The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE Court of Appeal has ordered a man be retried for murdering a former “most wanted” suspect eight years ago because of its “uneasiness” about the unreliability of a police sketch and other “inadmissible material” that ultimately led to his conviction.

Appellate President Sir Hartman Longley, along with fellow Justices Jon Isaacs and Sir Michael Barnett, ordered that Rolin Alexis be retried “as soon as is practicable” for the 2011 murder of Dessaline Nichols.

Prior to his death, Nichols was reportedly charged with murder after eluding police for some three years. He was accused of the murder of Kirk “Tank Dog” Ferguson in the early 2000s along with Randino Pratt. Police reportedly also previously issued an all-points bulletin for Nichols in May of 2011 in connection with a shooting that took place that month.

The appellate judges, in a written ruling, said while they were not convinced of Alexis’ innocence in killing Nichols, they were “unable to shrug off” their “lurking doubt” that his conviction was unsafe because of the alleged ineptitude of his then attorney in handling his case, as well as the “inadmissible evidence that was placed before the jury”.

The appellate judges further noted the success of Alexis’ appeal could have actually turned on whether his previous attorney provided the “requisite care and attention to his client’s case”; however, they said that still afforded them an opportunity to “impart a statutory lesson to lawyers in general and defence lawyers in particular.”

According to the ruling, around 6.40am on the date in question, Nichols was in his vehicle in front of his residence on Florida Court waiting for Anastasia Ellis to come outside.

Ms Ellis, while walking to the front of the vehicle, noticed two men standing further up the street on Florida Court. One of the men wore a dark blue hoodie and blue, long pants. His back was facing her at the time so she couldn’t see his face. However, the man was said to be 5’4” to 5’5” tall. The other man wore a white piece of cloth over his head, and stood as if he was looking through the corner. That man was about 5’6” to 5’7” tall.

Both men had dark complexions.

In her statement to police, Ms Ellis stated she didn’t pay much attention to the men because she thought they were going to work. However, she said as soon as she got in the car and closed the door, and Nichols reached to close his door, the man in the white t-shirt ran up to the car and pointed a gun directly at Nichols’ head before firing. The gunman, Ms Ellis said, wore Oakley shades with orange “fire” lenses.

Ms Ellis said she tried to get out of the car, but the other man started shooting at her as well. Nonetheless, she managed to get out of the vehicle and subsequently hid behind it.

The men started to run away and while doing so, Ms Ellis glimpsed the face of the man who wore the white t-shirt. She said she went back to the car where she found Nichols alive, still breathing, but with a gunshot wound to the head.

Ms Ellis said she would be able to identify the man who wore the white t-shirt. She also described the gun that man had as a “mini-type machine gun with a long clip.” Both men held their guns with their right hands.

At the trial, Ms Ellis did not appear but the Crown applied to have the statement she gave to the police read into evidence. The application was not opposed by Alexis’ then-attorney, Mario Gray. The Crown also relied on an alleged confession contained in a record of interview made by Alexis; a video recording taken while Alexis was out on inquiries with the police officers; and a composite sketch of the alleged assailant composed by a police sketch artist based on Ms Ellis’ directions.

Alexis, meanwhile, testified on his own behalf and called two witnesses in his defence: Angela Johnson and Lisa Leonard. His case was that he did not shoot Nichols because he was at the Corner Motel on Carmichael Road at the time the incident occurred. Alexis further claimed his confession statement was obtained by force and that he was coached on what to say in both the record of interview and the video recording. Alexis further claimed he told the police to conduct an identification parade, to test whether he was really the person Ms Ellis said she saw the morning of the shooting. He further claimed to be very familiar with Ms Ellis. However, there was no evidence that an identification parade was held.

Despite his claims, Alexis was convicted of Nichols’ murder on May 13, 2015, and on July 24 of that year, sentenced to 45 years in prison. The time was reduced to 42 years and eight months to reflect Justice Turner’s consideration of the two years and four months he spent on remand.

Alexis, via his attorney Stanley Rolle, appealed his conviction and sentence on numerous grounds, a key one being that some specific illegality or irregularity, substantially affected the merits of the case and the fairness of the trial.

Specifically, Mr Rolle contended the trial judge failed to address the evidence concerning identification and to “point out any inconsistency between that of the witness…with the actual appearance of the appellant and any other support that lends to a reliable identification.”

According to Mr Rolle, forensic artist Ernest Pratt created a composite sketch of the alleged assailant based on information he received from Ms Ellis. However, Mr Rolle said Mr Pratt explained at the time that a composite sketch is “not 100 percent identification”.

Additionally, Mr Rolle contended that no description of the alleged assailant given by Ms Ellis was tendered into evidence by Mr Pratt. And neither did that officer provide the forensic information fact sheet along with the exhibit.

Thus, Mr Rolle said the jury was left to “speculate” on the composite sketch, and should not have had to do so since they should have been properly cautioned on the issue during the judge’s summation. Mr Rolle further challenged the admission of the sketch into evidence as there was no evidential foundation upon which it could stand.

The appellate judges concurred with Mr Rolle on that point.

The appellate judges also noted several issues they had with attorney Mr Gray’s representation of Alexis during the trial, which they claimed contributed to their decision to order a retrial.

One example was Mr Gray not objecting to the Crown’s application pursuant to Section 66 of the Evidence Act to have Ms Ellis’ statement to police read into evidence in her absence, despite Alexis’ evident desire to have Ms Ellis give her evidence in person. The appellate judges said in doing so, Mr Gray “deprived” Alexis of the opportunity to challenge her statements.

Other “tactics” Mr Gray employed that tended to be “less than helpful” to his client’s case, the appellate judges noted, was Mr Gray eliciting evidence relative to the firearm said to have been in Alexis’ possession at the time of his arrest while cross examining a police officer, who the judges said had “studiously avoided” any mention of that fact up to that time.

That, notwithstanding that it was accepted by the parties during trial that the evidence about the firearm had no relevance to the case since the firearms examiner’s report had indicated that the firearm in question was not a firearm used in Nichols’ shooting death.

“In view of the circumstances of this case, for example, the production of the sketch without a description being provided by the witness to enable the jury to test the accuracy or correctness of the depiction, the inadmissibility of the sketch, the pervasive reference to the firearm allegedly found in the appellant’s possession and the incorrect direction that it was suggested that that gun killed Dessaline I am not satisfied that a jury properly directed on the evidence properly admitted would inevitably have convicted the appellant,” Justice Isaacs wrote. “Nevertheless, I am satisfied that the justice of this case requires that there be an order for a re-trial; hence I order that the appellant undergo a new trial as soon as is practicable.”