Appeal denied

TWO Westmoreland men currently serving life sentences for the 2011 murder of a 72-year-old housewife during a home invasion, and the wounding with intent of her then 67-year-old husband, have lost their bid to bring fresh evidence on their appeal.

The men, Carvel Hines and Bruce Lamey, were convicted in February of 2017 by a seven-member jury for the offences of wounding with intent and murder in the Westmoreland Circuit Court. In March that year they were both sentenced to 18 years’ imprisonment at hard labour for the offences of wounding with intent and life imprisonment for murder, respectively.

In respect of the life sentence, each was ordered to serve 33 years’ before becoming eligible for parole. It was further ordered that the sentences should run concurrently. In 2018 an application by the two for leave to appeal was refused. In a second application for leave to appeal, the men also applied for the admission of fresh evidence.

The Appeal Court in hearing that application on December 18, 2023 and May 1 this year refused the application by the men to call fresh evidence, pointing out that the material being relied on by them to prove their innocence following its detailed analysis “would not have affected the jury’s verdict”.

“The amended application for leave to call fresh evidence on appeal, filed on 13th February 2023, is refused,” the Appeal Court ruled while issuing an “apology” for the length of time it took to deliver the decision.

“We wish to record our unqualified apology to the parties,” the panel comprising three judges stated.

The crux of the prosecution’s case was that Hines and Lamey, on January 27, 2011, sometime after 8:00 pm, forcibly entered the home of Clement Clarke and his wife Bernice at Clark’s Town, Westmoreland. In the ensuing attack, Bernice was killed, and Clement received gunshot wounds but survived after pretending to be dead. According to a diary entry at the Bethel Town police station which recorded the murder report, “Motive is believed to be an act of reprisal.”

According to the elderly husband who was the sole eyewitness for the prosecution, he and his wife were at home together in their bedroom. While there, he heard a bang in the vicinity of the front door that opened to outside from the hall (living room), and got up to investigate, only to discover that the front door was “hit off”.

Standing inside the hall was Hines, who Clarke knew. He said Hines was armed with a gun. According to Clarke, he armed himself with his machete and tried to defend himself, but Hines shot him and the machete fell from his hand. Clarke said he received other gunshot wounds as he tried, unsuccessfully, to retrieve his machete. He then retreated backways to his bedroom, but said Hines shot at him several times and followed him into the bedroom and proceeded to shoot his wife. He said Lamey, who was also previously known to him, joined Hines in the bedroom with a firearm and participated in shooting his wife, Bernice, who fell to the ground.

Clarke, who said he fell on top of his wife, said he pretended to be dead until the men left the house before retrieving his mobile telephone and placing a call. He was subsequently taken to the hospital by cops and treated.

His wife, however, succumbed to her injuries.

At the trial, Hines and Lamey both gave unsworn statements denying involvement in the shooting and being present at the crime scene. Hines claimed that he was with his “babymother” in St Ann at the time of the incident, while Lamey said he was a father of three and would not do such a thing.

The fresh evidence the men sought to adduce came from the entry made in the station diary at the Bethel Town Police Station on January 28, 2011 by a detective corporal, and gave the particulars of the incident and the one-liner, ”motive is believed to be an act of reprisal”.

Attorneys for the men argued among other things that “failure by the prosecution to disclose the extract from the station diary of the Bethel Town Police Station…is in breach of their duty of disclosure and deprived the appellant/applicant of material of relevance to challenging evidence by the prosecution and to his defence”.

Furthermore, they contended that the entry in the diary was necessary for the line of defence as it directly affected the credibility and reliability of Clement’s identification of the perpetrator of the crimes, adding that the entry would provide the applicant with a legitimate basis for making further inquiries during the preparation of the case.

The Crown, in rebutting those arguments, pointed out that the entry being sought by the defence was available at the time of the trial and could reasonably have been provided to the defence had a request been made for it, noting further that there being no record that a request was made for the diary to be disclosed before or during the trial and there was no obligation on the prosecution to make disclosure of it.

Furthermore, the prosecution said that the entry in the diary, specifically, that the attack was an act of reprisal, was speculative, not credible, and irrelevant to the issues in the trial and “would not assist the applicant to impugn the credibility of Mr Clarke’s identification of the applicant as the perpetrator”.

The court in dismissing the fresh evidence application said “it is doubtful whether [the] station diary entry can properly be considered an assessable fact or material” as the cop in question “recorded a belief, not anything apparently perceived by his senses, the foundation of evidence adduced from a lay witness”.

Said the judges of appeal: “In short, [the] station diary entry is not new material that, if it had been placed before the jury, together with the other evidence, would have raised a reasonable doubt in the collective mind of the jury, since its very essence was placed for consideration by the jury as part of the defence. So then, not only is the proposed fresh evidence not credible, but it would also have had no effect on the jury’s verdict and, by extension the safety of the conviction, since it was already part of their deliberation. There is, therefore no basis upon which to admit the proposed fresh evidence since it has failed on the third and fourth criteria”.