Taaj Oniel Muhammad v The King
| Jurisdiction | Bermuda |
| Judge | Smellie JA,Gloster JA,Clarke P |
| Judgment Date | 17 November 2023 |
| Neutral Citation | BM 2023 CA 24 |
| Court | Court of Appeal (Bermuda) |
| Year | 2023 |
| Docket Number | Criminal Appeal No. 2 of 2022 |
Neutral Citation Number: [2023] CA (Bda) 21 Crim
THE PRESIDENT, Sir Christopher Clarke
JUSTICE OF APPEAL Sir Anthony Smellie
and
JUSTICE OF APPEAL Dame Elizabeth Gloster
Criminal Appeal No. 2 of 2022
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE SUPREME COURT OF BERMUDA SITTING IN ITS
ORIGINAL CRIMINAL JURISDICTION
THE HON MR JUSTICE WOLFFE
CASE NUMBER 2020: No. 28
Mr. Charles Richardson, Compass Law Chambers, for the Appellant
Mr. Carrington Mahoney, Office of the Director for Public Prosecutions, for the Respondent
The Appellant appeals against his conviction in the Supreme Court on 24 February 2022, for two offences: the murder of Ronniko Burchall on 30 December 2018, the result of gunshot injury to the head, and the use by the Appellant of a firearm in the commission of the murder. The conviction followed a trial before Justice Juan Wolffe and a jury, resulting in the jury's unanimous verdict. The fatal shooting took place at the St David's Cricket Club on the occasion of its annual Christmas Party, on 29 December 2018.
The arguments, presented on the Appellant's behalf on the appeal by Mr Richardson, centred around his challenge to the evidence of Amber Jackson, the main prosecution witness. She testified about an intimate relationship she had developed with the Appellant whom she had known from childhood and about his confession to her, at different times after the incident on 29 December 2018, to having shot and killed Ronniko Burchall, who was commonly known as “Warrior”.
Ms. Jackson's credibility and reliability as a witness thus became of central importance to the trial and the presentation of her evidence and its consideration by the jury became the subject of scrutiny and criticism on the appeal. We will come below to examine, in turn, each of the grounds of appeal argued on behalf of the Appellant. Following immediately is a description of the circumstances surrounding the murder of Ronniko Burchall, as presented on the prosecution's case.
On Friday 28 th December 2018, the Appellant is shown on CCTV camera recordings to have arrived at the St David's Cricket Club. Upon his arrival at about 11:23pm, he moved around inside the hall of the Club exchanging greetings and eventually stood at the top of the railing to the staircase leading up to the second-floor balcony, which overlooked the car park of the Club premises. His movements upon arrival and in and around the Club during the next two hours and those of certain of his acquaintances, including one Kenneth Wade Jr in particular, were recorded from different angles captured by different cameras – numbered 3, 5, and 7 – in place at the Club premises.
In testimony given by Amber Jackson and Detective Constable Anneka Donawa of the Serious Crime Unit of the Bermuda Police Service, images of persons captured on the CCTV footage were recognized and identified. The Appellant was identified by these witnesses on footage from cameras 3 and 5 upon his arrival and as he moved around the Club premises. From footage of images captured on Camera 7, Amber Jackson also testified to recognizing the Appellant as the assailant who shot Ronniko Burchall.
This identification evidence from the CCTV footage, also became the subject of the grounds of appeal argued by Mr Richardson.
While the prosecution was not required and did not seek to establish a motive for the killing, it was the theory of its case as presented by Mr Mahoney, that the Appellant acted in concert with others present at the scene, to target Ronniko Burchall. Those others included Kenneth Wade Jr with whom the Appellant was shown on the CCTV footage to be in close contact, as they moved about and mingled with others at the Club. The motive was suggested to the jury as arising from an ongoing feud between rival members of the notorious and fractured Parkside gang.
As shown on the CCTV footage from Camera 7 which overlooked the car park, at about 11:39 pm on 28 December 2018, Ronniko Burchall arrived on his motor bike which he parked in the car park, near the bottom of the staircase entrance to the Club. The Appellant who was then standing on the balcony, appeared to observe Burchall's arrival, as he is shown on the CCTV footage to have then looked over the balcony railing. The Appellant immediately then entered the hall of the Club. Shortly after, he was seen to return to the same area on the balcony, then in the company of Kenneth Wade Jr who had been inside the hall.
