The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A MAN sentenced to 40 years in prison for killing another man in a row over money has had his attempt at contesting his sentence dismissed by the Court of Appeal.

Appellate Justices Stella Crane-Scott, Roy Jones and Milton Evans dismissed Lathario Miller’s appeal concerning the September 25, 2010, shooting death of Marco Smith.

According to the Crown, sometime after 1pm on the date in question, Smith was the driver of a car in the area of Market Street, with a woman named Otishka Gibson as his passenger.

Ms Gibson testified that while on Market Street, Smith called Miller over to the car and asked about money Miller owed him. The two men started to argue and during the exchange, Smith insulted Miller’s late mother and threatened him.

The altercation was witnessed by Luckson Veus, a friend of Miller’s, who testified that after Smith called Miller over to the car, he heard Miller raise his voice to Smith.

According to Mr Veus, he then heard Smith say to Miller: “If you think this is a game, you lucky I ain’t take your mother from you yet,” to which Miller replied: “My mother dead.” Mr Veus said Smith then retorted by saying: “Well, I ready to send you to your mother because you think this a game. You all hang up here ‘til I come back.”

Mr Veus also testified that following the argument, Smith drove off but returned to the Market Street area a short time later brandishing a firearm and making more threats. Mr Veus said he heard Smith saying: “People don’t always save your life. Before the end of the day we ga buck and you ga be dead.”

Ms Gibson, meanwhile, testified that after the argument, Smith drove to a nearby residence of a food vendor named “Mama’s” that sold cooked food in the Colleton Street in Ridgeland Park. She said that on arrival at the food vendor’s house, Smith left her there, but returned shortly afterwards. She said upon his return, he exited his car and placed his order with the food vendor.

While standing in the doorway waiting for his food, Smith was approached by Miller who came into the area on a bicycle. At the time, Ms Gibson was sitting in the front passenger seat of Smith’s parked car. She said she watched as Miller got off the bicycle and approached Smith, who at the time had his back turned away from the other man.

Ms Gibson said as Miller approached Smith from behind, he drew a handgun from his waist. She said she called out to Smith to warn him but Miller fired at Smith, who then turned and ran at his assailant and tried unsuccessfully to struggle with him for the gun. Ms Gibson said Smith then tried to run away, but as he did so, was shot in the back of his head. She said Miller subsequently stood over Smith’s body and fired the gun again.

Ms Gibson said Miller left the scene on his bicycle and mocked her by uttering the words “Marco ay, Marco ay” to her before riding off.

According to Forensic Pathologist Dr Caryn Sands, Smith died from three gunshot wounds: one to the back of the head, one to the back of the neck and one to his front shoulder. A fourth wound, which she described as a graze wound, was observed to Smith’s back. Dr Sands recovered three bullets from Smith’s body during the post-mortem examination.

At the close of the Crown’s case, Miller took the witness stand and repeated much of what he told police in his statement under caution.

Miller acknowledged the initial argument and later going to the food vendor to buy food, but maintained it was Smith who came at him with the gun, and that having managed to pry the gun away from the deceased’s hands during a subsequent struggle between the two, the gun discharged when Smith charged at him again in an effort to retrieve the weapon.

Under cross-examination, Miller denied, among other things, approaching Smith from behind or pulling a gun from his waist while doing so. He further denied suggestions that as Smith tried to run past him, he shot him in the back of the head. He also denied walking over to Smith as he lied on the ground and firing another shot that hit the deceased in the back of the head. He also denied mocking the female passenger in Smith’s car, or that he wanted to kill Smith or see him dead.

Miller was arraigned on June 1, 2015 before Justice Ian Winder and a jury on a voluntary bill of indictment (VBI) that charged him with Smith’s murder. He was found guilty of the crime on June 8, 2015 and sentenced to 40 years in prison minus three years and three months to represent the time he spent on remand, to take effect from the date of his conviction.

Miller appealed his conviction and sentence on six grounds — five against conviction and one against sentence. He complained the sentencing judge failed to give the jury the standard direction on how they should have approached the evidence and opinions of Dr Sands; that such an error by the judge was further compounded by him mischaracterising Dr Sands’ claims about there being no evidence of ‘close-range discharge’ on the skin surrounding the entry wounds, which in her opinion caused Smith’s death; and that the sentencing judge failed to address the jury on the issue of whether the shooting was an accident, which Miler claimed arose based on the evidence.

The appellate judges said while they agreed the jury was given no instructions on how to treat Dr Sands’ expert evidence, and that the trial judge mischaracterised Dr Sands’ evidence, they were still of the view that the jury would have convicted Miller anyway. The appellate judges said as there was no evidence from Miller or Ms Gibson as to how far he was from Smith when the gun discharged, the judge’s mischaracterisation of Dr Sands’ evidence “neither detracted” from Miller’s testimony that the gun went off during the struggle for possession; or from Gibson’s evidence about seeing him standing over Smith’s body and firing more shots.

Conversely, the appellate judges said the jury had Ms Gibson’s eyewitness testimony which described a deliberate shooting; Dr Sands’ evidence that explained that Smith had four wounds in completely different locations, as well as Miller’s own statement under caution that during the struggle with Smith, he took the gun and pulled the trigger.

As a result, the appellate judges said they were satisfied that even if the jury were properly directed on all of the issues Miller identified in his grounds of appeal, they would, “without a doubt, have convicted”.