A convicted killer had his appeal dismissed but the issue of whether a police gang expert should have been allowed to testify against him split the three Court of Appeal judges.Justices Edward Zacca, Sir Anthony Evans and Sir Robin Auld all agreed that David Jahwell Cox’s conviction for murdering Raymond (Yankee) Rawlins should stand.However, Mr Justice Auld disagreed with his colleagues on the topic of Sgt Alex Rollin saying his evidence was “unfairly prejudicial”.Cox’s lawyer, Larry Mussenden, said it was “very unusual” for appeal judges to publicly disagree over a ruling. He now plans to take the matter to the Privy Council in London, which is Bermuda’s highest court of appeal.Cox, 33, was found guilty last June of being one of two gunmen who shot Mr Rawlins 16 times as he entered a nightclub in his Court Street neighbourhood early on August 9, 2010.According to prosecutors, Mr Rawlins, 47, was murdered by the 42 gang to exact retribution against the Parkside gang for an attack earlier that night on a 42 member. The other killer has never been brought to justice.Cox was named during the trial by Sgt Rollin as a member of 42. Prosecutors cited the ongoing gang warfare between Parkside and 42 as the motive for the slaying.Cox was eventually jailed for 38 years.Mr Mussenden argued during the appeal that Sgt Rollin did not meet the necessary legal criteria to be declared a gang expert and Puisne Judge Carlisle Greaves should not have allowed him to give evidence as one.“Labelling somebody as an expert has an effect on the jury,” he said. “There’s no evidence to prove the defendant was in any ongoing feud with the deceased.”Giving their view yesterday, Justice Zacca and Justice Evans said: “In our judgment, the Judge was undoubtedly correct. Without the evidence, the jury would not know of any reason, or possible reason, why the defendant should shoot the deceased with intent to kill or seriously injure him, something that was relevant to their decision whether or not the defendant was the person who shot him, as the prosecution alleged.”They said Sgt Rollin was “amply qualified by his experience and training to describe the activities and modus operandi of the gangs”.They also ruled against the appeal on a number of other grounds, including that the trial judge was biased in favour of the prosecution in the way he handled the case. They said other evidence in the case, such as gun shot residue [GSR], DNA, and testimony from an eye witness, were also strong enough to make the conviction safe.While Mr Justice Auld agreed with his colleagues that the conviction was safe, he differed from them on the question of the expert gang evidence.“For that reason, I take the unusual course in a criminal appeal of writing a dissenting as well as an assenting judgment,” he explained.“Admission of evidence on the basis of a necessity to put in context or explain a murder, whether or not otherwise clearly evidenced, is a curious piece of reasoning and one where, as here, capable of substantially and unfairly prejudicing the defence for little or no truly probative purpose.”He added later: “Here, the sole issue for the jury was identification of Mr Cox as one of the murderers, that is, whether the prosecution had provided that he had killed or been a party to the undoubted intentional killing of Rawlins by shooting him. In the circumstances, the murderous intent of the two killers was plain, whoever they were.”For that reason, he said, motive was irrelevant to the jury’s task of determining whether Cox was one of the killers and Sgt Rollin’s evidence was “irrelevant” and “unfairly prejudicial to the defence”.Speaking after the case, Mr Mussenden said: “It’s very unusual to have a dissenting opinion in a criminal appeal. Justice Auld has said that the gang evidence shouldn’t have been admitted and that this is a case about identification and the other evidence the GSR and DNA.“Therefore, he’s raised an issue and gone on to say that the conviction was still safe on the other evidence. Now, I have a particular problem with that. I question how the judge could come to that conclusion because he doesn’t know on what basis the jury themselves were convicting him. It might well be the gang evidence, which is exactly what our argument was about. On that basis, I think this is a matter that certainly should be dealt with by the Privy Council and certainly that’s where this appeal is going to go.”l The Court of Appeal also ruled against another convicted killer in his appeal yesterday. Antonio Myers sought to have his conviction quashed for slaying rival gangster Kumi Harford on St Monica’s Road, Pembroke, on December 5 2009. He is also serving 38 years. The judges said the appeal was dismissed, and they would provide their reasons in writing later.