Court of Appeal for Ontario

Date: November 12, 2019

Docket: C60646

Judges: Strathy C.J.O., Doherty and Tulloch JJ.A.

Between

Her Majesty the Queen Respondent

and

Kenneth Mullin Appellant

Counsel:

Paul J.I. Alexander, for the appellant
Deborah Krick, for the respondent

Heard: October 3, 2019

On appeal from the conviction entered by Justice R. Cary Boswell of the Superior Court of Justice, sitting with a jury, on November 2, 2011.

Opinion of the Court

Strathy C.J.O.:

[1] Introduction

[1] The appellant was convicted of second-degree murder relating to the death of his common-law wife. He was sentenced to life imprisonment, with 12 years' parole ineligibility. He appeals his conviction.

I. FACTUAL BACKGROUND

[2] Sherry Martin died on the floor of the home she shared with the appellant, from a single stab wound to her chest. Forensic evidence established that significant force was required to inflict the fatal wound. The appellant admitted that he was the only other person present in the house at the time and claimed that Ms. Martin committed suicide. The Crown contended that he had stabbed her in the middle of a violent argument.

[3] Critical trial evidence was provided by Ms. Martin's friend, Jennifer Brent, who testified that she was on the phone with Ms. Martin when she overheard a loud argument between Ms. Martin and the appellant. She heard Ms. Martin shout something like, "take your fucking hands off of me." She heard a scream and the phone line went dead. After attempting to call back several times, she eventually reached the appellant, who said that he had "knocked [Ms. Martin] out", and that she "couldn't talk right now."

[4] Alarmed for the safety of her friend, Ms. Brent called 911. The call was recorded. In an hysterical and breathless voice, speaking so quickly the operator could scarcely understand her, Ms. Brent said that she had heard "screaming" and that the appellant had said that he had "knocked her out." The trial judge ruled that portions of the call could be played to the jury. The appellant challenges that ruling.

[5] When police arrived at the home as a result of the 911 call, the appellant walked out of the front door of the house and toward the officer and said, "You're here to arrest me, arrest me." He then turned away from the officer, put his hands behind his back, and again said, "Arrest me." The trial judge ruled that this and other aspects of Mr. Mullin's post-offence conduct could be considered by the jury as circumstantial evidence of his guilt. The appellant challenges the trial judge's jury instruction on the proper use of the evidence.

[6] The appellant was placed in a police cruiser. He was informed of his right to counsel and was cautioned. He said, "I think I killed her" and "I don't need a lawyer, I got nothing anyways, it doesn't matter." He was taken to the police station where he gave a videotaped statement, in which he stated that he had stabbed the deceased and was "guilty as charged." At trial, he claimed that he was suicidal when he gave the statement and that it was false. He said that he attempted to hang himself after Ms. Martin died and before police arrived because he was overcome with grief at the death of his spouse.

[7] The appellant raises four grounds of appeal. I will address each in order, setting out the parties' submissions and, where necessary, additional evidence to put the issue in context.

II. ANALYSIS

A. Failure to answer a jury question

[8] The first ground of appeal was withdrawn at the hearing. As it has some significance in relation to the fourth ground, I will briefly explain the issue and its resolution.

[9] The appellant asserted that the trial judge failed to answer a question from the jury within a reasonable time. The question concerned the mental state for murder. The trial transcript indicated that there was a delay of more than eight hours between the receipt of the jury's question and the judge's response.

[10] The Crown applied to adduce fresh evidence, which established that the time references in the trial transcript were incorrect and that the question was, in fact, answered in a timely manner. On receipt of the question, the trial judge discussed the issue with counsel, and it was agreed that the jury should be recalled and asked to clarify their question. This was done. About forty minutes later, the jury sent a note to the trial judge to the effect that they had resolved the concern raised by the question. An hour and a half later, the jury delivered a verdict.

[11] The appellant did not challenge the introduction of the fresh evidence and conceded that it answered the first ground of appeal.

[12] I would therefore admit the fresh evidence and would give no effect to the first ground.

B. Bad character evidence

[13] The appellant claims that the trial judge erred in admitting evidence of his "bad character" during the Crown's cross-examination of the appellant and in failing to properly instruct the jury on its use.

