Stuart v The Attorney General

JurisdictionBahamas
JudgeJohn, J.A.
Judgment Date27 February 2014
Neutral CitationBS 2014 CA 31
Docket NumberSCCrApp & CAIS No. 173 of 2010
CourtCourt of Appeal (Bahamas)
Date27 February 2014

Court of Appeal

Allen, P.; John, J.A.; Adderley, J.A.

SCCrApp & CAIS No. 173 of 2010

Stuart
and
The Attorney General
Appearances:

Mr. Jerone Roberts, counsel for appellant.

Ms. Darnell Dorsette, counsel for respondent.

Criminal law - Appeal — Murder — Inadmissible evidence of the appellant's bad character was wrongly admitted — Whether the trial judge misdirected the jury in relation to the intent necessary in relation to murder — Specific intent — Possession of firearms with intent to endanger life — Failure of the trial judge to properly direct the jury on the issue of intoxication — Whether the trial judge failed to leave the issue of provocation to the jury — Whether this case is appropriate for the application of the proviso — Appeal dismissed — Penal Code.

In April of 2005 the deceased and the appellant entered into an altercation concerning an apparent attempt to purchase illegal drugs with counterfeit money. During the altercation the deceased told the appellant that he would report his actions to the police; the appellant subsequently shot the deceased.

Held:–

appeals dismissed, convictions and sentences affirmed

It is not open to defence counsel to level any complaint about the admission of evidence indicative of bad character where such evidence was elicited from the appellant by his own counsel. In any event the trial judge in her summation dealt adequately with the issue of bad character and gave an appropriate direction that was sufficient to warn the jury not to use the evidence in any way prejudicial to the appellant.

In cases where an accused has been charged with possession of a firearm with intent to endanger life, the Crown is not required to prove an immediate unconditional intention to endanger the life of another. It is sufficient if the Crown proves that he had possession of a loaded firearm, ready to use against another person, in a manner which endangered the life of that other person if the occasion arose. The judge's direction on this issue was adequate and there was ample evidence upon which the jury could have found the defendant guilty.

Whenever reduction of a charge of murder on the ground of intoxication is an issue, the ultimate question is whether the defendant formed the intent required for the crime charged. What is required is evidence that the defendant was so intoxicated that he lacked the specific intent which is essential for murder. There was no evidential basis, in this case, for the issue of drunkenness to be left to the jury. Additionally the trial judge satisfactorily conveyed to the jury what the law required of them before an accused person can benefit from the defence of drunkenness.

It is well established law that if on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to a jury, it is the duty of the trial judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter. In this case the evidence of specific provoking conduct by the deceased to the appellant fell far short of what is required by law to raise the issue of provocation, as such there was no duty on the trial judge to leave the issue to the jury.

Notwithstanding that the trial judge misdirected the jury as to the required intention for a conviction of murder, we are of the view, after a careful review of the evidence, that the appellant suffered no substantial miscarriage of justice. We are further satisfied that if the jury had been properly directed they would inevitably have come to the same conclusion.

John, J.A.
1

This is an appeal against the conviction and sentence for the murder of Terrence Bowles which occurred on 261h April, 2005 at Freeport, Grand Bahama. The appellant along with Jamal Penel Lewis was tried before Madam Justice Watkins and a jury and on the 29th August 2010 both were found guilty of murder. Additionally the appellant was found guilty on 2 counts of possession of a firearm with intent to endanger life. On 1 st October, 2010 the appellant was sentenced to thirty years for the murder and ten years on each count of possession of a firearm to endanger life.

2

The case as presented by the prosecution was that in the late evening of 26 th April, 2005 the appellant together with Jamal Penel Lewis was outside an apartment complex on Wendell Avenue, in an area referred to as the ghetto in Freeport, Grand Bahama. A third person Latisha Tinker sat with the appellant. The deceased allegedly gave Davidson Charles aka “Nassau” $20.00 to purchase drugs. There was some uncertainty whether it was $20.00 or $50.00. Charles gave the money to Lewis who turned it over to the appellant. The appellant then gave the drugs and the change to Charles through Lewis.

