COURT FILE NO.: 11/70000390/0000
DATE: 20120515
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
LENNIE RAYMOND MIDDLETON
Lorna Spencer, for the Crown
David O’Connor, for the Accused Lennie Raymond Middleton
HEARD: April 16, 17, 18, 19, 20, 23, 24, 25 and 26, 2012
Kelly J.
REASONS FOR DECISION
[1] The defendant, Mr. Lennie Raymond Middleton is charged with robbing Mr. Abdul Kamara while armed with a firearm[^1] and using a firearm while committing an indictable offence contrary to sections 344(1) and 85(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46. Mr. Middleton is also charged with one count of assaulting Mr. Kamara with a weapon (a lamp stand) contrary to section 267 of the Criminal Code.
[2] All three charges arise out of one incident that is alleged to have occurred in a bachelor apartment located at 277 Sherbourne Street in the City of Toronto on January 31, 2011. The particular apartment occupied by Mr. Kamara and others on that evening may be described as a crack house. It is a place where drugs are bought and sold, used, and on this occasion, allegedly stolen.
[3] Three eyewitnesses testified before me.[^2] The only eyewitness who was not in custody at the time of testifying was Mr. Kamara himself. All have addiction problems of one form or another and either have a lengthy criminal record or are in the process of creating one. Although at times the testimony was comical, it was black comedy.
[4] After having considered all of the evidence, I am not persuaded beyond a reasonable doubt that Mr. Middleton robbed Mr. Kamara while armed with a firearm. Nor am I convinced that he used a firearm while committing an indictable offence.
[5] I am persuaded that Mr. Middleton did commit an assault on Mr. Kamara using the lamp stand. Accordingly, he will be convicted of assault with a weapon. What follows are my reasons.
The Firearms Offences
[6] There is no doubt that there was a firearm used during the melee that erupted in the crack house on the morning of January 31, 2011, but it was used by Mr. Cuthbert. I am uncertain as to what use, if any, Mr. Middleton made of it.
[7] Mr. Cuthbert pleaded guilty to using an imitation firearm while committing the indictable offence of assault and using an imitation firearm while assaulting Mr. James Duncan. Ms. Kumprey pleaded guilty to robbery arising from this incident. Near the end of the Crown’s case, Mr. Gary Beckford pleaded guilty to possession of stolen property. He did not testify at this trial nor did Mr. Middleton.
a. The Evidence of Mr. Kamara
[8] Mr. Kamara is the victim of this occurrence and he was the tenant of the apartment at 277 Sherbourne Street. Like all of the civilian witnesses in this case, he has a criminal record and like all of the civilian witnesses, he has an addiction. His addiction is to marijuana which he has used regularly for the past eighteen years. He claims that he has never purchased marijuana since coming to Canada in 2004 and that he relies on the generosity of his friends for his marijuana. He denies that his bachelor apartment on Sherbourne Street is a crack house and that he deals drugs to earn money.
[9] Although I accept that Mr. Kamara was assaulted by Mr. Cuthbert who had a gun in his hand and I accept that Mr. Middleton assaulted him with the base of the lamp because there is a photograph of the injury, I accept little else of what he said. Put simply, Mr. Kamara was a witness who was neither credible nor reliable. His evidence was inconsistent with the evidence of other witnesses and it was internally inconsistent. In other areas, the evidence of Mr. Kamara defied logic and was not worthy of belief.
[10] Examples of the unreliability of Mr. Kamara’s evidence may be summarized as follows:
a. Mr. Kamara denies that his apartment was used as a crack house. I do not believe him and believe that Mr. Kamara was trying to minimize his involvement in this incident and the use of his apartment as a crack house. I prefer the evidence of Mr. Cuthbert on this point.
Mr. Cuthbert conceded that his girlfriend, Ms. Kumprey was a crack addict at the time. When he was released from jail on January 24, 2011 he reunited with her and shortly after, they attended at 277 Sherbourne Street and in particular, in Mr. Kamara’s apartment.
Mr. Kamara was in jail at the time and Mr. Duncan was living there. It was agreed that Mr. Cuthbert and Ms. Kumprey could stay in the apartment for one week for $115. They paid the money and stayed there, but they did not stay for one week.
It appears that the apartment was akin to a drop in centre. Mr. Cuthbert testified that people were coming in and out of the apartment 24 hours a day purchasing illicit narcotics. It was such a busy location for this illicit activity that even Mr. Cuthbert, a self admitted drug user, had to vacate in order to have some peace and quiet.