[14] The Crown argued that the appellant had put his character in issue and sought to cross-examine him concerning the fact that, seven years earlier, he had pleaded guilty to a charge of uttering a threat against Ms. Martin. In the course of an argument, the appellant had said to her, "You are so dead". He received a conditional discharge. The motion to introduce this evidence was brought near the end of the Crown's case, before the appellant had chosen to testify.

[15] The Crown had adduced the evidence of three witnesses who knew the appellant. Two had worked with the appellant and the third was Ms. Brent. The appellant's co-workers, who had been with him at a bar on the day of the offence, testified that although he was drinking, he appeared to be acting normally. One testified that the appellant said that Ms. Martin had cut off his cell phone and that he "could just strangle her for doing this." The other testified about a heated argument between the appellant and Ms. Martin on an earlier occasion when Ms. Martin had made a scene because the appellant had been looking at a woman at the bar.

[16] On cross-examination of these witnesses, the defence elicited evidence that the appellant was a quiet and polite person, that they had never seen him act aggressively, that he appeared to love Ms. Martin, and that his behaviour had not changed in the time leading up to the incident.

[17] In its examination of Ms. Brent, the Crown adduced evidence that the couple had argued, mostly about money, yelling and swearing at each other. Ms. Brent testified that she had never seen the appellant touch Ms. Martin other than in an affectionate way.

[18] In cross-examination, the following exchange occurred between the defence counsel and Ms. Brent:

Q. And even after you found out that Ms. Martin had passed away, you wouldn't have thought in a million years that Mr. Mullin would do anything to her to kill her?

A. Yes.

Q. Agreed?

A. Yes.

Q. And that's based on all the time you spent with Mr. Mullin and Ms. Martin over those eight or so years, right?

A. Yes.

Q. Okay; and even after you went to the police on February 28th, 2009, you still didn't believe that he'd do this in a million years, isn't that right?

A. Yes.

[19] In his ruling admitting the Crown's "bad character" evidence, the trial judge observed:

…the combined effect of the cross-examinations of Mr. Rogers, Mr. Baker and Ms. Brent, is to paint a picture of Mr. Mullin as a quiet, respectful, non-aggressive person, who would not be expected to commit an assault or to do anything to harm Ms. Martin. This is more than evidence of the demeanour or state of mind of the accused in the hours prior to the alleged offence. This is evidence of his character generally – of his quiet and passive nature.

[20] The trial judge found that the appellant had put his character in issue and that the Crown was entitled to adduce evidence to "neutralize" the effect of the evidence of good character adduced by the defence. He found that the evidence relating to the conditional discharge was probative of the appellant's character and was also admissible to impeach his credibility. While the threatening charge was seven years before Ms. Martin's death, some of the good character evidence was also dated. Any potential prejudice could be addressed through a jury instruction.

[21] The trial judge held, however, that the Crown was not entitled to use the conditional discharge as evidence of animus or motive, in addition to rebutting the evidence of good character. No application had been brought to do so, and it would be unfair to permit the Crown to do so at that late stage of the trial. The trial judge also held that the Crown's cross-examination of the appellant should be strictly limited to the charge of threatening, the guilty plea, and the facts supporting the charge.

[22] The appellant makes three submissions with respect to this ground: (1) that he did not put his character in issue; (2) that if his character was in issue, the evidence should nevertheless have been excluded because it was unduly prejudicial; and (3) that if the evidence was properly admitted, the judge's instructions to the jury were insufficient.

(1) Did the appellant put his character in issue?

[23] As a general rule, the Crown may not introduce evidence of the accused's bad character to establish that, as a result of that character, he or she is more likely to have committed the offence. In certain cases, however, the Crown is entitled to lead evidence of a marital relationship to "provide a proper context in which the jury can assess the specific allegations made against an accused." In these cases, an accused is entitled to rebut the Crown's case by presenting their own version of that context without necessarily putting their character in issue: R. v. P. (N.A.), 171 C.C.C. (3d) 70 (Ont. C.A.), at para. 34. However, where an accused oversteps and adduces evidence in support of the inference that they are less likely to have committed the offence and to support their own credibility, they put their character in issue and open the door for the Crown to adduce "bad character" evidence to rebut the effect of their good character evidence. Here, the appellant says that the "good character" evidence was simply tendered in response to the Crown's case that he was a frustrated and angry spouse who had "snapped" after years of being trapped in an unhappy relationship. I disagree.

