DATE: 20030929 DOCKET: C37865
COURT OF APPEAL FOR ONTARIO
CARTHY, DOHERTY and SHARPE JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
LLOYD DEMETRIUS Appellant
Counsel: Mara Greene for the appellant Erika Chozik for the respondent
Heard: September 04, 2003
On appeal from the conviction imposed by Justice Hugh R. Locke of the Superior Court of Justice, sitting with a jury, dated November 21, 2001.
SHARPE J.A.:
[1] The central issue at the appellant’s trial for attempted murder was identity. Shortly after the incident, Durvent Dave Jack, the victim and acquaintance of the appellant, identified the appellant as the shooter to Detective Martin Woodhouse. At trial, Jack testified that the appellant was his assailant, and Detective Woodhouse testified of the prior identification made by Jack in the hospital. The defence called Dwight Wisdom who testified that he shot Jack. According to the defence’s theory, Jack had refused to identify Wisdom as the shooter because he wanted to hide his involvement with Wisdom in a robbery. The appellant did not testify. The jury found the appellant guilty of attempted murder at trial.
ISSUE
[2] In oral argument, counsel for the appellant abandoned a ground of appeal relating to the trial judge’s instructions on the criminal antecedents of Crown and defence witnesses. Accordingly, the sole issue to be decided is whether the trial judge erred by failing to give the jury a limiting instruction with respect to the use of Jack’s identification of the appellant while in the hospital.
BACKGROUND FACTS
[3] On August 21, 1999, at approximately 12:45 p.m., Jack was shot three times, twice in the leg and once in the arm, outside a take-out restaurant in a busy strip mall in Scarborough. Jack testified that just before the incident, he and his cousin went into the restaurant to pick up some food. While they were in the restaurant, the appellant, known to Jack as “Omar”, entered the restaurant with a friend. The appellant and his friend got into an argument with the counter clerk, and according to Jack, the appellant flashed a knife during the exchange. At that point, Jack intervened and warned the appellant by saying “Omar, don’t get yourself in no trouble”. To this, the appellant responded: “Dave, don’t say nothing to me, being like you is a big pussy hole.” Jack did not reply to this insult, and instead left the restaurant with his cousin, and headed towards his parked car where his wife, Jacqueline Saulter, was waiting. The appellant then followed Jack out of the restaurant and again called him a “big pussy”. Jack responded to this insult by saying: “It takes one to know one.” After the appellant and Jack traded further insults, the appellant then pulled out a handgun. By this time, Jack’s wife had gotten out of the car. She yelled at the appellant: “Omar, what are you doing? Remember I know you, I know, remember I know you.” According to Jack and Saulter, the appellant then shot Jack three times. Jack’s cousin, who was present throughout the incident, did not testify at trial because he had immigration problems and his whereabouts were unknown.
[4] The police were called immediately following the shooting. Detective Woodhouse went to the hospital to interview Jack, who promptly identified the appellant as the shooter. Police officers were then quickly sent to the restaurant where Jack was shot, but no one at the scene was prepared to give the police any information. Consequently, the crown was only able to call three witnesses at trial – Jack, Saulter, and Detective Woodhouse.
[5] The defence at trial essentially rested on the evidence of Dwight Wisdom, an admitted drug trafficker with an extensive criminal record and several outstanding charges. According to Wisdom, it was he, and not the appellant, who had shot Jack. Wisdom testified that he had lent Jack a gun to rob a local drug dealer known as “the Rasta” two and one half months before the shooting. When the robbery was completed, Jack was to return the gun and give Wisdom $2000 from the proceeds of the robbery. Wisdom testified that the robbery had taken place, but because he had not heard from Jack since, he was pursuing Jack for the weapon and the money when the incident occurred. On the day of the shooting, Wisdom ran into the appellant at the take-out restaurant. After speaking with the appellant, Wisdom saw Jack outside and confronted him about the gun and the money from the robbery. According to Wisdom, Jack told him that he had thrown away the gun, and that he would not give Wisdom a share of the proceeds from the robbery. Then, after Jack uttered some insulting remarks, Wisdom became angry and shot Jack in the legs, intending to hurt him but not to kill him. Crown counsel attacked Wisdom’s credibility in cross-examination and got him to admit that he had understated his relationship and contact with the appellant in the months leading up to the trial.
