CITATION: R. v. McCullough, 2016 ONSC 1014
COURT FILE NO.: 11653-14 (London)
DATE: 20160212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
James McCullough
Accused
Meredith Gardiner, for the Crown
Lynda Lamb and Carolynn Conron, for the Accused
HEARD: October 5, 6, 7, and 8, 2015; November 26, 2015
RULING on bad character evidence
Pomerance J.:
[1] James McCullough is charged with first degree murder, and indignity to a human body. The Crown seeks to introduce extrinsic misconduct or “bad character” evidence at his trial. The defence resists its admission. I delivered an oral ruling on November 26, 2015, with an indication that written reasons would follow. These are those reasons.
[2] Since delivering my oral ruling, I have restructured my reasons, adding and deleting certain paragraphs, and supplementing the authorities. I have taken this liberty because the trial is still two and a half months away, and there is ample time for counsel to consider and digest the new content.
OVERVIEW
[3] On September 8, 2013, the accused and the victim, Alex Fraser, took a taxi from Orangeville to a hotel in London, Ontario. Sometime after checking in, Mr. McCullough killed Mr. Fraser. Mr. Fraser’s body was dismembered, and the body parts placed into two hockey bags. Some biological material was found to be missing from Mr. Fraser’s arm.
[4] It is the theory of the Crown that Mr. McCullough killed Mr. Fraser in order to act out his fantasy of killing, dismembering and cannibalizing a human body. The Crown alleges that the murder was planned and deliberate. Mr. McCullough denies this. He says that, while in the hotel room, Mr. Fraser attacked him and that he killed him while acting in self-defence. Mr. McCullough acknowledges the use of disproportionate force, but asserts that he is guilty only of manslaughter or, at worst, second degree murder.
[5] On the charge of indignity to a body, the Crown alleges that Mr. McCullough dismembered Mr. Fraser’s body and consumed a portion of his flesh. In his statement to police, the accused claimed that, after the killing, he consumed drugs, blacked out, and woke up to find the body dismembered. It is not clear whether this will be the defence position at trial. Mr. McCullough has elected not to disclose his defence to this charge, which is his entitlement. For present purposes, I will assume that everything is in issue on that count.
[6] The Crown seeks to introduce three categories of evidence at trial:
Utterances made by Mr. McCullough to a psychiatric nurse in which he expressed an interest in killing and cannibalism;
Rap lyrics written in Mr. McCullough’s handwriting that could be seen as referring to murder, dismemberment and cannibalism; and
A photograph of the lead actor in the TV series “Dexter”, in which he murders people, dismembers them and disposes of the body parts.
[7] Each of these categories is “bad character” evidence, capable of eliciting negative sentiment on the part of the jury. This evidence is presumptively inadmissible, given the policy prohibition against the Crown leading evidence that would cast the accused in a disreputable light. It can only be admitted on a showing by the Crown that: a) it meets the test for admission of similar fact evidence; and/or b) it is shown to be more probative than prejudicial.
[8] The following will summarize the evidence proffered by the Crown, and then analyze the admissibility of the evidence at trial.
THE EVIDENCE IN ISSUE
The Statements to Mr. Carmichael
[9] Brendan Carmichael is a nurse clinician employed by Trellis Mental Health Centre. Mr. Carmichael first met with Mr. McCullough on September 13, 2012, for intake purposes. Mr. McCullough had been referred by the Prevention and Early Intervention Program. During the first meeting, Mr. Carmichael introduced Mr. McCullough to the services available at the facility and conducted screening assessment.
[10] The second meeting took place on September 20, 2012, and a third on September 21, 2012. Thereafter, various other meetings took place between Mr. Carmichael and Mr. McCullough, sometimes with a doctor present.
[11] The Crown seeks to lead utterances of Mr. McCullough made during the meeting of September 27. On that date, Mr. McCullough told Mr. Carmichael that he had killed three cats using a knife, and that he cut up the insides of the animals, that he was fascinated by it. He said that he would “do the same thing with a person and would consider eating it”. Mr. McCullough told Mr. Carmichael that when you eat someone you take on their traits, get their good qualities and muscles. When asked if he had plans to do that, he responded by saying no, that he did not want to get in trouble with the law and the government.
