Leshore & Simons v R

• Jurisdiction: Bermuda
• Judge: Baker P,Bell JA,Bernard JA
• Judgment Date: 25 November 2016
• Date: 25 November 2016
• Court: Court of Appeal (Bermuda)
• Docket Number: Criminal Appeal 2014 Nos 15 & 16

[2016] Bda LR 115

In The Court of Appeal for Bermuda

Before:

Baker P; Bell JA; Bernard JA

Criminal Appeal 2014 Nos 15 & 16

Between:

Jahkeo Leshore & Darrion Simons

Appellants

and

The Queen

Respondent

Mr R Horseman for the 1^st Appellant

Mrs S Smith-Bean for the 2^nd Appellant

Mr C Mahoney and Ms T Burgess Simpson for the Respondent

The following cases were referred to in the judgment:

Attorney-General's Reference (No 2 of 2002)UNK [2003] 1 Cr App R 321

R v GigaUNK [2007] Crim LR 571

Myers, Cox and Brangman v RUNK [2015] UKPC 40

R v McKennaELR [1960] 1 QB 411

Shoukatallie v RELR [1962] AC 81

R v DuffinUNK [2003] EWCA Crim 3064

R v ShepherdUNK [2016] EWCA Crim 1022

R v MitchellUNK [2004] EWCA Crim 1665

De Four v StateWLR [1999] 1 WLR 1731

R v Akano & Anor [1992] Times 3 April

Jury — Long retirement late into evening — Whether undue pressure — Analysis of CCTV footage — When admissible

JUDGMENT of Baker P

1. On 17 April 2011 around 10:15pm David Clarke, the deceased, was shot in the head soon after he left the Mid-Atlantic Boat Club. He died soon afterwards in King Edward VII Memorial Hospital. On 11 September 2014 after a lengthy trial the two appellants, Jahkeo Leshore and Darrion Simons, were convicted of his premeditated murder and using a firearm to commit an indictable offence. They were later sentenced to life imprisonment for the murder, in each case with a minimum period of 25 years before consideration for parole and 10 years concurrent for the firearms offence. They appeal against conviction on a number of grounds.

2. The Crown's case was that there was a gang related background and motive for the killing. The appellants were both members of the 42^nd gang. The deceased was not a member of a gang but his brother D'Angelo Clarke was a member of the Parkside gang. There was an ongoing feud between the two gangs and on 1 March 2011 Leshore's brother, Jahmiko Leshore, who was also a member of the 42^nd gang had been shot dead. There was evidence that the murder of David Clarke was in retaliation for this.

3. On the evening of 17 April 2011 the deceased attended the Mid-Atlantic Boat Club. So too did the appellants who were associating with a number of other members of the 42^nd gang including Damiko Dublin and Christopher Parris. The deceased left on his motorcycle at 10:14pm. At the same time Dublin can be seen on the CCTV footage making a call on his cell phone. Minutes later two motorcycles were seen close together on North Shore Road. The rider of the cycle on the left tried to push away the cycle on the right with his right hand. There were then three shots and the rider of the cycle on the left fell to the ground while the other cycle sped off. There were witnesses. Undray Lightbourne recognised the deceased. Neither appellant was identified by any eye witness.

4. Denyelle Dublin-Swan lived at 122 North Shore Road. She heard gunshots and looked out and later saw two people scale the boundary wall between No. 2 and No. 4 Mission Lane. One wore a yellow mustard type long sleeved t-shirt and the other a similar red mustard coloured t-shirt. Both wore helmets and disappeared towards 3 Crane Lane where Simons lived.

5. Police officers arrived at the scene at 10:23pm. They later found a set of keys that appeared to have been dropped near the boundary wall that Ms Dublin-Swan had seen the two individuals getting over. The keys tested positive for Simons' DNA. They also fitted the front and kitchen doors of his residence.

6. In the early hours of the following morning, 18 April 2011, a black Honda Scoopy motorcycle BS 459 was found hidden behind a white truck in the front yard of 17 Crane Lane. The occupants of the property knew nothing about it and it had not been there at 9:00pm the previous evening. The motorcycle was registered to Rodney Grimes, a member of the 42^nd gang who was disqualified from driving. He left it parked behind the prefabs in St. Monica's Mission for use by any 42^nd gang who wanted to use it. DNA matching that of Leshore was found on the handlebar grips and there was evidence that he had previously ridden the bike.

