DATE: 20011101 DOCKET: C31478

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. KAREEM BISCOMBE (Appellant)

BEFORE:

DOHERTY, SHARPE and SIMMONS JJ.A.

COUNSEL:

Julian N. Falconer and

Leslie Maunder

for the appellant

Susan Reid

for the respondent

H EARD:

October 17-18, 2001

On appeal from the conviction and sentence imposed by Justice Eugene G. Ewaschuk dated November 7, 1997.

E N D O R S E M E N T

[1] The appellant was convicted of first degree murder. The homicide occurred in the course of an armed robbery. It was the position of the Crown that the appellant and Andrew Samuels, who were both armed, entered the deceased’s apartment under the pretence of purchasing some clothing, and with the intention of robbing him. In the course of that robbery, the deceased was shot in the back of the head. The forensic evidence indicated that the gun was against the deceased’s head when it was fired. The Crown contended that the appellant was the shooter and that the murder was first degree murder by virtue of s. 231(5)(e) of the Criminal Code.

[2] Samuels, who was shot in the course of the robbery, pled guilty to manslaughter and received a 4 year sentence in addition to almost 2 years pre-trial custody. He testified for the Crown.

[3] There was overwhelming evidence, apart entirely from Samuels’ evidence, indicating that the appellant and Samuels were involved in the armed robbery of the deceased and that the deceased was killed in the course of that robbery. There was also strong evidence that the deceased and Samuels were shot with the same weapon. While it was possible that Samuels’ wound was self-inflicted in the course of a struggle, it was more likely that it was not. If Samuels did not shoot himself, then in all likelihood he did not shoot the deceased.

[4] The appellant did not testify.

[5] The appellant raised six grounds of appeal.

I

[6] We do not accept that defence counsel intended to bring a “Corbett” application and was dissuaded from doing so by the trial judge’s indication as to the practice he followed when “Corbett” applications were brought before him. That practice is wrong given the subsequent decision in R. v. Underwood (1997), 1998 CanLII 839 (SCC), 121 C.C.C. (3d) 117 (S.C.C.).

[7] At the end of the Crown’s case, Crown counsel suggested to the trial judge that defence counsel would be bringing a “Corbett” application. Defence counsel said:

Maybe my friend will allow me to speak for myself. … Rather than indicating to the court what I may or may not be doing.

[8] Defence counsel then immediately asked for the jury to be brought into the courtroom. The trial judge asked him whether there would be a “Corbett” application and counsel replied “not at this point”. The jury entered the courtroom and defence counsel elected to call no evidence.

[9] Counsel’s conduct and his statements to the court are entirely consistent with the absence of any intention to bring a “Corbett” application. Nothing said by the trial judge had any impact on counsel’s conduct.

[10] We reject counsel’s affidavit sworn almost 4 years after the trial. The trial record is clear and there is no reason to admit fresh evidence to contradict or vary that record: R. v. Henrich (1996), 1996 CanLII 1391 (ON CA), 110 C.C.C. (3d) 533 at 535 (Ont. C.A.).

II

[11] Counsel submits that the trial judge gave a “soft” Vetrovec instruction concerning the evidence of the accomplice Samuels when he should have given a very firm Vetrovec warning.

[12] The trial judge’s instruction considered in its entirety alerted the jury to the danger inherent in relying on the unconfirmed evidence of Samuels, explained the reasons for that danger particular to this case, explored the specific factors impacting on Samuels’ credibility, reminded the jury of some of the potential confirmatory evidence, and also alerted the jury to the respective positions of the parties. We think the instruction was satisfactory.

III

[13] Counsel contends that Crown counsel improperly commented on the appellant’s exercise of his right to silence upon arrest and that the trial judge did not give a clear and sharp direction to rectify that improper comment.

[14] Crown counsel made no comment on the appellant’s exercise of his right to silence upon arrest. Rather, Crown counsel made a submission that was directed to the appellant’s failure to speak to certain officers that he passed on the street prior to his arrest. The trial judge misapprehended Crown counsel’s submission as a reference to post-arrest silence. In any event, the trial judge immediately and expressly told the jury that the appellant had a right to remain silent on arrest and that no adverse inference could be drawn.

IV

[15] The trial judge outlined the position of the defence at a specific point in his instructions. He spent several pages summarizing that position and reviewing the arguments advanced in support of it. No complaint is made with this part of his charge.

[16] The trial judge also instructed the jury, as he was required to do, on the various bases upon which the appellant could be convicted of first degree murder, second degree murder, or manslaughter either as the shooter or as a party to the homicide. In the course of this part of his instructions, the trial judge referred to defence “concessions” and to defence “positions”. In fact, these were not concessions made by the defence or positions taken by the defence, but were descriptions of the appellant’s legal liability under the various scenarios if the jury made certain findings of fact.

[17] The trial judge should have avoided references to defence “concessions” and defence “positions” in this part of his instructions. We are satisfied, however, that considered in their totality, these instructions would not have misled the jury. The jury would have understood that the so called “concessions” and “positions” were merely acknowledgements by the defence that certain results would flow in law depending on the findings of fact made by the jury.

[18] We come to this conclusion in no small measure because trial counsel raised no objection. While the failure to object is not determinative of any issue raised on appeal, it may be important. It will be particularly significant where appellate counsel argues that the trial judge fundamentally misstated the position taken by the defence at trial. If the trial judge’s instructions could possibly have been understood in the way appellate counsel now argues, trial counsel would surely have raised an objection.

