By NICO SCAVELLA
Tribune Staff Reporter
THE COURT of Appeal has ordered a retrial “as a matter of priority” for a man previously sentenced to nearly 20 years in prison for the shooting death of someone he allegedly thought had put a bounty on his head.
Appellate President Sir Hartman Longley, Acting Chief Justice Stephen Isaacs and Acting Appellate Justice Sir Michael Barnett said it is “imperative” that Kevan Musgrove be retried for the shooting death of David Bowleg Jr in 2010.
This, the appellate judges said, was due to them concurring with Musgrove’s submissions that the sentencing judge erred in law when she failed to direct the jury on how to weigh the evidence of an “inconsistent witness” who was treated as being as hostile.
According to the ruling, Musgrove was initially charged with murder concerning an incident that took place in February of 2010.
According to an alleged confession statement presented by the prosecution during the trial, Musgrove admitted to shooting Bowleg because he believed the deceased had put a bounty on his head.
Musgrove reportedly said he’d watched the deceased pull up in the driveway of his Highbury Park home and enter the house through an unlocked door.
Having a gun on hand while waiting in a hallway, he shot Bowleg Jr in the shoulder before binding him with tape and dragging him back to the Honda Accord he had arrived in.
After driving to Holiday Drive, Musgrove allegedly shot Bowleg again before calling someone to pick him up.
During trial, Mary Neely, a Crown witness and Musgrove’s mother, had to be treated as hostile as the evidence she gave under oath differed from the statement she had previously given to the police.
According to the summation to the jury during trial, the prosecution ended up cross-examining its own witness concerning the statement she gave to police on March 1, 2010, and how it was inconsistent with the testimony she gave in court at the time.
The Court of Appeal ruling noted that while summing up the case, the trial judge essentially told the jury it could rely on the witness’ previous statement to police. However, the appellate judges said the trial judge’s “misdirection” on that matter was a “fundamental one”.
“By wrongfully allowing the jury to take into account the earlier statement of the mother, there is the danger that the jury took that earlier statement into account in its evaluation of the record of interview which was the only other evidence against the appellant.
“In the circumstances, this conviction is unsafe and must be quashed.
“As this was a misdirection of the judge and not that of the prosecution, it is our view that a retrial must be ordered.”
The appellate judges added: “We are painfully aware that the appellant has been in custody since 2010. He was sentenced in 2012 to 18 years at hard labour. He has been incarcerated for eight years.
“It is imperative that the matter be retried as a matter of priority.”
Stanley Rolle from the Office of the Public Defender appeared for the appellant while Vernal Collie, assistant director of public prosecutions, appeared for the Crown.