R. v. Pittman, 2011 ONCA 148

CITATION: R. v. Pittman, 2011 ONCA 148

DATE: 20110225

DOCKET: C49655

COURT OF APPEAL FOR ONTARIO

Moldaver, Cronk and Lang JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Richard Pittman

Appellant

Peter Copeland and Erin Dann, for the appellant

Howard Leibovich, for the respondent

Heard: February 4, 2011

On appeal from conviction for first degree murder entered by Justice B. MacDougall of the Superior Court of Justice, sitting with a jury, dated January 19, 2007.

Moldaver J.A.:

INTRODUCTION

[1] Following his trial before Justice B. MacDougall of the Superior Court of Justice and a jury, the appellant was convicted of first degree murder and sentenced to imprisonment for life. His period of parole ineligibility was fixed at 25 years.

[2] The appellant appeals from conviction and raises a number of grounds of appeal, all but one of which relate to alleged errors in the trial judge’s charge to the jury.

[3] A number of the complaints about the charge to the jury are in my view unfounded. Read as a whole, the charge was both thorough and balanced. It is clear that the trial judge did his best to be fair to both sides.

[4] Unfortunately however, in his legal instruction, the trial judge made errors that were detrimental to the appellant’s defence that he lacked the requisite intent for murder and should only be found guilty of manslaughter. The seriousness of the errors precludes the application of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. In short, I am not satisfied that the verdict would necessarily have been the same had the errors not been made.

[5] Accordingly, I would allow the appeal and order a new trial. In so concluding, I reject the appellant’s submission that the conviction for first degree murder is unreasonable and that a verdict of manslaughter should be substituted.

BACKGROUND FACTS

[6] In view of my conclusion that there must be a new trial, I propose to limit my summary of the facts to the bare essentials.

[7] On the night of July 17, 2004, sometime after 11:00 p.m., the appellant entered the home of Mary Wood in search of money. Ms. Wood, age 62, was home alone that night. Her husband was out of town.

[8] The appellant and Ms. Wood were not strangers. They had been neighbours at one time and had formed a friendship.

[9] The appellant’s late-night entry into Ms. Wood’s home was not the first time he was at her home that evening. Earlier on, he had been there in search of money and she had given him $20. Later on, he showed up a second time, again in search of money. This time, Ms. Wood asked him to leave and he did so without incident. According to several friends with whom Ms. Wood spoke that night, the appellant looked glassy-eyed and he appeared to be high on drugs. That description conformed with the appellant’s testimony. He stated that during the day, he consumed large quantities of alcohol and cocaine and he was looking for money that evening to continue his drug and alcohol use.

[10] On the appellant’s third attendance at Ms. Wood’s home, Ms. Wood shouted at the appellant to leave and began to push him out the door. Things turned violent. The appellant assaulted Ms. Wood, grabbed her by the throat and threw her to the floor. Ms. Wood died shortly thereafter. In his testimony, the appellant admitted to causing Ms. Wood’s death but he maintained that he did not intend to kill her or cause her serious injury that he knew was likely to result in her death.

[11] While Ms. Wood lay unresponsive on the kitchen floor, the appellant stole a ring from one of her fingers. He also ransacked the home and stole money from an upstairs safe before making good his escape. According to the Crown, in the course of killing Ms. Wood, the appellant also committed a sexual assault on her – hence the charge of first degree murder.[^1]

[12] A day or so later, Ms. Wood’s lifeless body was discovered on the floor of her kitchen. Dr. Ali-Ridha, the pathologist who performed the autopsy on Ms. Wood, described the cause of death as “asphyxiation by blunt force trauma which [was] complicated by a combination of central nervous system depression by drugs … found in her blood during the toxicology testing”. Dr. Ali-Ridha described a number of external injuries to Ms. Wood’s body. The right side of her face showed extensive bruising which was likely caused by a slap across the face. While the force of the slap would have been significant, it did not cause a skull fracture or produce any brain injuries. Ms. Wood also had a small bruise around her right eye and a minor abrasion on the tip of her nose. Further bruising was noted on her right shoulder. As well, she had a small bruise on her left elbow and a large bruise on the back of her left shoulder. The latter two injuries were likely caused by gravitational impact. Finally, there were five oval-shaped bruises located on her left forearm which Dr. Ali-Ridha attributed to forceful grabbing or restraining.