[12] During a later encounter, on December 10, 2012, Mr. McCullough told Mr. Carmichael that he had “over exaggerated” things said to Mr. Carmichael and Dr. Vado. He said that he would start on a topic and imagine it in his mind like it happened, even though it didn’t. During that meeting, Mr. McCullough said that he had not killed three cats, as he earlier stated, but just one cat. It is apparent that this took place during his early teenage years. He told Mr. Carmichael that he now realized that he had to be more serious and honest when talking to doctors, and that he had to make sure that he didn’t exaggerate information.
The Rap Lyrics
[13] On September 12, 2013, police executed a search warrant at Mr. McCullough’s home, where he lived with his parents and younger brother. In the den, police found a sport duffle bag containing various documents. These included a psychological assessment for James McCullough dated January 3, 2012, a one-page leaflet from the Prevention and Early Intervention Program, with the name “James McCullough” written on the top, and assorted handwritten school assignments.
[14] The bag also contained a handwritten document purporting to contain rap lyrics. The origin of the lyrics is unknown. It is not known whether Mr. McCullough is the author of them, or whether he copied them from another source. It is, however, probable that he wrote them. A forensic handwriting comparison was carried out by Peter Pajos, an expert in the field of handwriting and handwriting analysis. He compared the rap lyrics to two other documents, one of which was known to be written by Mr. McCullough. Mr Pajos testified on the voir dire that the rap lyrics and the known sample were “probably” written by the same person.
[15] The rap lyrics span three pages. The Crown seeks to introduce but one portion of them, which reads as follows:
Its me when I come thru the scene, homie, another day another dollar. Only things in my dreams is your girl and your money, homie thinks im joking but aint a damn thang funny,
I’ll dig ur pockets breack and jaw and ram a knife thru your tummy
You aint been thru half the shit I been through, ill go through, your whole crew, a routine used to
Chop em up and mail their parts to you
Im so fucking sick my favorite drink is the blood of a jew,
Always in the kitchen cooking but its never stew
Homie pass the pipe time for this rack to brew
The Photograph of Dexter
[16] Finally, the Crown seeks to introduce evidence of a sheet of paper depicting a photograph of the actor that stars in the television drama “Dexter”. This sheet of paper was found in a backpack at the scene, together with other documents belonging to the accused. The Crown argues that possession of this sheet of paper discloses an interest by the accused in the dismemberment of bodies.
[17] Dexter is a television show in which the lead protagonist sets out to kill persons who have committed murder and remain unpunished. He takes them to a “kill room” where, among other things, he dismembers the bodies. Counsel agreed that I can take judicial notice of the fact that this is a highly popular series watched by many individuals.
[18] The sheet of paper from the backpack originally depicted three photographs: the photo of Dexter, a photo of Richard Ramirez, a notorious serial killer, and a photograph of the singer Enrique Iglesias. The Crown acknowledged that the photograph of Ramirez would be more prejudicial than probative. She proposed that the jury be provided with an edited document, containing photos only of Dexter and Iglesias. There is no apparent connection between Mr. Iglesias and violent or other crime.
[19] The sheet of paper in question is double sided. One side depicts the photographs. The other side contains various handwritten notes.
ANALYSIS
I. Should the allegation of cannibalism be placed before the jury?
[20] The admissibility of evidence depends on the issues that will be before the jury for its determination. In this case, the Crown alleges that the accused murdered the victim, dismembered his body, and cannibalized the remains. The defence argues that there is no evidence that the accused cannibalized the victim and that there is no basis on which to put that allegation to the jury.
[21] In alleging an act of cannibalism, the Crown relies on the fact that a 10 cm piece of tissue and muscle was found to be missing from the arm of the deceased. Beyond the fact that the flesh is missing, there is no evidence to indicate that it was consumed by the accused. Other possibilities are equally, if not more, likely. The missing tissue could have been flushed down the toilet; it could have been disposed of down one of the drains in the hotel room. Other biological debris, including muscle, was discovered near the drain. Furthermore, the Crown does not allege any specifics. It cannot theorize as to how, where, or when the flesh was consumed. At its highest, the Crown position amounts to general supposition that, because flesh is missing, it must have been eaten. Absent other evidence to establish that flesh was consumed, this theory is too speculative to be placed before the jury.
[22] Evidence that the accused had ideations about cannibalism would strengthen the inference that cannibalism occurred. But considering this evidence would amount to impermissible bootstrapping. The evidence of ideation would be used to prove that cannibalism occurred and the fact that cannibalism occurred would be used to admit the evidence of ideation. The circularity of this reasoning is self-evident.
