Deshawn Stoutt Appellant v The Queen Respondent

• Jurisdiction: British Virgin Islands
• Judge: BAPTISTE, J.A.,EDWARDS, J.A.,Ola Mae Edwards
• Judgment Date: 21 November 2011
• Neutral Citation: VG 2011 CA 15,[2011] ECSC J1121-4
• Court: Court of Appeal (British Virgin Islands)
• Date: 21 November 2011
• Docket Number: HCRAP 2009/003

[2011] ECSC J1121-4

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Hugh A. Rawlins Chief Justice

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

HCRAP 2009/003

Between:

Deshawn Stoutt

Appellant

and

The Queen

Respondent

Appearances:

Dr. Joseph S. Archibald, QC, with him, Mr. Duane John Baptiste for the Appellant

Mr. Terrence F. Williams, with him, Ms. Jude Indra Hanley for the Respondent

Criminal appeal against conviction and sentence - Murder - Events leading up to shooting caught on recorded telephone call - Mistaken identity - Whether the learned trial judge failed to properly or fairly put the defence to the jury - Whether the sentence of life imprisonment is automatic for the offence of murder - Whether the learned trial judge adequately directed the jury on the burden of proof in the criminal trial

The appellant, Deshawn Stoutt, was convicted of the murder of Godwin Cato on 16 ^th March 2009 and sentenced to life imprisonment. The deceased was shot three times at Fat Hog's Bay in Tortola, at about 11:00 p.m. on 25 ^th January 2007. He succumbed to his injuries the following day. The events leading to Cato's shooting were captured on recorded telephone as Cato had, just before the shooting, made an emergency 911/999 call seeking police assistance to protect him from a man who was threatening him with a gun. After Cato had made his report to the emergency operator, the recording captured a dialogue between Cato and another unidentified individual; the two seemed to be in some sort of altercation. This dialogue was interrupted by a series of "explosions", after which the line went dead. The prosecution's case was that Stoutt was the person involved in the altercation with Cato and that this had culminated in Stoutt shooting him. The defence's principal witness, Akiim Penn, claimed he was present when Cato was murdered and that it was not Stoutt, but another man who had shot Cato.

Stoutt appealed against his conviction on several grounds, which included that the learned judge did not fairly put the defence to the jury, failed to assist the jury with evidence relating to vital issues, and omitted certain matters from the summation. Stoutt also appealed against his sentence of life imprisonment.

Held: dismissing the appeal against conviction and sentence and affirming the appellant's conviction and sentence, that:

• 1. A summation need not traverse all the evidence in a case. Thus, a failure to refer to a particular piece of evidence will not normally be sufficient to make a conviction unsafe. The duty of the trial judge is to put the case, including the defence, fairly before the jury; the judge is not obliged to reiterate all the points made by the prosecution or defence during the trial.

  R v Farr (1999) 163 JP 193 cited; Malcolm Maduro v The Queen (2008) 73 WIR 225 followed.

• 2. The learned judge gave the jury appropriate directions as to the treatment of the expert evidence heard during the trial and the jury would have had these directions in mind when they, as judges of fact, evaluated the evidence. Taking into account the nature of the Crown's case, the Court cannot discern any prejudice to the appellant resulting from the judge not directing the jury to the answer given by the Crown's forensic expert witness Dr. Peter Lamb, during cross-examination. (per Baptiste J.A., Edwards J.A. dissenting).

• 3. The remark by the learned judge as to what transpired in Chambers ought not to have been ventilated before the jury. However, the Court is unable to discern consequential prejudice to the appellant flowing from that ventilation. In the circumstances, the matters complained of do not render the conviction unsafe or unsatisfactory.

• 4. The law as to previous inconsistent statements is well settled. A previous statement made by a witness out of court was evidence only if the witness adopted it, by accepting that it was true when he gave evidence. If the witness did not accept that his previous statement was true, it was not evidence, and was relevant only to the credibility of his account in the witness box. The direction given by the learned judge in relation to this issue was not, therefore, entirely accurate. This however, is not fatal, since Police Constable Roydin Cato's report of other persons harassing the deceased Cato was hearsay, and the only threats that the deceased had reported were issued by the appellant. In the circumstances, this was not a material irregularity affecting the safety of the conviction. (per Baptiste J.A.).

