By NICO SCAVELLA
Tribune Staff Reporter
THE CROWN has failed in its bid to have the Court of Appeal overturn a Supreme Court judge’s decision to direct the jury to acquit one of two brothers formerly accused of the fatal armed robbery of another man a little over six years ago.
Appellate Justices Jon Isaacs, Stella Crane-Scott, and Milton Evans (Acting), dismissed the Crown’s appeal of former Supreme Court judge Roy Jones’ decision to direct the jury to acquit Rashad Nottage of the 2012 murder and armed robbery of Akyto Smith.
In doing so, the appellate judges noted that the Crown’s evidence during trial in the court below “failed” to disclose Nottage’s knowing that his brother, Ramon Nottage, who was convicted of the crime, “had a weapon and foresight that the common plan entailed the use of whatever force was necessary to achieve the object of that plan”.
The appellate judges further said the Crown failed to show that “if fatal results ensued from the use of such force in executing that plan, that was evidence from which it may be inferred that (Rashad) intended those results in common with the shooter”.
The appellate judges thus said the “absence of that state of affairs” was “necessarily fatal” to the Crown’s case during trial, and precipitated the trial judge, who has since ascended to the appellate ranks, to uphold the submission of no case to answer.
According to the facts of the matter, sometime around 9am on February 15, 2012, Akyto Smith left home in his green, 1998 Honda Accord, after having told his lover he was going to sell the rims on his car.
At about 2pm he was seen driving on Cowpen Road following a black Honda Accord. The deceased’s vehicle subsequently stopped on that road, a man got out of the black Honda Accord and got into Smith’s vehicle.
At about 9:30pm on the same day, a vehicle fitting the description of the deceased’s was seen positioned on the eastern side of Sir Milo Butler Highway with its hazard lights blinking. A passer-by saw the vehicle, became concerned and eventually drove his vehicle to the eastern side of the highway and made a check of the vehicle. While doing so, the passerby released the vehicle’s trunk latch from the interior of the vehicle and discovered Smith’s body in the trunk.
An investigation into Smith’s death was consequently initiated. During those investigations, Nottage and his brother and co-accused Ramon Nottage were arrested. A Royal Bahamas Defense Force Marine was also interviewed by police. The ruling noted the RBDF officer may have initially been considered a suspect but he nonetheless gave evidence for the Crown at the trial.
The RBDF marine testified that around 6:30pm on February 15, 2012, he received a phone call from his co-worker, Rashad, who asked the RBDF marine to meet him at his (the marine’s) residence. When the marine arrived at his home Rashad was waiting with his own car parked in the yard. Rashad asked the marine to take him to his mother’s residence in Stapleton Gardens.
While there, Rashad told the marine to follow Ramon who had emerged from a track road through bushes across the road from the residence driving a green vehicle later identified as the deceased’s. The marine and Rashad followed Ramon to the eastern side of the Sir Milo Butler Highway, where the marine observed Ramon position Smith’s vehicle by the “big rocks”. Ramon then got out of Smith’s vehicle, leaving the hazard lights on and ran to the marine’s vehicle.
While driving away, the marine asked Ramon what was going on. Based on what was contained in his statement to the police, Ramon said Rashad had contacted Smith and asked him about selling his rims, and that both he and Rashad met with Smith and told him they would take him to the person interested in purchasing the rims.
According to the marine, Ramon told him they took Smith to Cowpen Road where Rashad, who was being followed by Smith and Ramon, pretended that something was wrong with his vehicle and subsequently drove onto the shoulder of the road. Smith followed suit and got out of his vehicle to assist Rashad. A short time later Smith returned to his vehicle where he was shot by Ramon.
According to the trial transcripts, when asked what, if anything, happened after Ramon got in his car, the marine responded by saying: “When (Ramon) get in the car, I say boy, what’s going on? He say, ‘man, we just had’—he say they just had to cut one movie. So he say, n*s on the road is be joking”.
