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Brian Pfefferle, Brian Pfefferle Law.

Appeal ‘another example’ of prejudicial similar fact evidence resulting in new trial: lawyer

Tuesday, March 01, 2022 @ 10:43 AM | By Terry Davidson

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Judges running murder trials must not allow a jury to hear similar fact evidence that could be prejudicial through jurors’ use of “propensity reasoning,” says a lawyer after a new trial was ordered for a Saskatchewan man accused of killing his cousin.  

The Feb. 10 Court of Appeal for Saskatchewan ruling in R v Whitehead 2022 SKCA 19 resulted in the setting aside of the first-degree murder conviction of Davis Whitehead, who is now headed for a new trial to face the allegation he stabbed Ramsay Whitehead to death in late 2016.

Before the Appeal Court was whether the trial judge was wrong in deciding that an incident where Davis attacked another man with a knife shortly before allegedly killing Ramsay had probative value for the jury as similar fact evidence when it came to the planning and deliberation needed for a first-degree murder conviction.

Brian Pfefferle, principal at Pfefferle Law

Brian Pfefferle, principal at Pfefferle Law

Whitehead’s appeal lawyer, Brian Pfefferle, confirmed Davis and Ramsay were cousins and that they had attended a family gathering the day of Ramsay’s death.

According to the written Appeal Court decision, the road to Davis’ murder charge started with four incidents the night of Dec. 9, 2016.

First, Davis visited “House 105,” where he and Ramsay had a fight, during which Ramsay threw Davis to the floor.

Davis left the house and walked to a nearby home described as the “Garvin residence.” There, he pushed a woman to the ground and had words with his brother-in-law, Jamie McKay. Davis “took a swing” at McKay and then left the home, after which McKay discovered he had been cut with a knife. (He would later receive two stitches at a hospital.)

Outside, Davis met another man and allegedly threatened him with a knife before returning to House 105, where he allegedly stabbed Ramsay “two or three times.”

Ramsay died almost immediately.

Davis was initially charged with first degree murder in Ramsay’s death, endangering life for the alleged attack on Jamie McKay and aggravated assault for pushing the woman.

Davis’ trial lawyer objected, arguing the pushing of the woman and the cutting of McKay were separate from the attack on Ramsay, and that including them with the murder charge would run contrary to s. 589 of the Criminal Code, which says no indictable offence other than murder will be “joined in an indictment to a count that charges murder” unless the non-murder charge “arises” out of the murder charge.

The Crown agreed to proceed only with the charge of first-degree murder.

A jury was selected and a voir dire held to determine if the attack against McKay was admissible as similar fact evidence “to support a finding that the appellant had planned and deliberated upon the murder of the deceased.”

The trial Crown argued that admitting this evidence would not be prejudicial to Davis because there was enough similarity between the planning and deliberation used in the attack on McKay and that of the attack on Ramsay.

But Davis’ trial lawyer argued this would put his client on trial for incidents other than the alleged murder in an attempt by the Crown to “shore up” their case through “past discreditable conduct.”

While consenting to the aggravated assault and endangering life charges being taken off the table, the trial judge called the incidents leading up to Ramsay’s death “an interconnected sequence of events”.

The judge decided to admit as evidence to the jury the attack on McKay, noting the proximity and time between that incident and the alleged murder, as well as the fact witnesses described the incidents as having occurred in a similar fashion.

The evidence involving McKay was “logically probative” to Davis’ “mind-set and intensions,” the trial judge found.

The jury came back to convict Davis of first-degree murder.  

But Appeal Court Justice Georgina Jackson, with Justices Jacelyn Ryan-Froslie and Jerome Tholl in agreement, found the judge was wrong to admit this evidence to the jury.  

“In my respectful view, the evidence of what happened at the Garvin residence to Mr. McKay merely establishes, at most, a general propensity towards violence on the appellant’s part and some generic similarities between the incidents,” wrote Justice Jackson. “The aggressiveness and the animosity demonstrated by the appellant toward Mr. McKay were not probative of planning and deliberation of the killing of the deceased. The trial judge erred by ascribing any probative value to the impugned evidence. It should not have been admitted.”

Justice Jackson found that linking the incidents might prove probative when trying to determine the identity of an accused, but that doing so in this case “says nothing about whether the appellant had formulated a plan before murdering the deceased so as to meet the definition of planning.”

“Similarly, determining that both stabbings were unprovoked is not probative of whether the appellant had ‘carefully thought out’ … the second attack so as to have met the element of deliberation.”

Pfefferle, principal at Pfefferle Law, said the Appeal Court’s ruling is “another example where the use of similar fact evidence for an unproven incident was put before a jury and it’s led to a new trial.”

“It’s hard to un-ring the bell,” said Pfefferle. “Once a trier of fact — judge or jury — hears something, it’s hard for them to ignore it. But as a justice system, we’re certainly more comfortable when it is a judge alone case, where a judge can compartmentalize things and say, I don’t use propensity reasoning, I’m not going to convict this person because of past acts of bad conduct. With juries, it’s much more difficult. We expect juries to apply the law as it’s read to them by the judge, but these are people that apply common sense, and I think certainly most people apply propensity reasoning as a matter of common sense, and it’s wrong in law but it’s something that is very difficult for lay people and jurors to actually ignore.”

Pfefferle talked about how this can impact a jury’s evaluation of a range of criminal charges.  

“On this particular case, this was not a ‘who done it,’ so to speak,” he said. “This was a situation where the primary issue at trial was what the intention was. So, the Crown could prove the act clearly through the evidence, in my view. Where the debate took place was where on the scale of moral blameworthiness does this fit? Is this a first-degree murder [with planning and deliberation]? Is it a second-degree murder, where there is recklessness? Is it manslaughter? Is it something else? That’s really what the issue was for the jury to grapple with. And because the similar fact evidence focused on intention, and intention was such a critical component to this suggestion of whether this was first degree or second degree or manslaughter, that’s why this became such a critical piece to the puzzle.”

Appeal Crown Pouria Tabrizi-Reardigan was unavailable to comment on the ruling.

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