[23] There is not sufficient evidence to indicate that an act of cannibalism occurred, and this allegation shall not be placed before the jury. The charge of indignity to a human body shall be restricted to an allegation that the accused dismembered the body of the deceased.
[24] While the accused’s ideations about cannibalism cannot be used to prove an act of cannibalism, this evidence may be relevant to other issues at the trial. The Crown says that, whether or not an act of cannibalism occurred, the accused’s desire to cannibalize a person served as his motive for the murder.
[25] I will now turn to a consideration of whether the evidence is admissible on that basis.
II. Bad Character Evidence: General Principles
[26] Bad character evidence – evidence of disreputable conduct falling outside the scope of the indictment – is presumptively inadmissible. This rule is rooted in policy concerns, designed to ensure the fairness of trial. Persons are to be tried for what they did, not who they are. Moreover, character is not an immutable characteristic. Conduct may be situation specific. The concern about evidence of disreputable conduct is that it will create a fog of prejudice at the trial. The trier of fact may conclude from the evidence that the accused is a bad person and therefore more likely to have committed the crime. They may seek to punish the accused for prior disreputable acts. They may be distracted from the real issues in the trial. Therefore, policy dictates that evidence of extrinsic misconduct, tending to show bad character on the part of the accused is presumptively inadmissible. It falls to the Crown to demonstrate that the prejudicial impact of the evidence is outweighed by probative value.
III. Application to this Case
A. The Statements to Mr. Carmichael
[27] The first item of evidence concerns the statements made to the psychiatric nurse, Mr. Carmichael. Mr. McCullough told the nurse that he had killed cats and cut up their insides. He said that he would do the same with a person and would consider eating it. He stated that, when you eat someone you take on their traits, you get their good qualities and their muscles. In a later interview, Mr. McCullough qualified this statement by saying that he had “over exaggerated”. In fact, he had killed one cat, rather than three. He suggested that he sometimes confused fantasy with reality. It appears that the killing of a cat or cats took place when the accused was a young teenager. However, Mr. Carmichael perceived that the accused was speaking about a current fantasy based on that event.
[28] The Crown alleges that the accused’s desire to cut up and eat a person was the motive behind the murder. On this basis, the Crown says that the evidence is relevant to whether the accused had the requisite intention for murder, and whether the murder was planned and deliberate. The Crown is not required to prove motive, but if a motive is proved, it may assist the Crown in establishing intention and, in this case, planning and deliberation. If the jury finds that the accused fantasized about killing, dismembering, and consuming a human body, the jury could infer that he planned the murder of the victim in order to act out this fantasy.
[29] There is, therefore, a logical nexus between the statements to Mr. Carmichael and the circumstances of the offence. The probative value of the evidence is further strengthened by the distinctive nature of the acts. The statements to Mr. Carmichael do not merely disclose a generic interest in violence. The statements disclose an interest in highly specific and unusual manifestations of violence – the dismemberment of a human body and consumption of the flesh. The Crown says that the accused had a specific propensity to fantasize about these activities and that he acted on this specific propensity, by committing the offences before the court.
[30] Probative value depends on the connectedness between the evidence and the offence(s) to be tried. Not everyone who speaks about dismemberment and cannibalism will act upon those ideations. But, where an individual is charged with dismembering a human body, his prior ideation about dismemberment may increase the likelihood that he performed the act. It is a piece of circumstantial evidence to be considered by the jury. The reasoning is driven by the improbability of coincidence. If someone is generally interested in violence, and is later charged with a violent act, the correspondence between the two events may be just coincidence. If someone is interested in dismembering a human body, and is later found in possession of a dismembered body, the likelihood of coincidence is reduced. There is a compelling link between the interest that was expressed and the crime that was committed.
[31] The evidence does carry a risk of prejudice. The accused’s statements disclose morbid and disturbing ideations. It is important to ensure that the jury does not, out of a sense of revulsion, seek to punish the accused. It is important to ensure that the jury does not infer, from the accused’s statements, that he is a bad person and, for that reason, more likely to have committed the offence. It is important to ensure that the jury does not engage in general propensity reasoning. The accused must not be convicted on the basis that he is the “type of person” who would commit this kind of crime. The jury may only convict if it finds that the accused is the person who did commit the crime.
