CITATION: R. v. Samuels, 2009 ONCA 719
DATE: 20091014
DOCKET: C48260
COURT OF APPEAL FOR ONTARIO
Rosenberg, Armstrong and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Shevon Rodger Samuels
Appellant
Victoria Rivers, for the appellant
Linda A. Shin, for the respondent
Heard: May 14, 2009
On appeal from the convictions entered by Justice Eugene B. Fedak of the Superior Court of Justice, sitting with a jury, on December 11, 2007.
Armstrong J.A.:
INTRODUCTION
[1] The appellant was found guilty by a jury of one count of breaking and entering a dwelling house, two counts of robbery with a firearm, two counts of discharging a firearm with intent and two counts of aggravated assault. He was sentenced to a total of seven years imprisonment. He appeals his convictions primarily on the ground that the jury’s verdict was unreasonable. He also argues that the jury was not properly instructed on the issue of identification. He does not appeal his sentence.
THE EVIDENCE
[2] The convictions arose out of a home invasion at 75 West Avenue North in Hamilton on May 18, 2006. There was no issue concerning the home invasion. Identity was the sole issue at trial.
[3] The house, which was subject to the home invasion, was comprised of three apartment units. Jose Barreira lived with his girlfriend, Amanda Gagne, and her four-year-old daughter, Erica Gagne, in the first floor apartment. Mr. Barreira’s son, Josh, lived in the second floor apartment. The third floor apartment was empty.
[4] On the evening of the home invasion, Mr. Barreira, Ms. Gagne, Ms. Gagne’s daughter and Brytney Roy were in the first floor apartment watching television. Josh Barreira was in the second floor apartment drinking and smoking marijuana with five friends. At approximately 9:00 p.m., three or four men entered the first floor apartment through the front door. Ms. Roy testified that there were three men. Ms. Gagne told the police she saw four men but testified at trial that she had seen three. Mr. Barreira testified that he was “pretty sure” he saw four men.
[5] One man said, “This is a robbery” and demanded drugs and money. Mr. Barreira replied that there were neither drugs nor money in the apartment and told the men that they could take whatever they wanted from the apartment. One man took Ms. Gagne, her daughter and Ms. Roy into the bedroom while the other men searched the apartment. When the search proved fruitless, one or two of the men went upstairs. They returned with Josh and brought him to the door of the first floor apartment while holding a gun to his head. This incident caused Mr. Barreira to react violently against one of the men. After a brief struggle, Mr. Barreira was shot in the leg. Upon hearing the gunshot, the man guarding Ms. Gagne left the bedroom. The shootings were followed by Ms. Gagne’s taking an axe off the wall and striking one of the men with it. Josh grabbed the shooter and was shot in the chest. The men fled. Ms. Gagne then retreated with her daughter and Ms. Roy to the second floor apartment and called 911.
[6] Mr. Barreira testified that he swung a knife at the men while Ms. Gagne wielded the axe, which caused the men to run out of the house. Mr. Barreira gave chase. The last man ran out the front door and leapt over the front of a car parked two houses away. Mr. Barreira described this incident as follows:
A. I was facing my house and he went to my right. He – like I says, he flew over one house to the two neighbours down and grabbed the car, jumped over and jumped over a fence. Like I said, this guy must have had wings. He was terrified at that point. He was more terrified than I was, so he just like, nervous, jumped, ran away. I threw a knife, never got him.
Q. Right. You said he touched the car and he jumped, jumped over the fence.
A. Well, there was a car there. There was a car two doors down from me and he put his hand on the car and, like I says, he flew over, he just…
[7] Mr. Barreira, Ms. Gagne, Ms. Roy and Josh gave different descriptions of the men who broke into the apartment. None of them was able to provide a detailed description of the men. During Ms. Gagne’s testimony, Crown counsel pointed out the appellant in the courtroom and asked if Ms. Gagne had ever seen the appellant in her house. The following exchange occurred:
Q. And with regard to the people that are present in court today, there’s an individual behind me to my left, Shevon Samuels…
A. Mm-hmm.
Q. …had you ever seen that person in your house before?
A. I believe so. I believe he was the taller one.
Q. All right. You believe he was the taller one, when?
A. Pardon me?
Q. What are you saying?
A. I’m saying I believe he’s the taller one in my home.
Q. On the night of the robbery?
A. Yes.
She also testified that the man who took her into the bedroom was wearing a bandana over his face. She conceded in cross-examination that she was not sure that the appellant was in her apartment on the night of the robbery.
