CITATION: R. v. Carnovale, 2010 ONCA 716
DATE: 20101028
DOCKET: C47257
COURT OF APPEAL FOR ONTARIO
Sharpe, MacFarland and Rouleau JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Joseph Giuseppe Carnovale
Appellant
Richard Litkowski, for the appellant
Susan Ficek, for the respondent
Heard: October 25, 2010
On appeal from the conviction imposed by Justice Susanne R. Goodman of the Superior Court of Justice, sitting with a jury, on March 17, 2006.
By the Court:
[1] This is an appeal from a first degree murder conviction. The appellant admitted to having unlawfully caused the death of the victim and offered a plea of guilty to manslaughter. The Crown refused to accept that plea and presented its case for a verdict of first degree murder. At the conclusion of the Crown’s case, the trial judge dismissed a defence motion for a directed verdict of not guilty of first degree murder. The appellant testified in his own defence.
FACTS
[2] The facts may be briefly stated. The 78-year-old victim had befriended the appellant, a 36-year-old homeless drug addict, and from time to time provided the appellant with temporary refuge and money in exchange for consensual sexual activities. The victim was found dead on the floor of his apartment, fully clothed, lying face down with his hands behind his back. The cause of death was strangulation. The victim had also suffered non-fatal blunt force injuries to his head and various other injuries to his torso and limbs.
[3] The appellant testified that he had gone to the victim’s apartment after a sustained cocaine binge and engaged in consensual sexual activities with the victim, including bondage in which the appellant had tied the victim’s hands behind his back. Following this sexual encounter, they got dressed and, after a period of time, the appellant decided to leave the apartment to get more cocaine. The victim tried to persuade him to stay and grabbed the appellant’s arm, provoking the violent attack that resulted in the victim’s death.
[4] The Crown based its case for first degree murder upon the theory that the appellant had killed the victim while forcibly confining him by tying his hands behind his back. This largely rested on evidence of injuries to the victim’s wrists and the position of his hands. There were no restraints or ligatures on the victim’s wrists when he was found.
[5] Before this court, the appellant raises four grounds of appeal and asks this court to set aside the conviction for first degree murder and substitute a verdict of guilty of second degree murder.
ANALYSIS
Issue 1. Did the trial judge err by dismissing the appellant’s motion for a directed verdict of acquittal on first degree murder?
[6] At the conclusion of the Crown’s case the appellant moved for a directed verdict of acquittal with respect to first degree murder. The appellant submits that the trial judge erred in concluding that there was sufficient evidence of forcible confinement at the time of death to warrant leaving first degree murder with the jury.
[7] We are unable to accept that submission. The crucial evidence was that of the pathologist, Dr. Pollanen, who gave a carefully measured expert opinion as to the significance of the injuries on the victim’s wrists in relation to the Crown’s theory of forcible confinement. While at one point in his evidence Dr. Pollanen described the evidence of restraint as being “highly suspicious”, the trial judge did not err in concluding that on a fair reading of his evidence as a whole, the net effect of Dr. Pollanen’s evidence was that restraint of the victim’s wrists at a time proximate to death was “a reasonable inference”.
[8] The trial judge recognized the weaknesses in the Crown’s case for first degree murder. No restraints were found and Dr. Pollanen could not be more precise than to say that the injuries to the wrists suggested binding in the peri-mortem period, in other words, at around the time of death. Based upon his examination of the marks on the victim’s wrists, Dr. Pollanen testified that they could have been caused up to four hours prior to death. However, Dr. Pollanen’s careful opinion evidence as to what he could and could not say about the precise timing of the injuries to the wrists had to be considered in the context of the other evidence, in particular, the position of the victim’s hands behind his back and the relative absence of defensive injuries to the hands.
[9] In her reasons for dismissing the motion the trial judge stated and applied the test laid down by the Supreme Court of Canada in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828. Her reasons demonstrate that she was alive to the strengths and weaknesses of the evidence on this crucial point and that she appropriately applied the guiding legal principles laid down in Arcuri. In our view, she did not err in concluding that the Crown’s evidence, when taken as a whole, was reasonably capable of supporting the inference that the Crown asked the jury to draw.
