ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P) 339/13
DATE: 2014-09-17
B E T W E E N:
Her Majesty the Queen
Mark Poland, for the Crown
- and -
Marlon Nurse and Darryl Plummer
Enzo Battigaglia, Counsel for Mr. Nurse
Margaret Bojanowska and Kate Oja, Counsel for Mr. Plummer
REASONS FOR RULING
(DIRECTED VERDICT AND EXCLUSION OF EYEGLASSES)
Coroza J.:
A. OVERVIEW
[1] Mr. Nurse is charged with committing the first degree murder of Devinder Kumar. On November 10, 2011, Mr. Kumar was stabbed at least 29 times and died at the side of a road adjacent to a house that he was renting out to Mr. Nurse.
[2] The Crown’s theory is that Mr. Kumar’s murder was planned by Mr. Nurse and he enlisted Mr. Plummer to carry out the murder in return for a promise of a car belonging to Mr. Kumar. Mr. Kumar was discovered in critical condition by motorists who called the police. He later died at the scene.
Facts Relevant to the Applications
[3] When the police arrived at the murder scene, Mr. Nurse was present and treated as a material witness. Mr. Plummer was arrested at gunpoint about 300 meters south from where Mr. Kumar was discovered. Mr. Plummer was wearing a black latex glove.
[4] Mr. Kumar’s blood was found on Mr. Plummer’s cheek, clothing, shoes, and the glove.
[5] A knife was found in the creek running behind a home between the murder scene and the area where Mr. Plummer had been arrested. The knife contained the blood of Mr. Kumar and the blood of Mr. Plummer.
[6] Mr. Nurse voluntarily attended at a police station to provide a statement. He was eventually arrested at the station. Mr. Kumar’s blood was discovered on Mr. Nurse’s clothing and on his shoes. Black latex gloves were seized from the pocket of his pants.
[7] Mr. Kumar’s eyeglasses were discovered by the police on the floor of Mr. Nurse’s garage.
[8] Blackberry devices belonging to Mr. Nurse and Mr. Plummer were seized from both men. A number of deleted BlackBerry Messenger (BBM) chats that passed between the phones of both men reveal a plan to rob and murder Mr. Kumar.
The Nature of the Applications
[9] At the close of the Crown's case, Mr. Nurse applied for an order that a directed verdict be granted and that the charge of first degree murder be dismissed; in addition, he sought an order excluding Mr. Kumar’s eyeglasses from the trial.
[10] Following counsels' submissions on the application, I concluded that there was evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty on first-degree murder, and I dismissed the application for a directed verdict. I also held that there was no basis to exclude the eyeglasses from evidence. I advised counsel that full reasons would follow. These are my reasons.
B. THERE IS SUFFICIENT EVIDENCE THAT THE MURDER WAS PLANNED AND DELIBERATE
[11] In a murder prosecution, the Crown must lead sufficient evidence “on the issues of identity, causation, the death of the victim and the requisite mental state.” (See: R. v. Charemski , 1998 819 (SCC), [1998] 1 S.C.R. 679 at para 3). I am satisfied that the Crown has led evidence that establishes the identity of the assailants, the cause of death and the requisite mental state.
[12] I find Mr. Battigaglia’s argument that there is no evidence of Mr. Nurse committing any act that contributed to Mr. Kumar’s death to be unpersuasive. The extent of Mr. Kumar’s wounds (29 stab wounds) point to a ferocious attack committed by an assailant who clearly had the intent to kill. The jury is entitled to draw reasonable inferences that support the Crown’s argument that Mr. Nurse was involved in the attack from the following evidence:
i. Mr. Kumar’s blood is on Mr. Nurse’s clothing and shoes;
ii. the motorists who called 911 have testified that they did not observe Mr. Nurse touching or coming close to Mr. Kumar at the side of the road;
iii. another motorist described two men running from Mr. Kumar’s body and that one of the men was wearing coveralls;
iv. Mr. Nurse was wearing blue coveralls and black latex gloves at the scene;
v. the black latex gloves found on Mr. Nurse are the same colour as the gloves that were on Mr. Plummer; and
vi. the murder weapon is a knife similar to a knife missing from a set located in a kitchen drawer in Mr. Nurse’ kitchen.