[32] Mindful of the potential for prejudice, I find that, in this instance, it is outweighed by probative value. It would effectively gut the Crown’s case to exclude evidence that bears directly on issues of intention and planning and deliberation. I am satisfied that this evidence should be admitted at trial, with firm limiting instructions as to the use that can and cannot be made of it.
B. The Rap Lyrics
[33] It is the position of the Crown that the rap lyrics are evidence of the accused’s fascination with murder, dismemberment and cannibalism. It is open to inference that the lyrics are about just that. They threaten to “ram a knife through your tummy”, “chop em up and mail their parts to you”. They assert that “my favorite drink is the blood of a jew”, and “always in the kitchen cooking but its never stew”.
[34] There are other ways of interpreting the lyrics. As pointed out by Ms. Lamb on behalf of the accused, it is conceivable that the lyrics refer to drug culture – the cooking of drugs in the kitchen – or elements of gang culture. In some cases, it is a mistake to interpret rap lyrics in a strict literal sense. As pointed out by Nordheimer J. in R. v. Campbell, 2015 ONSC 6199:
As with lyrics generally, but especially when it comes to rap, it is risky to take any word literally. It is common in rap lyrics, as it is in street language, to use code words for an item to avoid describing the item literally. This is especially true when talking about drugs and guns. … This reality, in turn, drives the lyrics used in gangster rap in order to maintain the authenticity of that genre.
[35] It must also be remembered that rap lyrics are a form of artistic expression. Art is not always autobiography. People listen to lyrics and read poetry about activities that they will never perform. This point was also made by Nordheimer J. in Campbell:
… Rap, particularly gangster rap, often deals with the subject matter of drugs, guns, shootings, violence and the like. The mere fact that an artist records a rap with lyrics that refers to such activities cannot be taken as an admission by the artist that they were involved in such activities, even where the lyrics are used in the first person. While there is a long history of artists singing about events as if they were personally involved in them when, in fact, they had no involvement in them at all.
[36] There is a risk that rap lyrics may be misinterpreted thus inflating the probative value of the evidence. The courts must be cautious in admitting this type of evidence: see R. v. Simard, 2000 SCC 61, as discussed in David Tanovich, R. v. Campbell: Rethinking the Admissibility of Rap Lyrics in Criminal Cases (2016), 24 C.R. (7th) 27, at p. 33.
[37] In his very helpful article, cited above, Professor Tanovich extracted the following principles from the case law:
When will rap lyrics have sufficient probative value taking into account the policy concerns identified? As a general rule, rap lyrics should only be constructed as probative where there is a direct link between the lyrics and the crime being prosecuted. This is the approach taken in Campbell and a number of courts in the United States. For example, in Skinner, it was noted that “… we reject the proposition that probative evidence about a charged offense can be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced.” This is also the approach our courts have taken with accused-authored poems, stories and other writings. As Justice Corbett noted in R. v. Liard and Lasota:
The more similar the writings are to the actual murder, the stronger the inference that the author was interested in the very activity that happened. The more generalized the writings, the more they may only exhibit a “dark or disturbed thought pattern”, the less probative they are to issues of motive, planning and state of mind.
[38] I agree with this approach. In order for rap lyrics to be admissible, there must be a concrete nexus between the specific details of the lyrics and the specific details of the crime. Purely generic similarities – the lyrics are violent and the crime is violent – will not suffice to warrant admission.
[39] I would add that, in assessing admissibility, the court must consider the evidence as a whole. What is significant in this case is that admissibility does not hinge solely on the apparent symmetry between the lyrics and the offences. There is other evidence, apart from the rap lyrics, that aids in the interpretation of the lyrics. The accused told Mr. Carmichael that he had a personal interest in killing someone, dismembering them, and eating them. Given these statements, it is open to the jury to find that the rap lyrics are about those very activities. The defence will likely argue to the contrary and it will be for the jury to decide. The point is simply that, in this case, there is an interconnection between the lyrics, the crime, and other evidence. The statements made by the accused to Mr. Carmichael provide a context that strengthens the nexus between the lyrics and the crime.
[40] In State v. Skinner, 95A. 3d 236 (N.J.S.C., 2014), referred to above by Professor Tanovich, the New Jersey Supreme Court observed:
One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff”, actually shot a sheriff, or that Edgar Allan Poe buried a man beneath the floorboards, as depicted in his short story “The Tell-Tale Heart”, simply because of their respective artistic endeavours on those subjects.
