DATE: 20020221 DOCKET: C34149

COURT OF APPEAL FOR ONTARIO

MOLDAVER, FELDMAN and MacPHERSON JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

JEFFREY EARL SHIRLEY

Appellant

Mark J. Sandler for the appellant

Gregory J. Tweney for the respondent

HEARD: January 29, 2002

On appeal from conviction for attempted murder by Justice Alfred Stong with a jury, dated March 4, 2000.

MOLDAVER J.A.:

[1] The appellant appeals from his conviction for attempted murder. He submits that the trial judge committed a number of errors in his charge to the jury and he requests a new trial.

[2] For reasons that follow, I am respectfully of the view that the charge contains at least two reversible errors. Accordingly, I would allow the appeal, quash the conviction and order a new trial. In view of this disposition, I do not propose to review the evidence at length.

OVERVIEW

[3] In the early morning hours of June 20, 1999, Damon Merkley was shot and seriously injured while engaging in a drug transaction with the appellant. Prior to the shooting, Merkley had borrowed a friend’s car and driven to the appellant’s home in search of crack cocaine. Merkley was a “crack” addict and the appellant had been one of his suppliers in the past. On the night in question, however, the appellant wanted nothing to do with him and he told Merkley as much. Merkley had proved to be untrustworthy and he had been violent and aggressive towards the appellant on two recent occasions.

[4] Merkley did not take kindly to the appellant’s refusal to sell him drugs and the two men engaged in a heated argument on the appellant’s driveway. At one point, after being grabbed by Merkley, the appellant produced his handgun[^1] and told Merkley to leave. Merkley responded by telling the appellant that he was going to take the gun away from him and punch him in the head. When questioned further about this, Merkley stated that he was not afraid of the appellant, nor was he concerned about being shot by him.

[5] At the appellant’s suggestion, the two men left the driveway and agreed to meet at a nearby school. Merkley drove his car to the school parking lot and the appellant followed on foot. When efforts to consummate a drug deal failed, the appellant left the parking lot and began walking down the street away from his apartment. Merkley followed in his car and after pulling alongside the appellant, he told the appellant to “hurry-up” and give him the drugs. Realizing that Merkley would not leave him alone, the appellant capitulated and approached the car. Merkley remained seated in the front seat and the appellant stood beside the front passenger window. The two men then gave very different versions of what occurred.

[6] Merkley testified that as he reached through the open passenger window to pay the appellant for an agreed-upon amount of crack cocaine, the appellant put a ten-cent coin in Merkley’s hand, produced his handgun and at point blank range, fired three shots at Merkley through the open window. One of the bullets shattered his elbow, entered his side and lodged next to his spine. The other two penetrated the front seat of the car. At this point, the appellant fled and Merkley, though stunned, managed to drive to a nearby hospital where he received emergency treatment.

[7] The appellant, on the other hand, testified that as he was reaching out to hand Merkley the crack cocaine, Merkley grabbed his arm, twisted it and told him to drop the drugs. The appellant told Merkley to let go but Merkley continued to twist his arm with considerable force. In pain, and thinking his arm was broken, the appellant used his free hand to retrieve his handgun. He then leaned into the car, pointed the gun at Merkley and told him to let go of his arm. Merkley refused and continued to twist, telling the appellant to drop the drugs. The appellant finally complied and dropped the drugs inside the car. Merkley then grabbed for the gun and the appellant pulled back, telling him to let go. In the ensuing struggle, the gun accidentally discharged. The appellant did not recall pulling the trigger, nor did he believe that his finger was on the trigger when the gun went off. He further testified that he did not want to harm Merkley and that he had produced the gun solely as a defensive measure to have Merkley release his arm.

[8] After the shooting, the appellant fled the scene and disposed of the gun. Later that day, after learning from a friend that Merkley had been injured and that the authorities were looking for him, the appellant surrendered himself to the police.

