Nigel Charles Marlon Hope v The State

• Jurisdiction: Trinidad & Tobago
• Judge: A. Yorke-Soo Hon,M. Mohammed,M. Holdip JJA
• Judgment Date: 24 April 2024
• Neutral Citation: TT 2024 CA 21
• Docket Number: Cr. App. Nos. P-035 and P-038 of 2019
• Court: Court of Appeal (Trinidad and Tobago)

Between

Nigel Charles Marlon Hope

Appellants

and

The State

Respondent

Panel:

A. Yorke-Soo Hon, JA

M. Mohammed, JA

M. Holdip, JA

Cr. App. Nos. P-035 and P-038 of 2019

CASE NO. CR S26/2013

IN THE COURT OF APPEAL

APPEARANCES:

Mr. J. Singh, Ms. A. Francis and Mr. M. Rooplal appeared on behalf of the Appellants.

Mr. T. Sinanan appeared on behalf of the Respondent.

Delivered by: A. Yorke-Soo Hon, M. Mohammed, M. Holdip JJA

Introduction

1 The appellants, Nigel Charles and Marlon Hope, were charged with the murder of Harry Chatoor, who died on July 26, 2006. On April 24, 2019, they were convicted of murder on the basis of the felony/murder construct. They were both sentenced to 14 years and 11 months imprisonment.

The appellants have appealed their convictions and sentences.

The Case for the Respondent

2 In the early morning of July 7, 2006, the deceased, Harry Chatoor (deceased), his wife, Shirley Chatoor, their two daughters, Rishma Chatoor (Rishma) and Vanessa Chatoor (Vanessa) and their son, Rishi Chatoor (Rishi), were at their home in Jordan Hill in Princes Town. Rishma was asleep and woke up to the sound of breaking glass. She then heard a loud explosion which sounded like a gunshot which came from the direction of her father's room. She got up and proceeded to her father's room when she came face to face with a man whom she came to know as the appellant Nigel Charles (Charles). He was exiting her father's room and was armed with a gun in his right hand and had her father's radio under his left arm. Rishma asked him who he was and what he was doing there and he replied, “You ain't realise this is a robbery?” The area was well lit and the man stood an arm's length away from her. There was nothing covering his face. She described the man as being of African descent, about five feet, six or seven inches tall with a low haircut and a faint moustache. He was clad in a washed-out black t-shirt, three-quarter length jeans shorts and a dirty black and white Nike shoes. Charles hit her on her head with the radio and pushed her back into her room. He demanded money and jewellery from her. She heard her father speak in a low tone and she asked Charles if he had shot her father. He responded, “I come here to shoot and I killing.” Charles then hit her across her head with the back of the gun. While in her room, Charles took several pieces of jewellery and a watch which belonged to her brother. He placed the items in a pink floral gift bag. Rishma had him under observation for approximately fifteen to twenty minutes. Charles then left the room and returned a short while after. Shirley and Vanessa then came into Rishma's room with another assailant who stood behind them.

3 Vanessa testified that on the morning in question, she woke up to a loud noise which sounded like a gunshot. Her mother was asleep next to her. She woke up and walked to the door when a man came into her room, armed with a gun. The man turned on the light in the room. He had a t-shirt and a hat on his head and a red bandana over his face. He was about five feet, eight inches tall, slim built, with a dark complexion and a “ras” hairstyle 1. He was dressed in a dark coloured t-shirt and dark coloured three-quarter length shorts and a pair of black shoes. The man woke up her mother and announced a robbery. He demanded money and jewellery. The man took Vanessa's mobile phone, cash and jewellery from the room. He asked Vanessa about the green B14 motor vehicle which she drove. She told him that she did not have a vehicle and that she would sometimes borrow the car that he was speaking about. They were then taken to Rishma's room where they met Rishma and the appellant Charles. Vanessa was able to see Charles' face clearly. Rishma testified that when the other assailant came into her room with her sister and mother, he had nothing covering his face but subsequently covered it with a red and white handkerchief. Vanessa's evidence was that at one point, the assailant who had entered her room removed his hat and the “rasta” wig which he was wearing and she observed that he had short, kinky hair.

4 After robbing the family of their belongings which included electronics, jewellery and cash, the two men left in a wagon. Vanessa, Rishma and Shirley proceeded to the deceased's room where they saw him bleeding. He told them that he had been shot.

