Tucker v R

• Jurisdiction: Bermuda
• Judge: Clarke P,Kay JA,Bell JA
• Judgment Date: 09 June 2020
• Court: Court of Appeal (Bermuda)
• Date: 09 June 2020
• Docket Number: Civil Appeal 2018 No 22

[2020] Bda LR 33

In The Court of Appeal for Bermuda

Before:

Clarke P; Kay JA; Bell JA

Civil Appeal 2018 No 22

Between:

Kiari Tucker

Appellant

and

The Queen

Respondent

Ms S Mulligan for the Appellant

Mr C Mahoney, Ms K King Deane and Ms K Tweed for the Respondent

The following cases were referred to in the judgment:

PR v R [2019] EWCA Crim 1225

Spalding v R [2013] Bda LR 80

Washington v R [2016] Bda LR 57

R v Otway [2011] EWCA Crim 3

R v Ferdinand [2014] EWCA Crim 1243

T [2010] EWCA Crim 2439

R v Stewart and Sappleton (1989) 89 Cr App R 273

R v Thompson [2010] EWCA Crim 1623

R v Asgodom [2012] EWCA Crim 2054

R v Saltus [2019] Bda LR 20

Murder — Appeal against conviction — Failure to grant adjournments — Failure to grant mistrial for late disclosure of DNA lab file — Lost evidence — Gait evidence — Improper admission of new evidence — Cell site evidence — Gun shot residue — Summing up

JUDGMENT of Clarke P

INTRODUCTION

1. On 13^th June 2019 Kiari Tucker (“the appellant”) was convicted by the unanimous verdicts of the jury on two counts: (i) Murder of Morlan Steede contrary to section 287 of the Criminal Code; and (ii) Using a firearm to commit an indictable offence contrary to section 26A of the Firearms Act 1973.

2. On 16^th and 19^th July 2019 the appellant was sentenced to life imprisonment on count 1 with a recommendation that he must serve 25 years before being eligible for consideration for parole and 10 years' imprisonment on count 2, to run consecutive to the tariff imposed for Count 1, with time in custody to be taken into account.

3. The appellant now appeals against both conviction and sentence. This is our judgment on the appeal against conviction.

4. The case presented by the Crown (as summarised in its submissions to us and the record made of the CCTV viewing)1 appears from paragraphs 5 – 23 below.

THE MURDER

5. On Friday the 3^rd November 2017 at around 21:40, the deceased Morlan Steede was at a residence located on One-Way Deepdale (i.e. Deepdale Road East) in Pembroke Parish. It is shown as the Building of Interest on a plan produced by the Crown: page 18 of the Record. He was there socialising and playing cards with a group of men. Later in the

evening when the group of men had finished socialising and had decided to go their separate ways, a figure in dark clothing and black helmet emerged from the shadows. Mr Steede then took off running down the hill of One-Way Deepdale with the man in dark clothing chasing closely behind him. The unknown male had a firearm in his hand and extended his arm as he ran after the deceased; three to four flashes were seen coming from the assailant's outstretched arm. The chase continued from One-Way Deepdale on to Two-Way Deepdale (i.e. Deepdale Road West) and it appeared from CCTV footage, which captured the incident, that the deceased had been shot during the chase as the white tee shirt which he was wearing had a visible stain on the back. The chase continued on to Parson's Road where the deceased collapsed in the road outside a shop called One Stop Variety. He eventually succumbed to his injuries. He had been shot 4 times; 3 times in the back and once in the arm.

EVENTS BEFORE THE MURDER

The Appellant Arrives at Court Street

6. CCTV footage retrieved from the Court Street area showed the appellant arriving at Court Street earlier that evening at 17:42 riding on a bike with another man (Justin Cameron) as a passenger, who rode the bike back southerly on Court Street after they had stopped near the Spinning Wheel nightclub. After alighting from the bike, he is seen socialising with a group of men on the sidewalk outside the Spinning Wheel night club and appears to walk into the club. He was wearing a dark coloured hooded sweater with a white zipper down the middle and what appeared to be white tassels hanging down the front. He had what appeared to be a white undervest or tee-shirt, dark coloured Adidas track pants with white stripes down either side of the outer leg, and in the calf, and dark/greyish sneakers with white soles. I call this “the Adidas kit”. As he walked along the sidewalk, he had, the Crown said, a distinctive gait. The appellant remained in various locations in the Court Street area.