[10] Accordingly, we would not give effect to this ground of appeal.
Issue 2. Did the trial judge err in the jury charge by failing to relate the relevant evidence to the issue of first degree murder?
[11] The second ground of appeal is related to the first ground in that it also turns on the evidence relating to the timing of the injuries to the victim’s wrists.
[12] The trial judge reviewed the positions of the Crown and the defence in some detail, clearly pointing out the defence position as to the weakness in the evidence relating to forcible confinement. She then proceeded to review the evidence, including that of Dr. Pollanen, at some considerable length in relation to the issue of the appellant’s capacity to form an intent to kill, carefully scrutinizing his evidence as to what could and could not be inferred from the injuries to the victim's wrists. However, when it came to dealing with the instruction on the legal elements of first degree murder, she briefly summarized that evidence and referred to her more extensive discussion of the evidence bearing upon first degree murder that had come shortly before.
[13] The appellant complains that the review of the crucial evidence at this important point in the charge was truncated and incomplete and that the charge was inadequate for that reason. In particular, the appellant complains that the trial judge failed to instruct the jury that Dr. Pollanen could not exclude the possibility that the injuries to the wrists could have occurred as much as four hours prior to death, a possibility consistent with the appellant’s account.
[14] We are unable to accept this submission. While another judge might have chosen to structure the charge differently, we are satisfied that the jury was properly instructed on this central issue and that when read as a whole, the charge left the jury with an adequate understanding of the evidence as to the timing of the injuries to the wrists and the defence position as to the effect of that evidence as it related to forcible confinement. It would have been apparent to the jury that the issue of forcible confinement came down to when the victim’s wrists had been bound. Part of the pathological evidence established a range and the jury had to look to other aspects of the evidence – the position of the hands, the relative absence of defensive wounds, and the appellant’s own account of the events – to decide whether the Crown had established beyond a reasonable doubt that the victim had been killed while being forcibly confined.
[15] We note that trial counsel did not raise any objection to this aspect of the jury charge. While not fatal, the absence of an objection by skilled and experienced defence counsel does have a bearing upon our assessment of the overall fairness of the charge.
[16] Accordingly, we would not give effect to this ground of appeal
Issue 3. Did the trial judge err by failing to give a limiting instruction with respect to the post-offence conduct evidence?
[17] The Crown relied on evidence of post-offence conduct, the cleanup of the apartment and the removal of valuable items including jewellery, as being relevant to the issue of the appellant’s capacity to form intent and of his actual intent to kill. The trial judge accepted that position and left the evidence of post-offence conduct with the jury. No issue is taken with that aspect of the charge. The appellant submits, however, that the trial judge should have expressly directed the jury that the evidence of post-offence conduct was not relevant to the issue of first degree murder, which turned on the issue of forcible confinement.
[18] We agree with the appellant that the evidence of post-offence conduct had no bearing on first degree murder. It might have been preferable had the trial judge charged the jury to that effect. However, we agree with the Crown that the failure to give an instruction to that effect did not prejudice the appellant in the circumstances of this case. In our view it would have been apparent to the jury that the only basis for first degree murder was that the appellant had killed the victim while forcibly confining him and equally apparent that the evidence of post-offense conduct had no bearing on that issue.
Issue 4. Did the trial judge err with respect to the “decision tree”?
[19] Given the appellant's concession that he had caused the death of the victim, it is common ground before this court that the question regarding causation in the decision tree given to the jury was not required. We agree with the respondent that this question was superfluous but not prejudicial. We fail to see how putting this unnecessary question to the jury could have caused any confusion or had any adverse impact on the defence.
[20] Accordingly, we would not give effect to this ground of appeal.
CONCLUSION
[21] For these reasons the appeal from conviction is dismissed.
“Robert J. Sharpe J.A.”
“J. MacFarland J.A.”
“Paul Rouleau J.A.”
RELEASED: October 28, 2010