Myers v R

• Jurisdiction: Bermuda
• Judge: Zacca P,Evans JA,Auld JA
• Judgment Date: 22 November 2012
• Court: Court of Appeal (Bermuda)
• Docket Number: Criminal Appeal 2011 No 17
• Date: 22 November 2012

[2012] Bda LR 74

In The Court of Appeal for Bermuda

Before:

Zacca P; Evans JA; Auld JA

Criminal Appeal 2011 No 17

Between:

Antonio Donovan Dudley Myers

Appellant

and

The Queen

Respondent

Ms E Christopher for the Appellant

Mr R Field, Mr C Mahoney and Ms N Smith for the Respondent

The following cases were referred to in the judgment:

R v PettmanUNK (unreported, 2 May 1985, EWCA)

Cox v RBDLR [2012] Bda LR 72

R v BallELR [1911] AC 47

R v RandallWLR [2004] 1 WLR 56

Tiraveanu v RUNK [2007] 2 Cr App R 295

R v Chalkley & JeffriesWLR [2007] 1 WLR 3049

Murder — Using a firearm — Appeal against conviction — Gang involvement — Evidence

JUDGMENT of Evans JA

1. The Appellant, Antonio Myers, was convicted on 28 March 2011 after a trial lasting nine days before the Hon Justice Carlisle Greaves and a jury of the offences of murder and of using a firearm whilst committing that murder. The verdict was unanimous. On 23 September 2012 he was sentenced to life imprisonment for the offence of murder and to serve a minimum of 38 years before eligibility for parole, and to ten years' imprisonment, concurrent, for the firearms offence.

2. His appeal against conviction was heard by the Court over three days in November 2012. On 22 November 2012 the appeal was dismissed and the appeal against sentence, with the consent of both parties, was adjourned pending the hearing by HM Privy Council of the appeal in Selassie v R.

3. Our reasons for dismissing the appeal against conviction were as follows.

The shooting

4. Kumi Harford, the deceased, was shot and killed as he drove his car on Mission Lane in the St Monica's area of Pembroke Parish, shortly after five am on Saturday 5 December 2009. Two weapons were used to fire at least sixteen projectiles at the car, and the deceased was killed instantly by gunshot wounds to the back and shoulders and by one shot through the head. The shots were fired from at least three positions, from the front passenger's side and from front and rear on the driver's side. Probably there were two assailants.

5. The car was a distinctive colour, described as “candy blue”.

6. There was evidence from Edwin Darrell, a self-confessed drug addict for about forty-four years who was living in a tent in the Parsons Lane area, that he heard about five gunshots on the morning in question, at a time which he said was about 4:45 am, and that later when he made his way towards Parsons Road he met the Defendant, whom he had known since he was a child, who told him that he had finished doing a job, killing Kumi Harford ‘up in the 42^nd.’ and that he had some clothes for him to get rid of. He said, ‘That's a tall order, I don't want any part of that’ and that the Defendant asked him if he knew any way of getting rid of some clothes. He replied that he knew there were two ways people have done it, ‘there is some acid or you can burn them’. He said the Defendant asked him if he would do it for him and he said no. The Defendant became angry and asked him “where was Sykie” meaning another drug addict named Andrew Laws who also lived in a tent nearby. The witness told him, and the Defendant left saying that he would go and see if Sykie would do it for him.

7. Edwin Darrell then went to the ‘Middle Town, Bottom Road area by the blue house and the yellow house’ where he saw the Defendant ‘and some other guys’— the Defendant and two others whom he identified by name —‘in the area where they normally gather’ and that in the space between the two houses a fire was burning ‘with some clothes being put on it’. As he climbed the steps towards the Top Middle Town area he heard someone sing out ‘the man is coming’ which he knew meant “the police”, and ‘there was a lot of scatter as the guys were running away’.

8. Two police officers were in police vehicles at the gas station in Paget when they heard a radio report of the shooting, at 5:05 am. They returned to their headquarters to collect weapons and headed for the Middle Town area. As they approached, they smelt smoke and came across a fire ‘at the back of the blue house’ on Middletown Lane. They used a fire extinguisher to put out the fire and found a pile of partly-burned clothing which they described as the ‘contents of the fire’. This included a pair of jeans, a jacket, a pair of Nike sneakers and a pair of gloves.

