Newbold v R

JurisdictionBahamas
CourtCourt of Appeal
JudgeBlair-Kerr, P.,Duffus, J.A.,Luckhoo, J.A.
Judgment Date06 Mar 1980
Neutral CitationBS 1980 CA 12
Docket NumberCriminal Side No. 21 of 1979

Court of Appeal

Blair-Kerr, P.; Duffus, J.A.; Luckhoo, J.A.

Criminal Side No. 21 of 1979

Newbold
and
R

Criminal Law - Appeal against conviction — murder

Criminal Law - Sentences — Murder

Judgment of the Court:
1

On 3rd August, the appellant was convicted of the murder of Stellman Brown and was sentenced to death. Against his conviction and sentence, he now appeals.

2

The deceased and appellant were both prison officers. During the night of 28th/29th January, 1979 the shift, of which they were members, consisted of the following men:–

Corporal Brown (deceased) — in charge of the shift.

Raymond Smith

Matthias Cartwright

Earthlin Miller

and Javan Newbold (accused)

3

Corporal Brown paraded his men at 10 p.m. Accused was improperly dressed, and he was reprimanded by Brown. The accused usually did duty at the prison gated; but, on this occasion, Brown detailed Smith for duty at the gate. Shortly after Smith assumed duty at the gate, the accused appeared and said to Smith: “I'm going to shoot Brown”. At this time Brown was in his office nearby and Cartwright was on the porch of the office. Cartwright said in evidence that the accused came into the office and said to Brown: “You're scheming but I'll teach you how to scheme”.

4

In the meantime, Miller had gone on the first patrol of the main prison and first offenders' Prison. While on patrol, he had drawn two .38 revolvers and 10 rounds of, ammunition. The revolvers were numbered respectively 81577 and 108848. The rule apparently is that officers on patrol carry a loaded revolver. Upon returning from his rounds at 10:40p.m,. Miller loaded each revolver with 5 rounds and put them in a desk drawer in the porch of the office. Shortly afterwards, the appellant appeared, opened the drawer and took possession of the two loaded revolvers. He said to Miller: “Suppose I start shooting everybody, what will you do?” Miller said something to the effect that he would get out of the way; and the accused then went and sat on a nearby wall.

5

Miller's evidence was that he then saw Corporal Brown walk towards the gate and that the appellant got up and started to follow him. Smith, who was still on duty at the gate, said in evidence that Brown arrived at the gate and went over to the door of the booth and spoke to him for a minute. The time, according to Smith, was then between 10: 50 or 10:55 p.m.

6

As Brown turned to leave the booth, Smith said he saw the appellant nearby with two revolvers in his hand; that he pointed the revolvers at Brown saying: “Look man, I want to talk with you”; that Brown said: “Don't play around with guns like that”; that the appellant then I fired one shot and after a short interval fired another shot. Smith said that the appellant was about 7 feet from Brown when he fired the first shot; and that after the appellant fired the second shot he gave Smith a telephone number and asked him to give a message to his (the appellant's) girl friend. As Smith went to make the call, he saw the appellant pass by the window of the booth and he heard another shot. Smith telephoned the appellant's girl friend and told her that the appellant had shot Brown. After making the telephone call, he saw the appellant coming from the direction of the office. As he approached, he said to Smith “Don't be scared, I won't do you anything”. At this time the appellant had only one revolver in his hand. The appellant entered the booth and switched off the lights. He then told Smith to telephone the Principal Officer — - Smith did so and handed the phone to the appellant.

7

It would appear that it was to Sergeant Bannister that the appellant spoke because Bannister testified that about 10:50 p.m. the appellant spoke to him on the telephone and said: “I have just shot Corporal Brown and used four rounds of ammunition. I am willing to surrender, but do not send officers with guns”.

8

As to the number of shots fired, the evidence of the witnesses varies somewhat. Smith says he heard three shots. Cartwright and Miller were not eyewitnesses to the shooting, although they heard shots coming from “the direction of the gate”. They were scared and ran away and hid for a time. Each of them thought they heard four shots.

9

Another officer named Jordan heard a message on his radio about the shooting. He phoned the appellant and asked what happened. The appellant's answer was: “Nothing much”. Jordan said he phoned the appellant again and said: “I am coming to you; I don't like what I have heard. I will be wearing a black coat”. The appellant replied: “You can come to me”.

10

By this time, a number of officers were approaching the area of the gate, and the appellant phoned Bannister and said: “I can see the officers coming towards me. I can see them but they can't see me. I remind you not to send any officers with guns.