Unfortunately, Mr. Cuthbert returned on January 31, 2011 when the incidents giving rise to the charges occurred.
b. Mr. Kamara also denies that he uses drugs other than marijuana. His criminal record does not support such evidence. He has two convictions for possession of cocaine on July 26, 2011. As such, I do not believe Mr. Kamara regarding his use only of marijuana.
c. Mr. Kamara testified that on January 31, 2011 he was sitting in the apartment with Mr. Middleton and Mr. James Duncan (also known as Jamal) for about 30 to 45 minutes. Mr. Kamara says that Mr. Cuthbert called minutes before he arrived in the company of Ms. Kumprey and Mr. Beckford. I do not believe Mr. Kamara’s evidence on this point.
Again, I accept the evidence of Mr. Cuthbert regarding his attendance at the crack house on January 31, 2011. He and Ms. Kumprey had been staying at a motel minutes away from the crack house. They went by “Denell’s” home when Ms. Kumprey received a telephone call. Following this call, he and Ms. Kumprey returned to the crack house. When they arrived, Mr. Duncan was standing at street level and took them up to the apartment. I do not believe that Mr. Cuthbert called inviting himself to the crack house. I believe that Mr. Beckford arrived at the crack house separately.
d. Mr. Kamara says that although he was watching an action movie on his television, he was able to observe Messrs. Cuthbert and Middleton engage in some form of conversation before going to the bathroom inside of the apartment. They remained there for a number of minutes before emerging. The inference that the Crown wishes the Court to make is that the two were discussing the intended robbery of Mr. Kamara. I do not make this inference.
Once again, I accept the evidence of Mr. Cuthbert on this issue. Mr. Cuthbert’s evidence is consistent with Mr. Kamara’s evidence on the issue of a conversation between himself and Mr. Middleton. They did indeed have a conversation, but it was not a conversation about robbing Mr. Kamara. It was a conversation about Ms. Kumprey’s use of drugs and her choice of supplier that formed the basis of this conversation.
Mr. Cuthbert and Ms. Kumpfey were common-law spouses at this point. She was 8 months pregnant when Mr. Cuthbert was released from custody on January 24, 2011. Mr. Cuthbert suspected that she had been using crack cocaine in his absence and this was confirmed during a conversation he had with Mr. Middleton upon his arrival at the crack house that night.
Mr. Cuthbert testified that upon their arrival at the crack house, Ms. Kumprey went (almost immediately) into the bathroom. It was at that point that he had a discussion with Mr. Middleton.
Mr. Middleton told Mr. Cuthbert that Ms. Kumprey was smoking crack cocaine while he was “gone”. He also said “I thought she was with this guy” pointing to Mr. Duncan and said “she’s been coming here for weeks man”. The conversation, as described by Mr. Cuthbert, is rife with detail, consistent and logical.
e. Mr. Kamara testified that following their conversation, Messrs. Cuthbert and Middleton went into the bathroom for one to two minutes following which the altercation occurred. Again, I do not accept this evidence as true.
I accept that Mr. Cuthbert went into the washroom, but that Mr. Middleton did not. Mr. Cuthbert testified that he went into the bathroom to confront Ms. Kumprey about her drug use. He did so and when he arrived there, he described the bathroom as a “hot box”: full of smoke. He patted Ms. Kumprey down and found a crack pipe – still hot. This enraged him and he exited the bathroom. Mr. Middleton was not with him.
f. Mr. Kamara says that Messrs. Cuthbert and Middleton exited the bathroom following which the altercation occurred in a united front. While both gentlemen may have been involved in assaulting Mr. Kamara, I do not accept that it was planned and that they acted together.
I accept Mr. Cuthbert’s evidence that he “lost it” when he heard from Mr. Middleton that his pregnant common-law spouse was habitually using crack cocaine when he was incarcerated. I also accept that Mr. Cuthbert “lost it” when this information was confirmed in the bathroom. This caused Mr. Cuthbert (who has a significant record for violence) to exact his form of justice on Mr. Duncan and Mr. Kamara: assault using the firearm.
g. I accept the evidence of Mr. Kamara that Mr. Duncan was pistol whipped by Mr. Cuthbert. Such an assault was admitted by Mr. Cuthbert during his evidence. What I do not accept is Mr. Kamara’s evidence about the firearm and Mr. Middleton’s knowledge of it. Mr. Kamara testified that the firearm came from the knapsack carried by Mr. Cuthbert into the apartment and was taken into the bathroom when Mr. Middleton and Mr Cuthbert went into it.
