R v Berry (Linton)

• Jurisdiction: Jamaica
• Judge: HARRISON, J.A.
• Judgment Date: 30 July 1999
• Judgment citation (vLex): [1999] 7 JJC 3008
• Court: Court of Appeal (Jamaica)
• Date: 30 July 1999

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE PATTERSON, J.A THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE PATON. J.A. (Ag.)

REGINA

V

LINTON BERRY

Terrence Williams

Carrington Mahoney Miss Lorraine

CRIMINAL LAW - Murder - Sentenced to life imprisonment - Circumstantial evidence - Defence of accident

HARRISON, J.A.

1 The applicant was convicted in the Home Circuit Court on the 17th day of February, 1997, of the offence of murder of Paulette Zaidie on 11th January, 1987, and sentenced to imprisonment for life at hard labour with the recommendation that he be not eligible for parole before he had served a period of twenty five years.

2 The prosecution based its case on circumstantial evidence, admissions of the applicant and the forensic evidence.

3 The prosecution's case is that on Sunday the 11th day of January, 1987, at about 10:00 p.m. the prosecution witness Joseph Zaidie was at home when he received a telephone call from the applicant whose voice he recognized. The applicant said "Hello Jimmy I just killed Paulette at the foot of Jack's Hill and you lucky you weren't there; I would kill you too". On his query whether the statement was a joke, the applicant replied, "How you mean joke? I just tell you what I do. Go and pick up the body or go look for yourself." Zaidie called several persons by telephone, including the police, who came and he went to a gas station at the foot of Jack's Hill road where he saw Paulette, a petite woman, slumped in the front seat of her jeep dead. Zaidie and Paulette, the deceased had got married in December 1986. Prior to that, on a night in June 1986, the witness Zaidie and the applicant met at the Illusions night club, which they frequented. The applicant told the witness Zaidie that Paulette the deceased who was then living with Zaidie at his home at Hope Boulevard was his woman and that he Zaidie should "...leave her alone... not trouble her or lay a hand on her." Zaidie left the club and drove home arriving at 2:00 a.m. and saw the applicant and three persons on his premises. The applicant said he had come to get Paulette who told the applicant to leave; they left. The accused in his statement in court agreed that he went there but to speak to Zaidie about his treatment of her. About a couple of weeks after this incident Paulette left home and went to an apartment on Surbiton Manor, the rent for which was allegedly being paid by the applicant. Zaidie continued to visit the deceased at the apartment, and saw the applicant there several times. She remained there for six months and then left and they got married in December 1986. The day before the wedding the deceased came to Zaidie's house. The wedding followed. He went to Miami and she joined him there. They spent one week and returned to Jamaica. Zaidie and the deceased continued to visit the said night club and on one occasion "near Christmas" the applicant spoke to them and said he wished to congratulate them on their marriage. He said however, that he wanted to know if Paulette got married to him Zaidie whilst she was at the apartment with him the applicant, that he had sent to Spanish Town to get the certificate and if that was so he would be annoyed and do something drastic to both of them. On Tuesday prior to the said Sunday the 11th of January, Paulette came home, crying followed by the applicant who proclaiming his love for the deceased complained that he Zaidie had treated him badly, that he the applicant was hurt by the marriage, and that despite the fact that he had given the deceased, an apartment, a satellite dish and a car "... yet she is still going back to him," Zaidie.

4 The witness Zaidie, a coffee farmer, formerly a race horse trainer, admitted to four previous convictions, for larceny of a watch, fraud, and taking the drug cocaine. His first conviction for fraud he said, occurred after the death of Paulette. Cross-examined he denied using cocaine whilst he was married to the deceased, nor had he seen her use it. He also denied having hit her.

5 Another prosecution witness Daphne Matadial, the elder sister of the deceased, testified that prior to the marriage of the deceased and Zaidie, she summoned the applicant to her home. He came along with the deceased. She, the witness confronted the applicant with his conduct of threats and beatings of the deceased and suggested that he cease seeing her. The applicant in the deceased's presence admitted to the said acts of ill-treatment, begged for a chance to continue the relationship and promised to do better. After the marriage she said the applicant telephoned her in December, asked her where Paulette was and expressed a desire to buy a ticket and to go to Miami to kill the deceased and Zaidie. The witness, challenged in cross-examination that she had not mentioned the latter words of intention before giving a statement on 11th February, 1997, the said day she was giving evidence, said that she had said so before but it was not recorded.