Following the investigations of the police, both Ramon and Rashad were arrested. On February 17, 2012, Rashad gave a statement under caution to the police. According to the appellate ruling, that statement was admitted into evidence during trial, notwithstanding “strenuous objections” from Ramon’s counsel on the ground that it was “wholly exculpatory” to Rashad and therefore its prejudicial value outweighed its probative value.
Rashad’s statement, which was read to the jury, read: “On 15th of February 2012, I was supposed to get a sale for him for his rims. He agreed to sell them. I called him. I told him that he could meet me on Faith Avenue by High Rollers, my brother and I”.
Rashad was further recorded as saying that he followed Smith’s vehicle until it pulled over to the side of the road, and that he also pulled to the side. Rashad said he got out of his vehicle and opened the hood of his car because he saw smoke coming from it.
Thereafter, Ramon related events involving Smith’s shooting by Ramon, and Ramon putting Smith’s body in the trunk of his own vehicle. Ramon further recounted driving away from the scene as he followed Ramon who drove Smith’s vehicle, and then of them going to his home where Ramon drove Smith’s car into bushes across the street.
Ramon also told of switching the rims from Smith’s vehicle and of them being placed on his car and enlisting the marine’s assistance; of seeing Ramon in a Honda Civic on February 16, 2012, who apparently left it on Carmichael Road.
At the close of the prosecution’s case, the trial judge, Justice Roy Jones, now an appellate judge, concluded that there was no evidence to support the charges concerning Rashad and instructed the jury to return a unanimous verdict of “not guilty”, which it did.
On July 9, 2014, the jury, by a verdict of 10 to two, convicted Ramon Nottage of armed robbery—a mistrial was declared on the murder count as the jury returned a verdict of 10 to two guilty. He was subsequently sentenced to 10 years in prison on September 3, 2014, which took into account the 11 months he spent in custody on remand.
However, Ramon Nottage had his sentence doubled to 20 years by the Court of Appeal last year, after failing in his bid to challenge his original 10 year sentence.
Nonetheless, the Crown appealed Justice Jones’ decision on the grounds that it was “erroneous in point of law”. The Crown further contended that Justice Jones erred in law when he found, inter alia, that an essential element of its case is missing, namely, that Rashad caused Smith’s death and that Rashad, being armed with a firearm, robbed Smith of a 1998 Honda Accord.
The Crown thus asked the appellate judges to set aside Justice Jones’ or verdict pursuant to Section 12 (1B) of the Court of Appeal Act and remit the case to the Supreme Court for retrial.
However, the judges said it was “incumbent” on the Crown to adduce evidence of Rashad’s involvement in the murder and armed robbery of Smith so as to “raise a prima facie case against him at the close of their case,” and that it had to demonstrate that Rashad, “either on his own or acting in concert with Ramon, committed the offences charged”.
The appellate judges further said that if the Crown was to successfully raise a prima facie case that Rashad was indeed concerned together with Ramon in Smith’s murder, they had to lead evidence that disclosed that Rashad had, with the intention to kill, inflicted the unlawful harm on Smith “or that he shared the intention to kill with another who did inflict the unlawful harm”.
However, the appellate judges said there was no evidence in the Crown’s appeal that Rashad did “anything more than call (Smith) about a sale for his rims before disembarking with Ramon to a meeting with (Smith)”.
The appellate judges further said there was no evidence to show Rashad was aware of Ramon being armed; no evidence he killed or agreed with Ramon to kill Smith; and no evidence of his intention to rob Smith with a firearm “or to act in concert with Ramon to do so”.
“Given the need for the prosecution’s evidence to disclose the respondent (Rashad) either by himself or in concert with Ramon intentionally killed (Smith); and that he being armed with a firearm or with knowledge Ramon was so armed, had the foresight that their common plan entailed the use of whatever force was necessary to achieve the object of that plan, I am satisfied that such evidence was lacking from the prosecution’s case,” Justice Isaacs said in the ruling.
“Given the state of the prosecution’s evidence at the close of their case, there was nothing to implicate the respondent in the offences charged. Therefore, the judge did not err when he directed the jury that the respondent be acquitted on those charges”.
“…For all the reasons mentioned above the appeal is dismissed; and the decision of the judge stands”.