PROCEEDINGS AT TRIAL RELATING TO THE IMPUGNED EVIDENCE
[6] The issue in this appeal centres on Detective Woodhouse’s testimony of his exchange with Jack in the hospital. At trial, defence counsel objected to the admission of Jack’s in-hospital statement on the grounds that it violated the rule excluding prior consistent statements. Crown counsel responded by submitting that while the statements were prior statements, they were admissible as part of the narrative. At the time of defence counsel’s objection, the Crown did not seek to have the statements admitted for the truth of their contents. The following is the relevant portion of the transcript of Detective Woodhouse’s evidence:
Q: All right. And did you know at that point who it was you were looking for?
A: Yes. We had an idea that the accused Omar Demetrius was, ah, the man who caused the shooting to happen and he lived in the complex of 4301—
Q: All right.
A: -- Kingston.
Mr. SAPIANO [appellant’s trial counsel]: I would be objecting to this evidence and line of questioning, Your Honour.
Mr. CLARK [crown trial counsel]: All right. I am submitting none of this is in – I mean I should have laid that. I thought it was obvious, maybe I should have asked that. None of this is going for its truth but rather to explain what the officer did and why he did it. Obviously he is only – the information come from other parties and has no utility through his mouth for the truth of the content. What I was trying to direct the officer to was why he did what he did.
Mr. CLARK: Q: Were you told, without obviously not going for this truth, were you told by someone who the shooter was? That’s my – I guess the thrust of my question.
A: Yes.
Q: All right. And who told you who the shooter was?
Mr. SAPIANO: I object to this, Your Honour. This is prior consistent out of court statements. That’s being –
THE COURT: Are you going to get to the bottom line fairly soon?
MR. CLARK: I am indeed. I just want to have this officer, this jury understands through the mouth of this officer why certain officers were detailed to the scene. They’ve already heard from the people involved.
THE COURT: Yes.
MR. CLARK: All right. Thank you. So I take it – well, all right. Let me deal with it this way. You have got the ETF involved. Is that correct?
A: Yes.
Q: Without going into who said what to whom, who were you looking for? Who were they looking for, ah, a particular person?
A: Mr. Demetrius.
[7] Prior to Detective Woodhouse’s testimony, the Crown called Jack as its first witness. During Jack’s cross-examination, the appellant’s trial counsel put to him the defence theory that Jack had been involved in a robbery and that he was refusing to identify the true assailant in order to avoid disclosing details of that robbery. Jack denied the allegations. Crown counsel did not refer to this exchange when seeking to tender Detective Woodhouse’s impugned statements.
[8] No further mention was made of Jack’s statement to the police during the course of the trial until counsel made their closing addresses to the jury. Having called evidence, counsel for the appellant addressed the jury first. During the course of this address, counsel for the appellant indirectly referred to Jack’s prior statement when attempting to explain why Jack had identified the appellant instead of pleading no knowledge of the shooter:
Now, Mr. Jack could have lied in different ways. He could have put it on someone other than my client. He could have put it, he could have said I don’t know the person. He could have said a number of things, but, ladies and gentlemen, under perhaps the moment, the very same trauma and shock that the Crown is going to be urging upon you to explain away all these frailties, that very same shock and trauma resulted in him naming my client as opposed to doing something perhaps more logical saying geeze, the shooter was wearing a mask or I have just never seen him before.
Now, let’s consider the testimony and just before leaving that, the Crown quite rationally and reasonably is apt to say to you well, if Mr. Sapiano is right and he didn’t want to name the real shooter, then why didn’t he just say I didn’t know who the person was or is and I submit to you that’s a perfectly legitimate and reasonable argument. However, it didn’t happen, and it didn’t happen for any of a number of reasons, and Mr. Jack is not the sharpest knife in the drawer. Mr. Jack had to think quickly and this is the best that he was able to come up with. I assure you anyway, that’s my response to that comment. Yes, that argument makes sense, but it is not the end of the story, you have to consider all the evidence and all the circumstances.