• 5. PC Cato's evidence relating to what the deceased had told him concerning persons who were harassing and attacking him (the deceased), was relevant hearsay evidence and therefore not admissible to prove the existence of the fact that the deceased was threatened by persons other than the appellant. Consequently, that evidence would attract the questioned jury directions of the trial judge, even where PC Cato admitted, after refreshing his memory, that the deceased did make those representations. (per Edwards J.A.).

• 6. The learned judge did assist the jury as to how to deal with the direct evidence of the defence's principal witness, Akiim Penn. The judge gave the jury clear guidance as to how to approach Penn's direct evidence and reminded the jury of the defence's arguments and their value.

• 7. It was clearly open to the jury to find that the unidentified man in the altercation with the deceased, which was captured on the recorded telephone call, was the appellant. The suggestion of prejudice or unfairness to the appellant arising from this finding is not well founded.

• 8. The Court is not properly positioned to exercise its discretion under section 30(2) of the Parole Act, 2009 in relation to the sentence imposed on the appellant by the learned trial judge. However, the appellant may apply to the High Court for a review of his sentence in accordance with section 30(1) of the Parole Act, 2009.

BAPTISTE, J.A.

1 About 11:00 p.m. on 25 ^th January 2007, Godwin Cato ("Cato") was shot three times outside Johnny's Bar, along the main road, at Fat Hog's Bay in Tortola and succumbed to his injuries the following day. On 16 ^th March 2009, Deshawn Stoutt ("Stoutt") was convicted of Cato's murder and was sentenced to life imprisonment. Stoutt appeals his conviction and sentence.

Background

2 The events leading to Cato's shooting were captured on recorded telephone as Cato had, just before the shooting, made an emergency 911/999 call seeking police assistance to protect him from a man who was then and there threatening him with a gun. Cato identified the man as the same person he had reported the previous year for threatening him with a gun. Cato's report was interrupted by a series of explosions. It may be useful at this point to cite portions of the transcript of the call made by Cato to the 911 or 999 operator and to the police: 1

"Yes hello good evening, my name is Godwin Cato

…

[A]bout from last year I made a complaint to the police department in East End of a gentleman who threatened me with a gun, now tonight this gentleman has threatened me with a gun, I'm at a bar here in East End, the new bar Johnny's Bar, that open"

The operator then says: "…hold on for the police please, hold on" and puts Cato on to the police. The police operator from the Road Town Police Station then comes on. Cato says to the police operator:

"Yes hello, my name is Godwin Cato. I want to an emergency please, couple months ago last year I made a complaint to the Police station in East End concerning a gentleman who pulled me over with a gun, tonight I'm at a bar here at Johnny's this gentleman has pulled me over again with a gun, I'm here asking for assistance please."

The police operator says: "Hello, hello, hello" but there is no reply. However, background voices are heard including that of Cato. Cato is heard saying: "Daddy, you flat my tire, you nuh, I looking to get a ride, you nuh daddy." The other voice says: "[Y]ou get me fuck up, you nuh." Cato says: "[D]addy, you can't cut my hair, you nuh" Cato says: "I need to get a ride." The other voice says: "You think this is a game de man. You playing a game with me" Cato says: "No ain't no game." The other voice says: "I will show you what I feeling." Cato says: "This is no game daddy." There is then a short pause followed by a gunshot ("bang"), then two more gunshots, ("bang", "bang") in quick succession. Then Cato says: "Hello", then the call ends.

3 Police Inspector Howe by sheer happenstance passed on the scene shortly after the shooting and met Cato lying wounded on the road. There were drops of blood

and a machete on the scene. The forensic evidence indicated that the blood could not have come from Stoutt and most likely came from Cato. Inspector Howe inquired of Cato what happened and Cato told him: 2 "somebody in there," (gesturing with his head towards Stoutt's residence in the green building on the opposite side of the road) "shoot me same person who pulled the gun on me last year". After the shooting, Stoutt fled to St. Thomas in the United States Virgin Islands. Stoutt admitted that he entered St. Thomas illegally, although he is a United States citizen. Stoutt had initially stated that he had travelled to St. Thomas on the ferry. On 30 ^th January 2007, Stoutt surrendered to the police in Tortola, nursing a wound to his right shoulder, claiming that it had been inflicted by Cato. The medical witnesses differed as to the age of the wound. The Crown's medical doctor opined that the wound was a day or two old and could not have been five days old, while Stoutt's medical doctor opined that the wound was four to six days old when Stoutt was arrested

4 Stoutt did not testify at his trial but gave a lengthy interview to the police denying that he shot Cato and explained that he had been chopped by Cato while running...