3

The appellant was of the opinion that the money he received was counterfeit and having so satisfied himself approached Charles and slapped him for bringing him counterfeit money. The appellant was told that Charles had been sent by the deceased to whom the money belonged. Shortly afterwards the deceased came on the scene and was questioned by the appellant about the money. The appellant accosted the deceased and demanded that he (the deceased) return the money. The deceased was then gun-butted by the appellant and he told him that he was going to report to the police what he had done to him.

4

The appellant responded by saying words to the effect “I will give you something to report to the police,” whereupon he shot the deceased in his chest. The appellant then shot him three more times. The deceased ran a short distance and collapsed. There were four persons who saw the appellant shoot the deceased, namely Tiffany Demeritte, Denise Martin, Latisha Tinker and Demetra Martin.

5

During the course of the investigations the police recorded a statement under caution from the appellant. That statement was admitted into evidence without objection by counsel for the appellant. In the statement the appellant denied shooting the deceased. On the contrary, he said, it was Lewis who shot the deceased.

6

The appellant exercised his right to remain silent when called upon. He called no witnesses.

THE APPEAL
7

Counsel for the appellant filed 5 grounds of appeal against the conviction. The grounds were as follows:

  • (i) That inadmissible evidence was wrongly admitted.

  • (ii) That some specific irregularity substantially affecting the merits of the case was committed in the course of the trial namely:

    • (a) that the learned trial judge misdirected the jury in relation to the intent which is necessary in relation to murder.

    • (b) that the learned trial judge misdirected the jury in relation to the intent which is necessary in relation to the possession of a firearm with intent to endanger the lives of Theresa Reckley and Lenward

  • (iii) That in the case of the conviction for possession of a firearm with intent to endanger the lives of Theresa Reckley and Lenward Black the verdicts could not be sustained having regard to the evidence.

  • (iv) The trial judge failed to properly direct the jury on the issue of intoxication by the appellant.

  • (v) The trial judge failed to leave the issue of provocation to the jury.

INADMISSIBLE EVIDENCE WAS WRONGLY ADMITTED
8

Counsel submitted that contrary to the provisions of the Evidence Act 1996 (the Act) the trial judge wrongly allowed evidence of the appellant's bad character to be admitted into evidence. Counsel referred to the evidence-in-chief of Latisha Tinker, one of the prosecution witnesses, who was asked by counsel for the prosecution, Ms. Gardiner, the following question:

Q I am going to ask a question and only if her Lady says it you are to answer it; before that night had you ever seen Damien and Penel selling drugs?

A Yes, M'am

9

Later on during the evidence-in-chief of Davidson Charles the following questions were asked of him by Ms. Gardiner:

Q Tell us what you know of what happened?

A All I know was when I did get the money from the guy what dead.

Q What was the name of the guy you got the money from?

A Terrance

Q Do you know how much money Terrance gave you?

A He tell me that is $20; when he give me that I did not look at it. I just take it from him and get the drugs for him. He tell me it was $20, get him the joint and bring $15 back to him.

Q When he gave you what he said was $20 and said to bring him the change, what, if anything, did you do with the money he gave you?

A I take the money and carried the money to my cousin.

That would be Penel –

Q And what is the name of your cousin?

A Penel.

Q And when you say you carried it to your cousin, what do you mean?

A I carried it to him to buy the joint for Terrance and I get them, say, ‘Cuz give me one of them stuff and $15 change.’ And that night when I get them and pass it back to the young man they call Bobo. And I say Bobo let me get one of them stuff.

Q Who spoke to Bobo?

A Cousin. And he said give him one of them things and $15 change. When he get them, he come back and he give me the joint and the change. When he give it to me, I aint check what it was and I take it from him and I carry it to Terrance. When I carry it to Terrance and my cuz run back behind me and tell me, ‘Nassau, the “I” bring a fake $50 to me.’ And I tell him, I didn't know because it was not mine. “All I know was when I did get the money from the guy what dead.”

10

When Lewis gave evidence he was asked by Ms. Bain, his counsel about Damien. No doubt a direct reference to the appellant. She posed this question.

Q And do you know Damien by another name?

A His street name; we call him Bobo.

11

Counsel for the appellant submitted that the only Damien mentioned in the case was the appellant and the reference by the witness to Bobo was a direct reference to the appellant. Accordingly, he submitted, when Nassau testified about purchasing drugs the jury would have clearly understood that to mean...

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