[24] The trial judge did not err in concluding that the evidence went beyond the appellant's demeanour and state of mind in the hours before the alleged offence. The evidence, particularly Ms. Brent's testimony that she "wouldn't have thought in a million years that Mr. Mullin would do anything to [Ms. Martin] to kill her", was pure good character evidence and the Crown was entitled to adduce evidence to refute it. The question, then, is whether the trial judge properly balanced the probative value against the prejudicial effect of the conditional discharge evidence and took appropriate steps to mitigate any prejudice.

(2) Was the evidence unduly prejudicial?

[25] The appellant argues that the "bad character" evidence was highly prejudicial because it was evidence that he had previously pleaded guilty to threatening to commit the very offence for which he was being tried.

[26] The trial judge was alive to this issue and came to a reasonable conclusion after undertaking a balancing of the probative value and prejudicial effect. He considered the appellant's argument that the conditional discharge was dated, thereby reducing its probative value. He noted that the good character evidence was itself dated. He also observed that the evidence the Crown wished to adduce was prejudicial, because there was a risk that the jury could conclude that, because the appellant had threatened to kill Ms. Martin in 2002, he was more likely to have killed her in 2009. His overall conclusion was that the prejudicial effect of the conditional discharge evidence could be addressed: (1) by prohibiting the evidence from being adduced as evidence of motive or animus; (2) by strictly confining the scope of the evidence to be adduced; and (3) by giving the jury a cautionary instruction.

[27] The trial judge's balancing of the prejudicial effect of the evidence against its probative value is entitled to deference: R. v. Ansari, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 112, leave to appeal refused, [2015] S.C.C.A. No. 487.

(3) Was the jury properly instructed?

[28] The appellant submits that, having decided to admit the "bad character" evidence, the trial judge failed to expressly instruct the jury that they could not use it as evidence of animus or motive. The trial judge noted this concern in his ruling on the admissibility of the evidence, but the appellant says that he failed to inoculate the jury against the prohibited use: see R. v. B. (F.F.), [1993] 1 S.C.R. 697, at pp. 733-34; R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 50.

[29] In instructing the jury on this issue, the trial judge reviewed the evidence of good character, noting that it might make it less likely that the appellant committed the offence and that it might support his credibility. He also explained the meaning of a conditional discharge and reviewed the evidence concerning the appellant's conditional discharge. He concluded:

You may consider the evidence of the guilty plea to the threatening charge only in deciding whether you will believe and rely upon the evidence that Mr. Mullin has a good character for being a quiet, respectful and non-aggressive person. You must not use this evidence, alone or with any other evidence, to conclude or to help you conclude that Mr. Mullin committed the offence charged because he is a person of bad character, or the sort of person who would likely do so. [Emphasis added.]

[30] In the particular circumstances of this case, this instruction was adequate to instruct the jury about the permissible use of the evidence and to caution them against the use of the evidence for any other purpose. There was no objection to this instruction. Nor was there a request for any further instruction.

[31] Neither the Crown nor the defence made reference to either the good character evidence or the bad character evidence in their final jury addresses. In the context of all the evidence, the guilty plea was a very small part of the case against the appellant and I see no risk, in light of the instructions, that the jury would use it for an improper purpose.

C. Admission of 911 call

[32] Near the end of Ms. Brent's cross-examination by defence counsel, the Crown sought to introduce the tape of her 911 call to the police in re-examination.

[33] In so doing, the Crown sought to introduce Ms. Brent's utterances for the truth of their contents.

[34] The judge ruled that the call was admissible. He noted that Ms. Brent's utterances were hearsay and presumptively inadmissible, notwithstanding that she was available to be cross-examined at trial. However, the trial judge accepted the Crown's submission that the 911 call was admissible as res gestae, a traditional exception to the hearsay rule. The call was made at a time when Ms. Brent was in a frantic state of extreme emotion and the risk of concoction or deception in relation to the content of the call could be discounted.

[35] The judge said that the more significant issue was whether the evidence could be adduced in re-examination of the witness. He found:

I am satisfied that the Crown ought to be entitled, in re-examination, to adduce evidence responding to matters raised in cross-examination, in particular, in response to the allegation that she made up evidence about Mr. Mullin saying that he had punched, hit or knocked out Ms. Martin, that she had heard Ms. Martin scream, and that Ms. Martin was quiet and could not talk.