11

Jordan approached the appellant and asked him to come to him, which he did. Jordan said to him: “Where is the gun?” Whereupon the appellant took a revolver out of his pocket and handed it to Jordan. Jordan passed it to Smith who was standing nearby. Smith took five live rounds out of it.

12

Smith knew that the appellant had been in possession of two revolvers; and so he went to look for the other revolver. He found it on the floor of Corporal Brown's office. It was empty. Near the booth, Smith also found a spent cartridge.

13

The police were informed and a police party under Corporal Huyler arrived at the prison. Smith handed Huyler the two revolvers, and the five live rounds and the spent cartridge. The numbers of the revolvers were 81577 and 108848. Huyler found four cartridge cases three on the floor of the office and one on the ground in front of the porch.

14

Huyler was shown the dead body of Corporal brown and Detective Constable Deveaux photographed it. Huyler arrested the appellant. Dr. Joan Read, the Government Pathologist arrived shortly afterwards. Corporal Huyler said in evidence that, in his presence, Dr. Read examined the dead body of Corporal Brown and that he saw two wounds that looked like bullet wounds in the deceased's stomach. The body was then conveyed to the mortuary and it was photographed there by Constable Deveaux the following day. Huyler also went to the mortuary that day where he met Dr. Read who performed a post-mortem examination on the body of Corporal Brown. Huyler received from Dr. Read a plastic container which contained a spent bullet and a death certificate. Two weeks later he received from Dr. Read a report relating to the post-mortem examination. The death certificate and the report were admitted in evidence without objection by counsel for the appellant.

15

The death certificate (Ex J.N.11) so far as relevant reads as follows:–

The Births and Deaths Registration Act, section 24(1)(b) Medical Certificate of the Cause of Death … I hereby certify that I performed an autopsy on Stellman Brown…that he died on 28th January, 1979 at Fox Hill Prison and that to the best of my knowledge and belief the cause of his death was… Bullet wound of abdomen.

Witness my hand this 29th January 1979,

(Sgd) Joan M. Read MB.BS…”

16

Dr. Reads report (Ex J.N.12) consists of three pages. Page 1, so far as relevant, reads as follows:

- “The Rand Pathology Laboratory Princess Margaret Hospital ……….re. Stellman Brown Autopsy Findings. On Monday, January 29, 1979 at 11.15 a.m. I performed an autopsy on the body of Stellman Brown…There was a bullet entry wound on the left side of the abdomen inches below and to the left of the navel. The bullet entered the abdomen in a downwards and left to right direction and cut through the common iliac artery. A bullet was found close to the base of the bladder…There was a second bullet entry wound on the left side of the back inches above the left hip bone and inches from the spine. The bullet went under the skin and left the body through an exit inches in front of the entry wound…I recovered the bullet, placed it in a container which I labelled and handed it to Det. Cpl. Huyler

(Sgd.) Joan M. Read

Dr. Joan M. Read Pathologist.”

Page 2 of the report contains further details of what Dr. Read found at the autopsy, and on page 3 are the words ‘cause of death: Bullet wound of abdomen”.

17

The two revolvers and the ammunition were examined by a special agent of the FBI who subsequently gave evidence at the trial of the appellant. The agent's evidence was that in his opinion the two spent bullets were fired by the revolver serial number 81577; and that each of the four cartridge cases found in the office and porch were also fired from revolver no. 81577.

18

As regards the five live cartridges; the witness, said he noticed that four of them had a firing pin impression near the edge of the primer. The fifth had two such firing pin impressions. His opinion was that each of those firing pin impressions was made by the firing pin in revolver 108848. In other words, that these five cartridges had been in the chamber of that revolver and that an attempt had been made to fire them. The serial number on the cylinder of 108848 was different from the number on the firing pin. Therefore the cylinder could, at some time, have been part of another weapon. At any rate, when test-fired, the witness noticed that the cylinder rotated too far with the result that the firing pin did not hit the primer on the cartridge case fair and square.

19

The case for the Crown was that the appellant fired at least four, if not five, of the rounds in revolver 81577, deposited it in the office after the shooting, and that he also attempted to fire revolver 108848.

20

The appellant was interviewed by Corporal Huyler at 8 a.m. on 29th January. When asked whether he wished to say anything, he said: — “Brown came playing round me with the revolver and me and him begin hassling and it fired off twice.”

21

He amplified this in a written statement recorded by Huyler the same day. In this statement, the...

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