9. Samples of the Defendant's DNA were taken from the clothing, and at the trial counsel for the Defendant admitted that they were his. There were also traces, which the expert witness called by the prosecution said were GSR (gunshot residue), distinguishing that from traces of the fire extinguisher fluid. An expert witness called by the defence contended that GSR evidence was unreliable, and much evidence was directed to the issue whether the GSR traces could have resulted from contamination from other sources after the clothes were in the custody of the police.

10. Andrew Laws (‘Sykie’) heard the gun shots and later, at about 7 am, he went to Middletown where he saw the Defendant and another person whom he identified by name, at the yellow house in Middle Town Lane, about three minutes' walk from his tent. They were having a conversation and he heard the other man tell the Defendant ‘He should have brought the fucking clothes to him, Sykie’. The speaker was angry, and the Defendant said ‘Cool it. Cool it. Let it go.’ As he was leaving, the witness discovered a burnt patch of grass at the back of the blue house. He said in evidence that he had an idea why the clothes would have been brought to him, because it was known that he had got them, nobody would have found them.

11. The defence challenged Laws' evidence, not only on the general grounds indicated below, but also on the specific ground that the area of the fire could not have been deserted at that time, as the witness said that it was.

12. It was suggested to both Darrell and Laws that they had concocted their evidence and gone to the police because a substantial reward, of $100,000, was offered for information regarding this (and other) shootings, which was especially attractive to them because they could escape from their lives as drug addicts living in tents and possibly leave Bermuda altogether. It was alleged that they had seen the advertisements and colluded together.

13. The Defendant elected not to give evidence, but there were two defence witnesses. First, the GSR expert referred to above, and secondly, the Defendant's mother. She lived just next to Middletown with her daughter and other family members. She said that the Defendant usually lived with his girlfriend but stayed at her house sometimes, and when he did so he slept on the couch. She said that she woke during the night and went to the bathroom at about 4:30 am when she saw the Defendant lying on the couch. She did not say whether he was awake or asleep or whether either of them spoke. She returned to bed and slept until about 9 am.

14. Her reference to the Defendant's girlfriend was understood to mean a Mrs Wolffe with whom he had lived previously, together with their three-year-old daughter. There was evidence, however, that at the relevant time he was beginning an association with another lady, Rogernae Lightbourne, who lived with her aunt, named Neika Daily, at what was described as the yellow house at Middletown near where the fire was discovered. He ceased to live with Mrs Wolffe either before or after the relevant date.

The police officers' gang evidence

15. The Judge at the outset rejected a defence submission that ‘the gang evidence to be given by Sergeant Alexander Rollins’ should be excluded; he referred also to the evidence of Det Const Vernelle Burgess and of a firearms expert Mr Dennis Maguire. He described the evidence of P/Sgt Rollins as follows -

‘It refers to the existence of gangs in Bermuda. It refers to two particular gangs in particular, the Parkside and the 42^nd Street Gang, also known as the 42 Gang, how it's made up and how it operates.

It purports to name the Defendant as a member of one gang, the Parkside Gang, or Middle Town Gang, an offshoot of that Parkside Gang or a subsidy [sic] of that gang; and the 42^nd Street Gang, which is a gang which the deceased in this case is alleged to belong [to]’.

The defence submitted that the evidence was excluded, as evidence of bad character, by section 16 of the Evidence Act 1905. The prosecution submitted that ‘the evidence should be admitted as background evidence, and in particular that it is relevant to the issue of motive, the motive of the Defendant, in these circumstances, for the shooting or participation in the shooting of the deceased in this case’.

16. The Judge found that the evidence ‘is relevant to the issue of motive in these circumstances. It is evidence necessary for the prosecution to explain why the Defendant would have participated in the shooting of the…deceased….’(Transcript Day One p 112).

17. P/Sgt Rollins, before giving evidence, was asked about his experience and qualifications. He was a member of the Gang Targeting Unit, which as he later explained consisted of himself and three other officers who worked closely together, patrolling in uniform together either on foot or in two police vehicles. This, he said, ‘allowed me to see the — evolution of what we —-we used to call loosely organised groups, and now they've evolved into what we refer to…….as gangs’. This experience had enabled him to ‘get an understanding of the ways they identify themselves, their geographical locations and structures within the gangs’. In addition, he had received ‘formal training’ both locally and in Washington from the FBI [of the USA]’.

18. On that basis, counsel for the prosecution asked for his evidence to be admitted as that of ‘an expert in gang intelligence and gang targeting’, and the application was granted.

Expert witness

19. Ms Christopher, counsel for the Appellant, for whose careful...