COURT FILE NO.: CR-16-50000631-0000
DATE: 20180516
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CURTIS MURRAY and COREY MURRAY
Defendants
Michael Wilson and Michael Coristine, for the Crown
Allison Pyper,[^1] for Curtis Murray
Boris Bytensky and Brittany Smith, for Corey Murray
HEARD: April 6, 2018
MOLLOY J.
REASONS FOR DECISION
(Post Offence Conduct)
Introduction
[1] Curtis Murray and Corey Murray are brothers. They are charged with first degree murder in connection with the killing of 17-year-old Trevor Seraphine on March 21, 2015. The attack started just outside an apartment building at 44 Willowridge Road in Toronto. Trevor was approaching the building when two men started running at him. He ran into the building, but was pursued there by the two attackers. One of the attackers shot at Trevor six times, but only the last shot actually hit him. By the time of the sixth shot, Trevor was already inside the foyer of the building, but could not get into the main lobby as the door was locked. He was shot as he cowered in the corner of the lobby. That shot merely wounded him. The other assailant then stabbed Trevor several times, including inflicting a stab wound to the heart which caused his death.
[2] There is video footage from surveillance cameras showing a portion of what happened outside and the entire attack inside the lobby area. However, the assailants are back on to the camera and partially disguised. Their faces cannot be seen clearly. The Crown seeks to identify them, at least in part, by their general appearance and the distinctive clothing they were wearing at the time of the attack. The Crown’s theory is that this murder was committed as a consequence of a number of disputes between Curtis and a group of men who were connected with 44 Willowridge. At this time, Curtis lived at an apartment building on Ridgegrove Road, in the same general neighbourhood. Previously, he had lived there with his girlfriend, Samelia Wiltshire and the lease was in her name. Prior to the date of the murder, Ms. Wiltshire was no longer living in the apartment full time, but did visit there regularly.
[3] On Thursday, March 19, 2015, some of the men who were part of this ongoing dispute with Curtis Murray broke into that apartment and stole two television sets and a large quantity of Mr. Murray’s clothing and expensive designer running shoes. They then conducted a sale of Mr. Murray’s clothing and shoes in the lobby of 44 Willowridge for several hours on the afternoon and early evening of March 20, 2015.
The Nature of the Motion
[4] The Crown gave notice that it intends to rely on a number of actions by Curtis Murray after the murder as evidence of consciousness of guilt. Some of that evidence is not opposed by the defence, specifically that: (1) he changed his phone number twice after the murder; and, (2) he lied to his girlfriend as to his whereabouts at the time of the murder, thus attempting to create a false alibi.
[5] The defence objects to the admissibility of the following evidence:
(1) Curtis Murray asked his girlfriend, Ms. Wiltshire, to remove from the apartment any items that contained his name;
(2) Curtis Murray cut his hair after the murder; and,
(3) Curtis Murray asked Ms. Wiltshire to change the statement she had previously given to the police.
[6] The defence contends that there is little or no probative value to this evidence in all the circumstances of the case and that the prejudicial impact outweighs the probative value.
Supporting Evidence: Removing Identification
[7] The murder occurred in the early morning hours of Saturday, March 21, 2015. When Ms. Wiltshire heard about it later that day, she started calling Curtis Murray. When she reached him, one of the things they discussed was where he had been the night before (i.e. at the time of the murder). Mr. Murray told her that he had been at the home of his cousin, Kirk Spencer. Although Ms. Wiltshire later learned that this was a lie, she believed it at the time.
[8] Ms. Wiltshire entered the parking lot of the apartment on Ridgegrove Drive on Thursday March 19, 2015 and was about to go into the building. However, a car carrying the group of men that had previously been bothering her and Curtis Murray arrived and attempted to block her into her parking space. One of them approached her car and started asking her where her boyfriend was. She managed to drive away, but then was afraid to return to the apartment. She also alerted Curtis Murray to this incident and told him to stay away. It was on that same day, Thursday, March 19, 2015, that the apartment was broken into and Curtis Murray’s clothing stolen. Mr. Murray told Ms. Wiltshire about the break-in, including the fact that there was no indication that the lock had been forced. She said they were both concerned that the intruders might have had a key.
