Appellant claimed judge erred in failing to direct jury on joint enterprise
NASSAU, BAHAMAS — A man sentenced with the manslaughter of his friend, who was shot in the back while in a vehicle on Fowler Street in July 2017, had his conviction quashed and was allowed to appeal with no order for retrial.
Levardo Sherman Deveaux of a vehicle when he and Dino Shawn Smith, the appellant, left the Fowler Street area in July 2017.
While in the vehicle Deveaux was shot in the back.
He died in hospital.
Deveaux’s sister told authorities that her brother told her that Dino shot him.
The dying declaration was heard during the trial.
Smith was charged with the murder in July 2017. He denied the charges.
Smith claimed that he was riding with Deveaux, whom he called his friend, to sell a gun to a man named Georgie.
Smith said Georgie accidentally shot Deveaux while inspecting the gun.
During trial, Smith gave evidence that the Georgie “shook the firearm” and it discharged, a claim which conflicted with the evidence of Assistant Superintendent Mitchell, who testified that deliberate action was required — to chamber the round and pull the trigger — for it to be discharged.
But prosecutors alleged that Smith shot Deveaux.
Prosecutors further alleged that Deveaux begged to be taken to the hospital, but Smith allegedly got into the driver’s seat, drove to pick up a female friend with whom he concocted a story as it relates to the shooting, before proceeding to the hospital.
While in trauma unit, Deaveux’s sister reportedly visited him and when she asked what happened, he told her that Smith shot him.
On the murder charge, the jury returned with a count of seven: five guilty, resulting in the murder charge being withdrawn.
Smith was sentenced to 18 years imprisonment.
He appealed the conviction on the basis that the judge erred by failing to direct the jury on the issue of joint enterprise and that in all circumstances the conviction was “unsafe and unsatisfactory”.
Justices Sir Hartman Longley, Madam Justice Crane-Scott and Justice Milton Evans presided on the matter.
Attorney David Cash represented Smith.
Attorneys Terry Archer and Camille Gomez-Jones appeared on behalf of the Director of Public Prosecutions.
In his ruling, Justice Evans said the evidence clearly indicated that Deveaux was shot by someone sitting in the back-passenger seat, immediately behind the driver’s seat.
He said in the confines of a vehicle it is “unrealistic to think that the deceased would not know who was seated behind him”.
“The undisputed evidence was that the deceased and the appellant were known to each other and had driven together in the car, and according to the evidence given, were still in the car together when the shooting took place,” read the ruling.
“In these circumstances, I don’t accept that the failure to give a Turnbull Direction could have any significance to this case.
“The evidence from the appellant at trial was that a third person, one Georgie, was also in the vehicle and was in fact the shooter. In my view it was therefore necessary for the learned judge to direct the jury as to the various options available to them as they considered the evidence and the fact that the Crown was alleging a joint enterprise to commit murder. On the evidence it was possible for the jury to find that Georgie was the shooter, but not accidentally as alleged by the appellant and they would then have to decide what the implications were for the appellant in those circumstances. The trial judge was obligated to assist them with that decision by providing the appropriate directions. This, she clearly did not do.”
Madam Justice Crane-Scott agreed with decision to allow the appeal against the manslaughter conviction without the order for a retrial.
Justice Longley also agreed with the decision to allow the appeal and quash the conviction and sentence.