St Catherine brothers who claimed provocation in man’s killing lose bid to overturn murder convictions

The Court of Appeal has dismissed an appeal by two brothers, upholding their 2011 murder convictions and ruling that the trial judge correctly excluded manslaughter and provocation from the jury.

“We did not believe that any evidence arose for the learned trial judge to have left manslaughter to the jury. As a result, we concluded that the learned trial judge was correct in not leaving the issue of provocation and the lesser offence of manslaughter for the jury’s consideration,” the court said in its written reasons released last Friday.

The appeal was heard on January 31 and February 1, 2024, the same day the court delivered an oral ruling dismissing the challenge brought by Derrick and Alvin Morgan.

The brothers had pleaded not guilty to the April 29, 2011 shooting death of Nenval Richards Jr on Wood Hall Lane in St Catherine.

Following a trial before Justice Sarah Thompson-James, a jury convicted them in the Home Circuit Court in Kingston. On October 16, 2015, the judge sentenced both men to 18 years’ imprisonment at hard labour, stipulating that they serve 15 years before becoming eligible for parole.

The appeal centred on whether the trial judge erred by failing to leave the issue of provocation to the jury, which the defence argued could have allowed for a manslaughter verdict carrying a less severe sentence.

Section 6 of the Offences Against the Person Act outlines the defence of provocation, requiring a jury to determine whether actions or words caused an accused person to lose self-control and act as a reasonable person might in the circumstances.

If successfully established, the defence does not lead to an acquittal but can reduce a murder conviction to manslaughter.

According to the prosecution, the Morgan brothers acted in common design to murder Richards Jr before staging the scene to claim self-defence.

Evidence before the court included testimony from the deceased’s brother, who described Richards’ relationship with the men’s sister as “an ups and down relationship”. He said the pair had a child together and were separated. He said Derrick Morgan had told him at a wake on the night of the murder that he would kill his brother.

Forensic evidence indicated that Richards died from a gunshot wound to the head and had sustained multiple chop wounds.

Prosecutors argued the lack of defensive injuries and the concealment of the weapon supported their claim that the killing was a coordinated attack rather than self-defence.

In their defence, the brothers said they were ambushed by two masked men while walking home from the wake with family members, including the sister.

According to their unsworn statements, one attacker swung a machete at Derrick Morgan while another pointed a firearm and demanded a gun Alvin Morgan had taken from his workplace.

Their sister also testified that the deceased was “wicked”, frequently fought with her and had used drugs.

The defence argued the violence was a spontaneous reaction to a life-threatening situation and that the prosecution had failed to disprove self-defence.

However, the three-judge Court of Appeal panel of Justices Frank Williams, Carol Edwards and Georgiana Fraser dismissed their grounds of appeal, although they acknowledged that there were inconsistencies on the prosecution's case.

“They were not of the nature or did not rise to the extent that required the trial to be stopped,” Williams said in addressing the defence claim that the case should have been halted due to insufficient evidence. Williams wrote the opinion, which was unanimous.

“In fact, it could fairly be said that Derrick and Alvin’s accounts to the police, when viewed against the totality of the evidence presented at the stage of the no-case submission, also revealed inconsistencies and discrepancies, making it appropriate for them to have been called upon to answer the case against them.”

On the issue of provocation, the court said the evidence did not meet the required threshold. “We reviewed the evidence in its entirety, and we did not find that the applicants met the evidential bar,” Williams said.

Williams argued that two cases, including the 1957 Bullard matter, “make it clear that a trial judge’s duty to leave the issue of provocation and the alternative verdict of manslaughter to the jury for their consideration can only arise if there is sufficient evidence on which the jury could reasonably find that there is provocation, and be in a position to return a verdict of guilty of manslaughter.”

He added: “In light of the authorities, this court is duty bound to accept the Crown’s submissions on this issue that the learned trial judge was correct in not leaving manslaughter as a possible verdict for the jury to consider. This is on the basis that the issue of provocation should only be considered if there is evidence to support it. On our assessment, no such evidence existed or arose at the trial of the matter.”

The defence team had also contended that the judge failed to provide adequate guidance on applying legal principles to the evidence.

But the appeal court found that the judge had correctly directed the jury to consider whether the force used was reasonable or excessive given the nature of the injuries.

The brothers also claimed the judge's summation missed critical evidence and failed to guide the jury on how the law operates.

That was dismissed by the appellate justices. They said the trial judge properly highlighted key prosecution and defense evidence, including the location of the machete, which was found by the deceased’s left palm, although the evidence is that he was right-handed; and the declared intent to kill.

Attorney Gladstone Wilson represented Derrick Morgan while Kerry-Ann Wilson appeared for his brother. The prosecution was represented by André Wedderburn and Kemar Setal.

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