Ronniko Burchall ascended the staircase to the balcony at about 11:41 pm and entered the hall. The Appellant and Kenneth Wade Jr moved from the area of the staircase railing and went to the center door entrance to the hall. This was recorded at 11:44:41 pm 1, with the Appellant then appearing to have been speaking with someone on his cellphone, as indicated by the phone with its lit screen being held to his face.
Ronniko Burchall was then shown on camera 5, standing inside the hall of the Club, in front of the bar. At 11:45:07 pm, as shown on camera 3, the Appellant and Kenneth Wade Jr descended the staircase. Some 26 minutes later, at 12:11:14 am (now on 29th December), Wade returned up the staircase alone and remained on the balcony in the area of the center door entrance to the hall, overlooking the car park. The Appellant is not shown to have returned up the stairs.
At 1:28:38 am, Ronniko Burchall is shown on camera 3 to have exited the center door of the hall, onto the balcony where he spoke with a security guard. This was a Mr Dennis Parsons who also testified at the trial. Burchall then proceeded down the stairs on his way to his bike. As shown on Camera 7, very shortly afterwards, at 1:30:15, the rear lights of a car parked in the car park were turned on. This car was at the far end of the car park near a playing field adjacent to the Club premises.
The prosecution invited the jury to regard this as a signal because only 4 seconds later, at 1:30:19, the assailant as captured also on Camera 7, was seen to run from the area of the playing field toward Ronniko Burchall, brandishing a gun. He shot Burchall to the head before Burchall could escape on his bike, just out of sight of camera 7 which recorded only the flashes from the nozzle of the gun. The assailant then ran back in the direction from whence he came, as shown on camera 7. He was seen by Dennis Parsons to run up the long flight of steps along the slope at the far end of the field, as he disappeared into the darkness going in the direction of the area known as Cashew City. It was only then, at about 1:33 am, that the rear lights of the parked car were turned off.
The assailant was described by Dennis Parsons as wearing a grey long-sleeved hoodie sweat top with the hoodie over his head. He had on a mask, was slim built and about 5 feet 9 inches
tall. These descriptions of clothing and physical appearance became relevant to the identification of the Appellant as the assailant, by reference to the testimony of Amber Jackson and forensic evidence also adduced at the trialRonniko Burchall suffered a penetrating gunshot injury to the head and died on Sunday 30 December 2018, while in hospital.
On Monday 31 December 2018 at about 2pm, police officers attended the residence of the grandmother of the Appellant where he sometimes resided, at 3 Anchorage Lane, St George's Parish. The officers were armed with a search warrant obtained pursuant to the Firearms Act. They spoke with the grand-mother who then handed to them a grey long-sleeved hoodie sweat top and a pair of American Designs distressed acid-washed jeans.
Both items of clothing were seized and examined forensically. From the grey hoodie sweat top was recovered a number of particles, one of which was found to be characteristic of gunshot residue “GSR” (i.e.: comprising of the three essential component elements — lead, barium and antimony) and thus highly specific to the discharge of a firearm. Also recovered was a total of 9 two-component particles, 5 of which were recovered from the grey hoodie sweat top and 4 from the jeans pants. All of these 9 particles were opined to be consistent with having been discharged from a firearm. As the ballistics expert Tarah Helsel explained, these 9 could however, also have emanated from other sources, such as fireworks, brake pads, batteries and other common-place sources. But as she also further explained, when found in combination with particles having the three essential components which are characteristic of GSR, two component particles are regarded as part of that GSR population.
Mr Mahoney invited the jury to regard this evidence as supporting the identification of the Appellant as the assailant but Mr. Richardson, in his seventh ground of appeal developed at the hearing, complains that the trial Judge erred in allowing the admission of the evidence relating to GSR, as it was more prejudicial than probative.
DNA analysis was performed by an expert, Dr Barbara Llewellyn, on swabs taken from the inner neck lining and cuffs of the grey hoodie sweat top. A male profile was obtained at 10 loci which matched that of the Appellant, with a random occurrence statistical ratio of 1 in 274 billion, thus indisputably linking him to that item of clothing.
As already mentioned, the main witness for the prosecution was Amber Jackson. As related in her testimony and as summed up to the jury by the trial judge, she and the Appellant had known each other for many years as they grew up together in St George's Parish. She knew him since she was 12 years old and he was 2 years her elder. They both attended at the local Clearwater School and up until the end of 2018, she described their relationship as that of close friends who...
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