Melody Baugh-Pellinen v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: MORRISON JA
• Judgment Date: 08 July 2011
• Neutral Citation: JM 2011 CA 68
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO. 156/2007
• Date: 08 July 2011

MELODY BAUGH-PELLINEN

and

R

[2011] JMCA Crim 26

BEFORE:

THE HON MR JUSTICE HARRISON JA

THE HON MR JUSTICE MORRISON JA

THE HON MISS JUSTICE PHILLIPS JA

SUPREME COURT CRIMINAL APPEAL NO. 156/2007

JAMAICA

IN THE COURT OF APPEAL

CRIMINAL LAW - Murder - No case submission - Insufficient evidence

Robert Fletcher and Miss Stacey Bushay for the appellant

Miss Kathy-Ann Pyke and Mrs Paula Archer-Hall for the Crown

MORRISON JA

1 The appellant and Mr Marvin Stewart were jointly charged with the offence of murder and were tried before Daye J and a jury in the Circuit Court Division of the Gun Court, held at Duncans in the parish of Trelawny, at a trial which took place between 4 and 17 December 2007. At the close of the case for the prosecution, the Crown offered no further evidence against Mr Stewart, who was accordingly discharged. However, on 17 December 2007, the appellant was convicted of the offence of murder and sentenced on that same day to imprisonment for life. The trial judge stipulated that the appellant should serve 21 years in prison before becoming eligible for parole. On 21 December 2007, the appellant applied for leave to appeal against her conviction and sentence and on 8 December 2009 the application was considered and granted by a single judge of this court.

The prosecution's evidence at trial

2 The appellant was indicted for the murder of her husband, Mr Timo Pellinen, on 1 October 2005. Mr Pellinen died as a result of having received two gunshot wounds to the head and neck, resulting in cranium cerebral damage and injury to the left neck blood vessel, accompanied by blood loss. The expert evidence was that, given the extent of his injuries, death would have been immediate.

3 In the late evening of 1 October 2005, the appellant and the deceased were travelling together in a motor car driven by the appellant along the Harmony Hall main road in the parish of Trelawny, en route from the Donald Sangster International Airport in Montego Bay to Ocho Rios. Shortly after the appellant brought the car to a stop on the soft shoulder of the road at a dark and lonely point along the way, the deceased was shot and killed by an unknown man, who subsequently made good his escape. The prosecution's case against the appellant was based on a combination of circumstantial evidence, two written statements made by her to the police and certain oral statements allegedly made by her to Miss Michelle Howard, during a period when they were both incarcerated in a cell at the Stewart Town Police Station.

4 At sometime after 10:00 p.m. on the day on which the deceased was killed, which was a Saturday, Sergeant Jacqueline Green-Denton, who was at that time assigned to the Duncans Police Station, was on patrol in the area in a marked police vehicle. She was accompanied by other police personnel. In response to a telephone call from the police station, Sergeant Green-Denton and her team proceeded to a particular section of the Harmony Hall main road to a point about three quarters of a mile from the junction of the road and the Duncans bypass. There, she saw the body of a white male lying on the ground in a pool of blood which appeared to have come from a wound behind the man's left ear. Just ahead of the body on the soft shoulder of the road was a stationary Toyota Corolla motor car, the engine of which was running and the headlights and the radio were on. Both the driver's door and the front passenger door were open, but there was no-one in the car itself.

5 At this point, Sergeant Green-Denton's attention was attracted to someone running towards her from a distance of about three to five chains away. That person turned out to be the appellant, who approached the police party crying out ‘God no mek him dead now, do God’. When asked who she was by Sergeant Green-Denton, the appellant identified herself as the wife of the person lying on the ground and gave her name as Melody Baugh-Pellinen. She was crying and, in the sergeant's words, ‘hyperventilating’. Sergeant Green-Denton tried to console her, before asking her what had happened, to which the appellant said this:

‘We were coming from airport in Montego Bay…because I want to pee-pee I stopped to do it here…When I stopped, I felt something hit into the back of the vehicle. Me and my husband got out to go look at the damage. He was talking to a man who came from the car that hit us. This man looked like an Indian. I ran off because I know something was going to happen. As I run off I heard a loud explosion. I didn't look back. I just ran straight down into the bushes. I stayed there and called the police emergency number and the police told me not to come out until I see a blue light flashing and that's why me come out now.’

