Court File No. 17-45
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
TYRONE CHAMBERS and JOSHUA WARNER
REASONS FOR RULING
BEFORE THE HONOURABLE JUSTICE A. SKARICA AND A JURY
on November 28, 2017 at HAMILTON, Ontario
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER OF JUSTICE A. SKARICA,
SUPERIOR COURT OF JUSTICE
APPEARANCES:
G. Akilie/T. Shuster Counsel for the Crown
C. Hicks/S. Pashang Counsel for Tyrone Chambers
D. Bains/P. Zbarsky Counsel for Joshua Warner
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
WITNESSES
WITNESS: Examination In-Chief Cross-Examination Re-Examination
EXHIBITS
EXHIBIT NUMBER ENTERED ON PAGE Reasons for Ruling 1
Transcript Ordered: .................... December 1, 2017 Transcript Completed: .................. December 6, 2017 Ordering Party Notified: ............... December 7, 2017
TUESDAY, NOVEMBER 28, 2017
CITATION: R. v. Chambers and Warner, 2017 ONSC 7324
REASONS FOR RULING
SKARICA, J. (Orally):
This is a ruling regarding the hallway evidence of a mark found on a baseboard at 53 Dundurn Street in Hamilton.
Overview
A live issue at this trial is whether the accused, Tyrone Chambers, who I'll refer to as "Chambers", fired any bullets from a firearm at about 1:00 a.m. or in the early morning hours of March 13, 2010 where three victims were shot in the home at 53 Dundurn Street in Hamilton.
A witness to the shooting, Sam Osunbunmi, who I'll refer to as "Sam", has testified that he ran down the hallway, looked back, saw Chambers some 20 to 24 feet away, saw Chambers point a gun at him - the other accused, Warner, had left the premises by this time - and afterward heard shots as Sam fled down the set of stairs.
Common sense indicates that if Chambers in fact shot at Sam at the hallway, there would be a mark somewhere down the hallway and some evidence of a bullet. A suspected lead fragment was found near the stairs at a position where it would have had to ricochet off the wall. The police did not photograph the area where the suspected lead fragment was found. A single photograph was taken in 2010 of the hallway where a mark can be seen on a distant baseboard.
In September 2017, almost seven years later, the police took a variety of photographs in the area of the mark seen distantly in the 2010 photograph.
Issues
Are the photographs taken in September 2017, almost seven years later, admissible at this trial?
Is the evidence of Caroline De Luca, Property Manager, and the opinions of Mike Plaxton, Certified Forensic Video Analyst, and Ben Sampson, Forensic Firearms Expert, relating to the 2017 photographs admissible?
Facts
On March 12, 2010, a party took place at 53 Dundurn Street South in Hamilton. At about 1:10 a.m., on March 13th, a dispute broke out over the playing of music. Witnesses have testified that Chambers pulled out a gun covered by a sock, and Warner also pulled out a gun. Several shots were fired and one man, Brandon Musgrave, "Brandon", was killed and two others, Ted Tsibu-Darkoh, "Ted", and Kauner Chinambu, "Kauner", were wounded by gunshots.
The accused, Warner, admits to shooting Kauner but not the others. The accused Chambers told his girlfriend, Yaasmiyn Davidson, who testified, that Chambers told her that he was present at the shootings, but ran when the shootings started and Chambers never fired any shots. One of the occupants, Sam, testified at this trial and at the first trial. The gist of Sam's evidence at both trials is that after Chambers and Warner pulled out their guns and started shooting, he ran down the hallway, and just as he was about to descend downstairs, he looked back. Warner had gone out the front door, and Chambers, who was following behind, pointed a gun at Sam, and Sam heard shots thereafter. See also the summary of his evidence at the first trial at paragraphs 41, 42 of R. v. Chambers and Warner, reported at 2017 ONSC at 5042.
The police focused their search on the kitchen/living room area where the victims were shot, and did not search the hallway area where Sam indicates he was when he may have been shot at. On a final walk-through during the initial investigation on March 13th, 2010, a suspected lead fragment was found in a north hallway at A-7, A-8 area of Exhibit 1(c). This suspected lead fragment was subject to a pre-trial motion ruling by myself. See paragraphs 32 through 66 of Chambers and Warner.
I ruled that the suspected lead fragment and the circumstances of its finding was admissible at this trial. It is anticipated that Mr. Sampson, the forensic firearms expert, will testify that the suspected lead fragment was extremely damaged and due to the damage, he could not assign or could not determine that "this was 100 percent a fired bullet". He has seen fired bullets in worse conditions. Mr. Sampson's evidence at the first trial is reviewed in considerable detail in Chambers and Warner at paragraph 40.
In cross-examination by Mr. Hicks at the first trial, Mr. Sampson testified that he looked for characteristics of a bullet and could find none, and agreed that the suspected lead fragment was a piece of metal. Further, Mr. Sampson testified that he would be astounded if the projectile went down the hallway and left no mark whatsoever.
