Trott v R
| Jurisdiction | Bermuda |
| Judge | Clarke P,Kay JA,Simmons JA |
| Judgment Date | 15 August 2022 |
| Docket Number | Criminal Appeal 2021 No 5 |
| Court | Court of Appeal (Bermuda) |
[2022] Bda LR 80
Clarke P; Kay JA; Simmons JA
Criminal Appeal 2021 No 5
In The Court of Appeal for Bermuda
Attempted murder — Retrial — Gun shot residue evidence — Wummation to the jury
The following cases were referred to in the judgment:
Hewey v R [2022] UKPC 12
Funderburk [1990] 2 All ER 582
Mr R Horseman for the Appellant
Mr C Mahoney and Ms K King-Deane for the Respondent
JUDGMENT of Kay JA
1. On 30 March 2021, following a retrial, Jahmico Trott (“the Appellant”) was convicted by a majority verdict (11–1) of a jury for the offences of: attempted murder; using a firearm to commit an indictable offence; carrying a firearm with criminal intent; and intimidating a witness. The retrial had been consequential upon a successful appeal against conviction following an earlier trial on the attempted murder and firearms charges which had concluded on 7 March 2018.
2. The only ground of appeal which succeeded related to the failure of defence counsel at the first trial to call Lakeisha Darrell as an alibi witness The intimidation charge related to events subsequent to the first trial.
3. I take the following summary of the case for the Crown from the judgment of Sir Christopher Clarke P on the first appeal, adapted to reflect some differences in the evidence.
4. On Sunday 14th May 2017, which was Mother's Day, the complainant, Daniel Adams was at the residence of his cousin, Marekco Ratteray, in Elliot Street, Hamilton in the upper level above the Bulldogs Sports Bar, which is at the corner of Elliott Street and Court Street. At around 6.00 pm Troy Burgess, Jr and other associates of the appellant were seen1 walking south along Court Street from the direction of the Elliot Street car park on the side of the road opposite to the building in which the apartment was. This group eventually congregated just across the road from the entrance door of the building and looked towards it.
5. Shortly afterwards, the Appellant emerged from the Elliot Street parking lot, just to the right of where Burgess was standing. He was armed with a black firearm. He ran across the street and entered the building where Ratteray's residence was. He was dressed in dark clothes – a hooded sweatshirt with the hood pulled over a baseball cap on his head, black gloves on his hands, dark distressed jeans, and dark sneakers with a distinctive grey pattern. The lower part of his face was concealed with a red scarf. 4. The Appellant knocked on the door of Ratteray's apartment. Ratteray went outside onto his porch to see who it was and immediately recognised the Appellant although he had the red scarf across his face from his nose down. The Appellant was about 10 feet away from him and he could see his eyelashes which he described as distinctly bushy/girlie. The Appellant kept asking him to open the door saying words to the effect “Ro, just open the door, this isn't for you”. Ratteray recognised the Appellant's voice as he was someone whom he saw and spoke to daily and whom he had known for around ten years. (The Appellant had been overseas for some time before returning to Bermuda in February 2017). He had seen him the same day shortly before the incident. He would see the Appellant and Tony Burgess daily in the vicinity of his residence, by Bulldogs.
6. Ratteray saw a revolver in the Appellant's hand which the Appellant was holding downwards behind and between his legs. Ratteray ran back inside after slamming the door to the porch and alerted Adams as to what was happening. Ratteray accepted in his evidence that it was likely to be a matter of some 5–6 seconds during which he spoke to the man at the door. Unable to get Ratteray to let him into the apartment, the Appellant climbed along the wall of the balcony and crossed onto the porch in order to try and gain entry into the apartment from the door to the porch.
7. Ratteray and Adams fled the apartment. Adams fled down the steps towards Court Street. Ratteray jumped over the wall of the balcony, then scaled a fence and ran across the adjoining empty car park of the Jamaican Grill. The Appellant ran through the apartment and down the steps to Court Street in pursuit of Adams.
8. Once on Court Street Adams tried to flee the area on his motorcycle which was parked on the sidewalk on the west side of Court Street just outside the building. But he could not get it started. The Appellant managed to catch up with Adams, who was much bigger than the Appellant, and there was a vicious struggle for the firearm (which Ratteray witnessed) during which the Appellant fired 3 shots at Adams' head. In the course of this the Appellant fell to the ground and Adams got on top of him. Adams said that he immediately recognised the Appellant, notwithstanding the red scarf, which slipped during the struggle enabling Adams to see his face. At this point Adams and the Appellant were face to face and Adams was actually breathing on him. Adams had known the Appellant from when he (Adams) was about 14 years old and saw him from time to time since the Appellant's return to the island.
9. As Adams was getting the better of the Appellant, Troy Burgess Jr ran across the road to help the Appellant by pulling Adams off him and attempting to hold on to him. This allowed the Appellant to get back onto his feet and fire the gun again at Adams. As Adams tried to disarm the Appellant again Troy Burgess Jr tried to hold on to Adams as the Appellant discharged the gun. After he got up Adams, now no longer close enough to restrain the Appellant, took cover behind a parked vehicle and the firearm was discharged again. He sustained a graze wound on the top of his head. He had various abrasions on his hands and knees.
10. Adams then ran to the Hamilton Police station, shouting the Appellant's name, arriving there by 6.08 pm. He made a report identifying the Appellant as the gunman who had tried to kill him. All this happened on a sunny afternoon and was captured by CCTV cameras erected in the area.
11. The Appellant attempted to make good his escape on a motorbike through the Elliot Street parking lot which led onto Union Street. As he exited the lot at speed, he collided with a car, driven by Larenzo Ratteray, which was travelling south along Union Street. Larenzo Ratteray had been driving south down Court Street and had heard the sound of the gunfire. He reversed, turned left along Angle Street and then went south down Union Street when the collision occurred. The front bumper of the car was damaged on its right side. Larenzo Ratteray noticed the black gun in the Appellant's hand and backed up his car and drove off. He described the Appellant as 5′6″ to 5′8″ tall and of light complexion.
12. The Appellant had fallen to the ground. But he hastily jumped up and ran off, abandoning his motorbike in the vicinity of the collision. He rode off on another motorbike which was parked outside a nearby house toward King Street and then onto Curving Avenue.
13. The collision was not captured on CCTV but the Appellant was captured on CCTV when riding away from the collision scene and making his way along Curving Avenue.
14. An investigation was launched and on Monday 15 May 2017 the Appellant was arrested at 38 King Street, the residence of his girlfriend, Lakeisha Darrell, and taken to Hamilton Police Station. A search warrant was executed at her residence and a bullet proof vest was found.
15. The Police reviewed CCTV cameras from the area. They noted a man, wearing shorts, riding a motorbike on the day of the incident at about 5.50 pm from Curving Avenue onto King Street in the direction of the place where the Appellant was arrested. The timing on the CCTV was 5.50 but that was probably about 5.45 in real time. At about 7 minutes later the same man was observed, now a passenger but still in shorts, on the back of a motorbike coming from King Street and continuing onto Curving Avenue wearing a blue cap which appeared to be similar to the one that the Appellant appeared to be wearing. Further CCTV footage showed a man on Kirby Avenue, now fully clothed. He went into a house on Curving Avenue and came out of it soon afterwards. His left hand appeared to swing in a normal fashion as he walked; but his right hand was kept to his side, rather as if he had some form of deformity. The case for the Crown was that that was because he was carrying...
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