‘I am going back’

Tears of joy flowed from Constable Gareth Davis’ on Thursday after the Court of Appeal quashed his 2019 murder conviction and rejected the prosecution’s request for a retrial.

“There are no words to express how I feel. I wasn’t crying, but tears a run out my eyes nonstop. That was the emotion that came over me,” the lawman told The Gleaner shortly after justices Marva McDonald-Bishop, Evan Brown, and Marcia Dunbar Green handed down the ruling and entered a verdict of acquittal.

Davis was one of two police constables from the now-disbanded Mobile Reserve Division found guilty of the 2008 shooting death of Omar Marshall, who was shot nine times in his backyard in Central Kingston.

Davis was found guilty of murder in the Gun Court and was sentenced to life in prison with the stipulation that he serve 15 years before parole consideration and Christobel Smith was sentenced to six years and 10 months for manslaughter.

However, both men, who later appealed the conviction, were released on bail a year after, pending the appeal hearing.

The appeal hearing started last November and Davis said that although he was confident of victory, he remained a nervous wreck.

“It was very hard going through the process. At the end of the day you still have to live your life while remembering that a case is hanging over your head. Is not like you know what road it is going to take,” Davis said.

He said it was really difficult going to court and having to balance life.

“To be honest, I got more than 100 per cent support from my family. Getting the support mentally, physically, and emotionally but yet still I know they were worried of how it may turn out. But I just put out the best and give them that assurance that I’m not worried, but I was,” Davis said.

Lawyers kept hope alive

Davis also praised his lawyers for helping to keep his hope alive.

“Policeman convicted, life imprisonment, trust me, that alone get me off at times. I spent one year, two months, and five days behind bars, but my lawyer fought every step of the way.”

The prosecution had led evidence at the trial that Marshall was murdered inside his yard at 16 Blake Road on October 9, 2008.

Eyewitnesses testified that Marshall was urinating at the fence in his front yard when four police personnel, including the appellants, dragged him to the back of the premises, where he was shot by the two men.

One eyewitness reportedly insisted that Marshall did not have anything in his hands when he was shot and that the lawmen told him that his mother was coming to bury him before they each shot him.

The policemen, however, claimed that they shot Marshall in self-defence.

They said they were on patrol in the area when they saw him running and chased him to the back of his premises, where he turned and faced them with a firearm.

A firearm, which was said to be in Marshall’s hand at the time, was handed over by the policemen, a claim that was reportedly rebuffed by witnesses.

However, the defence team, which included attorneys-at-law Kemar Robinson and Deneve Barnett, argued, among their grounds for the appeal, that the trial judge misdirected the jury on the policemen’s statutory defence and also that there were several material inconsistencies on which the jury had not been directed on how to resolve.

Duty to prevent crime

Citing Section 13 of the Constabulary Force Act, which states that police officers on duty have a statutory duty to prevent the commission of crime, Robinson said he argued that the trial judge had failed to point out to the jury that the officers were carrying out their duty and had a statutory right.

Consequently, he said the Court of Appeal accepted that the judge’s failure prejudiced the men’s defence.

Additionally, Robinson said the appellate court also found that there were material discrepancies between the eyewitness’s account and the post-mortem report as the eyewitness had stated that he saw the victim being shot twice, while the report indicated nine shots.

The prosecution raised a point last year that the trial was a nullity as it was tried in the High Court division of the Gun Court and should have been tried in the open court and requested a retrial.

However, Robinson said the defence, in arguing against a retrial, noted that the incident occurred 16 years ago, in 2008, and would prejudice their clients, who had been on suspension since 2014. They also argued that their clients had a constitutional right to a fair trial within a reasonable time and that the men would not get a fair trial as the main eyewitness had since passed and the defence’s witnesses could not be located.

According to Robinson, this case is likely to be used as a precedent for how matters are treated when persons are tried in the wrong court.

In the meantime, Davis said he plans on seeking re-enlistment in the police force.

“It’s an organisation that I love dearly from inception, and regardless of going through this, I’m going back. I don’t know if I will spend the entire 20 more years until retirement, but I am going back,” Davis said.

editorial@gleanerjm.com