
Punishment based on our Penal Code is about retribution: compensation for the crimes that have been committed. It’s also about general and individual prevention, because we want to prevent that it will ever happen again.
Taking one’s life is one of the most severe crimes one can commit. In this case it has caused irreversible loss and tremendous grief first of all to Benjamin’s family, his little boy and his friends. Their loss can never be compensated and they have to live their lives missing him and wondering what could have been. Maybe they will find comfort in knowing that Benjamin was so much loved and respected by many. The amount of people attending the emotional church service was overwhelming and the complete society of Sint Maarten mourned his death for weeks. Thus showing their support and the fact that not only the direct relatives have been hurt.
A member of society in a local newspaper said: “The shooting of a police officer by a coward with a gun has brought our once tranquil “Friendly” Island to an all-time new low in societal behavior. Killing any human being is bad; however, being mentally capable, and physically prepared and able to actually shoot a police officer, a representative of the law, is a whole other matter!”
We couldn’t agree more. By committing these acts, the authority of our rule of law has been damaged. Officer Carti, who so bravely managed to arrest Damisse, might even have been traumatized for the rest of his life. The way Damisse fires 11 shots from a short distance without any hesitation was excessive; 11 times he pulles the trigger. This was not about Damisse firing a shot in order to get away. This was about emptying his weapon at two police officers while he could literally look them in the eye. Damisse in a whatsapp conversation found in his telephone in January said about it: “It was him or me”.24 But it wasn’t. It was two officers of the law, who were lawfully trying to make an arrest of two criminals coming out of an armed robbery. Damisse had a choice, he could have surrendered, but he chose to kill.
It must be clear: with the punishment I am about to ask the judge to impose, the Prosecutor’s office is sending out a strong message: don’t touch our police force. Especially in a small community like Sint Maarten, with a police corps that is still being build up, that is highly dependent on the recruitment of young men and women fully committed and motivated to serve their country and protect our society, we in return must do whatever it takes to back them up.
The punishment also needs to retribute for the robbery that both suspects have committed. This time it was Oro Diamante and the workers and manager of that store who got a gun pointed at them and had could do nothing else but helplessy witness what happened. It does not need explaining that it must have been a very traumatizing experience for them. The fact that this armed robbery was committed on a busy day and at a time when Frontstreet was filled with people, shows the brutality, the greed and the total disrespect for the possession and personal safety of others. It is a miracle that nobody else got injured.
This case furthermore shows why it is so important to take a firm stand against all illegal gun possession. Robberies are much easier committed with a gun in hand, adding to the feeling of invicibility of the robber. It doesn’t need further explaining what can happen when someone with the wrong intentions has access to an illegal fire arm. From the investigation we know now that Damisse had access to at least 3 different guns over a longer period of time, showing off one of them in a videoclip.
The conclusion of the Prosecutor’s Office is that for Damisse, the punishment can only be the most severe. For the crimes he committed he deserves the maximum limited prison sentence, which is 30 years, or a life sentence. A lower prison sentence would not do justice to the crimes that were committed against officers of the law on that fatal day. A lower sentence would not sufficiently fulfill the element of retribution.
Upon choosing between 30 years imprisonment or a life sentence, the question rises if the protection of society demands that the suspect Damisse will ever be released, or if there is any perspective that at the end of his sentence Damisse will have changed in a positive way.
Damisse although not convicted before, is not unknown to police and justice. In 2010 he was arrested for a burglary, but this case was dismissed for lack of evidence. On the 20th of November 2014 the Prosecutor’s Office demanded 15 months imprisonment for chain snatching. The judge however gave him the benefit of the doubt and acquitted.
The psychologist concludes that Damisse does not take full responsibility of his actions. Although he shows some remorse and to some extend the notion that what he did was terrible, it remains unclear to what extend he really has a wish to change and make something of his life. The risk that he will commit another crime is real (average/above average according to the psychologist). A few days before the courthearing Damisse also had a psychiatric evaluation. Even with the psychiatrist he doesn’t want to talk about what happened. He says ‘one bad decision lead to a bad situation’ and that he hopes he will get a second chance. The psychiatrist points out that it seems he externalizes his actions. With that the psychiatrist means to say that to Damisse it’s like this has overcome him, more than that he is the one who caused it.
