The decision of American citizens Marcus Thomas and Kevan Townsend to remain silent in the face of evidence implicating them in the murder they were accused of committing in Windhoek nearly 13 years ago ended up strengthening the state’s case against them.
This was one of the remarks made by judge Christie Liebenberg before he found the two men guilty of murder and other charges in the Windhoek High Court yesterday.
“Essentially, their silence strengthens the state’s case,” Liebenberg stated towards the end of his judgement.
He found Thomas (38) and Townsend (37) both guilty on counts of murder, robbery with aggravating circumstances and the possession of a firearm and ammunition without a licence.
Thomas was also convicted of importing firearm parts into Namibia and attempting to defeat or obstruct the course of justice, while Townsend was found guilty of the possession of firearm barrels without a licence.
Liebenberg found that the evidence before him proved Thomas and Townsend planned to murder 25-year-old Andre Heckmair, and committed the murder in a dead-end street in Klein Windhoek on 7 January 2011 by shooting Heckmair in the head with a firearm.
It could also be inferred from the evidence before the court that the two men acted with a direct intent to kill Heckmair, Liebenberg said.
Thomas and Townsend decided not to testify in their own defence after the state closed its case in their trial and an application by them to be found not guilty at that stage of the trial was dismissed by Liebenberg in June this year.
In his judgement yesterday, Liebenberg recounted that according to evidence heard after the trial started in November 2014, Thomas and Townsend arrived together in Namibia on 27 December 2010, after Thomas had assisted Townsend’s mother to get him released on bail from a jail in New York.
On the same day as their arrival in Namibia, Thomas started to make enquiries about Heckmair and managed to get Heckmair’s cellphone number.
A cellphone number used by Thomas was repeatedly in contact with Heckmair’s cellphone over the week that followed, and was also the last number in contact with Heckmair’s phone shortly before he was killed.
Heckmair was shot after he had driven to Klein Windhoek for a lunch appointment with unnamed Americans who had insisted on meeting him, the court heard.
Thomas and Townsend were arrested at a guest house in Windhoek a few hours after the murder.
In their room at the guest house, police officers found a gun silencer and two firearm barrels that could be used on a 9mm Glock pistol.
The police did not find the cellphone that Thomas had used to make contact with Heckmair’s phone.
Five of the state’s witnesses told the court that Thomas and Townsend were looking for a 9mm Glock pistol to buy in Windhoek during the early days of January 2011.
They were not able to find such a firearm for the two Americans, and eventually sold a 7,65mm pistol to the two men.
Heckmair was shot with a 7,65mm firearm, it was established from a bullet that was retrieved from his neck.
Liebenberg also recounted that one of the witnesses who sold the pistol to the two men testified that Thomas and Townsend arrived at his house during the afternoon of 7 January 2011 and paid him N$800 for the pistol they had bought.
When he asked them what they did with the gun, Marcus answered that one would not want to be found with a gun that had been used, and added: “I tossed it away.”
The court also heard that a prison cellmate of Thomas saw him tearing pages from a notebook and burning it on 13 January 2011.
The notebook had been removed from a police detective’s office, where the two men collected some of their personal belongings that day.
Photocopies that had been made of the notebook before it was removed from the office showed that it had entries about Glock firearm parts and a gun silencer and also the names of Heckmair’s parents and their phone numbers, Liebenberg observed.
The evidence before him indicated that Thomas and Townsend did not travel to Namibia as mere tourists, that Thomas had a gun silencer shipped to Namibia in a parcel sent from Finland, and that both men were involved in an urgent search for a Glock pistol in Windhoek before they settled on buying a 7,65mm pistol – the same calibre as the gun with which Heckmair was killed, Liebenberg noted.
The evidence clearly demonstrated that Thomas and Townsend “jointly planned their actions and acted with common purpose when setting the scene to murder [Heckmair]”, he remarked.
Thomas and Townsend, represented by defence lawyers Salomon Kanyemba and Mbanga Siyomunji, respectively, are due to return to court for a presentence hearing on 18 September.
Deputy prosecutor general Antonia Verhoef is representing the state.