[9] Crown counsel argued in his closing address that the defence theory made no sense. If Jack did not want to name Wisdom, it would be much more plausible simply to have said that he did not know who had shot him than to accuse the appellant. In fact, the Crown suggested, the implausibility becomes even more apparent when it is remembered that Jack made the statements while he was in the hospital, when he had no idea what other witnesses at the scene might say. During the course of these arguments, Crown counsel made direct reference to what Jack told the police at the hospital:
The defence says essentially that Mr. Jack lied to cover up his earlier illegal deals with Mr. Wisdom, and in turn the robbery of this fellow Rasta. Well, ask yourselves this, and then, of course, compound all of this illegal, earlier illegal activity by lying to the police and because he dare not say, of course, who the person who really shot him was. That’s the defence theory and I ask you to look very long and hard at that because I submit to you, it makes very little sense, of any. Think about this. Does, firstly, does Mr. Jack the one who can kind of turn on and off according to Mr. Sapiano, when he wants to be co-operative or not, does he look any more than Mr. Wisdom like someone who is intimidated by the police? Does he look like some retiring shy retiring violet there? I submit not. He looks like he can hold his own, police or not, and if he thought, I submit to you, if he thought that by telling the truth, assuming there was some truth to tell about it being Wisdom and not Demetrius, if he thought he was going to jam himself up, to use the sort of street parlance, get himself in legal trouble, why would he – and Mr. Sapiano alluded to this – why not say simply yeah, I went in a restaurant to get some food, I got in a beef with some guy and the next thing you now he follows me out of the restaurant and shoots me three times because we had words and I don’t know who he is. I wouldn’t know him from Adam. What is so hard about that? Is it really believable or sufficient to raise a reasonable doubt in your mind that…Mr. Jack is so traumatized by having been shot and conveyed to the hospital and what not that he can’t figure that out?
So Jack’s on the record from the get go. Before he has any idea, as the Detective later told you, that there will be no witnesses that the police, whether they were afraid to come forward, who knows, I am not gonna go down that road….So why is he gonna lie and mention this fella Mr. Demetrius here when he has no idea whether, in fact, he is going to be caught out, never mind at the preliminary inquiry couple years later at a trial whether he is going to be caught out the same day. The self same day, ladies and gentlemen. So it makes no sense that he is going to tell this lie.
[10] The appellant’s trial counsel objected to the Crown’s closing address, reminding the trial judge that he had objected to the admission of that portion of Detective Woodhouse’s evidence, and that the Crown, at the time, had assured the Court that the evidence was only being admitted as part of the narrative. Now, he submitted, Crown counsel was inappropriately using the prior statements as proof of Jack’s veracity. The appellant’s trial counsel was initially uncertain about the appropriate remedy, but in the end, did ask the trial judge to give a limiting instruction.
[11] The trial judge made no explicit ruling on the matter, but he did not give a limiting instruction about the use the jury could make of the prior consistent statements. When explaining the positions of the parties, he repeated the crown’s argument on the point:
Mr. Clark submits that Mr. Jack is not a stupid man as the defence makes out. He named Mr. Demetrius as his shooter very quickly in a situation where he had no knowledge of events and things that would unfold after he gave the statement. Mr. Clark urges you to find that there is no sense in the defence submission that Mr. Jack dare not identify Mr. Wisdom as the shooter.
Defence counsel again objected and submitted that the Crown was improperly relying upon prior consistent statements. However, the trial judge did not provide the jury with any further instruction on the point.