The 911 call includes comments Ms. Brent made to the 911 operator to the effect that Mr. Mullin knocked out Ms. Martin, that she heard a scream and that Mr. Mullin said Ms. Martin was quiet and couldn't talk because he'd punched her in the head. To this end, they are responsive to the suggestion that Ms. Brent made up the comments she attributed to Mr. Mullin. They not only rebut any suggestion of recent fabrication, but the 911 call is evidence the jury could use to conclude that in fact Mr. Mullin did make the statements attributed to him during the 911 call. [Emphasis in original.]

[36] The judge concluded, however, that only portions of the call should be admitted in evidence – namely those portions of the call that related to matters raised in cross-examination. The Crown would be permitted to play two very small portions of the recording, one to put the call into context and the other to respond to the allegation of fabrication. The defence would be permitted to cross-examine Ms. Brent concerning what she had said in the 911 recording.

[37] The trial judge therefore allowed the Crown to adduce the evidence and permitted the defence to continue its cross-examination to address the new evidence. As matters developed, the defence introduced the limited portions of the 911 call in its continued cross-examination of Ms. Brent. The Crown's re-examination was limited to simply asking Ms. Brent whether she recognized her voice on the recording and whether the recording was accurate. She replied affirmatively to both questions.

[38] The appellant makes three submissions on this issue: (1) that the evidence was not admissible under the res gestae exception; (2) that it should not have been admitted in re-examination; and (3) that it was not admissible to corroborate Ms. Brent's in-court testimony because it was "oath-helping."

[39] I would not give effect to this ground of appeal.

(1) The res gestae

[40] If used for the truth of the declarant's (Ms. Brent's) statements made during the call, the 911 recording was hearsay. It was an out of court statement being admitted for the purpose of establishing that the appellant had said, among other things, that he had "knocked [Ms. Martin] out".

[41] The law permits the introduction of excited or spontaneous utterances as an exception to the rule against hearsay: a "statement relating to a startling event or condition … may be admitted to prove the truth of its contents if it is made while the declarant is under the stress of excitement cause by the event or condition": David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 191. In order for a statement to be admissible, "[t]he stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent": R. v. Khan, 42 C.C.C. (3d) 197 (Ont. C.A.), at p. 207, aff'd , [1990] 2 S.C.R. 531; R. v. Nurse, 2019 ONCA 260, at paras. 77-82; Ratten v. The Queen, [1972] A.C. 378 (P.C.).

[42] Here, the threshold for admissibility as res gestae was met as the 911 call was made soon after Ms. Brent's conversation with the appellant, while the stress of the event was ongoing: see e.g., R. v. Nicholas, 182 C.C.C. (3d) 393 (Ont. C.A.), at paras. 89-92, leave to appeal refused, [2004] S.C.C.A. No. 225. This was evident in the declarant's voice and conduct on the call, in which she was highly excited and anxious to get medical assistance for her friend. These circumstances enhanced the reliability of the evidence. The hearsay dangers were also significantly reduced because the declarant was in the witness box, the recorded call was being played to her, and she could be cross-examined concerning what she had said.

(2) Re-examination

[43] Ultimately, however, the Crown's request to play the 911 call during Ms. Brent's re-examination was not to establish the truth of what she said during the call, but to respond to the defence allegation that she had fabricated her evidence about what the appellant had said during the call. The Crown argued that the timing of the 911 call in relation to Ms. Brent's conversation with the appellant and her obvious emotional distress could be used by the jury to conclude that what she said on the 911 call was not concocted and that, inferentially, her subsequent statements to the same effect were also not concocted. Therefore, while the trial judge admitted the 911 call for the truth of its contents (as evidence the jury could use to conclude that the appellant did make the statements attributed to him during the 911 call), it was never actually put to this use by the Crown. The Crown sought only to use it for the purpose of rebutting the allegation of fabrication.

