DATE: 20020515 DOCKET: C36150

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) -and- RICHARD CARLSON (Appellant)

BEFORE:

ROSENBERG, MOLDAVER and SIMMONS JJ.A.

COUNSEL:

Irwin Koziebrocki

For the appellant

Susan Reid

For the respondent

HEARD:

May 7, 2002

On appeal from conviction by Justice T.A. Platana and a jury dated January 28, 1998 and from sentence dated December 30, 1999.

E N D O R S E M E N T

[1] [1] On January 28, 1998, after trial by judge and jury, the appellant was convicted of one count of robbery while armed with an offensive weapon, one count of pointing a firearm and one count of being masked with intent to commit an indictable offence.

[2] [2] On December 30, 1999, after an unsuccessful attempt by the Crown to have the appellant declared a dangerous offender, the appellant was sentenced to 12 1/2 years for the armed robbery, 3 years consecutive for pointing a firearm and 2 years consecutive for being masked with intent. This appeal is from conviction and sentence.

Conviction Appeal

[1] [3] The appellant has pursued three grounds of appeal against conviction.

[2] [4] First, he submits that the trial judge erred in directing the jury that they could return a verdict of guilty on the evidence of Cindy Lotysz alone, if satisfied beyond a reasonable doubt that she correctly identified the appellant as the robber.

[3] [5] We agree that this instruction was inappropriate having regard to the significant frailties associated with Ms. Lotysz's eyewitness identification evidence. In view of those frailties, we think the trial judge should have directed the jury that absent confirmatory evidence, it would be unsafe to found a conviction on the evidence of Ms. Lotysz alone and that at its highest, her evidence, if accepted, could only be considered as a piece of circumstantial evidence pointing towards the guilt of the appellant.

[4] [6] That said, on any realistic assessment of this case, it is fanciful to think that the jury relied solely or even primarily on the evidence of Ms. Lotysz to convict the appellant. On the contrary, when the record is read as a whole, including the addresses of counsel and their respective positions, the trial judge's charge and particularly his detailed instructions on the dangers of eyewitness testimony and the specific frailties associated with Ms. Lotysz's evidence, and the jury's question, asking for a read-back of the evidence of two important Crown witnesses who testified that the appellant admitted to having robbed the bank, it is apparent to us that the jury must have considered the whole of the evidence and not just the evidence of Ms. Lotysz in arriving at its verdict.

[5] [7] While not determinative, we note that experienced defence counsel [not Mr. Koziebrocki] did not object to the passage of the charge with which the appellant now takes issue. His only objection to the instructions on eyewitness identification evidence related to the trial judge's failure, when reviewing the evidence, to remind the jury that Mr. Lotysz had not been able to remember the colour of the robber's eyes. (That omission was remedied in the recharge.) Significantly, defence counsel's failure to object leads us to believe that he was not concerned about the jury convicting on Ms. Lotysz's evidence alone.

[6] [8] It follows, in our view, that to the extent the trial judge erred in leaving with the jury the possibility of convicting the appellant on the basis of Ms. Lotysz's evidence alone, the error was harmless and occasioned no prejudice to the appellant. Accordingly, we would not give effect to this ground of appeal.

[7] [9] The appellant next submits that the trial judge erred in failing to correct the impression, left by the Crown in his closing address, that Ms. Lotysz's January 10, 1998 statement to the police could be used as a prior consistent statement capable of bolstering her testimony.

[8] [10] In rejecting this ground, we note that the 1998 statement was initially introduced by defence counsel in his cross-examination of Ms. Lotysz as a means of casting doubt on the reliability of her identification evidence. In particular, the defence wanted to show two things - first, that in the 1998 statement, Ms. Lotysz had failed to describe the robber's eyes, and second, that her description of the robber may well have been tainted by earlier identification procedures carried out by the police.

[9] [11] In his charge, the trial judge invited the jury to test the reliability of Ms. Lotysz 's evidence against the backdrop of the 1998 statement, having regard to the concerns raised by the defence. That is precisely what the defence wanted and it explains why defence counsel raised no objections to this aspect of the charge. Nothing more was said about the statement. In particular, the trial judge did not tell the jury that the statement could be used as original evidence or evidence capable of confirming Ms. Lotysz's testimony.

