CITATION: R. v. Triolo, 2017 ONSC 598
COURT FILE NO.: CR-17-10000040-0000
DATE: 20170125
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Robert Wright and Jennifer Stanton, for the Crown
- and -
JOSEPH TRIOLO, EMANUEL LOZADA, VICTOR RAMOS AND TERELLE HOLDER
Michael Quigley, for Joseph Triolo
Ari Goldkind, for Emanuel Lozada
Theodore SArantis and Nate Jackson, for Victor Ramos
Mitchel Engel and Carrie Fiorillo, for Terelle Holder
HEARD: Jan. 20, 2017
M. DAMBROT J.:
BACKGROUND
[1] Joseph Triolo is charged with the second degree murder of Rameez Khalid. Emanuel Lozada, Victor Ramos and Terelle Holder are charged with manslaughter in connection with the same event. They are being tried together before me with a jury.
[2] On October 5, 2013, Rameez Khalid attended a rave south of the intersection of Queen Street West and University Avenue in Toronto, which was organized as part of the Nuit Blanche festivities. In the course of the evening, Mr. Khalid was stabbed to death a short distance from the location of the rave. The four accused are alleged to have participated in his killing.
[3] Crown counsel proposes to introduce twenty-two photographs taken during the post-mortem of the deceased in the course of the evidence of Dr. Angela Guenther, the forensic pathologist who conducted the post-mortem. She will use the photographs as an aid in describing the procedures she undertook and explaining her findings. Counsel for Ramos, supported by counsel for the other accused, objects to the admission of these photographs on the basis that they have only a very limited probative value, and are of such a nature that they would inflame the passions of the jury against the accused, and as a result have a prejudicial effect that outweighs whatever probative value they may have.
ANALYSIS
General Principles
[4] I have described what I understand to be the principles governing the admissibility of graphic depictions of the deceased in a homicide case in several cases, including R. v. Currie, 2000 CanLII 22822 (ON SC), [2000] O.J. No. 392, 31 C.R. (5th) 306; R. v. Vivar, 2003 CanLII 18040 (ON SC), [2003] O.J. No. 5054; R. v. A.D., [2004] O.J. No. 5638; and R. v. Dupe, 2010 ONSC 6440. I will summarize them again briefly.
[5] First, the trial judge must determine the probative value of the evidence by assessing its tendency to prove a fact in issue in the case including the credibility of witnesses. It is self-evident that photographs can more fully, clearly and accurately portray or describe persons, places or things than can a witness by oral evidence. Photographs are not subject to the difficulty inherent in oral evidence of relating detail. The jury can conveniently refer to them and their details during the trial and in their deliberations. Courts routinely admit photographs to help the trier of fact understand the testimony of witnesses: R. v. MacDonald (2000), 2000 CanLII 16799 (ON CA), 49 O.R. (3d) 417. As a result, if the condition of the body of the deceased and the findings drawn from it by a forensic pathologist are relevant in a homicide trial, as they usually are, then photographs of the body at the autopsy have some probative value.
[6] In addition, as noted by Chadwick J. in R. v. Schaefler, [1993] O.J. No. 7, such photographs are often admitted for the following purposes:
• to illustrate the facts on which experts base their opinion and to illustrate the steps by which they arrive at their opinions;
• to illustrate minutiae of objects described in the testimony of a witness, e.g., to show the nature and the extent of the wounds;
• to corroborate testimony and provide a picture of the evidence and to assist the jury in determining its accuracy and weight;
• to link the injuries of the deceased to the murder weapon;
• to provide assistance as to the issues of intent and whether the murder was planned and deliberate; and
• to help the jury determine the truth of the theories put forth by the Crown or defence, for example: as to which accused committed the crime and as to whether the crime was committed in self-defence.
[7] Next, the trial judge must determine the prejudicial effect of the evidence. The judge should consider both moral prejudice and reasoning prejudice. When the admissibility of autopsy photographs is challenged, the focus most commonly is on an aspect of reasoning prejudice: the concern is that photographic depictions of a deceased may inflame the minds of members of jury and make them more willing to convict the accused than they would be if they viewed the evidence dispassionately, out of hatred for the accused, or out of sympathy for the family of the victim, as a result of the horrific nature of the crime.
[8] Finally, the judge must balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectiveness of any limiting instructions. In carrying out this function, the judge must identify the issue in question, assess the relative importance of that issue and assess the degree of relevance of the evidence to the issue identified and its cogency in establishing the inference sought to be drawn.
[9] Finally, it must be borne in mind that the onus is on the accused to demonstrate that the balance favours exclusion of otherwise admissible evidence.