[44] In my view, the trial judge did not err in the exercise of his discretion in permitting the Crown to adduce the evidence in re-examination, because the defence had alleged that the witness had fabricated her testimony. The defence cross-examination impugned Ms. Brent's credibility and while the 911 call may have been admissible in direct examination, it was certainly admissible in response to the assertion that her testimony had been fabricated. The trial judge was entitled to conclude that, in assessing the credibility of this important witness, the jury should hear what she had said immediately following the events in question. Any potential prejudice was addressed by giving the defence the opportunity to cross-examine Ms. Brent concerning the 911 call.

(3) Oath-helping

[45] There is no absolute prohibition on oath-helping. Evidence that might otherwise be described as oath-helping can be used to rebut an allegation of recent fabrication or to rehabilitate a witness whose evidence has been impeached, provided it is confined to that purpose and is not used more broadly to bolster the witness's overall credibility: R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173, at paras. 39, 42-43; R. v. Santhosh, 2016 ONCA 731, 342 C.C.C. (3d) 41, at paras. 37-38.

[46] The trial judge's ruling was fair and balanced and confined the use of the evidence to what was strictly necessary to refute the complaint of fabrication and to minimize any prejudice to the appellant. The jury considered the 911 call in the context of Ms. Brent's prior inconsistent statements and not as an independent piece of evidence admitted as part of the res gestae. Nowhere in the judge's charge was the jury instructed to consider the 911 call as part of the res gestae and for the truth of its contents.

D. Post-offence conduct

[47] The fourth and final ground of appeal is that the trial judge misdirected the jury on the use of the post-offence conduct evidence: the appellant's failure to call 911 and his putting his hands behind his back and saying, "Arrest me" when police arrived at the home.

[48] Evidence of after-the-fact conduct is circumstantial evidence that may be received if it is relevant, material, not contrary to any applicable admissibility rule, and if its probative value exceeds its prejudicial effect: see R. v. Adan, 2019 ONCA 709, at paras. 64-70. Here, the evidence was tendered as circumstantial evidence of the appellant's culpability. While he does not challenge the admissibility of the evidence, the appellant submits that the trial judge failed to properly instruct the jury on its use.

[49] The judge's instruction included the following:

If you do not or cannot find that Kenneth Mullin did or said these things because he was conscious of having done what is alleged against him, you must not use this evidence in deciding or in helping you decide that Kenneth Mullin committed the offence charged.

On the other hand, if you find that what Kenneth Mullin did or said afterwards was because he was conscious of having done what is alleged against him, then you may consider this evidence, together with all the other evidence, in reaching your verdict.

[50] The appellant's submission is that this was the same form of instruction that was found to be problematic in R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, at paras. 140-146, leave to appeal refused, [2010] S.C.C.A. No. 499. In Hall, it was held that the language "invited the jury to engage in the tautological reasoning that the Supreme Court disapproved of in R. v. White, namely, requiring them to determine whether the appellant was conscious that he committed the offence before they could use the post-offence conduct evidence to decide if he committed the offence": at para. 142; R. v. White, [1998] 2 S.C.R. 72. The instruction invited the jury to "jump directly to the issue of guilt as a precondition to deciding the use they would make of the post-offence conduct evidence": Hall, at para. 143.

[51] As in Hall, the trial judge in this case gave the jury the warnings and cautions required by White. First, he told the jury that if they found that the appellant did or failed to do the acts in question, they should not immediately conclude that he did or failed to do so because he was conscious of having committed the offence charged. Second, he told the jury that in determining the reasons for the appellant's action or inaction, they should consider all the evidence, particularly evidence that offered another explanation for his conduct. Finally, he told the jury that they were not to use the evidence to decide that he committed the offence, unless they rejected any innocent explanation for it. The judge also reviewed the appellant's explanations for the conduct in question: see Hall, at para. 140.

[52] In Hall, this court observed that, taken alone, the flaw in the charge, to which trial counsel took no objection, would not have constituted reversible error. In that case, however, there were other deficiencies in the charge on post-offence conduct which, taken together, amounted to legal error: at para. 146.

[53] Here, there are no other errors in the charge, and trial counsel made no objection to this aspect of the charge. Counsel for the appellant admitted that, as in Hall, this error would not amount to reversible error on its own. In his factum, however, the appellant submitted that, given the failure of the trial judge to answer the jury's question as to the mental state for murder, there was a risk that the error in the post-offence conduct issue tainted the verdict. As the former ground of appeal has been abandoned, I am of the view that the alleged error did not amount to a legal error.