[13] Dr. Ali-Ridha testified that the blunt force trauma responsible for the external bruising seen on Ms. Wood was not in and of itself sufficient to cause her death. In cross-examination, he explained that Ms. Wood would not have died had she not been asphyxiated:

Asphyxiation … was a cause of death, take or add the factor of medications. The medications played a significant role … and their presence shows [that she was] more vulnerable to die, but she will not die if the asphyxiation was not there. [Emphasis added.]

[14] Dr. Ali-Ridha observed petechial hemorrhages in Ms. Wood’s left eye, flame hemorrhages in her right eye and small red dots on her lungs. This type of hemorrhaging is regularly seen in cases of asphyxiation and supported his finding that Ms. Wood was asphyxiated. Dr. Ali-Ridha testified that in Ms. Wood’s case, asphyxiation occurred due to a blockage of the veins carrying fresh blood and oxygen to her brain (venal asphyxiation). Unlike arterial asphyxiation, which involves a blockage of blood through the arteries and requires considerable force to achieve, Dr. Ali-Ridha stated that the pressure needed to decrease the flow of fresh blood carried through the veins to the brain is “a minimum degree”.

[15] Significantly, Dr. Ali-Ridha detected no signs of classic strangulation on Ms. Wood’s body. There were no finger prints or nail marks or any other observable marks or injuries on her neck, nor was there any structural damage to the neck muscles or arteries. Delicate structures such as the hyoid bone and thyroid cartilage were not fractured. Microscopic examination of the larynx and thyroid cartilage revealed bleeding which Dr. Ali-Ridha described as “soft injuries”. The force needed to cause those injuries would have been “constant but not a very significant degree”.

[16] The limited degree of force needed to cause venal asphyxiation was potentially that much less in Ms. Wood’s case due to a variety of drugs she was taking for medical reasons. The drugs in question contained amitriptyline, morphine and codeine. Dr. Ali-Ridha testified that those drugs had the effect of depressing Ms. Wood’s central nervous system, thereby compromising her normal brain function for respiration. As such, she was “more vulnerable to pressure being placed on her chest and neck”. Dr. Ali-Ridha testified that the pressure causing her death need not have been prolonged or very forceful. The hemorrhaging he saw in her eyes and lungs could have occurred in a matter of seconds, and because of Ms. Wood’s compromised state, she would have died quickly after the pressure was applied.

POSITION OF THE DEFENCE AT TRIAL

[17] The appellant testified that upon entering Ms. Wood’s home a second time (he claimed he was only there twice, not three times), Ms. Wood confronted him, told him to leave and started pushing him towards the door. According to the appellant, he became angry because she would not listen to him and he grabbed her by the throat and threw her to the floor. Ms. Wood hit the floor with a hard thud, after which she did not move or say anything. The appellant did not know if she was dead but he steadfastly maintained that when he seized her by the throat and threw her to the floor, he had no intention of hurting her, much less killing or seriously injuring her.

[18] According to the appellant, he was in a state of panic when he stole Ms. Wood’s ring and ransacked her home. He testified that he was searching for money so he could continue his drug and alcohol use. He denied having any sexual contact with Ms. Wood.

[19] In the circumstances, while the appellant acknowledged that he was guilty of manslaughter, he denied possessing either of the requisite intents for murder. In support of his position, he relied upon the medical evidence which established that the force used to asphyxiate Ms. Wood was not significant and the blunt force injuries to her face and other parts of the body which resulted in bruising were insufficient to cause her death. In addition, he claimed that his mental faculties were severely compromised by the large quantities of alcohol and cocaine he had consumed that day. When Ms. Wood would not listen to him, he became angry and acted on the sudden, without giving much or any thought to the nature or consequences of his actions.

