“That’s him right there,” Kyle Gumbs testified Tuesday in Superior Court, identifying Neville Potter as the man who pointed a gun at him and close friend Marvis Chamaro and started shooting, sending Gumbs scrambling to escape with his life and murdering Chamaro.
“He is right there, in the blue shirt,” said another witness, James John, identifying Potter as the man he saw scramble up a hill with a gun in his hand, moments after Jack Diehl was gunned down in John’s yard.
Thus, on the first day of Potter’s second trial for allegedly gunning down Diehl and Chamaro Feb. 8, 2009, the prosecution again laid out the core of its case: Two independent eyewitnesses, having never met, both positively identified Potter as the shooter at each of the two murders, perpetrated minutes apart in the vicinity of the Old Mandahl Inn.
Potter, then 32, was arrested Feb. 13, 2009 and charged for the murders of Chamaro and Diehl. Potter was initially tried for both crimes in March, but the jury was unable to reach a unanimous verdict, triggering a mistrial.
One of the jurors in that trial, Betsy Brathwaite, has been charged with perjury for not “accurately” filling out her juror questionnaire by allegedly withholding information that she has relatives that are in jail or are currently facing criminal charges, then continuing to make inaccurate disclosures to the court during jury selection.
Once the trial began, she purportedly told the other jurors that she would not convict anyone under any circumstances.
The second trial began Tuesday on St. Thomas, but with a St. Croix jury flown in and sequestered for the week. Potter is charged with two counts of first-degree murder, which each carry potential sentences of life without parole. He is also charged with two counts of second-degree murder and an array of assault and weapons charges.
On Tuesday, Gumbs testified he and Chamaro had gone to Ras Valley to buy some marijuana, then drove to the Old Mandahl Inn to get high and were rolling a joint in Chamaro’s jeep when “a blue Toyota” pulled up.
Two people were in the vehicle, Gumbs said, with Potter in the driver’s seat. According to Gumbs, Potter got out of his vehicle, pointed a gun at Chamaro and Gumbs, and ordered them to get out of the car. Thinking it was a robbery, Gumbs said he began taking out his wallet and taking off rings and a chain, hoping to end the confrontation quickly.
Then Potter began shooting, Gumbs said.
Chamaro and Gumbs started to run down the hill through thick acacia and other brush, with Potter chasing and shooting.“ I ran from the passenger side of Marvis’s car and in back, and I jumped down the hill into the bushes,” Gumbs recalled. “It was horrible. I had to run for my life so I just did what I had to.”
Glancing back, Gumbs saw Chamaro pause, possibly because he lost his glasses in the rush. That’s the last time he saw Chamaro alive.
Gumbs lost his slippers, phone, keys and his shorts in the scramble. He slashed his upper thigh while sliding down the hill and was scratched up by acacia and other thorns, but was otherwise unhurt. He ran to the first house he could find and banged on the door. No one was home, but moments later, a car pulled up, he ran to it and they called police and drove him up the hill, where police were arriving on the scene, he said.
Soon after the shooting, Gumbs gave a statement to police and was looking through photo books of criminals when police presented him with an array of six photos of similar looking individuals with short dreadlocks, one of whom was Potter. Gumbs said he recognized Potter immediately and signed and dated the picture. He identified the picture and his own signature on a photocopy of the six-picture array.
A short way down the road the day of the murders, Jack Diehl and his family were at their home in Mandahl, down a long cul-de-sac from the scene of Chamaro’s murder.
Jack Diehl’s son, Cullen, testified his family heard what sounded like gunshots, then his father came out and said he was going down to check on it, telling the kids to stay home.
A few minutes later, there was noise by the house and Cullen saw two men run by—one in a black shirt and dreadlocks—but he could not identify the person. Cullen heard a second round of gunshots and moments later was told his father had been shot.
James John was at home right behind the Diehl’s residence when this happened. He testified he saw some of the activity through a bathroom window. As during the first trial, John said he got a clear view of Potter’s face and saw the gun as Potter slipped scrambling up a hill in his front yard.
Defense attorney Leslie Payton asked John which hand the gun was in. Pausing for a moment, John said “left?” tentatively. Later, Payton reads John’s testimony from the trial in March where he said he believed the gun was in the right hand.
“Were you lying then or are you lying now?” Payton asked John.
John said he may have been mistaken but was not lying about which hand the gun was in, and that he is not entirely certain which hand the gun was in.
John ‘s brother, Timothy John Jr., and father, Timothy John Sr., also testified, confirming details such as the shirt color and skin color of the gunman, although both testified they never got a good look at the shooter’s face.
Jury Issues Begin the Day
In a curious development, right before the trial began, the jury sent a letter signed by all 12 jurors and four alternates requesting better and different breakfast options and requesting their per diem be doubled from $40 to $80 in light of the unusual hardship of flying to another island and being sequestered all week.
As a result, V.I. Superior Court Judge Brenda Hollar spent the morning interviewing each juror in turn as to their concerns. Some of the jurors were vegetarians and others had allergies or medical reason for low salt or other diets. Some just wanted breakfast food they were accustomed to, whether it be bacon and eggs or salt fish and johnnycake. Out of the 16 jurors and alternates, one juror said the pay and food issues would affect how she would judge the case and two others hesitated for a moment in answering.
Both defense and prosecution moved to have the entire jury disqualified and start the jury selection anew. Short of that, the prosecution asked the three jurors with problematic answers be struck (i.e., removed from the jury).
Hollar said jurors should not be intimidated from complaining if the food and accommodations are lacking, and nearly all the jurors were very clear they were only making a request, not a demand. Rather than start anew, Hollar removed the three jurors and proceeded with the trial.
The trial continues Wednesday morning.