[9] The apartment had been trashed and needed to be cleaned up. Ms. Wiltshire was the tenant on the lease and was concerned she would be held responsible for any damage. She had discussions with Mr. Murray about the need for someone to go in and clean up the place. She said Mr. Murray told her he did not want anyone to know that he had been in the apartment and told her to remove anything that had his name on it, such as documents, passport, S.I.N. card or the like.
[10] The defence also points out that Ms. Wiltshire testified at the preliminary hearing that before the date of the murder they had already decided to leave the apartment forever. She said that Curtis Murray was afraid for his own safety and also for her safety.
Supporting Evidence: The Haircut
[11] Prior to the date of the murder, Curtis Murray had been growing his hair out. It was in twists and he was planning to grow it out to have full dreads. The length of Curtis Murray’s hair at this time is consistent with the appearance of the gunman on the video. On March 25, 2015, two police officers attended at Ms. Wiltshire’s workplace and asked her some questions. They showed her photographs of two men in the Ridgegrove apartment building and asked her if she could identify them. Although Ms. Wiltshire later admitted that she knew the two men in the photographs were Curtis and Corey Murray, she told the police she did not recognize the photograph of Curtis Murray and that she knew the other man only by the nickname “Jungz.” That evening, Ms. Wiltshire told Curtis Murray about the police contacting her, asking her questions, and showing her photographs of him and his brother Corey. Within days of that conversation, Curtis Murray cut his hair very short.
[12] Counsel for Curtis Murray argued that the fact that Mr. Murray cut his hair has no probative value because he was doing modelling and would frequently change his hairstyle and because he may also have cut off his hair for a job interview.
[13] There was no evidence before me that Curtis Murray ever did modelling, much less that there was anything about such a career that would cause him to cut his hair at this particular time. Counsel attempted to file a photograph printed from the internet from the website of a clothing company featuring a young black male with short hair modelling a jacket. I would not permit this photograph to be filed without some evidence, either viva voce or by affidavit, indicating that the person in the picture was in fact Curtis Murray. I was invited by counsel to simply compare the photograph to Mr. Murray and conclude for myself that this was a photograph of him. I declined to do so on the grounds that in my view the photograph did not actually appear to be Curtis Murray. Later in the argument, Curtis Murray had a conversation with his counsel and she advised me that the photograph was not in fact Curtis Murray and that she had simply been mistaken.
[14] The only other evidence of this suggested modelling career was a reference from Ms. Wiltshire’s cross-examination at the preliminary inquiry. At that time she testified that Curtis Murray was interested in doing modelling, had attended at a modelling agency to inquire about signing up, and had been told he needed to compile a portfolio. She said that his stepsister was taking a photography course at Humber and she was helping him to build his portfolio, taking fashion shots in different clothing and different styles. She confirmed that this was “relatively close to the time of the homicide.”
[15] Ms. Wiltshire also testified that during the years she had known Curtis Murray, he frequently changed his hairstyle.
[16] Defence counsel also argued that Mr. Murray cut his hair for a job interview. Again, the only source of that explanation was Ms. Wiltshire. She confirmed at the preliminary inquiry that a number of people, including herself, worked at a hotel and her mother had spoken to the laundry supervisor about getting Curtis a job there. Ms. Wiltshire often complained to Mr. Murray about his hair as she said she did not like dreads. When she spoke to him about the prospect of a job, she advised him he should cut his hair before any job interview because dreads would not be appropriate at this hotel. However, this conversation was two weeks to a month prior to the murder, and was only the prospect of a job; there was no job interview requiring a haircut.
