CITATION: R. v. Maragh, 2007 ONCA 681

DATE: 20071009

DOCKET: C41874

COURT OF APPEAL FOR ONTARIO

WEILER, MACPHERSON and ROULEAU JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

MARLON MARAGH

Appellant

Leslie Maunder and Mark Halfyard for the appellant

Gillian Roberts and Michelle Campbell for the respondent

Heard: October 2, 2007

On appeal from the conviction entered on September 14, 2003 and the sentence imposed on January 29, 2004 by Justice Bruce Glass of the Superior Court sitting with a jury.

BY THE COURT:

[1] The appellant, Marlon Maragh, appeals from his convictions for eight offences – attempted murder, aggravated assault, use of a firearm, two counts of possession of a firearm while prohibited, and three counts of failure to stop for police causing bodily harm. The convictions were the result of a 48 day jury trial presided over by Glass J. in Whitby. The appellant also appeals his sentence of 18 years (12 years, 8 months in addition to 32 months pre-trial, credited on a 2 for 1 basis).

[2] The case arose from a shooting during a pick-up basketball game in a high school gymnasium. Following a confrontation on the court involving Tyshan Riley, the appellant’s friend, and Teran Richards, Richards was shot four times in the chest. A fifth bullet missed Richards and grazed the cheek of a 13 year old spectator.

[3] After the shooting, many people, including the appellant, left the gym. Police chased a car containing the appellant, Riley and perhaps one other person. While the getaway car was stopped at a crossing waiting for a train to pass, police directed the occupants to exit the car. Instead, they sped off after the train had passed. Soon after, the car went out of control and flipped, hitting another vehicle and injuring a father and his two sons. Police chased the appellant into the woods. He was bitten by a police dog and arrested. Police recovered two guns from the crash site, including the gun that was determined to have been used in the gym shooting.

[4] After his arrest, the appellant boasted to Bryan Johnston, a cellmate in the Whitby jail, that he had shot Richards. He described to Johnston the events that followed the shootings, in some cases exaggerating what was later established to have occurred. The appellant also admitted to shooting Richards to Constable Duraiappah, an undercover police officer with whom he shared a holding cell, and told Duraiappah a similar story about the events that followed the shooting. The appellant told Duraiappah he owned the .357 magnum that police recovered from near the place where the car crashed. He bragged to Duraiappah that he would shoot Richards if ever he saw him again.

[5] The appellant testified at trial that he did not shoot Richards. He said that the real shooter was a man known as “Razor”, for whom the appellant had sold drugs in the past and with whom he’d been watching the game. He said that after the shooting Razor went to the appellant’s car and forced him to drive quickly so as to evade the police. He said that the .357 magnum recovered near the crash site belonged to Razor.

[6] When the appellant bragged about being the shooter to Johnston and Duraiappah, he never mentioned Razor and said that there were only two people in the getaway car – himself and Riley. Johnston testified that when the appellant told him this, he suggested that the appellant invent a third occupant of the car and refer to that occupant as “Joker”. Apart from the appellant, no one at trial mentioned Razor, and the appellant admitted to not knowing Razor’s phone number, address, or first or last name.

[7] The appellant testified that he was lying when he told the undercover police officer that he was the shooter. He claimed he was trying to puff up what he had done. He also said he was lying when he confessed to Johnston. He said he was a 130 lb. black man in a row with many white bikers and that he was intimidated by his biker cellmate who was 6' 8" and 500 lbs., so he lied to protect himself.

Conviction Appeal

[8] The appellant contends that the trial judge erred by refusing to allow the appellant to call expert evidence relating to police procedures with respect to identification evidence obtained by photo line-ups.

[9] We disagree. The trial judge carefully applied the factors from R. v. Mohan (1994), 89 C.C.C. (3d) 402 (S.C.C.). We cannot fault his conclusion that expert testimony was not necessary because “[t]here can be no doubt that the jury would understand that there is a weakness to the procedures followed by the officers and that they would appreciate that eyewitnesses miss a lot and make mistakes.” Moreover, the trial judge gave a comprehensive instruction to the jury on these points.

[10] The appellant contends that the in-dock identification of Grant Malcolm was inadmissible. We disagree. The evidence was useful, if only marginally, to provide context for the defence’s argument that Malcolm’s failure to identify the appellant during the photo line-up proved the appellant’s innocence. Moreover, the trial judge properly and repeatedly instructed the jury about the limited value of in-dock identifications.

[11] The appellant submits that the trial judge’s charge on identification evidence generally was insufficient. In particular, the appellant contends that the trial judge was required to instruct the jury about the confidence level of identification witnesses and the danger of eyewitnesses conflating the shooter and another spectator at the basketball game.

[12] We disagree. The trial judge’s instruction conformed with the model jury charge with respect to identification evidence. The trial judge carefully explained all of the identification evidence and provided the appropriate cautions. Those cautions covered the two issues raised by the appellant.

[13] The appellant contends that the trial judge erred by preventing the appellant from introducing, through the witness Johnston, his prior statements to Johnston and the police undercover officer that he was the shooter. The trial judge ruled that, in the absence of testimony from the appellant, there was no evidence of recent fabrication or the appellant’s state of mind.

[14] As it turned out, the appellant did testify (as he had always planned) that he said things in the jail cell that were lies because he was scared of Johnston and wanted to impress the posing undercover officer. The trial judge then allowed the appellant to call Johnston as a witness and allowed the appellant to be recalled to give him the opportunity to comment on Johnston’s testimony. Accordingly, no prejudice flowed from the trial judge’s initial ruling.

[15] The appellant submits that the jury should have received a limiting instruction telling them that they could not use the evidence of the appellant’s conversations in the holding cell with an undercover police officer (threatening to “blow off” the complainant’s head if he came to court, bragging about his expertise with handguns, explaining how he wanted to maim the police dog) as an indication that the appellant was more likely to have committed the crimes with which he had been charged.

[16] We disagree. The defence made no complaint about this component of the jury charge. Moreover, the central issue in this domain was whether the jury would accept the appellant’s testimony that he lied in his jailhouse conversations with the undercover officer and a fellow inmate. The specific statements set out above were simply components of this principal issue.

[17] The appellant contends that the trial judge erred by allowing each juror to receive a copy of the cell probe transcript for use during jury deliberations because the transcript contained words filling in where the tape was inaudible. We disagree. The trial judge was entitled to determine what would provide appropriate assistance to the jury in their deliberations. The added portions were clearly identified in the transcript and the trial judge repeatedly instructed the jury that only the audiotape was evidence they could use.

Sentence appeal

[18] The appellant submits that the 18 year sentence was excessive and did not reflect the fact that the appellant was only 21 years old at that time of the shooting, that this was his first penitentiary sentence, that the victim did not suffer permanent debilitating injuries, and that there was no planning or premeditation.

[19] We disagree. A young man was shot four times in a crowded school gymnasium. A 13 year old girl was also hit by a bullet. The appellant had a lengthy criminal record. He was subject to a weapons prohibition at the time. The car chase showed no respect for police officers or innocent bystanders. The sentence was manifestly fit.

Disposition

[20] The conviction appeal is dismissed. Leave to appeal sentence is granted and the sentence appeal is dismissed.

RELEASED: October 9, 2007 (“KMW”)

“K.M. Weiler J.A.”

“J.C. MacPherson J.A.”

“Paul Rouleau J.A.”