R. v. Jeff, 2013 BCSC 1558

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Jeff, 2013 BCSC 1558 Date: 20130412 Docket: 32356-2 Registry: Williams Lake Regina v. Catlin Billy, Mitchell Jeff, Kyle Plummer and Blake Johnny Before: The Honourable Mr. Justice Tindale Oral Reasons for Judgment re Accused Mitchell Jeff Counsel for the Crown: R. Smith Counsel for the defence: A. Kaiser Place and Date of Trial: Prince George, B.C. April 8 to 12, 2013 Place and Date of Judgment: Williams Lake, B.C.

April 12, 2013 [ 1 ] THE COURT: Mitchell Jeff is charged on Indictment Number 32356-2 with five offences arising out of a home invasion that occurred on October 31, 2012, in the City of Williams Lake, province of British Columbia. Specifically, Mr. Jeff is charged with break and enter of a residence located at 549 Barnard Street in Williams Lake. He is also charged with four counts of mischief relating to the damage of four separate vehicles located at or near that residence. [ 2 ] The issue in this case is the identification of Mr. Jeff as one of the assailants in these crimes.

The evidence in this regard comes from eyewitness identification and circumstantial evidence. [ 3 ] On October 31, 2012, at approximately 8 or 9 p.m., Michael Vomacka and his girlfriend Kaitlyn Styren were at home at their residence at 549 Barnard Street watching a movie on the couch in the living room. Mr. Cole Mitchell, who was a roommate of Mr. Vomacka and Ms. Styren, was in his bedroom. 549 Barnard Street is a duplex. Mr. Vomacka and Ms. Styren heard a loud knocking noise at their door. Mr. Vomacka answered the door and saw his next-door neighbour who lived on the left-hand side residence of that duplex.

The neighbour was one Mr. Holbrook. He stated that people were trying to kill him and he asked to come into the residence. Mr. Vomacka allowed him to enter the residence and locked the door behind him. Almost immediately, the front window of the residence was smashed and Mr. Vomacka testified that four people broke down his front door and came into his residence. [ 4 ] One of these four people was wearing a balaclava. Two of these people had on what he described as cheap Halloween masks, and the fourth person was wearing a hoodie.

He testified that two of these people had machetes, and the person wearing the hoodie had what he thought was a baseball bat. [ 5 ] Mr. Vomacka testified that he directed Ms. Styren and Mr. Holbrook into the bathroom of that residence. There he braced himself against the door so that the intruders could not get into the bathroom. He testified that he was repeatedly sprayed with bear spray while trying to hold the door shut. [ 6 ] Ms. Styren contacted 9-1-1 while in the bathroom, and the police eventually arrived at the scene. By the time the police had arrived, the intruders had already left the residence.

Before leaving the residence, the intruders had caused extensive damage to the interior of 549 Barnard Street as well as damage to three vehicles owned by Mr. Vomacka and a green Toyota Echo vehicle owned by a friend of Mr. Vomacka. [ 7 ] Neither Mr. Vomacka nor Ms. Styren were able to identify any of the intruders nor give any helpful description of them. Ms. Styren testified that this incident occurred at around 8 or 9 p.m. [ 8 ] Mr. Holbrook was not called as a witness on this trial. [ 9 ] Mr.

Vomacka did testify that the green Toyota Echo owned by Braden Tanis which he was using was stolen during this incident. The vehicle was found by the police in the parking lot of the Royal Canadian Legion building, which is a short distance from his residence. He testified that the keys to the Toyota Echo vehicle were stolen from his residence, and he described their unique features, including the fact that there was a flint stone and a USB memory stick attached to the keychain. [ 10 ] Cole Mitchell testified that he was in his bedroom preparing to go out to play Dungeons & Dragons with some friends that evening.

He heard noises; however, initially, he attributed them to the fact that people were out enjoying the Halloween festivities. He

testified that he heard Mr. Vomacka yelling words to the effect "get the fuck away from my vehicle," and then he heard what sounded like glass breaking. He also testified that he heard what sounded like multiple people coming into his home. Mr. Mitchell looked out of his bedroom, as he had the door open approximately one foot, and saw people damaging the residence. He described one male as breaking the coffee table in the front room with an object that appeared to be a baseball bat.

He described that male as having a dark skin tone, a round face, dark glossy looking hair, and he described the person as having bangs over his face. He testified that there was a sheen to that person's hair and that the hair had either dark red or dark purple colour in it. He said the male was First Nations and his face looked a bit haggard, possibly pockmarked. He described the male's build as more athletic with larger muscle tone than himself. Mr. Mitchell testified that he was 6'3" tall and weighed 150 pounds. He said the male was shorter than him and was wearing a black hooded sweatshirt. Mr.

