Blakeney and Grant v R

• Jurisdiction: Bermuda
• Judge: Zacca P,Evans JA,Baker JA
• Judgment Date: 25 March 2014
• Date: 25 March 2014
• Court: Court of Appeal (Bermuda)
• Docket Number: Criminal Appeals2011 Nos 20 & 21/21A

[2014] Bda LR 32

In The Court of Appeal for Bermuda

Before:

Zacca P; Evans JA; Baker JA

Criminal Appeals2011 Nos 20 & 21/21A

Between:

Jahmel Glen Blakeney

Sanchey Winslow Kaijuan Grant

Appellants

and

The Queen

Respondent

Mr C Richardson for the 1^st Appellant

Mr C Attridge for the 2^nd Appellant

Ms C Clarke and Ms L Burgess for the Respondent

The following cases were referred to in the judgment:

Joseph v RUNK [2010] EWCA Crim 2580

GeorgeUNK [2007] EWCA Crim 2722

London (Junior) v The StateUNK (1999) 57 WIR 424

Cox v RBDLR [2012] Bda LR 72

Myers v RBDLR [2012] Bda LR 74

R v OUNK [2010] EWCA Crim 2985

R v Hodges and WalkerUNK [2003] Cr App R 15

R v PettmanUNK [unreported, 1985 CA 5048/C/82]

Attempted murder — Appeal against conviction — Gang shooting — DNA evidence — Gun shot residue — Eyewitness evidence — Alibi evidence — Expert witness

JUDGMENT of Baker JA

Introduction

1. On 22 November 2011 Sanchey Winslow Kaijuan Grant and Jahmel Glen Blakeney were each convicted of two counts of attempted murder. They were sentenced on 15 December 2011 to 30 years imprisonment, being 15 years on each count consecutive, it being ordered that each serve at least 15 years before being considered for parole. They appeal against conviction and sentence.

The Facts

2. On 13 November 2009 Shaki Minors and his girlfriend Renee Kuchler, ‘the victims’ went to the Southside Cinema in St. David's to see the 9:30 p.m. showing of the movie ‘Precious.’ After the movie ended at about 11:30 p.m. the victims got into their car with Minors in the driving seat and Kuchler in the front passenger seat. A gunman approached the car and fired a number of shots seriously injuring both victims. Kuchler, who was eight weeks pregnant, subsequently lost her baby.

3. The gunman fled on foot in the direction of Pizza House travelling east from the cinema. Eye witnesses described him as wearing a baseball cap and clothing which appeared to be of ganzi like material which made a scratching noise. The victims were taken to King Edward Memorial VII hospital where they were treated for their injuries.

4. At about 2:00 a.m. the police set up a road block at St. David's roundabout, otherwise known as the Double Dip roundabout. A Kia motorcar 44333 travelled from the direction of St. David's towards the roundabout but ignored police efforts to stop the vehicle, accelerating onto Kindley Field Road and out of sight. However, officers pursued it and it was stopped near the BAS kitchen, some distance further on. The appellant Blakeney was the driver and Grant the passenger. They were arrested.

5. Among the articles found in the Kia were:

• • A jacket with gunshot residue (GSR)

• • Gloves from the floor of the car at Grant's feet with GSR

• • A baseball cap with a DNA profile matching Grant

• • A blue windbreaker with a mixed profile, the major contributor being Blakeney

6. At the police station a black hooded sweatshirt taken from Grant was found to have GSR particles as were his blue jeans. GSR particles were also found on the back of Grant's left hand.

7. The police searched the area of Kindley Field Road between the roundabout and where the vehicle had been stopped but nothing significant was found. However, in the early hours of the same morning a walker found a gun on the side of the road closest to the airport. It was common ground that this was the gun that had been used in the shooting outside the cinema.

8. Grant's home was searched with the aid of a police dog trained in detecting explosives. It alerted the police to a green bag in a drawer in his bedroom. GSR particles were later found on this bag.

9. When the pistol grip of the gun was analysed four DNA markers were obtained identifying Grant as a possible contributor but the occurrence ratio was one in two of the black Bermuda population. Blakeney was also a possible contributor at five markers, in his case the random occurrence ration being one in thirteen of the black Bermuda population. There were at least three other individuals who were also possible contributors. They included Kinte Smith and Skyah Furbert, of whom more later.

10. Two cell phones were seized one from the Kia, the blue phone (441) 517–3960 registered to Furbert and the other from Blakeney, the green phone (441) 599–0155. Prior to the shooting these two phones had been in communication with each other but this ceased after the shooting.