ISSUES AT TRIAL

[9] Stripped to its essentials, this was a straightforward case involving one, and perhaps two issues for the jury. The first issue was whether the appellant deliberately pulled the trigger, as Merkley claimed, or whether the gun discharged accidentally, as the appellant claimed. The resolution of that issue hinged on the jury’s findings of credibility. If the jury believed or had a reasonable doubt that Merkley was the aggressor and that the gun discharged accidentally as the appellant maintained, then the appellant was entitled to be acquitted. On the other hand, if the jury was satisfied beyond a reasonable doubt that the appellant was the aggressor and that he deliberately pulled the trigger, as Merkley claimed, then depending on his intent at the time of the shooting, the appellant was either guilty of attempted murder or the included offence of aggravated assault.

GROUNDS OF APPEAL

[10] The appellant raised seven grounds of appeal, all relating to alleged errors in the charge to the jury. In my view, while each ground has some degree of merit, of the seven alleged errors, two are particularly serious and come within the “reversible error” category. I will deal with them momentarily. Of the remaining five, I find it unnecessary to analyze them in detail. Each is briefly addressed below.

[11] First, in the context of his instructions on the requisite intent for attempted murder, although it was permissible for the trial judge to instruct the jury on the common sense inference that sane and sober people intend the natural consequences of their acts, it would have been preferable had he alerted the jury to the various facts which, in the circumstances of this case, tended to rebut that inference.

[12] Second, again in the context of the requisite intent for attempted murder, I think that the trial judge’s instructions on the law of homicide and the distinction between culpable and non-culpable homicide were unnecessary and a potential source of confusion for the jury.

[13] Third, with respect to his instructions on onus and burden of proof, the trial judge unfortunately slipped on numerous occasions and used language which suggested that the appellant bore the onus of proving that the gun discharged accidentally. By way of example, he told the jury that if they were “satisfied and accept the explanation that the gun accidentally discharged, then that is a total defence to the offence … charged” and later, “if you are satisfied that Mr. Shirley … is not responsible because it was an accident, you do not even get to this [the requisite intent for attempted murder].”

[14] Fourth, the instructions on accident and intent were confusing and, in my view, the charge, when read as a whole, failed to adequately delineate the difference between accident (the unintentional physical act of pulling the trigger) and intent (the mental state required for attempted murder).

[15] Finally, in his instructions to the jury on the legal effect of a witness’s denial of a suggestion put in cross-examination, the trial judge stated:

… allegations of misconduct or suggestions of evidentiary matters are easily put to a witness in cross-examination. In the absence of evidence supporting the allegation or suggestion in the question, the witness’s denial of the allegation or suggestion must be taken as correct because counsel’s questions or submissions cannot be tendered as evidence, only witnesses testifying. [Emphasis added]

[16] With respect, the emphasized portion is clearly wrong. While it is true that unaccepted suggestions put to a witness do not amount to evidence, a witness’s denial of a suggestion does not mean that the denial must be taken as correct. The jury is entitled to accept all, part, or none of a witness’s testimony.

CRITICAL ERRORS

Error 1 - The trial judge erred in instructing the jury that if the appellant’s evidence was found to be a deliberate lie, they could use that finding as positive evidence of guilt.

[17] In the circumstances, I need not decide whether these errors, standing alone or considered cumulatively, would have warranted a new trial. In the end, they affirm my conclusion that the appellant is entitled to a new trial. That brings me to the two critical errors in the charge.

[18] In his charge, the trial judge instructed the jury as follows:

You must remember that because you reject a person’s explanation or Mr. Shirley’s explanation does not mean that he is guilty. But when the explanation turns out to be a deliberate fabrication, that could be evidence of what you would use to determine guilt. If you find that he has deliberately lied and his explanation is found to be deliberately false, you may take that as evidence to consider with all of the rest of the evidence in determining his guilt or innocence.

[19] It is now well settled that rejection of an accused’s evidence can only be used as circumstantial evidence of guilt where there is independent evidence of concoction. (See R. v. Coutts (1998), 126 C.C.C. (3d) 545 (Ont.C.A.), leave to appeal refused (1999), 131 C.C.C. (3d) vi S.C.C.; R. v. Blazeiko (2000), 48 O.R. (3d) 652 (Ont.C.A.); and R. v. McNeill (2000), 48 O.R. (3d) 212 (Ont.C.A.)).