POSITION OF THE CROWN AT TRIAL

[20] The Crown maintained that the appellant knew that he was not welcome in Ms. Wood’s home after he arrived the second time and was told to leave. On the third occasion, according to the Crown, the appellant broke into Ms. Wood’s home in search of money and when she confronted him, he realized he had to kill her to prevent her from identifying him. Accordingly, he beat her and choked her to death and in the process, he sexually assaulted her. The appellant’s evidence as to what occurred between him and Ms. Wood was not believable. In this regard, the Crown relied on Dr. Ali-Ridha’s evidence that the violence to which the appellant admitted did not account for the injuries found on Ms. Wood’s face and body.

[21] In support of its theory that the appellant broke into Ms. Wood’s home to rob her, the Crown pointed out that after killing her, the appellant stole her ring and ransacked the house. On the Crown’s theory, the appellant greatly exaggerated the effects of his alcohol and drug consumption. His purposeful and calculated conduct before, during and after the killing confirmed this. In the end, the Crown maintained that the appellant was both able to and did form one or the other of the requisite intents for murder.

CHARGE TO THE JURY

Murder versus manslaughter

[22] The trial judge provided the jury with clear instructions about the difference between murder and manslaughter. In order to convict the appellant of murder, the jury had to be satisfied beyond a reasonable doubt that he either intended to kill Ms. Wood or he intended to cause her bodily harm that he knew was likely to cause her death and was reckless whether death ensued or not.

[23] The trial judge then instructed the jury on the “common sense inference” that the jury could consider in assessing the issue of intent:

In deciding whether Ford Pittman intended or meant to cause the death of Mary Wood, you are entitled as a matter of common sense to draw an inference that a sane and sober person intends the natural and probable consequences of his or her voluntary actions. If you decide that Mary Wood’s death would be a natural consequence of Ford Pittman’s actions, you are entitled to conclude that Ford Pittman intended to kill Mary Wood by those actions. However, you are not required to draw this conclusion. Before relying upon this common sense inference that a person normally intends the natural and probable consequences of his or her voluntary actions, you must consider all of the circumstances in this case including evidence of what Ford Pittman said and did in deciding whether the common sense inference should be relied on [in] this case.

[24] The trial judge then moved directly to the issue of intoxication and its application “to the Crown proving that [the appellant] had the state of mind for murder”. He explained the law of intoxication to the jury and reviewed in considerable detail the evidence the jury could consider in assessing the appellant’s degree of intoxication and the impact it may have had on his state of mind at the time of the killing. In doing so, he reviewed the appellant’s version of his assault on Ms. Wood and he contrasted that evidence with the injuries observed by Dr. Ali-Ridha and the doctor’s opinion as to how those injuries may have been caused. He also reviewed Dr. Ali-Ridha’s autopsy findings, his evidence as to the cause of death and the force that would have been required to asphyxiate Ms. Wood. Unfortunately, however, that review occurred in the context of the trial judge’s instructions on intoxication and the impact the appellant’s drug and alcohol consumption may have had on his state of mind. With respect, a different approach was called for here. That leads me to the first of two errors the trial judge made in his instructions on the crucial issue of intent.

Failure to link the “common sense inference” to the manner in which death was caused

[25] Intoxication was clearly a factor for the jury to consider in assessing whether the “common sense inference” applied in this case. But it was not the only factor. Indeed, given the uncharacteristic features surrounding Ms. Wood’s death, I am of the view that the manner by which she died was as significant, if not more significant than intoxication in assessing the “common sense inference” and deciding whether it applied here.

[26] The appellant points out, correctly in my view, that the “common sense inference” must necessarily start with the identification of the act that caused the death. In many, if not most cases, this will not pose a problem for the Crown. For example, when the deceased is shot in the head at close range or stabbed multiple times in the chest, the matter is likely to be uncontentious. However, where death results from a slap in the face, entirely different considerations may apply.

