Clyde Anderson Grazette Appellant v The Queen Respondent

CourtCaribbean Court of Justice (Appellate Jurisdiction)
Docket NumberCCJ Appeal No. CR 1 of 2009
JudgeNelson, Bernard
Judgment Date03 Apr 2009
JurisdictionCaribbean States
Neutral Citation[2009] CCJ 2 AJ

[2009] CCJ 2 (AJ)

IN THE CARIBBEAN COURT OF JUSTICE

Appellate Jurisdiction

ON APPEAL FROM THE COURT OF APPEAL OF BARBADOS

Before

The Rt. Honourable and The Honourables

Mr Justice de la Bastide, President

Mr Justice Nelson

Madame Justice Bernard

Mr Justice Wit

Mr Justice Hayton

CCJ Appeal No. CR 1 of 2009

BB Criminal Appeal No. 15 of 2006

Between
Clyde Anderson Grazette
Appellant
and
The Queen
Respondent
Appearances

Mr Alair Shepherd QC, Mr Philip McWattandMs Wendy Marajfor the Appellant

Mrs Donna Babb-Agard and Mr Anthony Blackman for the Respondent

JUDGMENT OF THE COURT

Delivered by The President and Justices Nelson and Bernard on the 3 rd day of April 2009

1

The appellant, Clyde Anderson Grazette, was convicted on November 21, 2006, of the murder of a young woman, Rosanna Griffith, and sentenced to death after a trial before Cornelius J and a jury. On September 18, 2008, the Court of Appeal (Peter Williams, Connell and Moore JJA) dismissed Grazette's appeal against conviction. We heard the appellant's further appeal against conviction on February 6, 2009. At the conclusion of that hearing we dismissed the appeal but gave the appellant special leave to appeal against the sentence of death. That appeal is still pending but we proceed now to give our written reasons for dismissing the appeal against conviction.

The facts
2

On May 19, 2001 Rosanna Griffith, aged 18, of St. Stephen's Hill, Black Rock, in St. Michael left her home with her sisters, Crystal and Cindy, and a friend, Rhea, and went to Carlton Supermarket. After they had made their purchases and emerged from the supermarket, the three others went back in to purchase yogurt and ice-cream while Rosanna remained outside the door of the supermarket. When the three came out of the supermarket and went to the spot where they had left Rosanna, she was nowhere to be seen. She never returned home.

3

On May 20, 2001 her partially naked body was found lying in a track at St. Stephen's Hill. She had been sexually assaulted, strangled and murdered. A vaginal swab taken from Rosanna's body revealed the presence of semen. Samples of hair and blood were also taken from the body.

4

On May 31, 2001, the appellant heard that the police were looking for him and went voluntarily to the Central Police Station in Bridgetown in company with a lawyer. There he met Detective Constable Rouse and Detective Constable Garrett. Constable Rouse indicated that he wanted to interview the appellant in connection with the death of Rosanna. In the course of the interview Constable Rouse informed the appellant that during the course of investigations police “had discovered what they suspected to be ejaculatory fluid on the body of Rosanna and that there was a test whereby we could determine from whom the fluid came.” Constable Rouse inquired of the appellant whether he was willing to give a blood and hair sample for the purpose of such a test. The appellant replied: “I frighten for needles, but I will give the blood and hair.” The appellant was taken to the office of Dr. Murray, a medical doctor, at Thorpes, St. James by Constable Rouse, who was accompanied by Constable Garrett. There he gave a blood sample.

5

On May 31, 2001, the appellant also gave to Constable Rouse an account of his movements on the evening of May 19, 2001. This account was reduced to writing in the form of a movement statement. In that statement the appellant denied he had anything to do with Rosanna's death. He did admit however that he was on the roadside at St. Stephen's Hill when a young woman and three younger girls walked past him. These would almost certainly have been Rosanna and her sisters and their friend on their way to the supermarket. In his statement he made the following further admissions: “I know this young lady by seeing her walking through the district but I do not know her name. I usually would pull at her or make remarks as she passed. As she passed I reached out at her but I did not touch her.”

6

The appellant also admitted in his statement that later on that evening he saw a female relative of the young woman he had seen earlier, walk down St. Stephen's Hill. Both Rosanna's mother and aunt testified that they had separately gone in search of Rosanna after the other children returned home without her.