[41] I do not quarrel with those propositions. But if Mr. Poe was charged with burying someone under his floorboards, and had earlier expressed an intention to do so, his creative writing might be very probative of issues at his trial. That is the level on which this case operates.
[42] Mr. McCullough may not have authored the lyrics. He may or may not have copied them in his own handwriting. But the lyrics were found in his home, in a backpack containing other personal effects. The evidence, viewed in context, is sufficiently probative to warrant placement before the jury.
[43] As with the statements to Mr. Carmichael, it is critical that the jury be given a limiting instruction on what it may and may not do with the evidence of the rap lyrics, to circumvent the potential for prejudicial reasoning.
[44] In assessing admissibility, the court must always be concerned about the potential for prejudicial effect. But the court must also recognize the intelligence and diligence of jurors when assessing the cleansing effect of limiting instructions. This point was made by Rothstein J. in R. v. White, 2011 SCC 13:
Still, judicial experience has shown that certain evidence that ought to be left with the jury, based on the ordinary rules of evidence, carries with it a heightened risk of misinterpretation or misuse. Certain types of evidence may appear more probative than they really are, may be systematically less reliable than they seem, or may be consistent with other less obvious explanations than the one advanced by a party (though not equally so). These potential dangers may not be immediately apparent to lay juries (see R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 4). Accordingly, courts have recognized that when leaving certain types of evidence with the jury, the trial judge should provide a caution that alerts the jury to the risks involved. The content and nature of the warning should address the risk and depend upon the severity of the danger.
A warning or caution does not serve to remove the evidence from the jury’s consideration. Instead, providing a caution allows for juries to benefit from judicial experience concerning the risks associated with certain types of evidence, while respecting the jury’s competence in fulfilling its fact-finding role. The point is that once jurors are alerted to the risks that are not necessarily apparent to the average citizen, they can be trusted to properly weigh the evidence. Our jury system is predicated on the conviction that jurors are intelligent and reasonable fact-finders. It is contrary to this fundamental premise to assume that properly instructed jurors will weigh the evidence unreasonably or draw irrational and speculative conclusions from relevant evidence. I agree with the view expressed by Dickson C.J., in R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, that “it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense” (p. 692 (emphasis in original)).
C. The Photograph of Dexter
[45] That leaves the final category of evidence – the paper containing a photograph of the actor from the television series Dexter.
[46] Several features of this evidence detract from its probative value. First, there is nothing particularly sinister about an interest in the television show Dexter. Many people watch this television show and are not in any way implicated in criminal activity. It is a popular source of entertainment. To the extent that Dexter appears on a sheet of paper with another entertainer, Mr. Iglesias, it is open to inference that the paper refers to celebrities in the public eye. It is also possible that the photographs were chosen for their physical features, as all three men are young males with brown hair and dark eyes.
[47] The paper with the photographs was double-sided. The photographs appeared on one side of the page, while a series of handwritten notes appeared on the other. The notes refer to a number of diverse topics. They contain addresses and phone numbers, “tattoo ideas”, names of medications, phone numbers of night clubs, and other apparently random subjects. Mr. McCullough may have carried the sheet of paper with him more because of the notes than the photos. It is not clear that Mr. McCullough had any role in creating the document, or by printing the photographs seen on it.
[48] Given the possibility that Mr. McCullough was interested in the notes, rather than the photographs, it is dangerous to leave this evidence with the jury. The jury might be too quick to draw the wrong inference. Further, I am concerned that the evidence could prove to be more inflammatory than helpful. The probative value of this is slight, while prejudicial impact is high. This evidence should not be admitted.
IV. CONCLUSION
[49] For all of these reasons, I find that the statements to Mr. Carmichael and the rap lyrics are admissible at trial, on the basis that probative value outweighs prejudicial effect. The photograph of Dexter does not have sufficient probity and, therefore, will be excluded from the trial.
Original signed “Justice Pomerance”
Renee M. Pomerance
Justice
Released: February 12, 2016
CITATION: R. v. McCullough, 2016 ONSC 1014
COURT FILE NO.: 11653-14 (London)
DATE: 20160212
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
James McCullough
Ruling on bad character evidence
Pomerance J.
Released: February 12, 2016