NASSAU, BAHAMAS — The Court of Appeal yesterday upheld Dyon Henry’s conviction of murder, ruling that the appeal had no “real prospects of success”.
The intended appellant was convicted of murdering Robert McIntosh in a drive-by shooting in Nassau Village on August 31, 2013.
In his interview with police, Henry told officers he was the driver of the vehicle, but did not shoot McIntosh.
He took officers to the scene of the shooting and a video recording was made of his admissions to police.
However, during the trial which began on May 2, 2016, Henry objected to the admissibility of the record of interview and video recording on the ground that they were obtained by oppressive conduct.
As a result, a voir dire was conducted and the judge ultimately ruled the statements admissible.
The intended appellant made a no case submission at the close of the prosecutions’ case, which was rejected by the trial judge.
Upon the resumption of the trial following the no case submission, the foreman informed the judge that one of the jurors had been shot as she exited her home and had to undergo surgery.
An alternate juror replaced the juror and the trial proceeded.
At the close, the jury returned a unanimous guilty verdict on the murder charge.
In January 2017, the intended appellant wrote to the court indicating his desire to appeal his conviction.
But it was not until December 2018 that a notice of appeal was filed, according to court documents.
The appellate court treated the January 2017 letter as the date the intended appellant sought to appeal, noting he was still out of time by around three months, as the period for appeal began in September 2016 with 21 days to appeal.
However, the court determined to consider the prospects of success and treated the application for an extension of time as the appeal itself, given that it was not an “extremely inordinate period of time”, and there was no prejudice to the Crown.
Court of Appeal Justices Sir Michael Barnett, Stella Crane-Scott and Roy Jones presided over the matter.
The intended appellant appealed on the basis the trial judge “unreasonably exercised his discretion” not to discharge the jury pool after a juror had been shot during the trial; the judge’s failure to make a full inquiry into the minds of the jury in light of one of the main jurors being shot, as “it could not be said with any degree of certainty that the incident did not prejudice the minds of the jury thereby adversely impacting the fairness of the trial”; and in summing up the case to the jury the medical evidence was inadequately put.
As it relates to the ground the judge inadequately assessed the evidence in the voir dire and unreasonably exercised his discretion to admit the record of interview, the statement and subsequent video or inquiry, Sir Michael said the judge applied the correct principles of law.
He noted the judge accepted the evidence of officers as truthful; did not believe the evidence of the intended appellant, and did not consider the medical evidence as undermining or casting doubt on the evidence of the officers that they did not engage in the behavior constituting oppressive conduct.
“The judge did advise them that ‘if you have a reasonable doubt as to their voluntary nature of the same you may reject it’,” read the ruling.
Of the first ground of appeal, Sir Michael said there was not basis for criticizing the exercise of the judge’s discretion not to discharge the jury, noting it was neither wrong in principle or discretion.
He said the jurors took an oath and the judge was satisfied that there was no basis for concluding that they could not as a whole comply with their oath.
The exchange between the foreman, who advised the judge of the shooting of the juror, was included in the ruling.
The foreman said the jury was a “little shaken up about it, but we’re here”.
At one point, the defense attorney, who expressed sorrow for the juror and said it was shocking, voiced concern that the matter could negatively affect her client in terms of the conclusions the jury might hold, as the incident “hit close to home…”
The defense made a case it would be safer in the interest of justice for the jury to be discharged and a mistrial declared on the basis that it was unlikely the jury could continue impartially.
However, the judge said having spoken to the jurors who were prepared to continue and confirmed there was nothing that would interfere with their deliberation, he was confident that they were honorable men and women.
The appellate court referred to case law in which the role of the judge, in circumstances of an altercation between two jurors, was to determine the course that was best suited to the circumstances of the case.
“In my judgment, the primary duty of the trial judge is to ascertain whether, having regard to the circumstances, the jury as a whole could discharge their oath and render a true verdict,” read the ruling.
“This is done, not by inquiring of the jurors individually, but by inquiring of the jurors as a whole in open court through the foreman.
“The submission that the judge ought to have inquired into the state of mind of each individual juror is in my judgment not correct.
“In this case, the jury through the foreman made it clear that notwithstanding the trauma to one of their members ‘everybody was [okay]. They just want it to be finished with’.
Sir Michael pointed out the trial had been ongoing for more than six weeks and was coming to an end with the Crown having already closed its case.
“The jury convicted and based on the foregoing, I have no lurking doubt as to the safety of the verdict.
“For these reasons, I do not regard the appeal as having any real prospects of success and I, therefore, dismiss the application for an extension of time.
“The conviction and sentence are affirmed.”
Crane-Scott and Jones agreed.