[13] The Crown must also prove beyond a reasonable doubt that Mr. Kumar’s murder was planned and deliberate. It is the murder itself that must be both planned and deliberate, not something else. The questions to be answered are whether a properly instructed jury could reasonably find to the exclusion of any reasonable doubt:
i. that Mr. Nurse’s murder of Mr. Kumar was a planned murder; and
ii. that Mr. Nurse deliberated upon the murder of Mr. Kumar before he murdered him.
[14] In my view, the BBM chats provide direct evidence that could lead a jury to conclude that the murder of Mr. Kumar was both planned and deliberate. The BBM chats reveal Mr. Nurse’s intention to attack Mr. Kumar. The BBM chats also reveal that Mr. Nurse and Mr. Plummer settled on the use of knives in an “old fashioned draw round the corner surprise” after they failed in their attempt to obtain a real firearm to attack Mr. Kumar. The chats of November 9, 2011 provide overwhelming evidence that the murder of Mr. Kumar was both planned and deliberate.
[15] In my view, the BBM chats when read as a whole are capable of supporting the Crown argument that Mr. Nurse contemplated, planned and deliberated the murder of Mr. Kumar. The application for a directed verdict must fail.
[16] During oral argument, Mr. Battigaglia conceded that if I was not persuaded by his argument that there was insufficient evidence on planning and deliberation then his application would fail. I advised Mr. Battigaglia that his arguments regarding a directed verdict on the issue of constructive first degree murder and murder for consideration were best dealt with during the pre-charge conference. Counsel agreed. In a ruling on June 9, 2014, I ruled that the constructive first degree murder would not be left with the jury as a theory of liability for first degree murder but that “murder for consideration” could be left with the jury as a route of liability.
C. THE EYEGLASSES SHOULD NOT BE EXCLUDED
[17] Cst. Robert Bucsis was one of the first officers who arrived at the murder scene and administered first aid to Devinder Kumar. Mr. Battigaglia argues that Cst. Bucsis lied in the witness box regarding his testimony about Mr. Kumar’s eyeglasses. The officer initially testified that Mr. Kumar was wearing his eyeglasses when he found him on the side of the road. During cross examination by Ms. Bojanowska, the officer explained that he was mistaken and that Mr. Kumar was not wearing eyeglasses when he found him by the road.
[18] Mr. Battigaglia argues that Cst. Bucsis lied before the jury and, as a result of this fabrication, Mr. Nurse’s right to a fair trial has been breached and the integrity of the justice system has been harmed. Mr. Battigaglia argues that the only remedy capable of providing relief to Mr. Nurse and the system is exclusion of the eyeglasses. I disagree.
[19] First, the admission of the eyeglasses at trial does not impact on the jury’s ability to assess the reliability and credibility of Cst. Bucsis’s testimony. Mr. Battigaglia is free to suggest to the jury that the officer’s explanation for the contradiction should be rejected and is a complete fabrication. If the jury rejects the officer’s explanation they may very well agree with Mr. Battigaglia that none of the officer’s evidence should be accepted because it is unreliable. I fail to see how the officer’s contradiction has breached Mr. Nurse’s right to a fair trial or harmed the integrity of the justice system. I also fail to see how this would lead to the exclusion of eyeglasses.
[20] Second, at the time the eyeglasses were admitted into evidence before the jury, there was no objection from Mr. Battigaglia. Unless there are exceptional circumstances, objecting to evidence should be taken prior to or at the time evidence is presented, not after it has been admitted: (See: R. v. Gundy, 2008 ONCA 284 at paras 20-21). It seems to me that the lack of an objection at the time the eyeglasses were sought to be admitted supports the Crown contention that there is an absence of any breach of Mr. Nurse’s rights or evidence that the integrity of the proceedings has been harmed. As the Crown points out, the relief sought by Mr. Nurse is also not realistic in the context of this jury trial. The exhibit which is before the jury cannot be “unadmitted” when it has already been the subject of testimony from a number of police witnesses.
[21] The application to exclude the eyeglasses is dismissed.
Coroza, J
Released: September 17, 2014
COURT FILE NO.: CRIMJ(P)339/13
DATE: 2014-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
Marlon Nurse and Darryl Plummer
REASONS FOR RULING
(DIRECTED VERDICT AND EXCLUSION OF EYEGLASSES)
Coroza, J
DATE: September 17, 2014