[8] Crown counsel asked Ms. Roy if she had ever seen the appellant before May 18, 2006. She said, “I could have but I don’t know”. She testified that he looked familiar from “his body type and stuff”, but the intruder she thought was the appellant was wearing a hooded sweater that only showed a little bit of his face.
[9] The main evidence against the appellant was a palm print and fingerprint on the lower driver’s side corner of the front windshield of the car parked two houses away. The Crown’s expert witness matched the fingerprint with the right ring finger of the appellant. He testified that there was movement in the impressions indicating that the impressions had moved from the driver’s side toward the passenger’s side of the car. The owner of the car testified that his wife used the car to drive around town. The appellant had no connection to either the car or the house where it was parked. However, the expert conceded that there was no way of telling when the fingerprint was placed on the car; the appellant could have placed the fingerprint on the car at some other time and in some other part of town.
[10] The police investigation revealed a footprint in the mud leading up to the car. There was a dent over the front driver’s side fender, mud on the hood and a smudge of dirt on the front windshield. A police officer testified that both the dent and mud appeared to be fresh. The rest of the car appeared to be very clean. The owner of the car testified that when he went to bed at 10:00 o’clock that evening the car was undamaged.
[11] The Crown relied on two further pieces of evidence. First, the Crown relied on the testimony of Josh’s friend, John Solc. Mr. Solc testified that while he was in the second floor apartment, a tall, skinny black male with a bandana around his face came into the apartment and took Josh downstairs. It was the Crown’s position that this person fit the general description of the appellant. Second, the Crown relied on a police officer’s testimony that on October 14, 2003, more than three years before the events in issue, he observed the appellant in the company of Carlos Nalasco. Mr. Nalasco was ultimately identified as the shooter in this case. The Crown argued at trial that this evidence made it more probable that the appellant’s fingerprint was put on the car windshield on May 18, 2006 given the prior association between the two individuals.
THE ISSUES
[12] The principal submission advanced by the appellant is that the verdict was unreasonable. The appellant also argues that the jury was not properly instructed on the issue of identification.
(i) Was the verdict unreasonable?
[13] Counsel for the appellant submits that this case turns on whether the jury could reasonably infer from evidence, other than the fingerprint, that the appellant touched the car while fleeing the crime scene. Counsel argues that there was no evidence that makes the inference that the appellant touched the car in connection with the home invasion a more likely inference than the inference that he touched the car at some other time and place. She relies on an admission made by the Crown’s expert that it was possible that the appellant left the fingerprint on the car at some other time.
[14] Counsel for the appellant cites this court’s judgment in R. v. Mars (2006), 2006 CanLII 3460 (ON CA), 205 C.C.C. (3d) 376 (Ont. C.A.), which she submits is on all fours with the case at bar. In Mars, the appellant was convicted of offences arising out of a home invasion. The only evidence connecting the appellant to the crimes was a fingerprint found on a pizza box used as a ruse to gain entry into the victims’ apartment. The pizza box was recovered at the doorway of the apartment after the robbery. The appellant was arrested about four months later when he was involved in a car accident.
[15] In Mars, the Crown’s fingerprint expert could neither date the fingerprint nor offer an opinion on when the fingerprint was placed on the box. He acknowledged that a fingerprint could remain on a surface like the pizza box for years. Mars was convicted at trial solely on the basis of the fingerprint evidence; the victims were unable to identify him as a participant in the home invasion.
[16] Doherty J.A., writing for the court in Mars, said at paras. 19-21:
[19] The probative value of fingerprint evidence depends on the totality of the evidence. Fingerprint evidence will almost always afford cogent evidence that the person whose fingerprint is left on the object touched that object. However, the ability of the fingerprint evidence to connect an accused to the crime charged will depend on whether there is other evidence capable of establishing that the accused touched the object at the relevant time and place so as to connect the accused to the crime.