6 On the 19th day of December, the applicant again came to the witness enquiring of the whereabouts of the deceased, and on her denial of such knowledge, the applicant promised to "use his high office, his high contacts here at the airport and abroad to find Jimmy and Paulette." On the 9th day of January, 1987, at 8:00 p.m. the applicant came to her home, again enquiring of the whereabouts of the deceased, and said that he had heard that she got married and he was prepared to take her back. On the 10th of January, the applicant again telephoned her enquiring of the deceased, and the witness told the applicant that she was not there. She stated that on Sunday the 11th of January after 9:00 p.m. her husband answered the telephone, she then spoke to a female on the telephone, and as a result she and her husband went to the gas station at Jack's Hill. There she saw a large crowd and Zaidie's motor vehicle.

7 Prosecution witness John Johnson whose deposition was read at the trial, stated that on Sunday the 11th January, 1987, on his way home from church, he stood talking with a man on Barbican Road at about 9:00 p.m. He saw a jeep drive up and stop on the left side of the road beside a light post at the gas station. A white car stopped at the right side of the jeep. Both vehicles were about "120 to 250 yards" from him. The street was well lit. No one came out of the vehicles. About 15 to 20 minutes after he heard a "sound like clappers firing", twice, from the direction where the vehicles were. The white car reversed and drove off up Jack's Hill Road. He then went to the jeep where he saw a "clear-skinned" woman, with a wound to her face bleeding, in the driver's seat. He remained there until the police came; he told them what he saw.

8 At about 9:45 p.m. on the said day, prosecution witness Melrose Spence, a former sergeant of police, who had known the applicant as a district constable, since 1973, drove along Barbican Road and stopped at the service station at the intersection of Barbican and Jacks Hill Road. He saw the applicant sitting on the bonnet of his white Honda Accord motor car and he went within 6-8 feet from the applicant and spoke to him. He saw a Cherokee jeep there also and a female was sitting in the driver's seat, with her hand at her jaw. The witness returned to his vehicle and drove away. He had worked with the applicant while they were in the police force, on several occasions. The applicant was hardworking and was an expert in the handling and use of firearms.

9 Daniel Wray, former Assistant Commissioner of Police, and Government ballistics expert visited the scene, at the intersection of Barbican and Jacks Hill Road at about 10:00 p.m. He saw the dead body of Pauiette, Zaidie in the left hand driver's seat of the jeep slumped across the centre and with her head over the left passenger seat, shot through the mouth. He saw a firearm bullet hole from the outside traced downwards and towards the rear, through the door, the inside panel and into the driver's seat from which he recovered a .44 calibre copper jacketed bullett from the inside of the right door in the vicinity of the door latch. He recovered two lead fragments of a bullet. A bullet was also recovered from the floor under the driver's seat. He said that powder burns to the body meant that the muzzle of the firearm was a distance of between 3 inches to 24 inches away when it was fired.

10 Under cross-examination this witness Assistant Commissioner Wray stated that the .44 Magnum revolver in this case required 7 1/2 lbs. pressure, on double action to discharge it. Asked further he was of the opinion that it was possible that if someone is holding that revolver with his finger on the trigger, and received a violent blow to the stomach it could cause that person to involuntarily pull the trigger. The barrel would have to be pointed at the victim.

11 Dr. Royston Clifford, forensic pathologist, who conducted the postmortem examination observed an entrance gunshot wound to the left cheek extending to the neck ¼" × ¾" surrounded by a conical area of soot, namely, gunpowder deposit, 3"× 2½". The wound extended through the skin and underlying tissue. The missile shattered the lower mandible, the left carotid artery and the internal jugular vein, then went through the mouth shattering the right mandible and exiting at the right side of the mouth and cheek creating a gaping tearing wound 3"×2". He said that the cause of death was due to the said gun shot wounds; death was instantaneous, and the firing was at close range, as evidenced from the gunpowder deposits. He agreed with the witness Assistant Commissioner Wray that the muzzle of the gun when fired would have been between 3" to 24" from the wound which ran from left to right and slightly upwards. The deceased was five feet five inches tall, weighing 105 lbs and clothed in a white "T shirt" and pants.

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