The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A MAN convicted of kidnapping and robbing the manager of a Fox Hill laundromat at gunpoint almost a decade ago has had his bid to legally challenge his 25-year sentence dismissed by the Court of Appeal.

Appellate President Dame Anita Allen, fellow Justices Stella Crane-Scott and Roy Jones, in a written ruling, affirmed Shawn Miller's 25-year sentence for the armed robbery and kidnapping of Jet Wash Laundry manager Hamilton Dean in May of 2009.

However, the appellate court did give Miller "credit" for the time spent awaiting trial, thereby shortening his sentence to 23 years and seven months.

According to the ruling, Miller was convicted by a jury on October 19, 2011 before then Supreme Court Justice Jon Isaacs of one count of kidnapping, six offences of armed robbery, and one count of possession of a shortened firearm stemming from the May 29, 2009 incident.

According to evidence given at trial, around 11pm on May 29, 2009, Miller and others, in a green Avalon Car, robbed Dean of a black LG flat screen television, the property of Jet Wash Laundry, forced him into his brown Toyota Camry, and drove away with him without his consent.

After Dean was forced into the passenger seat of his car, one of the men from the green Avalon jumped into the driver's seat, and the car was driven off, followed by three of the men in the green Avalon, to Esso On-The-Run gas station on Fox Hill Road and Prince Charles Drive.

There, the flat screen television was put in the green Avalon, and that car was left in the station's parking lot.

The men from the Avalon then joined Dean and the kidnapper in the Toyota Camry. Dean was ordered to direct them to his employer's home, and directed them to the eastern New Providence home as he was ordered to do.

Upon their arrival at that residence, a man who the prosecution said was Miller, while concerned with the others, and armed with a shotgun, tied up Hamilton Dean and ordered Andrew Brent Dean, an occupant of the residence, to go upstairs.

The men then ordered him and the other occupants of the home to lie on the floor of the master bedroom and robbed them at gunpoint of their cell phones, wallets, ATM cards and cash. They also robbed Andrew Brent Dean of cash belonging to Jet Wash Laundry.

While the home invasion was in process downstairs, another individual was able to alert the police. When the police arrived, the men fled.

However, at about 2am on May 29, Miller was arrested at Esso On-The-Run gas station on Fox Hill Road while engaged in a conversation with a woman who was in the process of getting into a Nissan Maxima car parked next to a green Avalon.

The flat screen television allegedly stolen from the laundromat during the armed robbery was found in the Nissan Maxima. Also found in the car was a computer bag.

According to the ruling, Miller was interviewed while in custody and gave a statement under caution in which he admitted being involved in the kidnapping and armed robbery and being in possession of the shortened firearm during the commission of the offences.

However, in his unsworn statement from the dock, Miller said he was asleep at home when the offences were committed and that he was badly beaten by the police to give the earlier statement.

However he was convicted by the jury and on November 14, 2011 sentenced to six years for kidnapping, 25 years on each count of armed robbery, and 17 months on the count of possession of a shortened firearm. All sentences were ordered to run concurrently.

However, Miller subsequently appealed his conviction and sentence on the grounds that several statements that were allegedly prejudicial to him were made in the presence of the jury and also that his case was not properly and adequately put to the jury.

Miller had also submitted that 25 years for armed robbery were unduly severe.

Regarding the former, Miller's main argument was in essence that the trial judge failed to warn the jury that certain statements proffered during trial ought to be ignored, as they could result in the trial being adversely affected.

One such statement, which the COA ruling said was made by Miller in his first record of interview on May 29, 2009, said: "Answer: Yes boss, I make a stupid mistake. We rob them people. I just come out of jail and I broke and I needed some money. I meet people in jail who link me with people. That's the vibe."

Another statement Miller objected to which he had made in his unsworn statement during the trial: "…I ain't never rob no one in my life. Never kill no one. Never been arrested for no gun. Never been arrested for nothing. I have been arrested for drugs, marijuana. Yes, I used to sell drugs when I was younger that is the only thing. I never been in jail for my life. When I went to prison, I near commit suicide…"

And in another, which was an excerpt from the interrogation of Dr Sandadei Reddy pertaining to Miller, it is suggested that the appellant had previously been admitted to prison.

However, Dame Anita said the first statement merely appears to be "an explanation offered by the appellant as to why he participated in the kidnapping and armed robbery offences, namely that he had just come out of prison, and needed money, that statement provides his explanation, and indeed his motive for what he did."

Regarding the second statement, Dame Anita said while it was "somewhat confusing" and unclear as to "whether it was an affirmation of the first that he had been to prison before, or not", what it did affirm was "his admission that he had been involved in criminal activity, namely, selling drugs when he was younger."

And regarding the third, Dame Anita said it "must be laid at the feet of the appellant's counsel who must have known the answer to the open-ended question he asked, to which the doctor was responding."