Also in cross-examination at the first trial by Mr. Bains, Mr. Sampson admitted he had no context in which to logic anything out, and accordingly could not draw a conclusion that the suspected lead fragment was a bullet. Mr. Sampson, upon being shown an enlarged image of apparent damage to part of an angled wall, agreed that if the bullet struck the angled part of the wall and did not penetrate the wall, the logical angle for a ricochet would be to the left or north. This is the area where the suspected lead fragment was found.
Mr. Sampson indicated at the first trial that the projectile would likely be deformed, and it is impossible to say what form the deformity would take. There were no close-up photographs taken of the damage or mark on the baseboard of the hallway referred to as the first trial.
Almost seven years later, police returned to the scene on September 26, 2017 and took several photos of the hallway and the "mark" on the baseboard that appeared distantly in one of the original 2010 photos. It is apparent that other parts of the hallway wall that were discoloured or damaged in 2010 show no visible marks now in the 2017 photos, presumably due to repairs and painting administered to those areas in the seven years since.
However, the mark referred to in the 2010 photo and first trial testimony is still clearly visible in the 2017 photos. Close-up photos of the mark and upper stairway area where the suspected lead fragment was found were also taken in September 2017. The Crown has interviewed Caroline De Luca, the property manager at 53 Dundurn, who will testify that the baseboard where the mark exists has never been replaced.
Michael Plaxton, a Certified Video Analyst, examined digital images taken in 2017 of the "mark" and compared them to the images taken in 2010. Despite differences in resolution of the 2010 photos, a comparison of the 2010 and 2017 photos show numerous consistencies in size and shape, and an overlay of the 2017 and 2010 images show virtually identical marks occupying the same location on the baseboard at 53 Dundurn. Accordingly, Mr. Plaxton's opinion is that the mark photographed in 2017 is the same mark photographed distantly in 2010. Mr. Sampson, after reviewing the 2017 photos, will indicate that the damage to the baseboard has the typical appearance of a bullet ricochet. However, Mr. Sampson cannot confirm or exclude that the mark on the wall is as a result of a bullet ricochet.
Law
I have already summarized the relevant law in paragraphs 44 to 49 of Chambers and Warner, and again rely upon these paragraphs.
Applicability of Law to Facts
In my opinion, the combination of the evidence of the finding of the lead fragment, the evidence of the property manager, Caroline De Luca, the 2017 photos of the mark and the opinions of the experts, Michael Plaxton and Mr. Sampson, are highly relevant to the live issues of (1) whether Chambers fired any shots, (2) the credibility of the witness Sam Osunbunmi. See also paragraph 55 of Chambers and Warner regarding a discussion of the operation of the evidence of a lead fragment in combination with the "mark" on the baseboard and other trial evidence.
The deficiencies in the police investigation in not taking better photos and notes regarding a suspected lead fragment and its finding - and also similar comments can be made about the mark - do not significantly weaken inferences that are available to the jury. The deficiencies go to the weight of the evidence and can be cross-examined upon. See also paragraphs 56, 57 of Chambers and Warner.
Further, the expert opinions of Mike Plaxton and Mr. Sampson meet the threshold requirements as outlined at paragraphs 48, 49 of R. v. Abbey, reported 2017 ONCA 640. The probative value of the admission of the lead fragment in combination with the 2017 photos, the evidence of the property manager, Ms De Luca, and the opinions of Mike Plaxton and Mr. Sampson far exceed any potential prejudicial effect, both moral and reasonable prejudice, and they are all admissible at this trial. See also applicable comments at paragraph 58 of my decision in Chambers and Warner.
Further, it should be noted that Mr. Bains, on behalf of Mr. Warner, supports the Crown introducing all of this evidence, including the evidence of the suspected lead fragment, the 2017 photographs, the evidence of the property manager, Ms De Luca, and the opinions of Mike Plaxton and Mr. Sampson regarding the mark in the hallway.
For reasons stated, the prejudicial effect of this evidence is minimal, and the probative value of this evidence is significant. In my opinion, the combination of all this evidence does not invite speculation and conjecture, but allows for reasonable inferences that the jury may or may not make after the evidence has been tested by cross-examination. Accordingly, per R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 SCR 577, I cannot say that the prejudicial effect on Chambers substantially outweighs its probative value to Warner. See also R v. Pollock and Morrisson, 2004 CanLII 16082 (ON CA), [2004] 187 CCC (3rd) 213 (ON CA), at paragraphs 107 through 110, and my decision in Chambers and Warner at paragraph 75 through 82, 86 through 88.
The order then is as follows: The 2017 photographs relating to the "mark" on the baseboard in the hallway at 53 Dundurn, the evidence of Caroline De Luca, the opinions of Mike Plaxton and Mr. Sampson are all admissible evidence at this trial.
...END OF EXCERPT
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Leanne Osborne, certify that this document is a true and accurate transcription of the recording of R. v. Tyrone Chambers and Joshua Warner in the Superior Court of Justice held at 45 Main Street East, Hamilton, Ontario taken from Recording(s) No. 4799-600-20171128-095517-30-SKARICT which has been certified in Form 1.
December 7, 2017 ______________________________
(Date) (Signature of authorized person)
This certification does not apply to Reasons for Ruling which were judicially edited.