COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Frimpong, 2013 ONCA 243

DATE: 20130418

DOCKET: C53147

Doherty, MacPherson and Cronk JJ.A.

Her Majesty the Queen

Respondent

and

Kwaku Frimpong

Applicant (Appellant)

Frank Addario and Megan Savard, for the applicant (appellant)

Gillian Roberts, for the respondent

Heard: April 8, 2013

On appeal from the convictions entered by a jury presided over by Justice Roydon Kealey of the Superior Court of Justice, dated November 13, 2009.

By the Court:

I

[1] The appellant was convicted of two counts of first degree murder. He appeals his convictions on three grounds, all relating to the eyewitness evidence of Ziad Chammas. The appellant submits that:

• the trial judge should have excluded Chammas’ eyewitness testimony because its prejudicial effect outweighed its probative value;

• the trial judge erred in excluding expert evidence offered by the defence to demonstrate certain frailties in Chammas’ eyewitness evidence;

• the trial judge’s instructions on Chammas’ eyewitness evidence were inadequate.

II

[2] The Crown alleged that the appellant and his very close friend, Phillip Salmon, went to a motel room under the pretense of selling drugs to Ziad Ahmad. In fact, they planned to rob him. They knew that Mr. Ahmad had a great deal of cash. Mr. Ahmad and his friend, Ziad Chammas, were in the motel room.

[3] Shortly after the appellant and Salmon arrived, Salmon attacked Ahmad. The appellant stood near the doorway, pointing a gun at Mr. Ahmad and Mr. Chammas. Salmon attempted to subdue Ahmad and a struggle ensued. The appellant fired a single shot that passed through Mr. Ahmad’s head, killing him instantly, and into Mr. Salmon’s chest. Salmon was badly hurt. He ran from the room and the appellant followed. Salmon’s body was found in a nearby parking lot. The appellant fled the scene going over a fence and across a nearby construction site. He surrendered to the police a few days later.

[4] The Crown’s case was based on the eyewitness evidence of Chammas and a body of circumstantial evidence that included cell phone records and evidence that the murder weapon and a related magazine were found along the flight path allegedly followed by the appellant after he left the motel room.

[5] Identity was the only issue at trial. It was acknowledged that whoever fired the fatal shot was guilty of two counts of first degree murder.

[6] The appellant did not testify. It was the defence position that the appellant was not the shooter. The defence acknowledged that the appellant and Salmon were together much of the evening and in almost constant contact on the telephone when they were not together. The defence also acknowledged that the appellant and Salmon had visited Ahmad and Chammas in the motel room about an hour to an hour and a half before the shooting. Finally, the defence acknowledged that the appellant was in the immediate vicinity of the motel room when the murder occurred and that he fled the scene by climbing a fence and going through the construction site.

[7] The defence maintained that although the appellant was with Salmon on his first visit to the motel room, someone else was with Salmon when he returned to the motel room at about 9:45 p.m. to commit the robbery. According to the defence, that third person fired the fatal shot and fled the scene with the badly wounded Salmon.

[8] The defence put considerable weight on the evidence of William Doughty who saw two people in the parking lot of the restaurant beside the motel shortly before 10:00 p.m. One person, who turned out to be Mr. Salmon, was obviously badly injured. The other person ran away, but not before Doughty was able to recognize him as a person Doughty had seen in the area earlier at around 6:30 p.m. Doughty’s description of the person he saw was inconsistent with the appellant’s appearance. Doughty was shown a photo line-up a few days later which included a photograph of the appellant. Doughty did not make an identification.

III

chammas’ identification evidence

[9] Chammas testified that he and his friend Ahmad were in the motel room on the evening of June 21st. He was smoking marihuana and Ahmad was using cocaine. Ahmad spoke to Salmon on his cell phone several times.

[10] Salmon and a second person showed up at the motel room around 8:30 p.m. The four men exchanged small talk. Chammas identified the person with Salmon as the appellant. He recalled speaking to the appellant about his ethnicity. Chammas had not met the appellant previously. He described the meeting as friendly and normal.

[11] According to Chammas, Salmon and another man returned to the motel room at about 9:45 p.m. Salmon entered and spoke to Ahmad. The other man stood in the doorway. Shortly after their arrival, Salmon physically attacked Ahmad. The man in the door pulled out a handgun and pointed it at Chammas and Ahmad. The gunman told Chammas to assist in restraining Ahmad.

[12] The struggle between Salmon and Ahmad continued. The man at the door fired the gun, killing Ahmad and seriously wounding Salmon. Salmon immediately bolted for the door with the other man close behind. Chammas called 911.