Firstly, I accept the evidence of Mr. Cuthbert that he did have a knapsack in the apartment, but that he did not bring it into the apartment shortly before the incident occurred. He testified that when he was staying at the apartment earlier in the week, he noticed his knapsack in the closet of the apartment. He believes that it was brought to the apartment by Ms. Kumpfey while she was staying there during his incarceration from October, 2010 to January, 2011.
Mr. Cuthbert testified that when he returned to the apartment on January 31, 2011, he noticed that the knapsack was no longer located in the closet, but was in the main room of the apartment. It was no longer zipped up and a number of his personal items were splayed on the floor of the apartment. Of greatest importance, he observed his throwing knife set on the table of the apartment and a sheaf belonging to his machete. The photos filed as evidence in this proceeding supported that.
Secondly, I accept the evidence of Mr. Cuthbert that the firearm was not in the knapsack as Mr. Kamara described, but in a pillowcase on a cot in the apartment.
Mr. Cuthbert has a familiarity with weapons and guns in particular. He has two convictions on his record dealing with his possession of them. He testified that in the few days prior to this occurrence, he met Mr. Duncan on the street. Mr. Duncan had no money to buy food so Mr. Cuthbert offered to purchase the “firearm” from him.
Mr. Cuthbert believed that he was purchasing nothing more than a pellet gun. He told the Court that when he got it, he tried to fire it, but that it did not work. He described a feeling of disappointment but said that he kept it in any event. When he decided that he did not want to stay in the crack house any longer, he stored the firearm in a pillow case on the cot in the apartment that he believed was occupied by Mr. Duncan. It was from that location that Mr. Cuthbert retrieved it.
I accept that Mr. Kamara minimized the truth about the weapons being in the apartment to avoid his own criminal liability. He was on a recognizance at the time and a requirement of such recognizance was that Mr. Kamara not be in possession of any firearms. He knew that he might have been found in breach of his recognizance had the police found weapons in the apartment.
h. When Mr. Cuthbert became enraged with knowing that Ms. Kumprey was using crack cocaine while pregnant, he grabbed the firearm from the pillow case on the cot. He pistol whipped Mr. Duncan a number of times causing significant injuries to his face, forehead and scalp following which he turned on Mr. Kamara.
It appears that Mr. Cuthbert wrapped his arm around the neck of Mr. Kamara while the firearm was in his hand. Once he did that, he dropped the firearm on the bed. It appears that Mr. Middleton had no involvement in the melee up to this point. I am uncertain exactly what Mr. Middleton did when he did become involved because the evidence is unclear.
i. Mr. Kamara testified that Mr. Cuthbert was standing beside him with the firearm when Mr. Middleton went into his pocket and took his money: $200. The money was removed from his wallet. This is what he said at trial and this is what he told the police during his videotaped statement on January 31, 2011. However, that is not what Mr. Kamara said at the preliminary hearing while testifying under oath.
On at least a dozen occasions and when testifying under oath at the preliminary hearing, Mr. Kamara said that it was Mr. Cuthbert who took the money.
A clear example of the difference in Mr. Kamara’s evidence is obvious from the following question and answer given at that preliminary hearing:
Q. ... what are Dice [Mr. Beckford] and Ray Ray [Mr. Middleton] doing while Mike [Mr. Cuthbert] is taking the money out of your wallet?
A. They didn’t do nothing. The only thing Ray Ray did to me, whack me on my leg, and that’s it.
Mr. Kamara testified at trial that he was not asked the question and he did not give the answer that is recorded. He believes that the court reporter must have misinterpreted him and the answers he gave are mistakes. He denies that he ever said, under oath at the preliminary hearing, that Mr. Cuthbert took his money.
Obviously Mr. Kamara has been inconsistent in his evidence about “who” he alleges took the money.
j. Mr. Kamara testified that $200 was stolen from him and not crack cocaine. Not so, says Mr. Cuthbert.
Mr. Cuthbert testified that crack cocaine was taken from Kamara and that he did not see any money taken from him although he heard money rustling.
k. At trial Mr. Kamara said that he was hit with the lamp before Mr. Middleton took his money. At the preliminary hearing, he said that after Mr. Cuthbert took the money from him, Mr. Middleton hit him with the lamp.
