Warner v R

• Jurisdiction: Bermuda
• Judge: Zacca P,Ward JA,Auld JA
• Judgment Date: 22 November 2012
• Court: Court of Appeal (Bermuda)
• Docket Number: Criminal Appeal 2011 No 11
• Date: 22 November 2012

[2012] Bda LR 73

In the Court of Appeal for Bermuda

Before:

Zacca P; Ward JA; Auld JA

Criminal Appeal 2011 No 11

Between:

Kevin Andre Warner

Appellant

and

The Queen

Respondent

Ms E Christopher for the Appellant

Mr C Mahoney and Ms M Sofianos for the Respondent

The following cases were referred to in the judgment:

Pop v RUNK [2003] UKPC 40

Brangman v RBDLR [2011] Bda LR 64

R v Hillier and FarrarUNK (1992) 97 Cr App R 349

Premeditated murder — Carrying a firearm — Gang involvement — Identification evidence — Gun shot residue — Photographs — Directions to jury

JUDGMENT of Zacca P

1. The appellant was convicted by a jury of one count of premeditated murder and a second count of carrying a firearm with intent to commit an indictable offence.

2. On the first count the appellant was sentenced to life imprisonment with a recommendation that he was to serve thirty five years before being eligible for release on licence. On the second count he was sentenced to ten years imprisonment. The sentences were made concurrent. From these convictions the appellant has appealed.

Case for the Prosecution

3. The deceased Dekimo Martin (Dekimo) was residing with his sister Danielle Martin in an upstairs apartment at 8 Peacock Lane in Sandy's Parish for about one week prior to the 27^th May 2010.

4. Robin Lewis (Robin) lived in the lower apartment with his ex-wife Jan Martin (Jan) who was Dekimo's Aunt. Also living there was Jan's boyfriend, Tony Seymour, and Jan's daughter, Chelsy Lewis (Chelsy).

5. The appellant was a frequent visitor through his friendship with Chelsy and her brother Kellen Lewis. She knew that the appellant had an older brother Kavon and that the appellant was a friend of Dekimo.

6. At about 2:00 pm to 2:30 pm on the 27^th May 2010, the appellant came to the apartment and knocked at the main door which was locked. He called out for Chelsy and Jan who was having a bath stated that she recognized his voice and told the appellant that Chelsy had gone to Cambridge Beaches.

7. At about 6:30 pm Robin arrived on a motorcycle belonging to the appellant and driven by Dekimo who left at about 7:30 pm to 8:00 pm.

8. Later the appellant returned and asked for Dekimo. On hearing that Dekimo was not there, the appellant went upstairs in the direction of Danielle's apartment. This was about 10:00 pm and he enquired about Dekimo. She told him that he was not there. Danielle stated that she recognized the appellant and also his voice. She was able to see him through her screen door from the waist up including his face. The neighbours' lights were on and she said that he was wearing a black jacket and a white tee shirt. The appellant then rode away by the Peacock Crescent route. The sensor lights downstairs were on and all were working. Danielle was awakened by gun shots. She ran outside and saw someone running along Butterfield Lane from the direction of her house. The person was wearing a black jacket and white tee shirt. He was about 5 ft to 5ft 2 inches, not tall, not skinny and not a big person. She stated that the appellant was about 5ft 2’ and the person was about 75 ft away when she saw him.

9. Tony and Robin were in the yard when Dekimo returned and joined them. Sometime later the appellant returned and told Chelsy that his motorcycle was up the hill. She found this strange as he would normally ride his motorcycle through Peacock Crescent.

10. Robin, Tony, Dekimo and the appellant were together outside in the back yard. At around midnight Robin went inside and fell asleep on the couch. About 15 or 20 minutes later Chelsy woke him and Robin went outside and rejoined the other three men.

11. Sometime later Robin and Tony went inside leaving Dekimo and the appellant in the backyard. Shortly after Robin went outside for a cigarette. On going outside, Robin heard Dekimo and the appellant talking. He decided against the cigarette and went back inside. Whilst inside Chelsy heard Dekimo and the appellant outside as they were talking close to the bathroom window.

12. Within seconds, Robin heard three gun shots coming from the Butterfield Lane side. This was the same area where Dekimo and the appellant were heard talking by the bathroom window.

13. Michael Darrell who lived close to Peacock Crescent and Butterfield Lane rushed outside on hearing gun shots. He returned inside. Minutes later he went back outside and heard a motor cycle start up and riding off. He knew the appellant and his motor cycle. He stated that the motor cycle sounded like a 4-stroke motorcycle similar to the appellant's motor cycle and that it came from the direction of the gun shots.

14. On hearing the gun shots Robin and Tony went outside. The sensor lights outside of the bathroom had not come on. They heard a moaning and saw Dekimo lying on his back with his pants down by his ankle. His head was at the bottom of the stairs and his feet going up the stairs. Dekimo's black jacket was also on the stairs. The appellant was not seen. Robin later discovered that the new bulbs which he had put in the sensor lights were gone and one large bulb left was unscrewed and left slack.

15. The police and EMT attended the scene. Dekimo was taken to the hospital and was pronounced dead on arrival.

16. A Post Mortem on the body of the deceased was performed by Dr Chitra Raoo who concluded that the cause of death was from gunshot wounds.

17. At approximately 2 am on the 28^th May 2010 DS Thompson and DC Sealy from the Police Forensic Support Unit attended the scene. They took photographs and retrieved certain items, including casings. A driver's licence belonging to the appellant was seen nearby a boat on Butterfield Lane. This location was one that the man Danielle saw running along Butterfield Lane would have had to pass.

18. Charlita Campbell (Charlita) received a telephone call from the appellant on the 28^th May 2010. She had known the appellant for a short time having met him on Facebook. He asked her if he could stay with her for the weekend.

19. The appellant arrived at her home at about 7:30 p.m. She enquired from him if he knew about a shooting which took place in the early hours of the morning. He replied ‘They think I killed him’. By ‘they’ he meant the people at Peacock Lane because he was the last one to see Dekimo alive. The appellant was crying having lost his friend. He indicated that he was at the yard and when everyone went inside, he left and went to his brother's house. This was prior to the shooting.

20. He asked Charlita if he could have a bath as he was going...