ONTARIO
SUPERIOR COURT OF JUSTICE
DATE: 20140422
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MAURO GRANADOS-ARANA
Maureen Pecknold and Eadit Rokach, for the Crown
Colin Adams and Misha Feldmann, for Mauro Granados-Arana
WARNING
A non-publication order in this proceeding has been issued pursuant to subsection 486.5 of the Criminal Code.
RULING RE: ADMISSIBILITY OF IDENTIFICATION EVIDENCE OF C.J.
J.D. McCOMBS J.
APRIL 22, 2014
OVERVIEW
- Mauro Granados-Arana faces a charge of second-degree murder in the shooting death of Jamahl Franklin. A core issue in the trial is the identity of the accused as the shooter. Following argument I granted a defence motion to exclude in-dock identification evidence of a Crown witness, C.J., with reasons to follow. These are those reasons.
Background
To provide context for the conclusion I have reached, it is useful to set out a brief chronology of the unusual history that led to the arrest and prosecution of Mr. Granados-Arana for the murder of Jamahl Franklin.
The shooting occurred at about 4:30 a.m. on January 1, 2012, as a New Year’s Eve house party was winding down. A large number of young people had been at the party, and many of them had consumed large quantities of alcohol, smoked marijuana, and possibly consumed other drugs as well. One of the people at the party was the witness C.J. When approached by investigators in the period shortly after the shooting, she refused to be interviewed or to provide information.
On January 5th, a person named B.B. was arrested and charged with the murder of Jamahl Franklin. As I note below, B.’s charge of murder was later dropped. He was permitted to plead guilty to being an accessory after-the-fact to the murder, and he is a key witness in the prosecution of Granados-Arana, his former friend.
On November 6, 2012, ten months after his arrest, B.’s preliminary hearing began.
On November 28, before B.’s preliminary hearing was over, and ten and a half months after the homicide, Granados-Arana was arrested and charged with the murder of Jamahl Franklin.
B.’s preliminary inquiry continued and he was committed for trial.
B. later testified for the Crown at Granados-Arana’s preliminary inquiry.
The charge of murder against B. was later withdrawn by the Crown. B. pled guilty to being an accessory after-the-fact to the murder of Jamahl Franklin, and he is now a key Crown witness against Mr. Granados-Arana.
Obviously, it will be incumbent upon me to instruct the jury in the strongest of terms that B.’s evidence must be approached with extreme caution, not only because of his disreputable character, but also because he had a powerful motive to implicate someone else in order to avoid prosecution for murder.
I turn now to a brief discussion of the problematic identification evidence of C.J.
C.J. was called by the Crown to testify at B.’s preliminary hearing. She testified over two days, December 13th and 17th, two weeks after the arrest of Granados-Arana. Importantly, at the time of her testimony, she was aware that Granados-Arana had been arrested and charged with the murder. Indeed, in her testimony, she acknowledged having seen his picture after his arrest, from friends’ Twitter “re-tweets” of television reports of the arrest.
C.J. is a friend of B. and indeed had visited him twice while he was in custody. In fact, it was B.’s mother who had driven her to court for both days of her testimony at B.’s preliminary inquiry.
Ms. J. identified Granados-Arana for the first time when she was testifying at her friend B.’s preliminary inquiry, ten and one-half months after the homicide. The circumstances of the identification are highly problematic.
The identification of Granados-Arana occurred as a result of a series of leading questions by Crown counsel. I pause to emphasize that I do not suggest that Crown counsel acted improperly. The questioning took place at the preliminary inquiry of B., not Granados-Arana, and I unhesitatingly accept Crown counsel’s statement that her focus was on the case against B.; and the implications of having Ms. J. identify Granados-Arana in this way simply did not occur to her at the time.
On December 13, 2012, the first day of Ms. J’s. testimony, and two weeks after Granados-Arana’s arrest, Ms. J. identified Granados-Arana when the Crown placed his photograph before her during her testimony.
I was advised that other witnesses would identify the shooter as wearing a black jacket with a fur-trimmed hood. The position of the Crown is that that person is Granados-Arana. I reproduce a portion of Ms. J.’ testimony at the preliminary inquiry of Mr. B.:
Q. I’m going to show you another picture, it’s Exhibit 10[^1]. Do you recognize this gentleman?
A. Yes.
Q. And can you tell me who that is, please?
A. That’s one of the guys.
Q. Is that the gentleman that you were just talking about or is that one of the other two?
A. That’s one of the guys I was talking about.
Q. Okay. Is that the one that had the black jacket with the fur?
A. Yeah. He didn’t look like that then, though.
Q. What was different then?
A. Um, his hair and he had glasses.
Q. Okay. And he had glasses. Are you sure this is the same guy?
A. Yeah.
Discussion
It can be seen that the identification of Granados-Arana by Ms. J. came for the first time in response to leading questions when she was testifying at her friend Mr. B.’s preliminary inquiry, ten and one-half months after the murder, when she knew Granados-Arana had been arrested for the murder, and when she had recently seen a photo of him in a Twitter news re-feed following his arrest.
The circumstances under which J. first identified Granados-Arana are very problematic. The Crown acknowledges the problems, but submits that because of the amount of time that Ms. J. was in the presence of the man she now identifies as Granados-Arana, this identification should be viewed as “recognition” identification, and for that reason, notwithstanding the problems associated with the identification, the issue of its weight should be left for the jury. Moreover, the Crown submits that the identification evidence is necessary to the narrative of the events and if the jury is not permitted to hear the evidence, the Crown will be prejudiced.
Given the passage of time between her opportunity to observe and her in-dock identification, and the less-than-ideal circumstances of the witness’ initial observations of the person she now says is Granados-Arana, I am unable to accept the submission that this was a “recognition” identification. I also do not accept that the evidence is necessary to the narrative of the events, or that the Crown’s case will be prejudiced. The narrative can be placed before the jury without the unfair introduction of Ms. J.’ identification evidence, which, in my view, has no probative value, and considerable prejudicial effect.
Conclusion
Unlike in R. v. Wang, 2001 20933 (ON CA), [2001] O.J. No. 1491 (C.A.), the evidence is not necessary to the narrative, and its exclusion will not prejudice the fairness of the trial from the Crown perspective. I therefore have the discretion to exclude the evidence: R. v. Holmes (2002), 169 C.C.C. (3d) (Ont. C.A.) 344, at paras. 38-40.
In the result, the application is granted.
McCombs J.
Released: April 22, 2014
[^1]: Exhibit 10 at B.’s preliminary inquiry is a photograph of Granados-Arana