ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR12500007090000
DATE: 20130621
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RONNY ALEJANDRO MUNOZ HERNANDEZ
Laura Bird and Alex Rourke, for the Crown
Peter Bawden, for the Defendant
HEARD: May 14, 2013
Decision ON APPLICATION TO ADMIT PRIOR
DISCREDITABLE CONDUCT OF THE ACCUSED
Benotto J.
[1] The accused is charged with second degree murder in connection with the death of five month old Adriel Garcia. The trial is scheduled to commence several months hence.
[2] Mr. Munoz Hernandez was living with the baby's mother Jessica DaSilva. He was not the baby's father. On September 11, 2010 Ms DaSilva left the baby in the care of the accused while she attended a family wedding. She left in the morning at about 10:30 am. She returned the following morning, September 12 at about 2:30 am. Later that day, the accused woke her up and told her that the baby was sick and needed to go to the hospital.
[3] The baby was admitted to Sick Children's Hospital in Toronto that day with injuries that led to his death. The medical evidence indicates that the baby had several injuries to his body consistent with severe abuse. Of immediate concern to the physicians was a brain injury requiring emergency neurosurgery. Adriel never recovered from the trauma and died in hospital in November, two months later.
[4] The Crown's position is that the baby was in good health when the mother left him in the care of the accused. Thus, only the accused inflicted the injuries that caused his death. The accused will dispute this at trial.
[5] The Crown seeks leave to adduce evidence of the prior discreditable conduct of the accused, including his attitude, behaviour and actions toward the baby in the weeks and months before September 11, 2010 in order to show animus of the accused to establish motive and to complete the narrative of the relationship between the accused and the baby.
[6] It is conceded by the defence that evidence about the conduct of the accused on September 11 is admissible. The jury will be told that the accused left the baby alone in the apartment three times during the course of the day. The evidence in dispute is:
The reference to a "bruise" that occurred a month or two before September 11;
Statements allegedly made by the accused to Arlinton Munoz Gomez while Ms Da Silva was at the wedding;
The shaving of the baby’s head by the accused; and
General evidence of animus.
The "Bruise"
[7] When Adriel was 3 or 4 months old, Ms DaSilva saw a small bruise on his body. Her evidence at the preliminary inquiry was that it was "a very light mark…blue/red." The brother of the accused testified at the preliminary inquiry and said that he saw the mark which was red "like when you rub a beard or something like that." He said he told the accused that the mark "didn’t look good" and if he ever saw a mark like that again he would call the police.
Statements to Arlinton Munoz Gomez
[8] Arlinton Munoz Gomez was a friend from Calgary who was visiting the accused on September 11, 2011. He had not known the accused for very long, indeed only a few weeks. He told the police that on that day, the accused told him that because the baby cried too much he would put him in the refrigerator, give him cold baths and put hot sauce in his mouth. There is some inconsistency in Arlinton's testimony as to where these statements were allegedly made: at one point he said in the apartment, at another on a walk back from KFC.
Shaved Head
[9] A few months before September, the accused apparently shaved the baby's head without the mother's consent. She was not happy but seems to have accepted his explanation that it would make the baby's hair grow back healthier.
Animus
[10] The Crown refers to facts which, it is suggested, relate to animus which in turn relates to motive. Those facts are:
• The accused said he was bothered that the baby was someone else's child;
• The accused wanted a child of his own but the mother said she did not want more children;
• The mother told the accused that her baby came first; and
• The mother would not agree to change the baby's last name to that of the accused.
Analysis
[11] Evidence sought to be admitted with respect to disreputable conduct of the accused, will be subject to the probative value/prejudicial effect balancing which will take place in the context of these considerations[^1]:
Is the conduct that of the accused;
Is the proposed evidence relevant and material;
Is it discreditable; and
Does the probative value outweigh the prejudicial effect?
[12] The evidence with respect to the "bruise" requires a limited weighing of the evidence. There is no evidence that the mark was caused by the accused or that it was caused by abusive conduct. The danger here is that the jury would infer that the accused bruised the child and that he did so deliberately and that he clearly had a propensity for violence. The potential prejudice here outweighs the probative value.
[13] The statements allegedly made by the accused to Arlinton were said to be made on the very day that the baby was allegedly injured by him. The statements would be admitted not for the truth of their contents but for the fact that the accused made them. They are relevant to the accused's state of mind on the day in question. A jury instruction in this regard will be necessary. The jury will no doubt consider, in light of the inconsistencies, whether the statements were made or not. The Defence has acknowledged the admissibility of the actions of the accused on the day of the wedding. He left the baby alone three times. Part of the day he was with Arlinton. The testimony as to the statements he made to Arlinton complete the narrative of that day. Here, the probative value outweighs the prejudicial effect. The statements are admissible.
[14] The Crown says that shaving of the head of the baby is not discreditable because the mother accepted the explanation. Thus, this fact does not need to be subjected to the scrutiny articulated above. I do not agree. There is an upsetting feature to this event. Despite the mother's acceptance of the explanation, an underlying aggression may be inferred. This could be used to the prejudice of the accused. At best, this evidence is only marginally relevant to the charge. The prejudicial effect outweighs the probative value.
[15] The evidence sought to be admitted by the Crown on the issue of animus is not, in my view, evidence of bad conduct on the part of the accused. I do not share the characterization of the Crown that this tends to establish jealousy which, in turn, is relevant to motive. In my view, the facts are relevant, however, to a potential resentment on the part of the accused, which also could go to support motive. Although I do not find the conduct discreditable, I nonetheless balance the prejudice with the probative value. I find that the evidence is relevant to state of mind, animus, motive and also the narrative of the relationship between the accused and the mother and the accused and the baby. This evidence is admissible.
[16] In summary:
Evidence of the bruise and the shaved head are not admissible;
The remaining evidence sought to be admitted by the Crown is admissible.
M.L. Benotto J.
Released: June 21, 2013
[^1]: R. v. B(L);R. v. G. (M.A), 1997 3187 (ON CA), [1997] O.J. No 3042