[27] In this case, even though causation was admitted, the manner by which death was caused was potentially very important to the issue of intent and the jury’s assessment of it. Dr. Ali-Ridha testified that Ms. Wood’s asphyxiation was the result of a constant but not very significant degree of pressure on her neck or chest. There were no signs of classic strangulation and the minimal injuries to her neck and the minor degree of force needed to cause them pointed away from an intention on the appellant’s part to kill Ms. Wood or cause her serious injury that he knew was likely to result in her death.

[28] Dr. Ali-Ridha’s evidence about the medications Ms. Wood was taking and their effects on her respiratory system was also significant in this regard. The medications would have depressed her central nervous system, compromised her normal brain function for respiration and left her more vulnerable to venal asphyxiation from pressure on her neck or chest. The degree of force needed to cause asphyxiation in these circumstances was potentially that much less than the “minimum degree” of force needed to asphyxiate a person whose respiratory system was functioning normally.

[29] In my respectful view, it was incumbent upon the trial judge to link his instructions on the “common sense inference” to the body of evidence I have just outlined. On the facts of this case, apart from alcohol and drugs, the jury should have been instructed to carefully consider the nature and severity of the attack itself in assessing the appellant’s intent and in particular, whether on the evidence, the Crown had proved beyond a reasonable doubt that he intended to kill Ms. Wood or cause her bodily harm that he knew was likely to result in her death.

[30] Unfortunately, the jury did not receive clear instructions in this regard. Rather, the trial judge incorporated the nature and extent of Ms. Wood’s injuries and the degree of force needed to produce them into his instructions on intoxication and its effect on the appellant’s state of mind. In the circumstances of this case, that amounted to error.

[31] I need not decide whether standing alone, that error would have necessitated a new trial. Regrettably, it was compounded by a further error concerning the application of the thin skull principle.

Direction on the thin skull principle

[32] As indicated, in the context of his instructions on intoxication and its effects on the appellant’s state of mind, the trial judge reviewed Dr. Ali-Ridha’s evidence about the degree of force needed to bring about venal asphyxiation and Ms. Wood’s heightened susceptibility to it due to the medications she was taking. At pp. 2574-5, he instructed the jury as follows:

Consider also the testimony of Dr. Ali-Ridha as to the amount of drugs that were found in Mary Wood’s body and what effect the concentration of that medication would have on her central nervous system, including her respiratory system. Dr. Ali-Ridha was of the opinion that a person with these drugs in their system would be more vulnerable to pressure on their chest and neck. The force required would be constant, but not significant, because there were no injuries detected to muscle or bone. There was no damage to the hyoid bone or thyroid cartilage other than in the lamina. There was no bleeding in the surrounding muscles or thyroid gland. He said that her asphyxiation was not as a result of a grabbing but as a result of pressure put on her neck. It could be pressure for example from a knee, a hand, a band or a rail. A force was applied to the neck. He said even soft pressure on the neck can have this result even though there may not be any injuries. In this case there would not have to have prolonged pressure applied or a lot of pressure to have caused Mary Wood’s death because of her compromised situation related to the amount of drugs in her body. Pressure on the chest or compression on the neck can cause asphyxiation. There was clear evidence found that confirmed a “soft finding” of pressure used on the neck.

[33] Following that review, the trial judge provided the jury with the following instruction on the thin skull principle:

In this case there is some evidence that the nature and force of the assault by Ford Pittman would not normally have caused death to an average person, but that it caused death to Mary Wood only because Mary Wood’s central nervous system was compromised by the drugs she had taken. However, I must tell you that this is not a defence. It is a well-recognized principle in law that Ford Pittman must take his victim the way he finds her. [Emphasis added.]

[34] The appellant takes issue with that instruction. While he accepts that the thin skull principle is well-recognized, he points out, correctly in my view, that it applies to causation, not intent.