This is contradicted by Mr. Cuthbert who said that Mr. Middleton hit Mr. Kamara with the lamp after he is alleged to have taken the crack cocaine, left the apartment and returned. Accordingly, the lamp assault took place after the robbery is alleged to have occurred.
l. Mr. Kamara was further contradicted by certain police officers. When he initially spoke to Det. Sgt. Kyle Petrie he told the officer that “they had guns and everything”. This is recorded in the officer’s notebook.
Mr. Kamara denies that he said “guns” and maintains that he told the officer one gun was involved. This was contradicted by the evidence of Det. Sgt Kyle Petrie at trial who confirmed that his police notes were accurate.
m. When interviewed by two uniformed police officers at or close to the scene on the morning in question, Mr. Kamara is recorded as saying: “No words were exchanged and three males robbed [me]”. Mr. Kamara denies that is what he said.
This was contradicted by the evidence of Police Constable Christopher Wilson who says that that is what Mr. Kamara told him. Of course, this is further inconsistent with Mr. Kamara’s evidence at trial wherein he testified that many words were spoken before the incident occurred.
[11] For the reasons set out above, I simply cannot rely on the evidence of Mr. Kamara with respect to the firearms offences and the robbery. For similar reasons, I cannot rely upon the evidence of Mr. Cuthbert.
b. The Evidence of Mr. Cuthbert
[12] Mr. Cuthbert came before the Court and advised that he is currently in treatment for his drug addiction. He has been addicted to narcotics (heroin and cocaine) since age 14 and candidly admitted to the content of his criminal record that included numerous offences for crimes of violence. At the time of testifying, Mr. Cuthbert had accumulated approximately 64 convictions and had been to the penitentiary on two occasions.
[13] It is clear that Mr. Cuthbert was impaired by narcotics on the morning in question. He admitted to using crack cocaine within an hour of the incident. He said that he was “pretty messed up” because since his release from custody on January 24, 2011, he had been using lorazepam, wellbutrin (also known as “kiddie coke”), methadone and crack cocaine. It is also clear that he lost his temper when he confirmed that Messrs. Kamara and Duncan were providing narcotics to his pregnant common-law spouse while he was incarcerated. He is the one who pistol whipped Mr. Duncan and then turned his aggression onto Mr. Kamara with a firearm in his hand.
[14] Although Mr. Cuthbert appears to be reformed and it might be tempting to accept his evidence about the events in question, there are simply too many frailties to be satisfied beyond a reasonable doubt that Mr. Middleton committed the robbery as the Crown submits. For example, Mr. Cuthbert testified that Mr. Middleton stole the cocaine from the hand of Mr. Kamara. However, as I have stated above, Mr. Kamara testified that Mr. Middleton stole money from his pocket. Mr. Cuthbert testified that he did not see any money taken from Mr. Kamara, but that he could “hear” money being “rustled”.
[15] There were also some inconsistencies in the evidence of Mr. Cuthbert both with other evidence and his own evidence. Some of those inconsistencies may be summarized as follows:
a. At trial, Mr. Cuthbert testified that he had used crack cocaine within an hour of the occurrence. At the preliminary hearing, Mr. Cuthbert testified that the last time he had used “street drugs” was eight years prior to the incident. He cannot say that he lied at the preliminary hearing because he does not recall what was running through his head. Obviously, both answers cannot be true.
b. Mr. Cuthbert admitted, at trial, that he embellished some of the facts regarding his drug use, both when giving his statement under oath to police and at the preliminary hearing.
c. In his statement to the police, Mr. Cuthbert said that he never gave any instructions to Ms. Kumprey about the firearm or the disposal of it. On June 6, 2011 when Mr. Cuthbert testified at the preliminary hearing, he said that Ms. Kumprey disposed of the firearm at his direction. Two days later at the preliminary hearing, Mr. Cuthbert testified that he did not give Ms. Cuthbert directions to dispose of the firearm. At trial, he testified that he told Ms. Kumprey to wipe down the firearm to remove his fingerprints. All answers cannot be true.
When asked for an explanation for the different answers provided with respect to Ms. Kumprey’s disposal of the firearm, Mr. Cuthbert says that he must have misinterpreted the question on June 8, 2011 at the preliminary hearing.
d. At trial, Mr. Cuthbert testified that the weapons in the apartment belonged to him. During his statement to police, he said that the weapons were “theirs” meaning people other than him.
e. Mr. Cuthbert testified that Mr. Middleton took the crack cocaine from Mr. Kamara and then left the apartment. A short time later he returned to the apartment and that is when he heard what he thought was money rustling. That is not consistent with the version of events as given by Mr. Kamara.