Mitchell said that he looked at this person for approximately 45 seconds and then shut his door. He also testified that after he shut his door, he noticed a strange scent in the air which he believed to be bear spray. [ 11 ] After this incident, Mr. Mitchell attended to the police station where he was shown nine separate photo packs of 10 pictures. In photo pack number seven, he identified a picture of the accused Mitchell Jeff as the person he had seen in his residence breaking the coffee table. [ 12 ] Mr.

Mitchell also testified that the hair colour was the most distinguishing feature which caused him to identify the picture of Mr. Jeff. [ 13 ] Mr. Mitchell was not able to identify Mr. Jeff at the trial of this matter. [ 14 ] On cross-examination, Mr. Mitchell agreed that he lied to the 9-1-1 operator when he said the following to the operator after being asked who the people were in his residence: "I don't know. I haven't even looked outside my door. My roommates just told me to call the cops." [ 15 ] I found Mr. Mitchell to be very evasive and argumentative on cross-examination.

I also found his evidence to be somewhat bizarre in that he testified he did not really care if the assailants had come into his bedroom. He also testified that he had been told by others that he had a death wish. Finally of note, Mr. Mitchell testified that he would lie if it was for the greater good. [ 16 ] Dustin Smylie, who lives across the street from the 549 Barnard Street residence, testified that he saw two people breaking car windows at that address. He also testified that he saw two people go into the house and then leave the house with one of them stealing the green Toyota Echo.

He said that the incident took approximately one and a half to two minutes in length. [ 17 ] Constable Barrie testified that she prepared the nine photo packs in this case as there were nine accused. She testified that the characteristics that she was using in selecting photographs were First Nation males aged 19 to 25 with similar hair length. She also testified that all of the photo packs except for the one that Mr. Jeff's picture was in were in black and white. The photo pack pictures which included Mr.

Jeff's photograph were in colour. [ 18 ] Upon examination of Exhibit 6, which consists of the pictures in the photo pack that included Mr. Jeff's photo, and Exhibit 7 which is Mr. Jeff's photo from that photo pack, the following is apparent. First, none of the people in the photographs have a hairstyle similar to Mr. Jeff's. Only two of the photographs include individuals that have longer hair in the front, though they do not have a similar hairstyle to Mr. Jeff. None of the photographs of the other individuals include people that have dye or colour in their hair, and of note, the photograph of Mr.

Jeff does not depict his face as being pockmarked. Exhibit 7 shows that Mr. Jeff's hair is in the front covering his eyes and the bangs appear to be a bluish purple in colour. [ 19 ] Constable Nakatsu testified that he showed the photo packs to Mr. Mitchell. He agreed that he was aware that Mr. Jeff was a suspect prior to showing Mr. Mitchell the photo packs. He also testified that he knew Mr. Jeff from previous dealings with him. [ 20 ] The interview with Mr. Mitchell where Constable Nakatsu showed him the photo packs was videotaped. When the constable showed Mr. Mitchell the photograph of Mr.

Jeff, it appeared that it slipped from his hand and slid across the table. This did not occur when any of the other photographs were shown to Mr. Mitchell. [ 21 ] Constable Courtoreille testified that at approximately 9:17 p.m., he received a complaint of a break and enter at the Barnard Street residence. He testified that as he was travelling down Fourth Avenue near the intersection at Barnard Street he observed a male who was approximately 5'10" tall and weighing 160 pounds run in front of his vehicle. That male appeared to be carrying a baseball bat.

The male was facing towards a residence located at 424 Pinchbeck Street with his back to the Royal Canadian Legion building. The constable described this male as wearing black pants and a black sweater jacket as well as a black baseball cap with a unique white design on the front of it. This male started running into the driveway of 424 Pinchbeck Street. When the officer arrived there with his vehicle, he noticed another individual outside who he told to get on the ground. The constable then noted two people going into the front door of that residence. The officer tried to get in the front door by saying "Police.

Open the door" six or seven times. The constable testified that people were trying to place blockades in front of the door inside that residence. [ 22 ] The constable then spoke to the individual who he had put on the ground earlier who he identified as Tyler Jewitt and who he knew to be the owner of the residence at 424 Pinchbeck Street. Mr. Jewitt was unable to gain access to the residence either. Eventually, other officers arrived and the police broke down the door. Inside the residence in a bedroom, Constable Courtoreille found a number of people who he arrested, including Mr. Jeff.

A total of approximately 12 or 13 people were in the residence and nine were arrested. I am assuming that the nine people arrested were male. [ 23 ] The constable described Mr. Jeff as having a unique haircut with it being short on the sides with a longer strip on the top. He also described Mr. Jeff's hairstyle as being dyed predominantly at the tips. He did not say what colour it was dyed. The constable was not able to testify as to what Mr. Jeff was wearing that evening and, in particular, whether or not Mr. Jeff was wearing a dark hooded sweatshirt. He did say that Mr.

