Lockhart v R

JurisdictionBahamas
CourtCourt of Appeal
JudgeSawyer, J.A.
Judgment Date14 October 2008
Neutral CitationBS 2008 CA 12
Docket NumberCriminal Appeal No. 16 of 2006
Date14 October 2008

Court of Appeal

Sawyer, P.; Ganpatsingh, J.A.; Osadebay, J.A.

Criminal Appeal No. 16 of 2006

Lockhart
and
R.
Appearances:

(In No. 16 of 2006) Mr. Murrio Ducille for Ernest Lockhart on 10 October, and 16 November, 2006, and 6 February, 2007.

Mr. Neil Brathwaite for the respondent on 10 October, 2006, Ms. Sandradee Gardiner on 16 November, 2006, and Mr. Franklyn Williams for the respondent on 6 February, 2007.

(In No. 18 of 2006): the appellant, pro se on 10 October, 2006, Mr. Wayne Munroe on 16 November, 2006 and 6 February, 2007.

Mr. Neil Brathwaite for the respondent on 10 October, 2006; Mr. Franklyn Williams on 6 February, 2007.

Criminal practice and procedure - Murder — Appeal against conviction — Proper consideration of credibility and roper direction of jury — Convictions and sentence to stand.

Sawyer, J.A.
1

We heard these two appeals together as they arise out of the same case.

2

On 10 October, 2006, when this matter first came on for hearing, Jeffrey Prosper was present but was not represented by counsel. In view of the seriousness of the matter, the Registrar of this Court was instructed to assign counsel to him. The matter was then adjourned to 16 November, 2006. On that date, Mr. Wayne Munroe appeared for Jeffrey Prosper but he had just received the record of the case which was complete except for a few missing pages. The matter was therefore again adjourned to 6 February, 2007.

BACKGROUND:
3

On 26 June, 2006, Ernest Lockhart and Jeffrey Prosper (“Lockhart” and “Prosper”) were convicted of the murder of Caxton Smith (“the deceased”) which took place on 8 June, 1999. On 24 July, 2006, following a sentencing hearing, Lockhart was sentenced to “suffer death in the manner provided by law” under section 2 of the Capital Punishment Procedure Act (Ch. 94) and Prosper was sentenced to 20 years' imprisonment. Both Lockhart and Prosper appealed to this Court against conviction and sentence.

4

After counsel was assigned to Prosper, he abandoned his appeal against sentence and as there was no appeal against the leniency of that sentence by the Crown, the appeal against the sentence of 20 years was dismissed and we made no further order as there was then no extant appeal against that sentence by the Crown.

SUMMARY OF THE EVIDENCE LED IN THE TRIAL:
5

On 8 June, 1999, between 8 and 9 p.m., at Fowler Street, in the area of a pink two-storey apartment building and a number of one-storey buildings, the deceased was shot in the back and died shortly after.

6

There was no dispute at the trial that the deceased was murdered. The only issue was one of identification of the person or persons who killed him.

7

Although The Bahamas at that time was on Eastern Daylight time (which is one hour ahead of Eastern Standard time), by 9 p.m., daylight would have been almost gone and it would have been very near dark. In the area where the shooting took place, there were a number of large trees as well as abandoned cars. The existence of the trees, as well as houses in the area made the issue of visual identification pivotal for the prosecution's case. The issue of voice identification also arose in the case as well as circumstantial evidence since none of the witnesses for the prosecution gave any evidence that he or she had seen the person who pulled the trigger of the gun at the time when the deceased was shot.

8

The neighbourhood in which the shooting occurred was described by some of the witnesses who lived in the vicinity as a “war zone” and other similar epithets because, they said, it was not unusual to hear gun shots going off in that area and there were unlit track roads running between Fowler and Quakoo Streets in particular.

9

According to Dr. Kumar's report (read into evidence by Dr. Raju under section 120 (3) of the Criminal Procedure Code Act (Ch. 91) (“CPC”)) the cause of death was a bullet wound which entered from the back and lodged in the neck having an upward and slightly left to right trajectory.

10

Ms. Patrice Forbes gave evidence about a confrontation between Lockhart and the deceased some seven or so months before 8 June, 1999, that is, on 22 November, 1998, when she said that she overheard Lockhart telling the deceased that if the deceased thought he came out of prison to take bread out of Lockhart's mouth, he would kill him — see page 41, lines 18 to 25 of the transcript. This witness said that later that same night, a shot had been fired over the deceased's head.