11. Blakeney and his girlfriend Jalicia Crockwell had gone to the Southside Cinema with the view to seeing the same movie, Precious, but they never saw it because Blakeney suddenly departed without explanation although Ms Crockwell, who was a prosecution witness, followed him. They drove to Hamilton in silence where Blakeney dropped Ms Crockwell at her home. It was the Crown's case that Blakeney had spotted Minors at the cinema and went to alert Grant who subsequently carried out the shooting. Ms Crockwell was far from pleased about being deprived of seeing the movie. She said that Blakeney was making calls on his cell phone during the journey to her house.

12. Sometime after Ms Crockwell was dropped off at her house Grant arrived. This was said to be soon after 10:21 p.m. and he left while Ms Crockwell was in the shower or soon after.

13. Both appellants' cases were that they were not in the area at the time of the shooting but in Pembroke parish at separate locations. Blakeney gave evidence but Grant did not although he called an alibi witness, Ms Crockwell's mother, Mrs Walker. During his evidence Blakeney claimed his reason for leaving the cinema was that he learned that the feature movie was Precious because he saw the name printed on the ticket and he did not want to see it. The Crown called rebutting evidence that at no time in six or seven years was the name of the feature movie ever printed on the ticket.

14. Unsurprisingly, Minors was asked if he knew of any reason why someone would wish to shoot him. His answer was that he lived in the St. Monica's area and is considered a member of the 42^nd Street Gang. In fact he wears a tattoo in confirmation of this. He knew Blakeney, with whom he played football and Grant, both of whom are members of the Parkside gang. There is a bitter of rivalry between the gangs which he described as ‘like a war.’

15. The Crown called Sgt Rollin who is the supervisor of the Gang Targeting Unit which is responsible for investigating and coordinating gang intelligence from Bermuda gangs and interacting with them. He has trained locally and overseas with the FBI in the identification, behaviour and so forth of gangs. He keeps close ties with the local gangs and observes their evolvement from closely organised groups into the known gangs of today. He is familiar with their respective territories. He identified both appellants as connected to the Parkside Gang, Grant as a member and Blakeney as an associate. He confirmed Minors as a member of the opposing gang the 42^nd or 4–2. It was not disputed that there was a feud between the two gangs that included shootings and killings.

16. The thrust of Blakeney's evidence was that he never saw Minors at the cinema, never procured Grant or anyone to shoot Minors. He was neither a member nor an associate of the Parkside gang. He left the cinema because he didn't want to see the movie, dropped Ms Crockwell at her home and was sleeping at his home until awakened by her call at 11:59 p.m. i.e. after the shooting. He picked up Grant late in the night and ended up in St David's long after the shooting.

17. Grant did not give evidence but sought through Mrs Walker, his alibi witness, to establish that he was still at her house at the time of the shooting.

18. Each appellant has argued a number of grounds of appeal and there is a more general attack on the summing up claiming that it was unbalanced, contained adverse comments against the appellants and made points that had not been relied upon by the prosecution.

19. The appellants' arguments were wide ranging and discursive. Mr Attridge who appeared for Grant, presented the Court with written submissions running to 108 pages. I have endeavoured to compartmentalise the various grounds although often one ground was argued as relating to another.

The DNA Evidence — Ground 6 Grant, Ground 7 Blakeney

20. It was argued that the judge should not have admitted the DNA evidence in respect of the hand grip of the gun which it was common ground had been used in the shooting. It had low or minimum probative value and high prejudicial effect. Having heard detailed argument, the judge gave a careful written ruling. He pointed out that no authority had been cited either in law or science that tended to show that when the statistical evidence is in low figures, as in the present case, the evidence was valueless. The judge also noted that the significance of the DNA evidence depended to a large extent on the other evidence in the case. The DNA evidence showed a possible connection between the gun and each of the appellants and also two others, Kinte Smith and Furbert, who although not defendants figured in the evidence in the case. The gun was found close to the car in which the appellants were arrested just two and a half hours after the shooting and in which were found items linked on the evidence to the shooting. Furthermore, a baseball cap seized from the vehicle was found to have a full DNA profile matching all 15 markers to Grant. In my Judgment the judge was right in the exercise of his discretion to admit this DNA evidence. The evidence was relevant because neither appellant had admitted any involvement in the shooting.

21. An expert, Ms Zulegar, gave the DNA evidence. It was put to her that the evidence was meaningless or worthless but she would not go that far, albeit accepting it was very weak. The ultimate value of the evidence was not, of course in isolation, but in the context of the evidence in...