Jeff did not smell of bear spray nor did he have any signs that he had been running, such as sweating or breathing heavily. The constable also testified that there was no one else in the house that had a distinctive hairstyle. [ 24 ] Constable MacKinnon testified that he also responded to this call at approximately 9:20 p.m., and he too saw a male running in

front of Constable Courtoreille's vehicle. He did not see a baseball bat in that male's hands. He said that he attended at 424 PinchbeckStreet and looked in the front window where he saw two males, one of whom he recognized as the accused Mitchell Jeff, pushingsomething in front of the door to barricade it. Constable MacKinnon, once inside the residence, confirmed that a number of people werearrested, and in fact, he chartered and warned 10 people himself. He described Mr.

Jeff as having a Mohawk haircut and said it was redor purple at that time. [25] Constable MacKinnon also did not note any odour of bear spray on Mr. Jeff when he was dealing with him. [26] Constable Charna testified that he was also involved in this investigation and dealt with Mr. Jeff at the Pinchbeck residence. Hetestified that he did not smell bear spray on Mr. Jeff. He also could not testify as to what Mr. Jeff was wearing on that evening. [27] Constable Charna did testify that at the 424 Pinchbeck residence where Mr. Jeff was located, he found a set of keys in an airvent. These keys were identified by Mr.

Vomacka as being the keys to the green Toyota Echo that was stolen from his residence. [28] That is the evidence that was called on behalf of the Crown and the evidence in this case. Mr. Jeff, as is his right, did not callany evidence. [29] The Crown argues that identification is the central issue in this case. The Crown further argues that Mr. Mitchell's descriptionof Mr. Jeff was accurate as to the hairstyle and colour. Also, the Crown says that there is circumstantial evidence linking Mr. Jeff to thiscrime, in particular, that the residence that Mr.

Jeff was arrested at after this incident is linked to the break and enter on Barnard Streetbecause of the keys for the green Toyota Echo that were found there. [30] Crown concedes that the photo line-up process was not perfect. Crown also argues, however, that Mr. Mitchell did have anopportunity to view the person breaking the coffee table in his residence, and given the stress of the situation, the fact that he now saysthat he lied to the 9-1-1 operator does not necessarily vitiate his evidence. The Crown also argues that Mr.

Mitchell's evidence iscredible because he did not identify the keys at the trial which would have been an opportunity for him to lie if he was so inclined to doso. [31] Finally, the Crown argues that Mr. Jeff's conduct in moving objects in front of the door at 424 Pinchbeck Street when the policearrived is post-offence conduct which I can use to infer guilt. [32] Mr. Kaiser on behalf of Mr. Jeff reminds the court of the frailties of eyewitness identification. Mr. Kaiser also points to theflaws in the photo line-up procedure, including the fact that only the photo pack with Mr.

Jeff's picture in it was in colour; also, that noneof the other individuals in that photo pack had colouring in their hair or a similar hairstyle to Mr. Jeff, and that Constable Nakatsu wasaware that Mr. Jeff was a suspect and he knew Mr. Jeff prior to this incident. [33] This was clearly a traumatic and serious crime. There is no doubt that a home invasion occurred and individuals damaged notonly the residence on Barnard Street but the vehicles associated with that residence. While it is not clear how many individuals enteredthe residence, the best evidence is that of Mr.

Vomacka who said at least four people entered the residence. The only issue is whether ornot Mr. Jeff was one of those people. [34] Eyewitness identification can be difficult, particularly when identifying strangers. There are a number of factors that mightaffect the accuracy of eyewitness identification which have been identified in the case law.

Some of these factors are as follows: first,the length of observation; next, the lighting conditions when the observations were made; the distance between the witness and theaccused; the length of time between the observation and the subsequent identification or description of events by the witness; whether ornot the accused was a stranger; the witness's vantage point; the witness's focus; a lack of distinctive features of the accused or hisclothing; and whether or not the earlier identification was tainted or flawed. [35] In this case, Mr.

Mitchell testified that he observed the intruder for 45 seconds from his bedroom where the door was openapproximately one foot. He said that the lighting conditions were good. I have no specific evidence as to the distance from Mr.Mitchell's bedroom to where the intruder was seen breaking the coffee table, but I do have pictures of the interior of the residence, andthe distance was not great. [36] Mr. Mitchell did not know the intruder. He did identify a picture of Mr. Jeff a number of hours after the incident. [37] Mr. Mitchell does describe the intruder as having a distinctive hair colour and hairstyle.