7. Leshore was arrested on 27 April 2011. His cell phone was seized and examined. It contained the following messages from him to his girlfriend on 23 March 2011:

‘8.51.17 Jus want somebody dead

8.51.20 Seriously

8.51.52 I know you prolly don't want me get in all this but I'm sorry Keishaye

8.53.35 Only thing that's gonna make me feel a lil better is by me killing one or two of them personally.’

Then on 8 April 2011, just over a week before the murder the following message on his phone:

‘We got put dog on his family member so he feel the pain 2 >:>=)’

‘Dog’ in gang culture means gun. The telephone analyst called by the Crown thought that the characters following the ‘pain 2’ could possibly represent a smiley face.

8. The Crown's case was that this material on Leshore's phone, the most recent being not long before the murder, showed a clear motive for him to kill the deceased.

9. Leshore and Simons are seen on CCTV footage at about 9:05pm leaving through the main entrance of the Mid-Atlantic Boat Club. A few minutes later Simons is seen to return to the bar and speak to Damiko Dublin but returns to the car park at 9:12pm. Neither Leshore nor Simons is seen in the bar again that evening, the inference being that they are lying in wait for the deceased to leave.

10. Within minutes of the shooting the cell phones of the 42^nd gang members including Parris and Dublin activate and this is followed by hugging, dancing and hand movements depicting shooting, apparently in celebration.

11. Leshore was arrested on 27 April 2011 and Simons on 6 May 2011. Both were bailed and made no comment interviews. They were charged with the premeditated murder of David Clarke on 27 December 2012.

12. In summary, the Crown's case was that this was a gang retaliation killing by two members of the 42^nd gang and that the deceased was the brother of a Parkside member. The messages on Leshore's phone described clearly the motive and his DNA was found on the handlebars of the motorcycle. The pillion passenger who fired the shots was identified as Simons by his keys that were dropped as they made their escape climbing over a wall. Shortly before the shooting both appellants had been at the Mid-Atlantic Boat Club with other members of the 42^nd gang.

13. Before I turn to the grounds of appeal it is necessary to deal briefly with application to adduce fresh evidence. Leshore sought to adduce an affidavit from Ryan Gaglio, a court clerk to whom one of the jurors spoke after the verdict complaining about the quality of the food. Such evidence provides no basis for concluding the verdict was not safe. Furthermore, there is real doubt whether the witness was referring to the present case as certain facts in his affidavit were apparently incorrect. Next there was an affidavit from Troy Woods who said that in November 2015 when travelling from Westgate Correctional Facility to Court Mr Hewey told him that he and one of his boys, not the appellants, killed the deceased. This evidence is hearsay and plainly inadmissible. Mr Mahoney for the Crown told the Court that Hewey and his co-defendant Dill had used a similar strategy in their murder trial and tried to blame Simons.

14. Simons sought to adduce an affidavit from Antanisha Davis sworn on 19 October 2016. In it she sought to clarify various matter in her witness statement on 1 March 2013 which had been read to the jury. It transpired that certain passages in her statement had been edited out before the statement was read to the jury. Most of her points were related to those passages and in the result her affidavit takes the case no further. It is also to be observed that she signed each page of her statement as true and correct and had the opportunity to make any corrections had she so wished. Simons also invited the Court to admit in evidence a printout dated 28 September 2016 purporting to show a booking of a flight from Bermuda to New York on 14 October 2011 with the return on 25 October 2011. There was no supporting affidavit and nothing to indicate whether he in fact travelled on either flight. As we understood it the printout was for the purpose of supporting his evidence at the trial relating to the photograph that had been adduced in evidence by the prosecution, showing him in possession of a gun. The printout, if admissible, could have been adduced at the trial. Accordingly both appellants' applications to adduce fresh evidence were refused.

15. Mr Horseman helpfully set out at the commencement of his submissions those amended grounds of the appeal that he intended to argue as numbers 2, 3, 4, 6, 11 and 14. In the event he directed most of his attention to grounds 11, no case, and 14, undue pressure on the jury. The other grounds were...