[10] [12] In the circumstances, even if the Crown did leave the jury with the impression that they could use the 1998 statement to enhance the reliability of Ms. Lotysz's testimony, (something which we seriously question having regard to the comments made by the Crown and defence counsel's failure to object to them) no harm came of this. The trial judge instructed the jury that they could use the statement in a manner helpful to the defence, not the Crown. It is speculative, at best, to think that the jury would have used it, as the appellant now contends for the first time on appeal, for some improper purpose. Accordingly, this ground of appeal fails.

[11] [13] The final argument relates solely to the count of pointing a firearm. The appellant submits that there was no evidence that the gun being brandished by the appellant was a firearm within the meaning of the Criminal Code.

[12] [14] Before addressing the relevant evidence, it is important to point out that this issue was not raised at trial. Indeed, the parties took the position with the trial judge that this was a single issue case and that if the jury was satisfied beyond a reasonable doubt that the appellant was the robber, then he should be found guilty on all counts.

[13] [15] Accordingly, as Mr. Koziebrocki fairly concedes, to succeed on this ground, the appellant must satisfy us that there was no evidence upon which the jury could reasonably conclude that the handgun brandished by the appellant at the bank was a firearm.

[14] [16] Despite Mr. Koziebrocki's able argument, we have not been so persuaded. In accordance with this court's decision in R. v. Richards, 2001 ONCA 21219, [2001] O.J. No. 2286, we are satisfied that taken cumulatively, the following items of evidence could reasonably support a finding that the hand gun in issue was a firearm:

• During the course of the robbery, the appellant brandished the gun, waved it around and eventually pointed it at the back of an employee's head, all the while screaming that this was a "hold-up" and demanding money.

• Various witnesses described the gun as "small" and "black" with a 6 to 8 inch muzzle.

• The fact that the appellant had ready access to guns according to the combined testimony of his accomplice Grannas and his common-law spouse Ms. Ryynanen.

[15] [17] For these reasons, this ground fails and the appeal from conviction is accordingly dismissed.

Sentence Appeal

[16] [18] The trial judge imposed a global sentence of 17 1/2 years after crediting the appellant with 3 1/2 years for time spent in pre-trial custody. Thus, as the appellant correctly observes, he effectively received a sentence of 21 years.

[17] [19] That sentence, he argues, is manifestly beyond the range of sentences imposed in like cases and it reflects a failure on the trial judge's part to give proper regard to the principle of totality.

[18] [20] With respect, we disagree. While the sentence imposed was at the high end of the appropriate range, we have not been persuaded that it was manifestly unfit or that the trial judge committed any error in principle.

[19] [21] The following factors amply support the very heavy sentence imposed:

• The offence was extremely serious.

• The appellant is an institutionalized career criminal. His lengthy criminal record, which dates back to 1964, includes three prior bank robberies and numerous other offences involving violence.

• The last sentence the appellant received for armed robbery of a bank was twelve years. This is now his fourth robbery.

• The psychiatric evidence and correctional evidence called at the sentencing hearing, including the defence psychiatric evidence, confirms that the appellant is an extremely dangerous man who poses a serious threat to society. He suffers from an anti-social personality disorder and his psychiatric condition is untreatable.

• The appellant has a long-standing substance abuse problem which is a contributing factor to his psychiatric problems and which remains unresolved.

• The appellant has shown no remorse or any insight into the gravity and seriousness of his criminal conduct or his psychiatric problems.

[20] [22] These, and other factors, are no doubt what led the learned and experienced trial judge to describe the appellant, who testified on the sentence hearing, as "certainly one of the most, if not the most, frightening individual that I have ever dealt with in 17 years of practice and 8 years on the bench."

[21] [23] For these reasons, although leave to appeal sentence is granted, the appeal from sentence is dismissed.

Signed: "Marc Rosenberg J.A."

"M. J. Moldaver J.A."

"Janet Simmons J.A."