Vanessa observed something resembling a bullet on the mattress next to her father. Vanessa then went downstairs where she saw her brother Rishi

5 Rishi gave evidence at the preliminary inquiry on January 23, 2009. At trial he was deceased and his deposition was read into evidence. On July 6, 2006, after doing some work at the back of his house, he went inside around 11:30 pm to midnight and took a shower. Around 12:30 am, he was exiting the bathroom, when he heard a banging sound on the front door. He thought that it was his brother at the door and went to open it. When he looked through the glass of the door, he saw two men in the porch. One of them was kicking down the door and the other was fixing a handkerchief over his face. Rishi ran to his room and contacted the police. He was whispering to the police but they were unable to hear him. He hung up and contacted his girlfriend. The men then broke down the door. He saw one of the men run upstairs and the other man ran to the back rooms. The man who ran upstairs went straight to his father's room and demanded money. His father responded, “What money you talking about? I have no money. I am a pensioner.” The man replied, “You ain't giving me no money?” and then an explosion was heard. Rishi did not hear his father after that. He then heard the window in his father's room open and heard someone saying, “Come, come, come.” Rishi peered through the window and observed a blue wagon reverse into the yard. One of the men threw a stereo into the wagon and the handkerchief came off his face. The man was armed with a gun. He did not conceal his face with the handkerchief at that time. Rishi said that he knew this assailant well, whom he identified as Marlon Hope. He had known him for approximately two years prior to July 2006. Hope would often visit his burger business in Gulf City, about twice a month and mostly on a Saturday. The week before the incident, the burger cart was moved to Cross Crossing. Hope came to the business every day and bought burgers. The week before the incident, Hope came to his house to purchase a vehicle. After that, Hope constantly showed up at his home and told Rishi that he was getting a loan. Hope also gave Rishi his full name. Hope made several trips to the wagon and placed items inside it. Rishi said that during the incident, his sisters were upstairs, bawling. He heard one of them say, “Take what allyuh want. Don't do nobody nothing.”

6 The incident was reported to the police who later arrived at the scene. The deceased was taken to the San Fernando General Hospital where he was treated for his gunshot wound.

7 After conducting inquiries into the incident, on July 7, 2006, the police executed a search warrant at the home of the appellant Hope at Betty Street, Cocoyea in San Fernando. The police informed Hope that he was a suspect in the incident and cautioned him. He was then arrested and informed of his rights and remained silent. During the search of the house, the police found several items including a sim card, a pair of portable radios and a blue jewellery box containing jewellery and pieces of a watch band. The police enquired how he came to be in possession of those items and he remained silent. A police officer informed Hope that he was of the opinion that the items were either stolen or illegally obtained and he made no response. On July 8, 2006, Rishma identified the jewellery as belonging to her as well as a pink floral gift bag. Vanessa identified a mobile phone, a grey walkie-talkie, a sim card as well as the gift bag. Neither Rishma nor Vanessa identified the appellant Hope at an identification parade. On July 11, 2006, Hope was positively identified by Rishi in an identification parade.

8 On July 14, 2006, the appellant Charles was walking along the Naparima Mayaro Road in Cocoyea Village when he was stopped by the police. The police informed him that he was a suspect in the robbery and wounding incident at the Chatoor's premises. He was cautioned and informed of his rights and remained silent. He was searched and an unlicensed firearm containing ammunition was found in his front right trouser pocket. A subsequent ballistic test on the firearm was found to match the bullet/spent shell which was recovered on the deceased's bed on the night that he was shot. Charles was arrested and conveyed to the San Fernando Criminal Investigations Department (CID) where he was further searched. The police found in his underwear a black plastic bag containing a quantity of jewellery. On July 17, 2006, Rishma identified several of the items of jewellery as belonging to her. On that day, Charles was positively identified in an identification parade by both Rishma and Vanessa.

9 The deceased succumbed to his injuries on July 26, 2006. On July 28, 2006, the appellants were charged with the offence of murder.

The Case for the Appellants

10 Both Charles and Hope gave evidence at the trial. They denied being present at the home of the deceased on July 7, 2006. They asserted that they were elsewhere at the relevant time.

11 Charles' defence was that of an alibi and fabrication. He testified that on July 14, 2006, he was walking along High Street in San Fernando when he saw a commotion involving the police. It appeared to him that the police officers were about to arrest three men. Charles told them, “all you only running down the small sardine and leaving the big fish to swim in the sea.” The police then grabbed him by his pants, placed handcuffs on him and took him to the San...