A man convicted of murder will get a new trial because a judge erroneously treated the words of a victim who was shot in the back as a dying declaration, although there was no evidence he had seen his shooter.
Dwayne Kelly was convicted of the May 12, 2012 murder of Philario Simmons, who was shot twice in the back at Meadow Lane, off East Street.
Simmons told several persons, including police, that “Rummy from Palm Beach Street” had shot him.
Carlos Darville, a friend of Kelly’s, also identified him as the shooter.
However, Darville, who is also known as “CJ”, admitted that he had identified another person as the killer in a statement to police shortly after the incident.
Darville claimed that he had only misidentified the culprit because he lived across the street from the appellant and was “afraid”.
It also emerged during the trial that Darville had also been questioned as a suspect in Simmons’ murder.
The appellate tribunal of Court of Appeal President Sir Hartman Longley and justices of appeal Jon Isaacs and Sir Michael Barnett (acting) allowed the appeal as there was no evidence that Kelly had seen the shooter. The pathologist said that the shooting did not occur at close range.
The court found, “A proper direction would have been to tell the jury that they ought to have rejected the evidence of the purported dying declaration since there was no evidence that the deceased saw who shot him.”
The court said that Darville’s evidence was also “fraught with difficulty” because he had previously named someone else as the shooter and that he was also a suspect in the shooting.
Richard Boodle represented Kelly and Terry Archer appeared for the Crown.
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