By FARRAH JOHNSON
THE Court of Appeal yesterday overturned the 35-year murder sentence of a man who was accused of shooting another man in the face at a bar in 2014, after he challenged the trial judge’s decision on the basis of “material irregularities and the judge’s decision to reject his no case submission.”
On March 19, 2017, Garvin Adderley was convicted of the murder of Marcus Miller Jr and sentenced to 35 years’ imprisonment six months later on September 19, 2017. He filed his Criminal Form No. 1 on November 8, 2017 and then filed a summons and supporting affidavit on April 23, 2019.
Yesterday, Justices Jon Isaacs, Maureen Crane-Scott and Roy Jones ruled that there was not enough “admissible identification evidence” provided to link Adderley to the shooting death of Miller.
The judges concluded that the matter was not an “appropriate case for the application of the proviso contained in Section 13 of the Court of Appeal Act” and said that it was not appropriate for Adderley to be required to undergo another trial.
According to a judgement posted on the Court of Appeal’s website, the Crown relied on statements made by Miller before his death which included a statement to his father, another statement to the police made a day after the incident which was reduced to writing, and a second verbal statement to two police officers made in the presence of the victim’s brother.
Miller was shot to the face at the rear of Gibson's Bar on Carmichael Road on January 6, 2014. He was transported to the hospital for medical treatment by friends. While admitted, Miller was visited by his father Marcus Miller Sr, who asked him if he knew who had shot him. At the time, the younger Miller told his father a man named Blue had done it, making a reference to Adderley.
On January 7, 2014, Miller Jr was visited by officers from the Central Detective Unit who recorded a written statement from him. In the statement, Miller Jr said that sometime around 8pm on January 6, 2014, he left his residence and went to the bar to “socialise” with friends.
He told police sometime that night, Adderley approached him and told him to leave the bar because he was talking too loud. Miller said that he knew Adderley was a “troublesome” person, so he decided to walk over to his friend’s truck.
He then claimed that Adderley followed him, put his hand in his face and continued to argue with him, but he said he ignored Adderley, because he felt he was looking for a “reason to fight him.” A short time later, Miller’s friend, Orlyn Young, managed to calm Adderley who ended up leaving with another male in a silver Suzuki Swift a short time later.
Miller said he was eating at the back of the bar when he heard a “bang” sound which sounded like a gun going off. He told police that he tried to run away because the sound was close, but realised that he could not move and fell to the ground.
Miller said when he lifted his head up, he saw Adderley dressed in a white shirt and blue short pants, holding a handgun in his hand. He also said he saw Missick, who he referred to as “Bats”, with a black and silver shotgun making his way towards him. He said this made him afraid so he pretended to be dead. In his statement, Miller also provided the police with physical descriptions of Adderley and Missick.
Four other persons who witnessed the incident gave statements to the police and testified during the trial. None of them were able to identify any of the alleged shooters and said they only saw one person carrying a shotgun.
“There was an individual, Tyson Cargill, who had participated in an identification parade for the appellant but who did not give evidence at the trial whose identification of the appellant on the parade was, impermissibly, allowed to be told to the jury. That individual told police investigators of seeing two persons with firearms that night,” the court documents read.
“On 14 January 2014, the day Marcus died, his brother Tyrone Miller was with him when he was visited by two police officers one of whom asked him, ‘So it was Bats and Blue who shot you?’ Marcus replied, ‘Yes, sir.’
“At the trial, the written and verbal statements were held to be exceptions to the hearsay rule by the judge and were admitted into evidence as a part of the res gestae in respect of the response to the father and dying declarations in respect of the statement and the reply to the two officers’ question respectively.”
The Crown also relied on the evidence of Inspector Elvin Missick, who conducted the identification parade with the intended appellant. Inspector Missick said he was present at the Central Detective Unit on January 31 2014, when Tyson Cargill identified Adderley as one of the persons responsible for Miller’s death.
Still, it was noted that this aspect of Inspector Missick's testimony was categorised as “inadmissible hearsay,” since Tyson Cargill was deceased at the time of the trial and therefore, “not available to give viva voce evidence on behalf of the Crown,” although he had “given a statement to the police.”
The court documents said no application was made by the Crown “pursuant to section 66 of the Evidence Act, to have Cargill’s written statement entered into evidence during the trial.”
In their decision, the judges granted the application for leave to appeal out of time. They also quashed the conviction and set aside the sentence imposed by the judge. There was no order for a retrial.
“At the close of the Crown’s case there was, in our view, insufficient admissible identification evidence adduced to link the intended appellant to the shooting of Marcus. In the premises he should not have been called upon to present a case. The judge ought to have acceded to the submission of no case to answer in the circumstance.”