[35] The appellant submits that the impugned instruction was unnecessary because causation was admitted. Of greater concern, it was prejudicial because it effectively removed from the jury’s consideration evidence which supported his position that he did not intend to kill Ms. Wood or cause her serious injury that he knew was likely to result in her death. I agree.

[36] Put simply, absent evidence that the appellant knew that Ms. Wood was particularly susceptible to being asphyxiated, of which there was none, if a normal person would not likely have been asphyxiated by the degree of force applied by the appellant, that was something the jury could consider in deciding whether the appellant, in using the force he did, either intended to kill Ms. Wood or foresaw the likelihood of her death.

[37] In my respectful view, this error, along with the error in failing to focus the jury’s attention on the manner by which death was caused, compromised the appellant’s defence to the charge of murder and rendered his trial unfair. Accordingly, the conviction cannot stand and a new trial must be ordered.

OTHER GROUNDS OF APPEAL

[38] The appellant raised other grounds of appeal. I propose to comment briefly on three of them.

The W. (D.) instruction[^2]

[39] As noted, the appellant gave evidence at trial. He testified that he did not intend to kill Ms. Wood or cause her bodily harm that he knew was likely to result in her death. In addition, he maintained that he did not sexually assault her.

[40] The trial judge gave the jury a W.(D.) instruction in connection with the appellant’s evidence, but only insofar as it related to the allegation of sexual assault. He did not give a similar instruction on the issue of intent. With respect, he should have. In the end, however, I am not satisfied that this deficiency would have warranted a new trial. Viewed as a whole, the jury would have understood that it could only convict the appellant of murder if it rejected his evidence on the issue of intent and was otherwise satisfied, on the evidence it accepted, that he formed one or the other of the intents for murder at the time of the killing.

After-the-fact evidence

[41] The trial judge told the jury that in considering the appellant’s mental state at the time of the killing, the jury could consider his words and actions before, during and after the event. No issue is taken with that instruction. However, the trial judge also told the jury that it could consider the appellant’s “conduct in not seeking assistance for Mary Wood and in robbing her home and her ring from her finger” as “some proof that he murdered Mary Wood”.

[42] The appellant submits that the trial judge erred in providing that instruction. I agree.

[43] The appellant’s defence was not accident or self defence. He admitted to killing Ms. Wood but denied that he possessed either of the intents for murder. In my view, the three items of evidence in question were as consistent with the offence of manslaughter as they were with murder. The trial judge should not have made them the subject of a special instruction. They were admissible, along with the remainder of the appellant’s post-offence conduct, to show the appellant’s state of mind at the time of the killing and the effects, if any, that his consumption of alcohol and drugs may have had on it.

[44] Be that as it may, the impugned instruction by and large was harmless and I would not have ordered a new trial had it been the only error.

Unreasonable verdict

[45] I would not give effect to the appellant’s submission that the verdict of first degree murder was unreasonable. In my view, without getting into the weighing exercise that is properly the province of the jury, I am satisfied that there was some evidence upon which a properly instructed jury, acting reasonably, could find that the appellant, at a minimum, intended to cause bodily harm to Ms. Wood which he knew was likely to cause her death and was reckless whether death ensued or not. As well, there was some evidence from which the jury could infer that the appellant committed a sexual assault on Ms. Wood while he was engaged in the process of killing her. Accordingly, the proper result in this case is to quash the conviction and order a new trial.

CONCLUSION

[46] For these reasons, I would allow the appeal, quash the appellant’s conviction and order a new trial on the charge of first degree murder.

Signed: “M. J. Moldaver J.A.”

“I agree E. A. Cronk J.A.”

“I agree S. E. Lang J.A.”

RELEASED: “MJM” February 25, 2011

[^1]: I propose to say little about the sexual assault allegation. This appeal turns on the issue of intent and whether a case for second degree murder was made out. The only ground of appeal relating to the sexual assault involves expert evidence given by a Crown witness about DNA found on Ms. Wood’s genitalia. Without commenting on the reliability of the DNA evidence, which will be for the jury at the new trial, the ground in question is without merit and requires no further comment.

[^2]: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.