Court of Appeal for Ontario
Date: 2019-06-21 Docket: C64497
Justices: Sharpe, Brown and Roberts JJ.A.
Between
Her Majesty the Queen Respondent
and
Ryan James King Appellant
Counsel
Jessica Zita, for the appellant Mabel Lai, for the respondent
Heard and released orally: June 20, 2019
On appeal from: the conviction entered on February 4, 2013, and the sentence imposed on April 12, 2013, by Justice Harrison S. Arrell of the Superior Court of Justice, sitting with a jury.
Reasons for Decision
[1] The deceased approached the appellant and his associate, Ryan Fitzpatrick, as they were breaking into cars to steal items. The deceased was fatally stabbed in the head with a screwdriver. Fitzpatrick testified that the appellant struck the fatal blow. The appellant testified that Fitzpatrick had done so.
[2] The appellant raises four grounds of appeal from his conviction for second degree murder:
- The trial judge erred by admitting similar fact evidence;
- The trial judge erred by failing to give a proper limiting instruction on the use of the similar fact evidence;
- The trial judge erred by permitting a lengthy re-examination of Justin Schultz;
- The trial judge erred by admitting an autopsy photo.
[3] The appellant also appeals sentence, arguing that the trial judge erred by sentencing him to 15 years' parole ineligibility.
(1) Similar Fact Evidence
[4] The appellant submits that the trial judge erred by admitting similar fact evidence arising from the evidence of Justin Schultz, who testified that after the attack on the deceased, the appellant told him: "I did it again". Schultz then explained that "it" referred to an earlier incident, when they had been engaged in breaking into and stealing from cars, when the appellant had violently struck and injured a passer-by.
[5] In our view, Schultz's evidence was admissible to explain the appellant's admission that he had done "it" again.
[6] As to the similar fact ruling, counsel concedes that the two incidents were sufficiently similar to warrant admission, but argues that the prejudicial value of this evidence outweighs its probative effect.
[7] We do not accept that submission. The similar fact evidence was no more prejudicial than any other similar fact evidence. It simply added to the weight of the Crown's case. Moreover, as we note below, the jury was appropriately cautioned on the proper use of similar fact evidence.
(2) Similar Fact Instruction
[8] The trial judge appropriately cautioned the jury on the use it could make of the similar fact evidence. The trial judge instructed the jury that it must not use the evidence to conclude that the appellant is a person of general bad character or disposition, who likely committed the offence charged because of that general bad character. The trial judge also cautioned the jury that it must not punish the appellant for that conduct by finding him guilty of the offence charged simply because he had done some other thing. We note as well that no objection was taken to this aspect of the charge by the appellant's trial counsel.
(3) Re-examination
[9] Defence counsel challenged Schultz at length in cross-examination as to his criminal antecedents, prior inconsistent statement, lies and failure to come forward. Defence counsel suggested that Schultz had acted in this manner because he was lying. Schultz's response was that he had acted in that way because he was afraid of the appellant. In re-examination, Crown counsel asked Schultz why he was afraid of the appellant. Schultz recounted at some length prior acts of violence and discreditable conduct by the appellant. Defence counsel eventually objected to this line of questioning and asked for a mistrial. The trial judge refused to grant a mistrial. He found that the defence had opened the door to this line of questioning by the manner of its cross-examination of Schultz. The trial judge stated, however, that the questioning had gone on long enough and that it should end. He indicated that he would give the jury a Vetrovec caution as to Schultz's evidence and that he would caution the jury on the narrow purpose for which it could use the evidence as to prior acts of discreditable conduct by the appellant.
[10] The trial judge gave a limiting instruction along these lines and defence trial counsel raised no objection to the charge on that point.
[11] We see no error on the part of the trial judge. We agree that the defence attack on Schultz opened the door to the Crown's line of re-examination. When defence counsel objected, the trial judge stopped it. The jury was appropriately cautioned on the evidence of Schultz and the limited use it could make of his explanation for why he was afraid of the appellant.
(4) The Autopsy Photograph
[12] We see no error on the part of the trial judge in admitting the autopsy photograph. As the trial judge observed in his ruling, the photograph was not gory, grotesque or graphic. The photograph, in our view, provided the jury with information from which it could understand and assess the evidence of the forensic pathologist as to the nature, mechanism, direction and force of the fatal blow and the superficial wounds. We note as well that defence counsel relied on the very autopsy photograph that is now objected to in his closing submissions to the jury.
(5) Sentence Appeal
[13] We see no error on the part of the trial judge in sentencing the appellant to 15 years' parole ineligibility. This was a brutal and senseless killing of an innocent passer-by, and the appellant has failed to identify any error in the careful reasons given by the trial judge to explain the sentence he imposed.
Disposition
[14] Accordingly, appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal from sentence is dismissed.
"Robert J. Sharpe J.A." "David Brown J.A." "L.B. Roberts J.A."