6 Sergeant Green-Denton then asked the appellant why she had stopped at this particular section of the road, where, in the sergeant's words, ‘the place was pitch black’. Further, whether there had been anyone else in the assailant's vehicle, and whether she had run off into the bushes because she had felt threatened. The appellant, in Sergeant Green-Denton's words, ‘refused to answer’ any of these questions, but when next asked in whose car she and the deceased had been travelling, she answered, ‘Is a friend of mine own’, adding, when asked about the friend's whereabouts, that she had ‘left him in Kingston to pick him up tomorrow’. At this point, Sergeant Green-Denton, observing that the appellant immediately displayed what she described as ‘an “oopsish” look…as if she had made a mistake’ or said something that she should not have said, asked her the question again, to which the appellant then said that, ‘I left him in Kingston to do business and ‘he will tek a bus go home’. At Sergeant Green-Denton's request, the appellant produced the documents for the car as well as some form of identification and volunteered that the plan had been for her to spend the weekend in Ocho Rios with the deceased. When she was asked why her friend had allowed her to drive by herself to Montego Bay, the appellant's answer was that it was because ‘him know I can manage m'self. I know the road and I know the area well’.

7 While Sergeant Green-Denton tried to question her further, the appellant kept answering two telephones which were in her possession, ‘in hushed tones’, and on four such occasions when the sergeant tried unsuccessfully to take a message for the appellant, the phones went dead as soon as she came on the line. As a result of this, Sergeant Green-Denton took custody of both telephones. She also retrieved from the left inner jacket pocket of the deceased a ‘burgundy looking’ billfold, in which there were a passport, a travel itinerary and a quantity of cash, made up of US$2,020.00, J$200.00, $10 and €40. These items were all handed over to Detective Corporal Horace Bond, who was also on the scene, and the appellant was eventually taken to the Duncans Police Station.

8 At the police station, a statement was in due course (on 2 October 2005) taken from the appellant by Detective Corporal Bond and at the trial this statement was admitted in evidence without objection as exhibit three. This is the appellant's statement as it was recorded by Corporal Bond:

‘Name: Melody Baugh-Pellinen. Age 24: Date of Birth: 4th/ 10/79:

Occupation: Business women [sic]: Address: 77 Lyssons Road, St. Thomas. Tell: 849-9388.

States: I know Timo Jusha Pellinen, he is my husband. I know him for more than three years. He is from Finland. He lives at 2B Nato Paco, Helsinki, Finland. We have been married for two years.

On Saturday the 1st of October 2005, 1:00 p.m. I drove from Lyssons, St. Thomas en route to the Donald Sangster International Airport in Montego Bay, St James. The car I drove is a black 1999 Toyota Corolla ‘L’ Touring Station Wagon motor car, registered 6393 EP and owned by one Marvin Stewart, of 4 Phillips Avenue, Lyssons, St. Thomas. I was alone.

About 8:00 p.m. later that same day, I arrived at the Donald Sangster's International Airport. My husband arrived on an Air Jamaica Flight, which landed about 8:30 p.m. He did not carry any luggage as he was always against travelling with luggage.

We both boarded the car, that I drove and our first stop was at an Essso Service Station in Ironshore, Montego Bay, where my husband bought cigarettes and spring water.

We gain [sic] boarded the car “I was the driver as we intended on going to Ocho Rios in St Ann to stay at the Jamaica Inn Hotel. I drove for some distance and upon reaching a section of the Highway in Trelawny, I felt an urgent need to pee. I told Timo that I wanted to pee and he told me to pull over. I put on my left indicator and pulled to the soft shoulder of the said high-way, before the car came to a dead stop I felt and heard a bump in the rear. I looked through my rear view mirror and saw two head lamps which were on. I stopped the car and come out [sic]. I went to the rear of the car that I was driving and realized that it was a car that had hit the rear. This car was not of a dark colour.

A man of clear complexion, medium built curly hair, like Indian, dressed in a white shirt, jeans pants and appeared to be in his late twenties to early thirties came from the left side of the car. I am not sure if it was from the front or the rear door. We were both looking at the damage that was done to my car, when Timo came out and joined us. I did not see anything in this man's hand. The damage was minor and I was about to walk off to pass urine when I heard a loud explosion like a gunshot, this explosion was next to me. I then become fearful and ran in the direction that my car faced. The headlamps on my car were still on the bulb, the engine was running. Whilst running I heard about one or two more explosions. I continued running up the road for some distance, then I turned to my left and ran into some nearby...