[13] Chammas was shown a photo line-up by the investigating officer three days after the shooting. Photo #8 was a mug shot of the appellant. Chammas paused at photo #1 and photo #8. He said he was “not sure” about photo #1 and that photo #8 was “similar” to the shooter, except the person in the photograph had facial hair and bigger lips. Chammas described the shooter as clean shaven. The investigating officer reminded Chammas that things like hair and facial hair could change.

[14] Chammas was shown a second photo line-up about five days later. By that time, the appellant had been arrested. The appellant’s mug shot from his arrest was included as photo #9 in the second photo line-up. The appellant had facial hair in the mug shot.

[15] Chammas looked at photo #9 for about 12 minutes. He said:

He looks very much the same … guy, very, very, very much, he looks the same guy, but last week he had no hair, no beard, no moustache, but shape of face and the eyes and the nose it will show this is the one, I’m not 100 percent sure because this picture is different but … it is unbelievable. I think that is him. I think that is him; I think that is him.

[16] After Chammas had seen all of the photographs, he said, referring to the photo of the appellant: “this is the one, this is the guy 100 percent.”

[17] There were several problems with Chammas’ evidence identifying the appellant beginning with the fact that he failed to make any identification in the first photo line-up and was shown a second line-up. Chammas also insisted that the shooter was clean shaven. There was evidence that the appellant always had facial hair. However, by the end of the evidence, it was common ground that Chammas had correctly identified the appellant as one of the two men in the motel room at about 8:30 p.m. The question for the jury was whether he was also correct in identifying the appellant as the person who returned to the motel room with Salmon about an hour and 15 minutes later.

IV

the admissibility of CHAMMas’ eyewitness evidence

[18] A trial judge can exclude evidence offered by the Crown where the prejudicial effect of the evidence outweighs its probative value. Evidence is prejudicial in the relevant sense if it threatens the fairness of the trial. Evidence may be prejudicial if it cannot be adequately tested and challenged through cross-examination and the other means available in the adversarial process. Evidence may also be prejudicial if there is a real risk that the jury will misuse the evidence (e.g. propensity evidence), or be unable to properly assess the evidence regardless of the trial judge’s instructions. This latter form of prejudice must, however, overcome the strong presumption that jurors can and do follow the trial judge’s instructions.

[19] Chammas’ eyewitness evidence could be fully tested by the defence. The entirety of the identification process was fully documented and available to the defence. Both photo line-ups were videotaped and the videotapes were before the jury. All of the witnesses involved in the identification process testified and all of the officers had notes. There was fertile ground for cross-examination and counsel worked that ground to full effect. The alleged weaknesses in Chammas’ evidence were fully exposed for the jury’s consideration.

[20] There was also nothing peculiar or unique about Chammas’ evidence that would impair the jury’s ability to fairly assess its credibility and reliability. The assessment of identification evidence can be a difficult and, in some ways, counterintuitive process. That is why special instructions are given to juries to assist in their assessment of identification evidence. The potential problems with Chammas’ identification evidence, while numerous, were standard fare for identification evidence cases. Juries, armed with the appropriate instructions, routinely assess that kind of evidence.

[21] It follows from our finding of an absence of prejudice in the relevant sense, that Chammas’ identification evidence could not be excluded. Absent prejudice, a trial judge cannot exclude evidence solely on the basis that the judge thinks that the evidence has little probative value.

[22] The trial judge properly admitted Chammas’ identification evidence.

V

the admissibility of the expert’s evidence

[23] The appellant has two submissions in respect of the expert’s evidence, one broad and one more narrow. The broad submission asks this court to depart from its pronouncement in R. v. McIntosh (1997), 1997 3862 (ON CA), 117 C.C.C. (3d) 385 and hold admissible expert evidence explaining in general the frailties and dangers inherent in eyewitness identification evidence. This record offers no basis for any departure from McIntosh. Dr. Lindsay’s [the defence expert] brief commentary on the abilities of jurors to properly assess identification evidence added nothing to the longstanding debate. Judges, commentators and social scientists remain divided on whether expert evidence is necessary to assist a jury in assessing eyewitness identification.

[24] In urging the court to move away from McIntosh, counsel submits that:

This court should now acknowledge that social science has eclipsed traditional judicial understanding about the value of eyewitness expert evidence.

[25] With respect, nothing in this record would warrant any such acknowledgement. The record suggests to us that the arguments for and against the admission of this kind of evidence are the same now as they were when McIntosh was decided.