Supporting Evidence: Ms. Wiltshire Changing Her Statement to the Police
[17] Ms. Wilstshire told the police on March 25, 2015 that she knew one of the men in the photograph as “Jungz” but did not know his real name. In fact, she did know that this was Corey Murray, and Corey Murray was known by that nickname.
[18] The defence argued that Curtis Murray had a legitimate reason for asking Ms. Wiltshire to change her statement to the police about “Jungz,” which was to prevent Corey Murray from being in breach of a condition of his parole by being somewhere other than where he was supposed to be residing.
[19] Ms. Wiltshire actually said the following at the preliminary hearing (when asked what Curtis Murray’s reaction was when she told him she had identified the photograph of Corey Murray as “Jungz”):
He was upset. He got up. He wanted me to call the detective and say I was lying. He didn’t want me to get his brother in trouble ’cause he was on parole or something like that and he didn’t want him to go back to jail; and he also said if they’re looking for his brother, then they’ll start looking for him ….
[20] The defence also points out that Ms. Wiltshire agreed on cross-examination that she was very upset after the police interview, and could be described as “hysterical” when she was discussing it with Curtis Murray.
[21] The next day (March 26th) Ms. Wiltshire had to go to the police station anyway in order to pick up her cell phone, which had been seized by the police the day before. When she got there, she told the police that she had been mistaken in identifying the one man as Jungz and that the man in the photo was actually one of the group of men who had accosted her the week before wanting to know where Curtis Murray was.
Analysis
[22] There is no issue between counsel as to the test to be applied. The defence relies on the general principle that evidence should be excluded when its prejudicial impact outweighs any probative value, relying on R. v. Handy.[^2] That principle clearly applies to the admissibility of post-offence conduct.[^3]
[23] Post-offence conduct is simply a type of circumstantial evidence from which a jury may draw reasonable inferences. It is only inferences that are reasonable that may be drawn. However, in determining whether a particular inference is reasonable, the jury is entitled to consider the whole of the evidence, not just this one piece of evidence in isolation. The Ontario Court of Appeal held as follows in R. v. Figueroa:
Post-offence conduct, including lies to the police, is a kind of circumstantial evidence. The jury is asked to infer the existence of a fact in issue, e.g. the identity of the perpetrator, from post-offence conduct committed by the accused, e.g. lies to the police. The inference is permissible only if, based on human experience and common sense, that inference is a reasonable one. As with any kind of circumstantial evidence, the inferences to be drawn from post-offence conduct will depend on the nature of that conduct, the fact that is sought to be inferred from that conduct, the position of the parties, and the totality of the evidence. Inference drawing is situation-specific and is not amenable to a set of preset rules that categorize certain kinds of post-offence conduct as always relevant to, or never relevant to, a particular fact in issue: R. v. White (1998), 1998 CanLII 789 (SCC), 125 C.C.C. (3d) 385 at paras. 19-22 (S.C.C.); R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 117 C.C.C. (3d) 226 at paras. 24-31 (Ont. C.A.).[^4]
[emphasis added]
[24] A common difficulty with post-offence conduct arises when the conduct relied upon may be equally commission of a lesser offence as with the crime charged. For example, evidence that an accused fled from the scene of a homicide may not be admissible where the accused acknowledges being involved in an assault, but denies having an intent to kill. Flight, being equally consistent with either offence, is not probative of the accused having committed murder.[^5] That issue, however, does not arise in the case before me. The offence was recorded on video. It is clearly a homicide. The only issue in this case is identity, i.e. whether the accused were involved at all, rather than the level of their involvement.