Mr. Kamara testified that the entire incident happened on one occasion when Mr. Middleton was in the apartment. At no time did he leave the Court with any impression that Mr. Middleton left the apartment and then returned to commit any further offences.
The Assault with the Lamp
[16] Although there is some discrepancy in the evidence with respect to the use of the lamp to assault Mr. Kamara, I am satisfied beyond a reasonable doubt that Mr. Middleton assaulted Mr. Kamara with it.
[17] Mr. Kamara testified that he was hit with the lamp on his thigh. There was a photograph taken of such an injury following the offence which is consistent with Mr. Kamara’s evidence.
[18] Mr. Cuthbert testified that although he was standing behind Mr. Middleton and Mr. Kamara when this incident with the lamp occurred, he was only able to observe Mr. Middleton pick up the lamp and swing it towards Mr. Kamara. He testified that he does not know whether Mr. Middleton hit Mr. Kamara or not; he simply heard the lamp hit the chair. This is inconsistent with his statement to the police on the night in question when he said that Mr. Middleton swung the lamp, did not hit Mr. Kamara and hit the chair.
[19] While Mr. Cuthbert’s evidence seems to be inconsistent on the point of the use of the lamp, I accept that the lamp was used by Mr. Middleton to assault Mr. Kamara. Mr. Kamara had a better view of the incident because he was facing Mr. Middleton. Further, Mr. Kamara has the injury (and a photograph of it) which supports that such an assault occurred. Such evidence corroborates Mr. Kamara and no evidence was before me to suggest that a lamp such as the one photographed would not have caused the injury to Mr. Kamara. For these reasons, Mr. Middleton is convicted of one count of assault with a weapon.
Conclusion
[20] While I agree with the submissions of Crown Counsel that even drug addicts can be robbed in their crack houses, the burden on the Crown does not change. The Crown is required to prove its case beyond a reasonable doubt.
[21] I have a reasonable doubt as to whether or not Mr. Middleton stole anything from Mr. Kamara. The inconsistencies on this point raise a reasonable doubt on an essential element of the offence: whether Mr. Middleton stole from Mr. Kamara.
[22] Can it be said that Mr. Middleton used the firearm for purpose of carrying out the act of stealing or was Mr. Cuthbert acting alone in exacting his vengeance on Mr. Kamara using the firearm? When did Mr. Middleton assault Mr. Kamara with the lamp: before he is alleged to have robbed Mr. Kamara or after? Did Mr. Middleton resort to such an assault with the lamp for the purpose of carrying out the theft? In my view, these questions simply cannot be answered in a way that persuades me beyond a reasonable doubt that Mr. Middleton is guilty of counts 1 and 2.
[23] As I had indicated to all counsel during submissions, this may be one of those cases where I am highly suspicious of Mr. Middleton’s involvement in the robbery of Mr. Kamara, but I am not satisfied beyond a reasonable doubt that he was. After having considered all of the evidence and the submissions of counsel, I have concluded that that is the case.
[24] Mr. Middleton will be acquitted of counts 1 and 2 on the indictment. However, for the reasons set out above, Mr. Middleton is found guilty of assault with a weapon and he will be convicted of that offence.
Kelly J.
Released: May 15, 2012
COURT FILE NO.: 11/70000390/0000
DATE: 20120515
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
LENNIE RAYMOND MIDDLETON
REASONS FOR DECISION
Kelly J.
Released: May 15, 2012
[^1]: The firearm in this case was a pellet gun. Because the velocity of the pellets measured at 323.3 feet per second, D.C. Rodeghiero concluded that the pellet gun in question met the definition of a firearm in s. 2 of the Criminal Code for use offences. For purposes of consistency, the pellet gun will be referred to as a “firearm” in this judgment.
[^2]: Only two of the three eyewitnesses were able to provide evidence useful for consideration at this trial. Ms. Shannon Kumprey testified that she could not recall the incident, providing a statement to the police or testifying at the preliminary hearing due to her addiction to crack cocaine and heroin. Following a voir dire regarding the admissibility of the preliminary hearing transcript of Ms. Kumprey for the truth of its contents I dismissed the application.