ANALYSIS
(1) The Rule Relating to Prior Consistent Statements
[12] There is a well established rule that self-serving evidence, such as prior consistent statements are generally not admissible at trial. In R. v. Toten (1993), 83 C.C.C. (3d) 5 at 36 (Ont. C.A.), Doherty J.A. identified the rationale for generally rejecting prior consistent statements as resting “not … on any principle unique to prior consistent statements, but on the very practical assessment that, generally speaking, such evidence will not provide sufficient assistance to the trier of fact to warrant its admission.” As David M. Paciocco & Lee Stuesser, The Law of Evidence, 2nd ed. (Toronto: Irwin Law, 1999) at 305 explain: “In most cases, the evidence is…of no value. It is redundant and potentially prejudicial to allow the testimony to be repeated. It may gain false credence in the eyes of the trier of fact through the consistency with which it is asserted.” Another frequently cited reason for excluding prior consistent statements is related to the ease with which they can be fabricated. Admitting such evidence would be contrary to the principle that no witness should be allowed to create or manufacture evidence to support his or her own case: see John Sopinka, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) at 313.
[13] As with other exclusionary rules, there are recognized exceptions allowing proof of prior consistent statements in certain circumstances. These specific exceptions flow from a more general principle, identified in Toten, supra at p.36:
“Where, however, circumstances render evidence of prior consistent statements of potential significance to the trier of fact, either with respect to the credibility of the declarant/witness or with respect to a fact in issue, the common law admits those statements.”
The exceptions relevant to the case at bar are (1) statements necessary to establish the narrative and (2) statements to rebut allegations of recent fabrication.
(2) Relevance of the Prior Statement.
[14] In the present case, neither party has been consistent with respect to the use of Jack’s statements at the hospital. Although defence counsel at trial had clearly suggested that Jack’s evidence was a fabrication concocted to avoid disclosure of his involvement in a robbery, the Crown initially took the position that the prior statements were merely used to supplement the narrative. Similarly, although the defence objected to the use of the statements for the truth of their contents, it nevertheless chose to rely on the statements when attempting to plug a potential flaw in its own theory.
[15] Before this court, the appellant submits that while that evidence of Jack’s conversation with Woodhouse at the hospital was arguably relevant as narrative, it was not admissible for the proof of its contents. Although the Crown did not explicitly tender the evidence for proof of its contents, the appellant submits that Crown counsel used it to that effect when he argued that Jack had been “consistent from the get go”. The appellant further submits that Crown counsel expressly disclaimed reliance on Jack’s prior statement for its truth when it was introduced, but then used the prior statement for that purpose in his closing address to the jury. The appellant alleges that prejudice was suffered as a result of the Crown’s shift in position. The appellant contends that had had defence counsel known of the use the crown would make of what was said at the hospital, the appellant could have probed and explored that aspect of the evidence differently. Furthermore, the appellant submits that as the Crown’s shift in position did not occur until the closing address, the appellant had no chance to respond before the jury.
[16] I do not accept the trial Crown’s submission that the problem disappears because the jury was not specifically told that Jack identified the appellant at the hospital. I note that before us, counsel for the respondent quite properly did not advance that argument. It is clear from the trial record that Jack had told Detective Woodhouse that the appellant was the shooter, even though Woodhouse did not explicitly state that fact when he testified. Jack’s prior statements were before the jury and accordingly, the issues of admissibility and the need for a limiting instruction must be faced.
[17] This was not a particularly compelling case for admission of a prior statement as part of the narrative. This was not a case like R. v. F. (J.E.), (1993), 85 C.C.C. (3d) 457 at 476 (Ont. C.A.), where the prior statements of a child sexual assault complainant were admitted as part of the narrative to explain why little or nothing was done to stop the assaults or bring the case to the attention of the police. In any event, the defence did not resist admission for the limited purpose of narrative in the present case, and had nothing more been made of the prior statement, this would be a different case.
