NASSAU, BAHAMAS — A man jailed for 40 years for killing his grandmother had his appeal dismissed by the appellate court Wednesday.
Court of Appeal Justices Sir Michael Barnett, Roy Jones and Milton Evans presided over the matter.
Jonathan Bethel, the named appellant, and his grandmother, Vivian Johnson, lived together on Greenway Drive, Golden Gates Subdivision.
He went to a neighbor, a defense force officer, on October 12, 2013, and indicated that someone had killed his grandmother.
When authorities arrived at the home, the woman’s body was “stiff and cold”, according to court documents.
She had 27 stab wounds from a single knife and was found in her underwear.
Bethel was arrested and charged with her murder.
During the trial, Bethel gave evidence that his grandmother asked him to go and purchase paint.
He said when he returned sometime later he found a man named he knew as ‘Zo’ or ‘Zoe’ dragging his grandmother into the bathroom from her bedroom, and that the man attacked him before he escaped and got help.
He said during the struggle with the man, he got a cut on his hand.
The prosecution led evidence that earlier that afternoon on October 12, 2013, Bethel went to Kelly’s Department Store and bought paint and a raft.
The cashier at the time of the purchase, testified that Bethel had a cut on his hand.
Bethel argued that the cut was from cutting meat earlier that morning.
DNA evidence showed that the deceased blood was on a blade that had Bethel’s DNA on the handle. It also showed that there was no DNA found on the handle of any person unrelated to Johnson or Bethel.
At trial, Bethel acknowledged that his DNA was on the handle.
He said he fought with ‘Zo’ and that would have caused his DNA to be found on the handle and did not provide that he killed his grandmother.
Bethel was convicted in July 2018 and sentenced to 40 years imprisonment, less time served.
He appealed on the grounds inter alia that DNA evidence of the handle of the alleged murder weapon was insufficient for the jury to assess their significance, and the DNA evidence on the handle did not provide any statistical evaluation of the random match possibility by the analyst.
His said it affected the safety of the conviction and the appellant’s ability to have a fair trial; that the trial judge failed to give good character direction and also that the judge erred in law when he failed to give a Lucas direction.
But the appellate court dismissed the appeal and affirmed the conviction of the lower court.
According to the judgment, the issue was clear to the jury and coupled with other evidence was sufficient to enable them to “safely reach a verdict and to have a fair trial”.
“The judge cannot be faulted for failing to give good character direction,” the ruling read.
“It is clear that the judge inquired whether there were any specific direction he ought to give and counsel for the appellant never suggested that the judge give to the jury a good character direction in any form.
“As to the question of whether the judge’s failure to give a good character direction, which was not requested by counsel, undermined the safety of the conviction, it is settled law that the failure to give a good character direction where the defendant was entitled to one does not automatically render the verdict unsafe.
“The failure to give a modified good character direction as to propensity did not affect the safety of the verdict.”
Grounds
In his judgment Sir Michael wrote that the case against the appellant was based on circumstantial evidence, noting that no one saw what happened on the day in question and the appellant denied that he killed his grandmother.
Evidence from police officers showed that Luminol was applied at the scene and showed lots of blood, and that the body was moved from the kitchen to the bathroom.
Officers asked Bethel if he knew where Zo lived and he took them to an area off Faith Avenue.
But the person at the place where Zo was supposed to have lived had never heard of the man.
The report of the DNA analyst, Sherry Johnson, was read into evidence and she was not cross-examined on the report. The DNA evidence was that a “mixed profile of at least two contributors, at least one of whom is male, was obtained from [the handle] Vivian Johnson and Jonathan Bethel cannot be excluded as contributors to the mixed profile obtained from [the knife]”.
Sir Michael wrote that the DNA evidence was not that there were more than two contributors, and the evidence suggested that the contributors were related individuals.
He said the counsel for the appellant appeared to have conceded that the DNA from the swap on the handle of the knife included that of her client during her address to the jury.
She said: “With the knife handle, yes; DNA from the two. And we heard from the evidence of Jonathan Bethel that there was a struggle between him [and] Zo. And so, we would expect some DNA of Jonathan Bethel to be on the knife. Whether it’s the handle or blade, we would expect the DNA to be there. We’ve seen the injuries that he said, the injuries from cutting up meat earlier, and from the struggle with Zo. So, we would expect DNA to be there. But what is so important is that in relation to the blade, the Item9: There’s insufficient data that was obtained from the minor contributor for comparison. Insufficient data.”
Sir Michael said the evidence was not inconsistent with the prosecution’s case that the appellant killed his grandmother as his DNA was found on the handle of the knife; the only issue for the jury was whether the DNA analysis raised a reasonable doubt that it may have been Zo and not Bethel as the person who killed Johnson.
The trial judge provided the jury some assistance in their consideration of the DNA evidence.
Sir Michael said the prosecution did not rely on DNA evidence alone, as there was more evidence, albeit circumstantial, which a jury had to consider and “which properly directed could reach a guilty verdict”.
He wrote that judge’s direction related to the DNA evidence was neither imbalanced or prejudicial to the appellant “in any way” and there was no misstatement or imbalance in the summation to the jury.
At the time of the offense, Bethel was 21, had one previous conviction for housebreaking, which he committed at 15-years-old, but had no prior convictions for a similar crime for which he was accused..
The appellate court noted that the appellant at trial led evidence as to his good character and called on the testimony of a Dennis Delancy to give character evidence.
Delancy called Bethel a “honest, hardworking, very charismatic person” who was friendly. He also called Bethel positive, non-argumentative, and said the appellant encouraged him when he was frustrated.
According to court documents, the judge inquired whether there were any specific direction he ought to give and counsel for the appellant “never suggested that the judge give the jury a good character direction in any form”.
Sir Michael wrote: “In our judgment, the failure to give a modified good character direction as to propensity did not affect the safety of the verdict. There was ample evidence against the appellant and we agree with counsel for the appellant that a modified good character direction would not have availed any benefit to the appellant.”
On the ground of appeal that the judge erred law when he failed to give a Lucas direction, the appellate court said the ground was “most surprising” as it was the appellant himself who, through his counsel, “strenuously objected to the judge giving and Lucas direction”.
But the Court of Appeal said a Lucas direction ought to have been given in the case, noting that the prosecution was “clearly relying on the alleged lies of the appellant an indicia of guilt”.
Sir Barnett wrote: “If a fair trial requires that the Jury be given a Lucas Direction as to how to treat any lies told by the accused, then that direction must be given even when the appellant by his counsel invites the judge not to give it. It is the judge’s duty to ensure a fair trial.”
But the appellate court ultimately determined that the failure to give such direction did not affect the safety of the verdict.
https://www.courtofappeal.org.bs/download/005994600.pdf