However, he is not clear whether thehair that was coloured was dark red or dark purple. He also could not give a detailed description as to the height, weight, or clothing ofthe intruder other than the black hooded sweatshirt that the intruder was wearing. [38] Mr. Mitchell could not identify Mr. Jeff at the trial of this matter. Statements of prior identification are admissible, whereas inthis case Mr. Mitchell testified that he made an identification of the intruder in the form of a photo pack identification. The authority forthat can be found in R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144.

In my view, however, the prior identification process wasflawed because of the following: First, only the pictures in the photo pack containing Mr. Jeff's picture were in colour. This made thatphoto pack distinctive from the other eight photo packs. Second, none of the other photographs in that photo pack included individualswith a similar hairstyle to Mr. Jeff's or with hair that was coloured. Third, Constable Nakatsu who showed Mr. Mitchell the photographswas aware that Mr. Jeff was a suspect and he knew Mr. Jeff from previous dealings.

This created the possibility that nonverbal cuescould taint the process, and in this case, Constable Nakatsu did present the photograph of Mr. Jeff in a different manner than he did theother photographs. I do not believe that this was intentional, but it did occur. [39] While I accept that Mr. Mitchell did see the intruder for a brief period of time from his bedroom, the only conclusion I can reachon the evidence is that when he identified Mr. Jeff's photograph, he was identifying a person with coloured hair and not particularly Mr.Jeff. I say this because he was unable to identify Mr.

Jeff in the courtroom; his lack of description of the intruder with regard to height,weight, and clothing; and because he said the primary reason for identifying the photograph was based on the hair colour.

[40] Also, Mr. Mitchell said the portion of the intruder's hair that was coloured was either dark red or dark purple. In viewing thepicture of Mr. Jeff, the hair appears to have both purple and blue colours to it. All that can be said of Mr. Mitchell's identification of thepicture of Mr. Jeff is that he was identifying a First Nations male with coloured hair. The eyewitness evidence of identification of Mr.Mitchell cannot support a conviction on these matters. [41] The Crown also argues that if I am not satisfied with Mr. Mitchell's evidence of identification of Mr.

Jeff, there is circumstantialevidence upon which I could find the accused guilty of these offences. In particular, they point to the following: Mr. Jeff's uniquehairstyle is similar to that described by Mr. Mitchell; Mr. Jeff was found a short time later at 424 Pinchbeck Street; that the policewitnesses called on this trial who attended at 424 Pinchbeck Street did not know any other people present with unique hairstyles. I willsay at this point, however, I do not have any detailed descriptions of the other people's hairstyles.

I would also point to the fact that 424Pinchbeck Street is linked to these offences as the keys for the green Toyota Echo vehicle were found there; and finally, that thebehaviour of Mr. Jeff in barricading the door when the police arrived can be considered in determining whether or not Mr. Jeff is guiltyof these offences. [42] The Supreme Court of Canada in the decision of R. v.

Cooper (1977), (SCC), 34 C.C.C. (2d) 18 states thefollowing: It is enough if it is made plain to the members of the jury that before basing a verdict of guilty on circumstantial evidence they must besatisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. Inthis regard it will be seen that I agree with the Chief Justice in his rejection of the Hodge formula as an inexorable rule of law in Canada. [43] There were at least 12 other people in this residence. None of these people assisted in letting the police into the residence.

Some of these people were highly intoxicated. The mere fact that Mr. Jeff was trying to blockade the door does not necessarily mean hewas guilty of these offences. Of note, Mr. Jeff did not smell of bear spray, which one would expect if he was in the residence on BarnardStreet, nor was he out of breath or sweating, which may be indicative of someone who had ran from a crime scene. There is no evidencefrom the police witnesses that Mr. Jeff, when he was arrested, was wearing a black hooded sweatshirt. There is also no evidence, basedon the descriptions of Constable MacKinnon and Constable Courtoreille, that Mr.

Jeff was one of the two people seen running into thePinchbeck residence. There is no forensic evidence linking Mr. Jeff to the green Toyota Echo nor the keys for that vehicle. Any one ofthe 12 or perhaps more people that may have been in that residence could have left the keys there. [44] Finally, Mr. Mitchell's description of the intruder having dark red or dark purple hair is ambiguous in itself. Mr. Mitchell doesnot commit to whether it was purple hair or red hair, and as I have already noted from the photograph of Mr.

Jeff taken on the eveningthat this incident occurred, it appears that the hair was purple or blue in colour. [45] In all of the circumstances, I am not convinced that the only reasonable inference to be drawn from the facts of this case is theguilt of Mr. Jeff. Considering all of the evidence, I have a reasonable doubt as to the identity of Mr. Jeff as being one of the intruders inthese offences, and I find him not guilty on all charges. “R. S. Tindale, J.”