Muhammad v The Queen
| Jurisdiction | Bermuda |
| Judge | Evans, J.A.,Baker, J.A.,Zacca, P. |
| Judgment Date | 24 March 2014 |
| Neutral Citation | BM 2014 CA 7 |
| Court | Court of Appeal (Bermuda) |
| Docket Number | Criminal Appeal No. 5 of 2012 |
| Date | 24 March 2014 |
Court of Appeal
Zacca, P.; Evans, J.A.; Baker, J.A.
Criminal Appeal No. 5 of 2012
Ms. Shade Subair for the appellant.
Mr. Carrington Mahoney and Ms. Nicole Smith for the respondent.
Evidence - Appeal — Offence of attempted murder and unlawful use of a firearm — Criminal evidence — Gang expert opinion evidence — Admissibility of evidence — Appeal dismissed against conviction — Sentence — Minimum period of imprisonment before eligibility for parole — Appeal against sentence allowed.
On 18 January 2012 the appellant, Anwar Muhammad, was convicted of the offences of attempted murder and unlawful use of a firearm, after trial before the Hon Justice Carlisle Greaves and a jury. The verdict was unanimous.
The two charges arose out of a single incident. On the afternoon of Monday 23 August 2010, the victim of the shooting, Shantoine Princeton (or Prinston) Burrows (“the complainant”) was sitting on his stationary motor cycle beside the road at Woodlawn, White Hill, in the Middle Road junction area, whilst he was texting on his cell phone. Two men rode slowly past on a motorcycle. He noticed that they looked at him, but he paid no particular attention. Then they turned their motorcycle, mounted the sidewalk and headed towards him. This alarmed him, and he tried to ride off but could not start his motorcycle engine. So he ran away pushing his motorcycle towards the Middle Road, but as he did so he heard two or three shots and realised that he had been shot in his leg. He dropped his bike and fled towards the Woodland Road. When the motorcycle caught up with him, he grabbed the pillion passenger, who was the shooter, dragged him off the bike and struggled with him. The rider shouted “Let's go”. The passenger freed himself and ran towards the bike, and they made off. Both the rider and the passenger wore helmets and visors, and the complainant was unable to recognise or identify either of them.
There were eight eye-witnesses whose evidence supported this account. Some of whom said that the pillion passenger/shooter was wearing a white T-shirt, also described as a sleeveless vest. When one witness arrived on the scene, he saw a bike and a helmet on the road and a young man limping and stumbling who asked to be taken to a hospital, but he could not do this and he took him to the Maxi-mart store nearby. The complainant realised that his middle finger had been shattered by a shot, and an ambulance was called. He was hospitalised in Bermuda, and overseas, for about two weeks.
The incident took place at about 3:15 – 3:30 pm. A police officer later recovered at the scene a left-foot black Adidas sneaker, size 11, at about 5:25 pm.
Meanwhile, police officers in a mobile patrol car went to an area described as a compound at the Southampton Industrial Park Road where they found three items of clothing: a white sleeveless shirt, a black shirt and a right-foot black Adidas sneaker, size 11. All three were blood-stained. That was at about 4:30 pm.
The sneakers and items of clothing were examined by a DNA expert. She gave evidence that there were bloodstains on both the right-foot and the left-foot sneakers, which she found in both cases matched blood samples obtained from the complainant. She also said that DNA testing identified the appellant as a wearer of both sneakers. With regard to the two items of clothing recovered from the compound, she said that DNA testing of the white sleeveless tank top and the black shirt showed both the complainant and the defendant as donors, and that the bloodstains on both garments matched blood samples taken from the complainant. (The expert evidence is not disputed, and for that reason it has been summarised in general terms.)
The appellant was arrested and charged with the offences, but not until 7 April 2011, more than seven months later, and he was interviewed on the following day. A Blackberry cell phone in his possession was found to contain a number of photographs and what came to be called an “audio recording” which was transcribed and introduced in evidence.
The defendant worked as an hairdresser, apparently for his own account with premises in Somerset. He said that on the day in question he visited his dentist, Dr. Lorna Hall, who practises at the Brangman Building on Reid Street in Hamilton. She confirmed in evidence that she saw him at an 11:40 am appointment which lasted about half an hour. He said that he returned to work by 2 pm and that he then had various customers, including one whose hair-do he photographed; the photograph was taken at 4:22 pm.
The appellant said in his police interview that he had never owned black Adidas sneakers, but in his evidence at the trial he accepted that the ones that were found could be an old pair of his. He also accepted that the items of clothing found at the compound were his, and that he had worn them on the day in question. But he said that he was caught out in light rain when returning from his visit to the dentist, and because his clothes apart from his underpants were wet, he hung them out to dry at the compound so that the lady he called ‘his boy's Momma’, or ‘Mama’, who lived there or nearby, could wash and dry them. He said that he changed into other clothes before returning to his place of work.
The Prosecution said that the reason why he changed his clothes as he described was because they were blood-stained as the result of his struggle with the complainant, and that if the clothes were damp it was through perspiration, not rain. He offered no other explanation of why his clothes were stained with the complainant's blood. He said that some other person must have taken and worn the clothes and carried out the attack on the complainant, then returned them to the compound. So far as timing was concerned, the Prosecution asserted that the appellant had time to change his clothes at the compound and return to work by 4:22 pm when the photograph was taken.
The defendant's father gave evidence that the compound was an area where he lived in a RV during the winter months, though he was not there at the time. He said that the area was used as a dump. There was a container on the site in which he stored his family's household items, and the defendant said that some of his belongings were stored in it. The defendant said in his police interview that the compound “is where all them boys sit to and all that”.
In addition to the straightforward factual evidence referred to above, the Prosecution relied upon what was described compendiously as “gang evidence”, or “gang expert opinion evidence”, which the appellant contends was wrongly admitted at the trial and which forms the principal subject matter of this appeal. The evidence was given mostly by Police Sgt. Rollin, who in this case as in several others was introduced as a “gang expert” witness and was permitted to give “opinion evidence” on that topic. There is no transcript of the Judge's Ruling, but he said in his Summation that Sgt. Rollin “has been accepted as an expert in these Courts in this field and he was so declared in this case”.
The admissibility of Sgt. Rollin's evidence and his status as an ‘expert’ witness have been considered by this Court in a number of judgments, the first of which, Quincy Brangman v. The Queen [2011] CA (Bda) 15 Crim. (November 2011) predated the trial in the present case, and the evidence was held admissible. The judgments of the Court in Myers v. The Queen [2012] Bda L.R. 74 and Cox v. The Queen [2012] Bda L.R. 72, where his evidence was held admissible (by a majority), came later, on 22 November 2012.
Sgt. Rollin's evidence in the present case was summarised by the Judge as follows. He was supervisor of the gang targeting unit in the Bermuda Police and had spent many years in “street matters”. He had built up expertise in “gang activity, membership etc.” in Bermuda, had witnessed the development of gangs in Bermuda and had received training locally and overseas. He said that in Bermuda different gangs had different territories, and that gang members would not be found entering the territory of their rivals except with criminal intent. A gang known by its initials “MOB” had its territory from Somerset small bridge to Dockyard - the western end of the Island. MOB was an ally of the 42nd gang and a rival of the White Hill crew, “also known as Killer Hill”. He described the crew as “a loose group of young men and girls who operate around the White Hill field, Woodlawn Road area” and who were known for their antisocial behaviour.
He gave this evidence about how gangs operate –
“Now, disrespect of any gang member by a rival gang...
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