[26] The narrower basis upon which the appellant sought to introduce the expert’s evidence relates to the expert’s description of two phenomena which he called “change blindness” and “unconscious transference”. Both phenomena were said to explain how Chammas might have erroneously but honestly thought that the same person came to the motel with Salmon both times. In other words, the expert wanted to explain to the jury that Chammas having been introduced to the appellant with Salmon about an hour earlier might have mistakenly believed that the appellant was the person with Salmon when Salmon returned to the motel room for the second visit.

[27] The trial judge ruled that the expert’s evidence did not meet the necessity criterion for the admissibility of expert evidence. In his view, the jury would be able to properly assess the evidence using their own common sense, human experience, and the instructions provided by the trial judge. The trial judge said:

Most of what he [the expert] would speak to can be conveyed in the final instructions. Generally, the issues involve the age old problem we, as humans, have in accurately observing, remembering and recalling so as to be able to reliably identify people and describe events.

[28] In determining whether the expert’s evidence was necessary, the trial judge was effectively weighing the benefits of admitting the evidence against the potential costs of that admission. That process is entitled to deference in this court. We would not interfere with the trial judge’s determination that the evidence was not necessary.

VI

the trial judge’s instructions

[29] Counsel for the appellant made essentially three submissions as part of this ground of appeal:

• the caution was inadequate;

• the trial judge failed to give an adequate “Hibbert” instruction cautioning against reliance upon the certainty of Chammas’ identification evidence; and

• the trial judge failed to expressly identify the weaknesses in Chammas’ identification evidence and to relate those weaknesses to the position of the defence.

[30] The instruction on eyewitness identification was detailed and comprehensive. The trial judge began with the general caution about reliance on identification evidence. In the course of that caution, he instructed the jury to “be very cautious about relying on the eyewitness testimony”. He further indicated that:

All identification evidence suffers from an inherent frailty. The fact is human observations and recollections are notoriously unreliable in this area.

[31] A jury having heard the trial judge’s instructions, particularly after hearing defence counsel’s closing address, would have no doubt about the dangers inherent in identification evidence. The caution was adequate.

[32] The trial judge also instructed the jury that identification evidence could be erroneous even when coming from a witness who seemed confident about his or her identification. The trial judge said:

Eyewitness testimony is an expression by a witness of his or her belief or impression. It is quite possible for an honest, confident witness to make a mistake in identification. Honest people do make mistakes. An apparently convincing witness can be mistaken.

[33] The above-quoted instruction was sufficient to alert the jury to the potential disconnect between the witness’ confidence in his or her identification and the reliability of that identification. In R. v. Hibbert (2002), 2002 SCC 39, 163 C.C.C. (3d) 129 at 53, a case dealing with in-court identification, Arbour J. noted:

What will be required to displace the danger that the jury will give an eyewitness identification weight that it does not deserve will vary with the facts of individual cases.

[34] The final and most formidable argument aimed at the trial judge’s instructions stresses the difference between identifying potential factors relevant to the jury’s assessment of the reliability of eyewitness evidence and instructions that certain factors must inevitably detract from the reliability of that evidence. Counsel submits that the trial judge may have done the former, but did not do the latter.

[35] As we read the charge, the trial judge combined both approaches. He outlined numerous factors relevant to the jury’s assessment of the identification evidence and he also specifically identified various factors that would potentially undermine the reliability of that evidence. After referring to the description provided by Chammas and the circumstances of his purported identification, the trial judge outlined some eight factors that could assist the jury in weighing that evidence. Most of those factors clearly had a negative impact on the potential reliability of the evidence. For example, the trial judge specifically referred to the fact that Chammas expected that the same two men would return to the motel room and that this expectation could well have affected the accuracy of his identification of the appellant as the shooter.

[36] The trial judge also outlined the photo identification procedures in great detail and again referred to several factors which could only adversely affect the reliability of Chammas’ identification.

[37] Lastly, and perhaps most importantly, the trial judge instructed the jury to consider Chammas’ evidence in the context of the rest of the evidence. He outlined that evidence, including the substantial body of circumstantial evidence incriminating the appellant and Doughty’s identification which clearly tended to exculpate the appellant.

[38] Considering the instruction as a whole, we are satisfied both that the jury was properly alerted to the various weaknesses in Chammas’ evidence and that his evidence was properly placed in the context of the rest of the evidence. The instructions adequately equipped the jury to assess Chammas’ evidence.

VII

conclusion

[39] The appeal is dismissed.

RELEASED: “DD” “APR 18 2013”

“Doherty J.A.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”