By NICO SCAVELLA
Tribune Staff Reporter
THE Court of Appeal has ordered a man be retried over allegations he robbed a pizza delivery man three years ago.
The appellate court unanimously said Kadero Munroe should be retried over the Crown’s claims he robbed Marco’s Pizza delivery man Francis Burrows.
Michael Clarke, who was also tried and convicted of the crime, was not so so fortunate, as the appellate judges unanimously dismissed his appeal.
According to the appellate judges, the reason for ordering a retrial for Munroe was because the trial judge admitted his record of interview into evidence without satisfying herself as to whether his claims that he was threatened by police were legitimate.
And that error was particularly “troubling” because it came after the trial judge “refused” to come to a conclusion as to whether the police did in fact threaten him, but instead passed that job off to the jury.
According to the ruling, on January 25, 2016, Mr Burrows was robbed while returning to work at Marco’s Pizza’s Cable Beach location. He was robbed of his wallet that contained various ABM cards, a cellphone and $130 from Marco’s Pizza’s delivery pouch.
The Crown’s case against Munroe was that he drove a vehicle, registered in his name, to the area of Marco’s Pizza, sat in the vehicle and waited while his friends who were also in the car robbed Burrows.
The Crown’s case against Clarke was that he was catching a ride to someone named “RJ” in a vehicle driven by another person and that he remained in the vehicle when the other occupants robbed Burrows.
The case against Munroe was based primarily on statements contained in his record of interview taken by Officer Roxbury, although the Crown argued that there was other circumstantial evidence from other witnesses that was sufficient to convict him.
At trial, Munroe denied the statements attributed to him were given voluntarily and insisted that he was physically threatened by police officers into giving that statement.
Clarke, meanwhile, asserted that his ROI was procured by police brutality. He also claimed he had an alibi.
Though the trial judge initially expressed indifference to conducting a voir dire into Clarke’s and Munroe’s claims, one was eventually held. At the end of that process, she verbally ruled that she was satisfied beyond a reasonable doubt that the ROI’s were not obtained via unscrupulous means.
As the appellate judges noted, for the trial judge to have been so satisfied, she had to have accepted the evidence of the police witnesses and rejected Clarke’s and Munroe’s evidence concerning the circumstances surrounding the production of the ROI.
However, the appellate judges said it was the trial judge’s written ruling that caused all of the problems. In that ruling, the trial judge gave the impression that she did not consider Munroe’s and Clarke’s evidence, but instead only considered the Crown’s evidence inclusive of their answers to the questions put to the Crown’s witnesses during cross-examination.
The appellate judges further noted that the trial judge’s ruling only referred to Munroe’s and Clarke’s case as put to the Crown’s witnesses in cross-examination, and not the evidence of the two men themselves and the witnesses called on their behalf.
Conversely, the appellate judges said the trial judge’s decision on the voir dire and the admissibility of a confession statement must be “based upon the entirety of the evidence” led at the voir dire.
Concerning Clarke’s claims of police brutality, an issue the appellate judges said was “very troubling” was that the trial judge seemingly did not make any evaluation of the credibility of the various witnesses and “resolve in her own mind” the differences between Clarke’s and the police officers’ evidence as to the circumstances under which the ROI was made. Instead, the trial judge said that job was for the jury.
Concerning Munroe, the appellate judges said the trial judge “refused” to determine whether the police officers did in fact physically threaten the former, but instead passed that job off to the jury.
And that stance to Munroe’s claims, the appellate judges said, was incorrect, as she was “obliged to satisfy herself” on whether the threats were made.
Ultimately however, the appellate judges found that the evidence against Clarke was “overwhelming” and his conviction “inevitable”. They said notwithstanding that the trial judge did not properly conduct a voir dire before admitting the ROI, it did not affect the safety of his conviction.
Concerning Munroe however, the appellate judges said although the car was licenced in his name, that fact did not make his conviction inevitable in the absence of his ROI.
“I would allow the appeal of Munroe,” Sir Michael said with the endorsement of Appellate President Sir Hartman Longley and fellow Justice Roy Jones.
“As the error involved is that of the trial judge and not a failure by the prosecution, I would order that he be retried.”