The Tribune

By RICARDO WELLS

Tribune Staff Reporter

rwells@tribunemedia.net

THE Court of Appeal has quashed the murder conviction of a man sentenced to life in prison for murdering a cashier at his family's food store in the course of an armed robbery, and has ordered a retrial.

In an 18-page ruling published to the court's website this week, acting Justice Milton Evans concluded that an order for a retrial in the case of Lavardo Rahming would be in the interest of justice.

While the ruling remitted the murder case back to the Supreme Court for retrial, it also affirmed Rahming's conviction and eight-year sentence related to the offence of armed robbery.

Earlier this year, the court heard arguments on two grounds: whether Rahming's confession should have been excluded as evidence in view of his claims of being tortured and whether the alternative verdict of manslaughter should have been left to the jury.

However, the court reserved its decision and adjourned the matter to a later date.

According to previous reports, Dion Strachan was a cashier at the family's M&R Food Store when he was shot inside the storeroom.

According to a Privy Council ruling, the robbery was carried out at the food store in question by two men, each armed with a handgun, in the late afternoon of November 27, 2008.

They demanded the contents of the register from Strachan. However, when Strachan did not cooperate, he was chased into a rear storeroom where he was shot.

The two gunmen then escaped with the contents of the register, estimated by the storeowner to be some $1,300. Later, with the assistance of the accomplice, the police recovered two handguns, a 9 mm and a .38.

Four spent ammunition casings were also found near Strachan's body in the storeroom, and were matched to the recovered firearms. Three bullets came from the .38, while one came from the 9 mm.

Strachan had two gunshot wounds, both apparently sustained at close range. One was a graze across the right chest, and the other, which was the cause of death, entered his left lower abdomen and "traversed" his body before exiting in the area of his right shoulder blade.

The Crown's case at the time was that the two gunmen were Rahming and his friend Shavargo McPhee.

In his appeal submission, Rahming claimed he confessed to the offences after being beaten with a piece of 2x4 wood, suffocated with a plastic bag and tased by police officers.

Rahming had contended through counsel and in an unsworn statement from the dock that he was beaten and tased in an upstairs room of the police station, further alleging that his co-accused, McPhee, was beaten in front of the appellant.

The Court of Appeal's ruling noted that these occurrences led the appellant to confess.

It read: "Once the appellant was remanded he complained to the prison doctor that he was experiencing chest pain stemming from police brutality and he was prescribed 600 mg dosage of painkillers after he made the complaint of chest pain. Dr Johnson, the prison doctor, gave evidence that although the appellant's medical report indicated that there were no visible signs of abuse on the appellant's person the fact that a plastic bag was placed over one's head would be difficult to prove or disprove.

"The appellant also stated that he was denied opportunity to contact his attorney prior to the time the interview and statement were signed. He contended that this was a violation to his constitutional right under Article 19(2) of the Constitution of The Bahamas to instruct a legal representative of his own choice and to have private communication with him.

"The appellant elected not to support his allegations by sworn evidence in the 'voir dire', but made an unsworn statement from the dock. The principal police officers concerned gave evidence before the judge and were cross-examined. The judge rejected the account of torture on the facts, and allowed the statements to be admitted into evidence."

The ruling also noted that in his record of interview, Rahming did admit that he and McPhee robbed the store, but denied shooting the deceased.

The ruling said Rahming in his statement also admitted to robbing the deceased with a Glock 40, but insisted it was McPhee who ran behind the man.

In his account, Rahming said that it was at this point he heard a shot.

Rahming claimed that when he went to the back, he found McPhee holding the man who was bleeding.

When they left, according to Rahming, the man fell to the ground bleeding.

The Court of Appeal ruled that the trial judge erred by admitting the appellant's confession statement into evidence after a 'voir dire' was held and by failing to address whether the confession should be excluded by possible undisclosed interrogation prior to the appellant's formal interview.

On the other ground being considered, whether the alternative verdict of manslaughter should have been left to the jury, the Crown's case was that the two men went into the store both armed with guns to rob the store but prepared to use whatever force was necessary to accomplish that goal.

The court ruled that the trial judge erred by not leaving the alternative verdict of manslaughter to the jury.

The Crown, during its case, contended that as it was a joint enterprise it did not matter which of them did the shooting.

The jury convicted both men of murder but the appellant now submits that an alternate verdict of manslaughter should have been left to the jury, the ruling noted.

The ruling noted that based on the accounts of both men, it is clear that McPhee was indicating that he was not the only person who fired shots that day as he speaks about walking to the front after his altercation with the deceased and hearing a shot go off.

On the evidence, the only other person in the store was the appellant, Rahming.

However, the ruling pointed out that based on the forensic reports, the Crown asserted that it was the gun carried by McPhee which inflicted the fatal wound.

It read: "The appellant at no time admits to seeing the shooting only hearing shots and then seeing the deceased and McPhee entangled together when he went into the back.

"It is also clear that he does not admit taking part in the actual shooting. As noted, however, the Crown's position is that who fired the shots is irrelevant as this was a joint enterprise which extended to the murder of the deceased in order to execute the robbery.

"Mr Humes (Rahming's attorney) submitted that on the evidence it was possible for the jury to find that the gun carried by McPhee went off during the struggle with the deceased and that there was no intention to kill.

"He contended that as it was open to the jury to accept or reject facts they would have had to decide whether the trigger was squeezed intentionally or by accident.

"He says that without the requisite intent the verdict of manslaughter should have been left for them to consider. In these circumstances, he contends that the learned judge was wrong not to have left the alternative verdict of manslaughter to the jury."

Reflecting on the claims, the Court of Appeal's ruling noted that, "so clearly" the trial judge did not provide the jury with any options.

"It clearly was possible for the jury to find that the actual shooting took place during the struggle which McPhee claimed took place. If they were to take that view of the evidence then a verdict of manslaughter would have been appropriate," the ruling said.

The ruling said the jury could have also refused to believe that there was a struggle or even take the view that the deceased was struggling in an attempt to avoid being shot in which case a murder verdict would be appropriate.

However, the court said the final decision should have been left to the jury.