[25] Changing one’s appearance, lying to the police, asking others to lie to the police, and removing evidence that could link the accused to the offence are classic examples of post-offence conduct.[^6]
[26] With respect to the change in hairstyle, the defence argues that this was not unusual conduct for Curtis Murray and that there were other reasons for him to cut his hair (e.g. to please his girlfriend, because of his modelling career, or to be more impressive at a job interview). None of these possibilities undermine the probative value of this evidence. Ms. Wiltshire objected to the hairstyle from the outset, but Mr. Murray grew his hair out anyway. There was no modelling “career” and no evidence that the distant prospect of one required a haircut. Likewise, there was no evidence of a job interview, merely a suggestion (made two to four weeks earlier) of a possibility of a prospect of a job. There is nothing tangible about any of these suggestions. In my opinion, the evidence of the sudden change in hairstyle, particularly given the timing of it in relation to Ms. Wiltshire’s interview by the police, is highly probative. There is very little prejudicial impact. Cutting one’s hair is not inherently blameworthy.
[27] Further, and in any event, it is for the jury to determine whether or not consciousness of guilt is a reasonable inference from the evidence of the haircut, within the context of the whole of the evidence, including the competing inferences suggested by the defence.
[28] I reach the same conclusion with respect to Mr. Murray’s direction to Ms. Wiltshire that she should remove anything with his name on it from the apartment, and for the same reasons. It is suggested by the defence that this direction by Mr. Murray arose from safety concerns. I fail to see much logic in that. Mr. Murray was prepared to have Ms. Wiltshire go into the apartment to clean up and fetch his belongings. So much for his concerns about her safety. Whoever ransacked the apartment had already seen Mr. Murray’s ID. They already knew that he lived there. It is hard to imagine what safety concerns would require removing documentary evidence of his presence in the apartment. I do not see safety concerns as an issue diminishing the probative value of the evidence. The evidence is highly probative to the Crown’s case, given the video surveillance evidence of Curtis Murray and Corey Murray leaving this building together minutes before the murder, and the Crown’s theory that the motive for the murder arose from the burglary, vandalism and theft of Curtis Murray’s belongings. The evidence is not otherwise prejudicial. The conduct is innocuous in and of itself. It is for the jury to determine whether the timing and context of this evidence gives rise to the reasonable inference sought by the Crown.
[29] With respect to requesting that Ms. Wiltshire lie to the police, one of the reasons stated by Curtis Murray was that he did not want the police to start looking for him. He also told her that he was worried about his brother Corey being in breach of his bail. It is for the jury to determine what reasonable inferences can be drawn from this evidence. Clearly, this requires a limiting instruction to the jury with respect to not drawing inferences because of Corey Murray having been on bail. However, as against Curtis Murray, in my view the probative value far outweighs and prejudicial effect.
[30] The same holds true for all of the post-offence conduct challenged by the defence. The jury is entitled to look at the totality of the evidence, including the totality of the post-offence conduct. This is not merely a situation in which the accused cut off his hair immediately after the murder. The jury is entitled to look at everything Mr. Murray did after the offence and determine based on the whole of the evidence whether the inference suggested by the Crown is a proper one to draw. If the jury properly applies the law as it will be provided to them, there is no prejudice to the accused.
[31] Accordingly, I find all of the evidence to be admissible, subject to proper instructions to the jury as to its use.
MOLLOY J.
Released: May 16, 2018
COURT FILE NO.: CR-16-50000631-0000
DATE: 20180516
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CURTIS MURRAY and COREY MURRAY
Defendants
REASONS FOR DECISION
(Post Offence Conduct)
MOLLOY J.
Released: May 16, 2018
[^1]: Ms. Pyper appeared as agent for Curtis Murray’s solicitor of record, Sid Freeman, who was ill.
[^2]: R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56.
[^3]: R. v. White, [2011] 1 S.C.R. 433, 2011 SCC 13 at paras. 31 and 50.
[^4]: R. v. Figueroa, 2008 ONCA 106 at para. 33.
[^5]: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72; R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129.
[^6]: R. v. Figueroa, supra Note 5, at para. 33; R. v. Coroza, 2017 ONSC 4615 at para. 61 (or para. 66 on corrected numbering); R. v. Kostyk, 2014 ONCA 447.