[18] In my view, the defence made the crucial tactical move when, in his closing address to the jury, counsel seized upon Jack’s prior statements at the hospital to explain why, on the defence theory of the case, Jack named the appellant as his assailant. Specifically, the appellant needed to explain away Crown counsel’s contention that under the defence’s own theory, a more plausible story would have been for Jack to simply say that he did not know his assailant rather than to identify the appellant as the shooter. The explanation advanced by the appellant’s trial counsel was that Jack had to come up with a story very quickly when he saw Detective Woodhouse at the hospital. He was still suffering from the shock and trauma of the shooting and the immediate pressure of the moment to explain the shooting to Detective Woodhouse. The best he could do was to say that the appellant had shot him. This was not a case of the defence making the best of a bad situation after failing to exclude the evidence. Had the defence not advanced the position that the prior statements made its case more plausible, the Crown would have been limited to using the prior statements for its original purpose, as part of the narrative. However, in view of the argument advanced by defence counsel in his closing address, the Crown was entitled to respond with its own explanation of the significance of Jack’s hospital statements.
[19] In this light, I cannot accept the appellant’s submission that he was unfairly prejudiced. Having himself relied upon Jack’s prior statement to bolster his case, the appellant cannot now complain that he would have probed and challenged the evidence of what Jack said at the hospital. Nor can the Crown be accused of unfairly shifting its ground in its closing address to the jury since that was only done in response to the defence’s closing arguments and its attempt to explain away the holes in its own theory.
(3) Was a Limiting Instruction Required?
[20] Ordinarily, where evidence of a prior consistent statement is admitted, the trial judge is required to give the jury a limiting instruction. In R. v. F. (J.E.), supra at 476, Finlayson J.A. described the necessity of the limiting instructions in the following terms:
In all cases where evidence is admitted under the rubric of prior consistent statements, the trial judge is obliged to instruct the jury as to the limited value of the evidence. The fact that the statements were made is admissible to assist the jury as to the sequence of events from the alleged offence to the prosecution so that they can understand the conduct of the complainant and assess her truthfulness. However, the jury must be instructed that they are not to look to the content of the statements as proof that a crime has been committed. [emphasis added]
[21] Although limiting instructions are generally required in cases involving prior consistent statements, there are circumstances where a limiting instruction may not be required. The adequacy of a trial judge’s instructions must be assessed in the context of the particular case on a functional basis. In my view, a limiting instruction regarding the use to be made of the prior consistent statements was unnecessary in this case and, indeed, as the defence was relying on the prior statement to support its theory, a limiting instruction might well have been confusing.
[22] It has been held by this court that the usual limiting instruction regarding a prior consistent statement may not be necessary where the defence itself relies on the prior statement (R. v. S. (P.), (2000), 144 C.C.C. (3d) 120 at 129 (Ont. C.A.)), where it was clear to the jury that the prior statement was not offered as proof of the underlying facts (R. v. G.M., [2000] O.J. No. 5007. (C.A.)), or where the concern about self-corroboration is simply not present (R. v. Clark, (1995), 87 O.A.C. 178 (Ont. C.A.)). In my view, these authorities are pertinent to the circumstances of the case at bar.
[23] The appellant himself made the prior consistent statement an issue by using it in an attempt to explain an implausible aspect of the defence. The defence position, in effect, made the prior statement a relevant fact and the parties joined issue on what inference should be drawn from the fact the statement was made. The defence invited the jury to infer that Jack’s identification of the appellant was the product of trauma from the shooting and the immediate pressure of the moment to explain the shooting to Detective Woodhouse. The Crown urged the jury to reject that inference as implausible. The issue presented to the jury was not whether the prior statement bolstered Jack’s credibility, but whether it provided the defence with an explanation for what it contended was Jack’s lie about the identity of his assailant.
[24] In my view, it was also clear to the jury that that prior statement was not offered as proof of the underlying facts. Neither party invited the jury to look to the statement for the proof of its contents. The concern about self-corroboration was simply not present. The prior statement was relevant, not because of what it contained, but simply because it of the fact that it had been made.
[25] In view of the manner in which the prior statement was used in this case, it is my view that there was virtually no risk that the jury would use it for the improper purpose the usual limiting instruction is intended to meet. It follows that a limiting instruction was not required.
[26] Accordingly, I would dismiss the appeal.
“Robert J. Sharpe J.A.”
“I agree J.J. Carthy J.A.”
“I agree D.H. Doherty J.A.”
Released: September 29, 2003