Damisse knows his rights very well. He knows he may remain silent and he chooses to do so. During the entire investigation he never showed any remorse, not to the police officers who came to question him, nor towards the family of Benjamin. To us, he has not given any insight in who he is, why he did it and how he looks back on it.
Instead he chose to speak through social media, using his artist name “Kilo Gotti”. On the 3rd of Januay 2016 he published three pictures of himself made in prison on Facebook: One with the text: “Welcome to St Murda”, One with the text “Don’t kill me…kill the police” and one with the text “Money New Year, Fuck the Police”.25 The message that he is sending us, is that the life of a police officer means nothing to him. He in fact is using the killing of a cop to boost his reputation as a rap artist. Adding it to his list of crimes; maybe we should call him “Done dat”.26 He is only 24 years of age, but he is used to taking care of himself for such a long time, that he truly can be seen as an adult who made his choice in life. If this crime, the killing of Benjamin, who he actually knew and respected, did not already gave him the ultimate reason to step out of his crimepath, what will? His attitude after the crime destroys every hope of a positive change in the future.
The conclusion is that there are actually only elements that add to the height of the punishment. In Dutch we say: er zijn alleen strafverhogende elementen die meegewogen moeten worden.
All these elements put together must lead to the conclusion that Damisse should be punished to the maximum. The Prosecutor’s Office demands [*** strafeis]
As for Leon: he is also known to police and justice, but he too has not been convicted before. He was arrested for a robbery he supposedly committed on the 24th of September 2014. On the 19th of November he was acquitted by the judge.
For Leon there are in fact elements that weigh positively for his sentence. First of all Leon was not the one who fired the gun. Secondly, he did at one point cooperated with the police. He gave statements about his role and that of Damisse. He also showed remorse and showed that he realizes that his part in this crime is serious. On the other hand he still is responsible for very severe crimes. Although he saw two police officers down, he chose to flee with Damisse, he chose to go into hiding and he chose to sell the jewelry that he stole by using such brute force. According to the psychologist, there is an above average to large chance that he will repeat his behaviour and resort to committing crimes. Weighing all these factors leads to the following: For Leon the Prosecutor’s Office demands [*** strafeis].
Philipsburg, 13 april 2016
1 PV 7e verhoor Leon, p. 1619 e.v. + PV bevindingen historische gegevens Damisse, p. 741 e.v. en PV 4e verhoor Azor, p. 1964 e.v.
3 PV verhoor getuige Asrani, p. 299 e.v., PV bevindingen buurtonderzoek, p. 305 e.v. en PV 7e verhoor Leon, p. 1624 e.v.
4 PV verhoor getuige Williams, p. 295 e.v. en beelden Oro Diamante en Diamond International
5 PV bevindingen Carti, p. 205 e.v., PV aangifte poging doodslag Carti (ongenumerd) en beelden Oro Diamante, Diamond International en Joe’s Jewelry, PV 11e verhoor Leon, p. 1661 en medische informatie Damisse, p. 1386
6 PV bevindingen Carti, p. 205 e.v. en PV aangifte poging doodslag Carti (ongenumerd)
7 PV 7e verhoor Leon, p. 1619 e.v.
8 PV bevindingen Maccow en Etienne, p. 1392 e.v.
9 PV getuige Roach e/v Davis, p. 277 e.v.
10 PV bevindingen Franse, p. 391 e.v. en PV bevindingen Henderson, p. 397 e.v.,
11 PV bevndingen Richardson, p. 388 e.v.
12 PV OvJ Van Nie, p.661, PV verhoor getuige Victor, p. 671 e.v.
13 PV 7e verhoor Leon, p. 1620 e.v.
14 PV 9e verhoor Leon, p. 1636 e.v
15 PV voorgeleiding van Leon bij RC d.d. 12 augustus 2015
23 Vgl Gerechtshof Amsterdam d.d. 16 april 2014, ECLI:NL:GHAMS:2014:1434 (bevestigd door de HR d.d. 3 november 2015, ECLI:HR:2015:3220) en Gerechtshof Den Haag d.d. 2 december 2013, ECLI:NL:GHDHA:2013:4543 (bevestigd door de HR d.d. 13 januari 2015, ECLI:NL:HR:2015:47)
24 PV bevindingen inbeslaggenomen goed, zaaksdossier 1, p. 622
25 PV bevindingen inbeslaggenomen goed, zaaksdossier 1, p. 616 e.v.