Pair lose appeal against murder conviction
Two men jailed for the premeditated murder of David Clarke have lost an appeal against their conviction.
Jahkeo LeShore and Darrion Simons were both found guilty of the fatal shooting of Mr Clarke, who was killed on the evening of April 17, 2011.
During their 2014 Supreme Court trial, the court heard that Mr Clarke was shot in the head near the junction of North Shore Road and Bandroom Lane shortly after departing the Mid Atlantic Boat Club.
Prosecutors claimed the gunmen sped up Mission Lane to Crane Lane after the shooting, where they abandoned the motorcycle used in the attack.
The Crown also claimed that the shooting was a retaliation attack, coming six weeks after the murder of LeShore's brother Jahmiko, who was also Simon's friend. Both LeShore and Simons denied any involvement in the attack, saying they had nothing against Mr Clarke and denied claims that they were involved in gang activity, but were convicted by majority verdicts after several hours of deliberation.
They were later sentenced to serve at least 25 years behind bars for the killing, but launched appeals against their convictions.
According to a judgment written by Court of Appeal president Sir Scott Baker, defence lawyers Richard Horseman and Simone Smith-Bean argued that the court should have found there was no case for the defendants to answer, noting that no witnesses reported seeing the defendants on the bike at the time of the shooting.
However, the Court of Appeal supported the finding of the trial judge that there was enough evidence to bring the case to the jury, noting text messages, evidence that both defendants left the boat club a half-hour before Mr Clarke, DNA on the recovered motorcycle and that Simons keys were discovered near where a witness saw two men running shortly after the shooting.
Both defence lawyers also challenged the court's decision to allow the jury to be shown a photograph of Simons holding a gun — which was not the murder weapon — describing the evidence as seriously prejudicial.
That ground was also dismissed, with the Court of Appeal ruling that the jury was properly directed about how to deal with the evidence.
The defence lawyers also argued that the jury was put under pressure, noting that a verdict was not delivered until 10.12pm after around eight hours of deliberation.
“After a trial lasting eight or nine weeks with more than one defendant, such as the present one, there is strong argument for a jury being sent out early in the day and thus having a full day ahead of them for their deliberations.
“This was not done in the present case and, more importantly, the judge does not appear to have considered what should be done if the jury required more time to reach a verdict within ordinary working hours or a reasonable time thereafter.”
While the court can send a jury to a hotel after a period of time, allowing them to continue their deliberations the following day, Sir Justice Baker wrote that such directions require advanced planning that did not take place in this case.
However, he said it did not appear that this was a case in which the jury felt undue pressure to deliver a verdict, noting that just before 9pm the jury asked for more time to deliberate.
“This is not a case in which there were other features, such as jurors having possible other pressures such as commitments the following day or being pressed for each a verdict by a particular time,” he wrote. “The sole question is whether the length of their deliberations, late into the evening in the context of having been at court since early in the day by itself caused undue pressure.
“There was in my judgment compelling circumstantial evidence entitling the jury to come to the verdicts that they did. Furthermore, the jury had the advantage of hearing evidence from each of the appellants.
“Neither appellant was convicted by the bare majority required by law. I am satisfied that the verdicts are safe and would dismiss the appeal.”
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