The Application of the Principles to This Case
Probative Value
[10] The photographs in issue in this case consist of the following:
Photograph 1352 – an open stab wound to the left chest of the deceased
Photograph 1353 – a close up of the stab wound in 1352
Photograph 1355 – a second close up of the stab wound in 1352, pushed closed for measurement
Photograph 1379 – a superficial stab wound to the abdomen of the deceased
Photograph 1363 – a close up of an abrasion to the forehead of the deceased near the hairline
Photograph 1359 – a close up of bruising to the cheek bone and the corner of one eye of the deceased
Photograph 1361 – a close up of a bruise to the chin of the deceased
Photograph 1374 – a close up of the mouth of the deceased held open with tweezers to reveal injuries to the lip and the corner of the mouth
Photograph 1372 – a close up of the lower lip of the deceased held open with tweezers to reveal a laceration to the lower lip
Photograph 1328 – a view of the partially shaved scalp of the deceased to display three minor abrasions
Photograph 1332 – a view of the partially shaved scalp of the deceased to display a minor abrasion
Photograph 1327 – a view of the partially shaved scalp of the deceased to display a minor abrasion
Photograph 1310 – a close up of a bruise to the rear of the left earlobe of the deceased
Photograph 1377 – a close up of three superficial injuries to the chest of the deceased
Photograph 1303 – a close up of minor injuries to the right elbow and forearm of the deceased
Photograph 1299 – a close up of a minor injury to the palm of the right hand of the deceased
Photograph 1320 – a close up of minor injuries to the left upper arm and elbow of the deceased
Photograph 1295 – a close up of abrasions to the left arm of the deceased
Photograph 1340 – a close up of a bruise to the left wrist of the deceased
Photograph 1337 – a close up of minor injuries to the left hand and fingers of the deceased
Photograph 1342 – a close up of minor abrasions to the right knee of the deceased
Photograph 1323 – a close up of bruises and a laceration to the left knee of the deceased
[11] I note that all of the photographs are in colour, and are cropped to avoid the appearance of more of the body of the deceased than necessary. In particular, there is no photograph showing the face of the deceased. Photographs 1361 and 1372 do display a partial view of the mouth of the deceased, photograph 1359 displays a partial view of one closed eye of the deceased, and photograph 1374 displays a view of the mouth of the deceased, his nose and one eye.
[12] Crown counsel argues that the photographs are relevant to a number of issues, including:
• To assist the forensic pathologist in giving evidence about the location, description and size of the injuries, and her conclusions about the injuries in addition to the cause of death, which is admitted, such as the extent of the fatal injury, the path of the wound and the length of time that the deceased could have remained ambulatory.
• To shed light on the state of mind of Triolo, in particular by the extent of the injuries.
• To corroborate the evidence of the eyewitness Nagy concerning the location of the stab wounds he witnessed, the number of stabbing motions he observed, the relative positions of Mr. Triolo and the deceased and the type of weapon used in the homicide.
• To assist in refuting the suggestion that Nagy was the stabber.
• To corroborate the evidence of eyewitnesses as to there being assaults by a group of males on the deceased.
[13] It is difficult to evaluate the probative force of the photographic evidence in advance, but certainly in this case there is a possibility that it may have significant force. In any event, it is far from trifling.
Prejudice
[14] I have said in the past that I share the view expressed by LaForme J. in R. v. Kinkead, [1999] O.J. No. 1498, at paras. 17-18, that juries today are not generally surprised, horrified or inflamed to the point of hatred by the scenes they expect to see from a horrific crime. Jurors are intelligent, well meaning and conscientious citizens who take their oaths very seriously. Unless common sense or some other proof indicates the contrary, I believe that juries respect and abide by their sworn duties and comply with the instructions of the court.
[15] While the stabbing of the deceased in the chest with a knife is of course a terrible event, and the two photographs of the open stab wound are unsettling, the photographs in this case are very far from the horrific depictions that regularly are tendered in homicide cases. In addition to the photographs of the stab wound to the chest, the two photographs of the deceased’s injured open mouth are also unpleasant to look at, but the remaining photographs are innocuous. While it is true that they are photographs of a real person who is really dead, I do not believe that any jury would be inflamed by them. Indeed I am not satisfied that any of the photographs would make the jurors more willing to convict the accused than they would be if they did not view the photographs. I do not see any more than a trifling risk of prejudice in this case.
The Balance
[16] Having regard to what I have already said about probative value and prejudice, and taking into account the restraint shown by Crown counsel in selecting the photographs as well the effectiveness of a limiting instruction, it is obvious that I conclude that the probative value of the photographs outweighs the prejudicial effect, and that the photographs of the injuries to the body of the deceased are admissible.
Residual Discretion
[17] As LaForme J. stated in Kinkead, and consistent with my approach in Vivar, even where the trial judge concludes that the prejudicial effect of photographs has not been shown to outweigh their probative value, the judge retains discretion to minimize whatever small risk of prejudice there may be by appropriate direction regarding their presentation.
[18] When asked, Crown counsel candidly conceded that the close up of the stab wound in photograph 1353 added little or no additional value to the Crown’s case beyond what could be obtained from photograph 1352, and that the Crown’s case would not be harmed by presenting photographs 1352, 1372 and 1374 in black and white rather than in colour. The deletion of photograph 1353 and the presentation of the three photographs I have mentioned in black and white will reduce the upsetting nature of the three most upsetting remaining photographs, and accordingly I direct these alterations to the presentation of the photographs proposed by the Crown.
CONCLUSION
[19] The photographs other than photograph 1353 will be admitted into evidence, but photographs 1352, 1372 and 1374 will be presented in black and white.
M. Dambrot J.
RELEASED: January 25, 2017
CITATION: R. v. Triolo, 2017 ONSC 598
COURT FILE NO.: CR-17-10000040-0000
DATE: 20170125
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JOSEPH TRIOLO, EMANUEL LOZADA, VICTOR RAMOS AND TERELLE HOLDER
REASONS FOR JUDGMENT
M. DAMBROT J.
Released: January 25, 2017