7

The appellant was also seen in the compound of the Carlton Supermarket around 9:00 p.m. that evening by a policeman, Constable Dalton Thorne who testified to that effect.

8

In the late evening of May 31, 2001 Constable Rouse arrested the appellant but later released him on June 3, 2001. He was re-arrested on May 12, 2002, and later charged with Rosanna's murder. This was after the police received a report of the results of DNA testing carried out at the FBI Laboratory in Washington D.C.

The Case against the Appellant and his Defence
9

The case against the appellant depended almost exclusively on evidence given by a DNA Examiner from the FBI Laboratory that the DNA of the seminal fluid found on the vaginal swab taken from the victim's body, matched the DNA of a blood sample taken from the appellant. Clearly, if this evidence was admitted the defence would be problematical to say the least. On the other hand, without this evidence the case against the appellant would collapse, as while there was the circumstantial evidence of his presence very close to the scene of the murder at or about the time when it was committed and his crude attempts to flirt with Rosanna (paras. [5] to [7] above), this was quite inadequate to support a conviction.

10

The defence of the appellant was, as indeed it had to be, that the blood sample which was found by DNA testing to match the seminal fluid on the vaginal swab, was not in fact the blood sample that was admittedly taken from him.

The Main Ground of Appeal
11

The main ground of appeal on which the appellant relied, was that having regard to the inconsistencies and gaps in the evidence of the chain of custody of the blood sample taken from the appellant, the trial Judge ought to have excluded evidence of the results of the DNA testing. Counsel's principal submission was that the prosecution had failed to discharge the onus which lay on it of proving that the blood sample with the matching DNA was in fact the blood sample taken from the appellant in its pristine condition. It was submitted that without that foundation being laid, the evidence of matching DNA was inadmissible. It was contended for the appellant that the deficiencies in the chain of custody evidence affected the admissibility of the DNA evidence, not just its weight. This argument was not advanced in the Court of Appeal and no objection on this ground was taken at the trial to the admission of the DNA evidence. These being criminal proceedings, however, we do not consider that these failures to challenge the admissibility of the evidence barred the appellant from doing so before us.

12

The principal ground of appeal was buttressed by the submission that some of the evidence adduced in an effort to maintain a chain of custody, was in fact hearsay and not admissible under any of the exceptions to the hearsay rule created by the Evidence Act.

The Chain of Custody Evidence
13

The chain of custody evidence begins with the taking of the blood sample from the appellant by Dr. Murray at his office on May 31, 2001. This was done in the presence of two police officers, Constable Garrett and Constable Rouse (although Dr. Murray does not mention Rouse). Dr. Murray testified that he collected a sample of the appellant's blood “in a phial which was labelled. The phial was then put into an envelope which was sealed and handed back to the Constable.” Dr. Murray then made an entry in the Police Medical Journal and handed that back to the Constable.

14

Constable Rouse's evidence was that he took with him to Dr. Murray's office “two containers, a transparent evidence bag and the Police Medical Journal”. According to Constable Rouse, Dr. Murray having taken the blood sample from the appellant “handed the items to Constable Garrett and made an entry in the Police Journal”. Constable Rouse then took possession of these items and kept them in his custody.

15

According to Constable Rouse he took two phials to Dr. Murray and when he got them back the two phials were sealed in an evidence bag on which he placed his initials. He also said that the appellant placed his signature on the phials.

16

Constable Rouse further testified that after they returned to the Station the appellant gave him two hair samples, one from his head and the other from his pubic area, and these samples were put in separate envelopes.

17

Constable Rouse also swore that after their return to the Station, the blood samples taken from the appellant were kept in the evidence bag in which they had been placed, in a refrigerator in the Criminal Investigation Department in his custody, until he handed them over together with the two hair samples obtained from the appellant, to Sergeant Walcott on July 13, 2001. He also handed over to Walcott at the same time blood and hair samples taken from other suspects.

18

The relevant part of Constable Garrett's evidence in chief with regard to the collection of the appellant's blood sample reads as follows:

“Constable Rouse was in possession of a sealed phial, a transparent evidence bag and the Police Medical Journal … On completion Dr. Murray handed Rouse the sealed transparent evidence bag containing two phials with what appeared to be blood. Dr. Murray then made an entry in the Police Medical Journal … .”

Constable Garrett swore that he too placed his initials on the evidence bag in which the two phials were placed. Constable...

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