She concluded that based on the "authorities on the subject", the "correct course to be taken by the judge in cases where potentially prejudicial statements about an accused person's character are inadvertently made in the presence of the jury depends on the nature of the evidence admitted, and in the circumstances in which it is admitted."

"In the present case, the learned trial judge decided to take no action," Dame Anita wrote. "He obviously decided to take that course on the basis that the risk of prejudice to the appellant was insufficient to warrant any intervention by him, and that the best course of action was to ignore it, and not to draw attention to it.

Dame Anita went on to say that notwithstanding the presence of the alleged prejudicial statements, there was "strong admissible evidence" against Miller at trial, such as the confessions, and the "circumstantial evidence" of him being found at the gas station where the green Avalon was parked during the course of the kidnapping and armed robbery, as well as the discovery of the stolen television from the laundromat "in the Nissan Maxima which car he and his roommate had gone there to retrieve."

"When that is considered, along with the fact that two of the impugned statements were deliberately made by the appellant; that the first statement appeared to be an explanation for his involvement in the offences; that the second statement appeared to be gratuitous, self-serving and inconsistent with the first in asserting that he was only involved in criminal conduct when he sold drugs as a young man and never went to prison; and the inadvertent nature of the statement of Dr Reddy, I am of the view that it was the proper course taken by the learned judge, and that notwithstanding these statements, the fairness of the trial was not adversely affected and this ground fails," Dame Anita said.

According to the ruling, Miller had also submitted that the trial judge, in his summing-up of the trial, did not "properly and thoroughly" put the facts to the jury.

More specifically, the ruling said Miller's main complaint was that the trial judge neglected to tell the jury that a part of his case was that he did not take the police to where the guns were, but rather that the police took him to where they knew the guns were from information received from another source.

Those guns, according to the ruling, were mentioned in evidence adduced by the prosecution, which claimed that Miller took the police to a bushy area near Epiphany Anglican Church on Prince Charles Drive and directed them to a pile of rocks where the Maverick 12 gauge shotgun was found, and where a wallet which contained the driver's license and bank cards in the name of Andrew Brent Dean were also found.

According to the ruling, Miller also allegedly took police officers to a yellow house near Sandilands and allegedly told them that was where the girlfriend of one of his cohorts dropped them off after picking them up from Elizabeth Estates following the kidnapping and robbery.

The ruling also said the prosecution further relied on Miller allegedly identifying some of the items he stole from the Dean household, admitting to placing the shotgun where it was found behind Epiphany Anglican Church, and admitting to hiding a black Maverick shotgun, allegedly recovered near the Dean's residence during a police interview on May 30, 2009.

However, at the close of the prosecution's case, Miller was called upon to answer the charges. While giving an unsworn statement from the dock, he told the jury that at the time he was asleep at home, and only went to the gas station when his roommate asked him to take her there.

He also told the jury that he was badly beaten by police, and was further offered an inducement to sign the paper. However, he refused to sign it.

He further told the jury that the police told him they were taking him to his home to change his clothes, but instead took him behind a church where some officers stayed with him while the others searched and came back with a shotgun, and that they picked up a wallet when they were leaving.

The following day Miller claimed, in his unsworn statement, that officer Keno Smith intimated he had come to take him to the hospital, and coerced him to sign, which he said he did out of fear that he would be beaten again.

However, Dame Anita said the trial judge "succinctly" put the main thrust of Miller's case to the jury, inclusive of his claims that he was at home during the commission of the crimes in question. She also submitted that the judge told the jury of Miller's complaints that he was beaten to give the records of interview and the statement under caution.

She said while the trial judge's summing-up was "laconic", or brief, she is of the view that the judge "summed up the evidence for the appellant, namely, that he did not commit the offences, and was forced to confess to being involved in the crimes through police oppression."

Thus, she said the part of Miller's case, which he claimed the trial judge neglected to put to the jury, "would not have made a difference to the outcome of the trial."

"The case turned on whether the jury was satisfied that the interviews and statements were voluntarily obtained and were true; and whether they were satisfied on that evidence of the appellant's guilt," she said. " It was therefore of no consequence whether the jury believed the police found the gun as a result of the appellant's directions or did so from information received.

"As noted, the crux of the case was whether the jury believed his confession, or whether they believed that his alibi of being elsewhere at the time may have been true, and he could not therefore be guilty of the offences."

Regarding his claims that the 25-year sentence was unduly severe, Dame Anita said while neither counsel for the appellant nor respondent could neither confirm nor deny that the time spent on remand had not been taken into account during his sentencing, the "benefit of the doubt should be given to the appellant."

"In the premises, and for the reasons given, the appellant's appeal against his convictions are dismissed and his convictions are affirmed," she said. "In respect of his appeal against the sentences of 25 years, his appeal is also dismissed. As to his time spent on remand, we subtract that from his sentence which would result in his spending 23 years and seven months, with effect from his date of conviction."