11

At that point in the trial, prosecuting counsel suggested to the learned judge that that statement should be struck from the record and the learned trial judge said, “Yes”. Ms. Forbes continued her evidence and indicated that on 9 June, 1999, she learned that the deceased had died.

12

Mr. Patrick Perry Taylor, an admitted cocaine addict, said that at the time when the shooting occurred, he used to live in the pink two-storey abandoned building on Fowler Street, near to where that street joins East Street. Mr. Taylor testified that he had just given a fish dinner and drink to the deceased which the deceased had previously ordered and paid for and he, Taylor, got a “rock” of cocaine from the deceased for $4.00. Taylor said that as he was going up the stairs in the apartment building to smoke his cocaine, he heard gunshots and when he looked out of the window of the apartment, he saw Lockhart (also known as “Bong”) and Prosper running away. Taylor said he knew it was those two men because he had known Prosper basically all of Prosper's life from when they both lived through Gibbs Corner (which is about three blocks away from Fowler Street on the eastern side of East Street) and he knew it was Lockhart because Lockhart had a patch over his eye at the time.

13

It is to be noted that while Lockhart's defence was an alibi, he admitted that at the time he had an injury to his eye as a result of an unrelated incident and that at night that eye would swell up which was why, he indicated, he could not have been the person that Taylor saw since he was not in the area at that time but had been in the general area earlier in the day.

14

Taylor said that Lockhart had a gun in his hand and that another man, Knowles (also known as “White Man”) was along with Lockhart and Prosper. Taylor said that Lockhart had pulled a gun on him that same day in that yard.

15

Taylor was reluctant to testify in the case and said that he had been evading the police as he did not want to testify in the case because he did not want to get involved in other people's business.

16

He was cross-examined extensively about the area where he claimed to have seen Lockhart and Prosper both before and after the shooting because of the lack of adequate lighting, the large trees as well as the situation of the window of the apartment from which he claimed to have seen Lockhart and Prosper running. He stuck to his story that he had seen them and where and how he was able to see them.

17

Dwayne Moses Cooper, a mechanic, testified that he had seen the deceased shortly before he was shot as he and the deceased were supposed to go somewhere but that there had been a change of plan so he left the deceased at Fowler Street near to the pink two-storey building and walked through the short-cut that led to Quakoo Street. As he was walking through the short-cut, he saw Lockhart and another man known as “Two Gun” standing up “chilling”. Cooper said he had known Lockhart for about a month before the incident and recognised him by his voice as he had heard him speak when they would pass each other and greet each other briefly. Cooper also testified about an incident that occurred in April or May, 1999 in which Lockhart said to the deceased, a couple of times; “You all is be joking boy, you all need to come from around here.”

18

Cooper said that shortly after he left the deceased and passed Lockhart and Prosper, he heard gun shots coming from the area of Fowler Street.

19

Ms. Rosina Carey Wallace who lived at Wellington Street at the time when she gave her evidence, said that she used to live at Thompson Lane off East Street when the incident occurred. She said that she knew the deceased from Fowler Street and on the evening of 8 June, 1999, she went to Fowler Street to check on her friend but he was not at home so she left a message for him with the deceased.

20

Ms. Carey Wallace returned about an hour later and her friend was still not at home so she went in the back to check his house and then returned to where the deceased was. She said that when she went to check her friend's house she saw three men in the back and that made her feel “sort of funny”. As she was leaving and had gotten about five feet away from the deceased, she heard six shots fired and then the deceased ran past her before he fell. She said she froze.

21

Ms. Valerie Mackey Stuart testified that at the time of the incident in 1999, she lived near the junction of Quakoo and East Streets. She heard something and as a result, she ran from the house, on to East Street, heading north towards Fowler Street. As she was running north, she passed two men running south on East Street; they were encouraging each other to “run, run, run”. She said that she recognised the two men as persons whom she had known by seeing them almost every day during the period of six months leading up to 8 June, 1999. Ms. Mackey Stuart said that she had seen Lockhart, Prosper and a man called “Rev” on the track road between Quakoo and Fowler Streets earlier on the evening of 8 June, 1999 while she was on her way to the shop; she said that she had seen the deceased on Fowler Street on that earlier occasion. She identified Lockhart as “Bong” and Prosper as Jeffrey.

22

Jonathan Patrick Robinson testified that on the night of 8 June, 1999, while he was washing his car that he operated for hire from time to time, near the junction of Windsor Lane and East...

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