[19] It is also important to consider the meaning of instructions in the context of the trial. The jury were at the trial and would have listened to those instructions bearing in mind what had gone on in the weeks before. The jury knew full well that the appellant was not conceding any form of liability.

V

[20] Counsel for the appellant acknowledges that there was after-the-fact conduct by the appellant from which the jury could infer that the appellant was involved in the armed robbery of the deceased. She contends, however, that the trial judge should have told the jury that the evidence could not assist in determining whether the appellant was guilty of murder.

[21] The trial judge told the jury that the evidence could not assist in determining whether the appellant was guilty of first degree murder. He also told the jury that the evidence could not assist in determining whether the accused had the intent necessary for second degree murder. Finally, he also told the jury that the evidence could assist in determining whether the appellant was “the killer or participant in the killing or the death of the deceased”.

[22] The trial judge went on to tell the jury that it was the position of the Crown that the after-the-fact evidence could be used to prove that the appellant “participated in the killing” of the deceased but that the Crown conceded that the evidence could not be used to prove that the appellant was the shooter.

[23] It would have been wrong to tell the jury that the evidence had no relevance to the appellant’s potential liability for murder. To the extent that the evidence implicated him in a planned armed robbery, it had relevance to his potential liability for second degree murder as a party to that offence. We, therefore, reject counsel for the appellant’s submission.

[24] The evidence of the after-the-fact conduct was circumstantial evidence of the accused’s participation in the events that culminated in the killing of the deceased. We agree with the Crown that it was evidence from which participation in a murder could be inferred but it was not evidence from which it could be inferred that the appellant was the shooter. To the extent that the trial judge’s reference to the evidence being relevant to whether the accused was “the killer” refers to the appellant as being the shooter, his instructions overstate the potential probative value of the evidence.

[25] We are satisfied, however, that this imperfection in the instruction could not have affected the result. We reach that conclusion for two reasons. First, as the trial judge told the jury, it was not part of the Crown’s position that the evidence tended to prove that the appellant was the shooter. Second, this evidence was of little significance when considered in the context of the totality of the evidence adduced against the appellant. We are satisfied that had the jury been told that this evidence could not assist in determining the identity of the shooter, their verdict would inevitably have been the same.

VI

[26] During defence counsel’s argument for a directed verdict of acquittal on the first degree murder charge, the trial judge indicated that in his view the evidence supported the inference that the deceased was on his knees when the fatal shot was fired. The trial judge drew that inference from the location of the wound on the deceased’s head, the fact that the wound was a contact wound and the downward trajectory of the bullet. None of the factors referred to by the trial judge, or others which may have been relevant to the position of the body when the shot was fired, were explored in the course of the Crown’s case. It was not part of the Crown’s case that the deceased was on his knees when shot.

[27] In the course of his instructions on the appellant’s potential liability for first degree murder, and after defining unlawful confinement, the trial judge went on to say:

In this case, on the evidence of Andrew Samuels, which is unconfirmed in part on this point, the deceased, Grant, was forced at gunpoint to lie face down on the floor while the accused, Biscombe, started to cut cords with which to tie Grant up. Samuels took the deceased’s wallet, and the deceased leapt up and started to struggle with Samuels and eventually with Biscombe. At no time did the deceased regain his unrestrained freedom from the two robbers before he was shot to the back of his head by Biscombe. In fact, it may well be that the deceased was on his knees when shot because he was taller than both the accused and Samuels and because the shot to the back of his head travelled in a slightly downward trajectory. Assuming that you find this scenario to be credible, it would be open to you to find that the accused, Biscombe, caused the accused’s death while committing or attempting to commit unlawful confinement. [Emphasis added.]

[28] Counsel for the appellant submitted that the trial judge’s reference to the deceased being on his knees when shot introduced a new theory of liability for first degree murder not advanced by the Crown and not referred to in the evidence. Counsel submits that this resulted in a miscarriage of justice.

[29] We do not accept this characterization. The Crown’s theory was that the appellant was engaged in the unlawful confinement, or the attempt to unlawfully confine the deceased from the moment he entered the apartment and that when the deceased resisted those attempts, the appellant chased him, put a gun to the back of his head and shot him. That was also the theory on which the trial judge instructed the jury. He suggested to the jury that the inference that the deceased was on his knees could be drawn in support of the Crown’s position that there was an unlawful confinement when the murder occurred.

[30] While it might have been possible to infer from the evidence that the deceased was on his knees when shot, there was no direct evidence to that effect, and the Crown did not advance that theory. The trial judge should not have pushed the inferences available on the evidence beyond those ever suggested by the Crown. He should not have suggested to the jury that “it may well be that the deceased was on his knees”.

[31] However, no prejudice flowed from this error. The jury was clearly satisfied that the appellant shot the deceased. That finding was not tainted by the trial judge’s speculation as to the deceased’s position when that shot was fired. Whether the deceased was on his knees, standing, falling or in some other position, the appellant was still engaged in at least an attempt to unlawfully confine the appellant when he put a gun to his head and shot him. Consequently, the deceased’s exact position when he was murdered by the appellant was of no consequence in so far as the appellant’s liability for first degree murder was concerned.

[32] We would dismiss the appeal.

“Doherty J.A.”

“Robert J. Sharpe J.A.”

“Janet Simmons J.A.”