The appellant is driven to One-Way Deepdale and then back to Court Street

7. Lequan Outerbridge, son of the owner of the One Stop Variety shop on Parson's Road, and a cousin and close friend of the appellant, eventually arrived in a car which then drove away. He walked across Court Street to the eastern sidewalk and stood near the appellant and appeared to be in conversation with him. Shortly after this conversation the appellant put on a black helmet and left as a passenger on a bike driven by Judah Roberts, who had arrived on it shortly before, at about 19:54:56. The bike travelled at average speed and arrived at One-Way Deepdale at 19:56:38 in the area where the murder eventually occurred later that night. The appellant and Judah Roberts remained in the area for about thirteen minutes before they departed the area on the bike at 20:09:28 and returned to Court Street at 20:10:49. The prosecution case was that they had gone to scout out the position for the planned murder and to see that the victim was there. The appellant accepted that he went to Deepdale but said that he did so in order to get weed. These times are significant since it is apparent from them that it was possible to get from Court Street to One-Way Deepdale – on a bike – in something like 1.42 minutes.

The appellant leaves Court Street

8. The appellant appeared to be waiting on Court Street in the vicinity of the Spinning Wheel night club when at about 20:14 he walked into the road towards a car travelling north and about to park on the opposite side of the road facing in the Till's Hill direction. The appellant appeared to be in conversation with the driver of the car while it was being parked. Once the car was parked the driver, Lequan Outerbridge, exited the car. The appellant and he went inside the doorway of a close by building adjacent to the parked car and appeared to continue their conversation. (The prosecution suggested that he was reporting to Outerbridge what he had observed in Deepdale). Outerbridge and the appellant then crossed the street over to the other side where Judah Roberts was sitting on the bike eating from a container.

9. Outerbridge then crossed the street back to his car and returned with a striped sweater in hand which he eventually put on, the hood of which covered his dreadlocks hair style. He also picked up a helmet from the road beside Judah which he eventually placed on his head. Outerbridge got on the bike and drove it on to Elliott Street in a westerly direction, out of camera view. But at 20:23:29 he is seen riding in an easterly direction on Angle Street across Court Street. (The Crown's suggestion was that Outerbridge was in league with the appellant in relation to the events which were about to happen, that he covered up his dreadlocks in order not to be recognised and that, having circled the block he rode off in the Deepdale direction.)

10. The appellant meanwhile entered the Elliott Street carpark heading east towards Union Street at about 20:21:49.

11. The appellant's cell phone was then picked up in the Eve's Hill cell tower area at 20:23:56 on Parson's Road in the vicinity of a peach/orange house which can be accessed from both Parson's Road and One-Way Deepdale.

12. Between 21:11:46 and 21:12:32 the Two-Way Deepdale CCTV camera recorded the shadowy movements of a person dressed in dark clothing walking back and forth in the yard of the same peach/orange house on the north side of One-Way Deepdale. The person eventually walked to the western side of the peach house into the darkness. The Crown's case was that this man (“Man X”) was making an assessment of the area for the purpose of the murder that was to take place; and that Man X was the appellant.

13. At 21:14:04 the same person emerged from a path between the rear of the One Stop Variety shop and a green house on Two-Way Deepdale. The person had on a black helmet, dark top or jacket with white lines going down the front similar to what the appellant was last seen wearing; he appeared to be wearing a white shirt underneath, dark pants, dark footwear and was of similar build to the appellant. The person walked with a similar gait to the appellant's along Two-Way Deepdale where he turned into the yard of the green house and passed by a wall where he seemed to be lurking in the shadows of the rear of a premises from which one could access the southern side of One-Way Deepdale. The person appeared then to disappear in the darkness in the direction of One-Way Deepdale. Between 21:14 and 21:16 the person in question is picked up in various locations near the junction of One-Way and Two-Way Deepdale.

14. Twenty-five minutes later at about 21:40:31, a motorcycle was seen on CCTV camera speeding down the hill on the northern side of One-Way Deepdale towards Two-Way Deepdale followed by two persons running rapidly. One of the persons was the deceased, Morlan Steede, who was being pursued by the appellant (see paragraph 5 above)

EVENTS AFTER THE MURDER

The call after the murder

15. After the murder, the appellant made an 83 seconds call at 21:51:08 which registered on the Prospect cell tower mast that provides coverage for the area where the murder occurred. At about 21:51, cameras on Court Street captured a group of men who appeared to be socialising outside the Spinning Wheel night club. One of the men had a mobile phone which appeared to receive a call, at the same time as the appellant made the call from his cellular phone, because the screen of the phone lit up and he placed it to the side of his face. After the telephone call, the man with the phone, was seen speaking to the others. Another man from the group was then seen on CCTV cameras to...