[20] With his usual candor, Mr. Tweney for the Crown acknowledges that there is no independent evidence of concoction in this case and he concedes that the impugned instruction constituted error. Nonetheless, he submits that the conviction should be sustained because the error occasioned no substantial wrong or miscarriage of justice. He bases that submission on the fact that if the jury rejected the appellant’s explanation as to how the gun discharged, then the sole remaining issue was whether the appellant possessed the requisite intent for attempted murder at the time of the shooting. In that regard, he submits that the trial judge made it clear to the jury that the Crown bore the onus of proving that the appellant intended to kill Merkley and that the impugned instruction did not derogate from that instruction. Moreover, he submits that the evidence of the appellant’s intent at the time of the shooting was overwhelming and that absent the impugned instruction, the jury’s verdict would inevitably have been the same.

[21] With respect, I disagree with Mr. Tweney’s analysis. First, given the blemished backgrounds of the appellant and Merkley,[^2] this was a case where the jury may have had difficulty deciding which one to believe. In the circumstances, it is at least conceivable that the jury followed the impugned instruction, made a finding of fabrication and used that finding to tip the scales in favour of believing Merkley. Viewed that way, I cannot say that the verdict would necessarily have been the same had the jury not been misdirected.

[22] Second, even if Mr. Tweney is correct and the jury only considered the impugned instruction, if at all, in determining whether the appellant had the requisite intent for attempted murder at the time of the shooting, I cannot agree with him that the error was necessarily harmless. The appellant’s intent at the time of the shooting was a live issue and although the case for the Crown in this regard was strong, I cannot say that it was so overwhelming that the verdict would inevitably have been the same absent the impugned instruction.

[23] Accordingly, I would give effect to this ground of appeal.

Error 2 - The trial judge erred in failing to instruct the jury on the use to be made of Merkley’s criminal record and his disposition for violence.

[24] In his charge, the trial charge correctly instructed the jury on the use they could make of the appellant’s criminal record. In that regard, he made it clear that the record could not be used to show that the appellant was the type of person likely to have committed the offence with which he was charged.

[25] Unfortunately, the trial judge failed to make any mention of Merkley’s criminal record in the charge. Of even greater significance, he failed to instruct the jury on the use they could make of Merkley’s admitted disposition for violence in assessing whether he, as opposed to the appellant, was the initial aggressor in the incident resulting in the shooting.

[26] Mr. Tweney concedes, correctly in my view, that there was ample evidence of Merkley’s disposition for violence both in general, and specifically in relation to the appellant. Merkley was an admitted brawler and fighter, he had a prior conviction for assault causing bodily harm, he had boasted about being sent to jail for beating up someone and sending him to the hospital, he had connections with outlaw biker gangs and he had exhibited violence towards the appellant on two prior occasions. The appellant was entitled to have the jury consider that body of evidence in assessing his claim that Merkley was the initial aggressor. (See R. v. Scopelliti (1981), 63 C.C.C. (2d) 481 (Ont.C.A.)). He was likewise entitled to have the jury consider Merkley’s criminal record, which included offences of dishonesty and lack of trustworthiness, in assessing Merkley’s credibility.

[27] Defence counsel at trial asked the trial judge to instruct the jury on both matters. Regrettably, the trial judge refused to do so. His failure in this regard went to the heart of the appellant’s defence and, in my view, constituted reversible error. Accordingly, I would give effect to this ground of appeal.

CONCLUSION

[28] The charge to the jury contained two serious errors. One went to the heart of the appellant’s primary defence. In the circumstances, the conviction cannot stand. Accordingly, I would allow the appeal, set aside the conviction and order a new trial.

SIGNED: “M. MOLDAVER J.A.”

“I AGREE K. FELDMAN J.A.”

“I AGREE J. C. MacPHERSON J.A.”

RELEASED: “MJM” FEBRUARY 21, 2002

[^1]: The appellant had taken to arming himself with a handgun when dealing with Merkley because of Merkley’s general reputation for violence and his previous acts of aggression towards the appellant. [^2]: Both had criminal records and both were involved with drugs.