[20] In this case, the fingerprint evidence clearly established that the appellant had touched the pizza box at some point in time. However, the probative value of the fingerprint evidence on the charges depended upon whether the entirety of the evidence reasonably permitted the inference that the appellant touched the pizza box in connection with the robbery and not at some other time and place. The fingerprint evidence standing alone did not permit any inference as to when the appellant’s fingerprint was placed on the pizza box. The reasonableness of the verdicts, therefore, turns on whether the inference that the appellant touched the pizza box in connection with the robbery could reasonably be drawn from the evidence other than the fingerprint evidence itself.
[21] The evidence does not reasonably permit the conclusion that the appellant placed his fingerprint on the pizza box at the time of the robbery. Quite simply, there is no evidence that assists as to when the fingerprint was placed on the pizza box. Put somewhat differently, the Crown cannot point to any evidence that makes the inference that the appellant touched the pizza box in connection with the robbery a more likely inference than the inference that he touched the pizza box at some other time.
[17] Some of the other evidence relied upon by the Crown in this case – the in-dock identification of Ms. Gagne and Ms. Roy, the identification evidence of Mr. Solc and the association evidence between the appellant and Mr. Nalasco – did not advance this case in any significant way. However, unlike Mars, there is other evidence capable of permitting a reasonable inference that the palm print and fingerprint on the windshield were placed there when one of the invaders fled the scene:
(a) The evidence of Mr. Barreira that the last man out of the house ran down the street and leapt over the front of the car;
(b) The evidence of Mr. Barreira that the man grabbed the car as he jumped over it;
(c) The palm print and fingerprint faced a direction that was consistent with Mr. Barreira’s description of the invader’s flight path. The opinion of the expert witness that the impressions exhibited movement from the driver’s side toward the passenger’s side of the car is also consistent with the description of the flight path;
(d) The footprint in the mud approaching the car, the fresh dent and the mud on the car are consistent with Mr. Barreira’s description of the flight; and
(e) The evidence of the owner of the car that it was undamaged before he went to bed on the night of the home invasion.
[18] In my view, the above evidence together with the fingerprint evidence are capable of supporting a reasonable inference that it was the appellant who ran from the house at 75 West Avenue North and that he touched the car as he fled from the scene of the crime.
[19] Assuming that the jury was properly instructed and accepted the above evidence, the guilty verdicts were ones that the jury could reasonably have rendered.
[20] I turn now to the judge’s charge to the jury on identification.
(ii) Did the trial judge properly instruct the jury on the issue of identification?
[21] The appellant submits that the trial judge failed to provide any instruction on the value of the in-dock identification by Ms. Gagne and Ms. Roy.
[22] A perfect charge would have included a reference to the virtually useless nature of the in-dock identification by Ms. Gagne and Ms. Roy. However, the jury had the benefit of the standard instruction on the frailties of eyewitness identification. More importantly, the trial judge addressed the frailty of the specific evidence in this case. In particular, the trial judge said:
It is clear from the evidence of most of the witnesses that they could not identify Shevon Rodger Samuels as being one of the three or four who appeared at the Barreira residence on May 18th, 2006. At best, one of the intruders was described as a tall, black man. This is not sufficient identification of this accused. It is therefore necessary to look at other evidence to see if Shevon Rodger Samuels was one of the intruders at the Barreira residence on May 18th, 2006. And, as we reiterate, Crown counsel must prove beyond a reasonable doubt that it was Shevon Rodger Samuels who committed the offences charged. [Emphasis added.]
[23] Finally, I observe that there was no objection of any kind to the charge to the jury by either defence or Crown counsel.
CONCLUSION
[24] The test for a court of appeal in deciding whether a jury verdict is unreasonable is well known:
The function of the court is not to substitute itself for the jury, but to decide whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered.
See R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168 at p. 184, citing R. v. Corbett, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275 at p. 282. In my view, the verdicts of the jury in this case meet the test of reasonableness as defined by the Supreme Court. I would dismiss the appeal.
RELEASED:
“MR” “Robert P. Armstrong J.A.”
“OCT 14 2009” “I agree M. Rosenberg J.A.”
“I agree Gloria Epstein J.A.”