R. v. Argueta Majano, 2020 MBPC 31

CITATION: R. v. Argueta Majano, 2020 MBPC 31 THE PROVINCIAL COURT OF MANITOBA Minnedosa Centre BETWEEN Her Majesty the Queen ) R. Lonstrup ) ) for the Crown - and – ) ) ) Luis ARGUETA MAJANO ) ) M. Gould for the Accused Accused ) ) ) Reasons for Decision ) ) ) Delivered: July 28, 2020 at the Town of Minnedosa, in the Province of Manitoba Hewitt-Michta, A.C.J. Introduction [ 1 ] Luis Argueta Majano allegedly operated a motor vehicle while impaired and with a blood alcohol concentration of 90 mgs%. A concerned motorist followed a vehicle driven erratically to a cottage in Wasagaming.

She briefly interacted with the driver before he entered the cottage. She called police who attended and arrested Mr. Argueta Majano. [ 2 ] The only issue is whether the evidence presented by the crown establishes the accused’s identification as the driver of the vehicle beyond a reasonable doubt. The Evidence [ 3 ] The complainant was travelling to Clear Lake when she came upon a vehicle on Highway 10 being driven erratically.

She suspected the driver was impaired or in medical distress and followed the vehicle until it stopped at a cottage in Wasagaming. [ 4 ] The complainant spoke with the driver and lone occupant when he emerged from the driver’s seat of the vehicle. He questioned why she was following him. She told him he was driving dangerously and she was calling the RCMP to attend and determine what the problem was. She questioned whether he was ill or had been drinking.

She said he confessed some previous issues related to drinking and driving and pleaded with her not to call police. [ 5 ] The complainant tried to persuade the suspect to stay outside with her but he was eager to get away into the cottage. She said three or four younger Caucasian males attended outside as well as a Caucasian female and a man who identified himself as the suspect’s brother. The men were larger than the complainant and verbally aggressive.

She described them as hustling the suspect into the cottage and out of sight. [ 6 ] With respect to identification, she testified she interacted with the suspect standing as close as three feet apart. She estimated the interaction lasted between three and five minutes. In cross examination she said she was sure it was more than one minute. [ 7 ] The complainant further testified the suspect was “unwhite”; approximately 5’8” tall; early to mid-forties in age; with dark to black hair; and glassy, brown eyes.

She said his clothing was non-descript; he was roughly the same weight as herself; and his hair was shorter in court than on the day of the incident. She could not recall if he had sideburns. He may have had some growth but not a full beard. He

had no tattoos or distinguishing markings or characteristics. [ 8 ] The complainant confirmed she did not ask the suspect nor anyone else at the scene for their name. [ 9 ] The suspect was distinguishable from the Caucasian individuals by skin tone and age. The complainant said the person who identified himself as the suspect’s brother looked similar but different enough that she was able to distinguish them from one another. [ 10 ] There was a delay of forty to fifty minutes before RCMP arrived. While waiting for police, the complainant observed people other than the suspect coming and going from the cottage.

She said they had alcoholic beverage containers and appeared to be drinking. [ 11 ] The complainant did not have a view of all sides of the cottage and could not say for sure whether there was another door. There were trees. She said it was possible people were coming to the cottage from other areas. It appeared to her there was another cottage behind the one the suspect entered. [ 12 ] The complainant said the attending police officer knocked on the front door. She watched him conduct a breath test with the suspect then place him in handcuffs. She made these observations from 25 to 30 feet away.

When the officer walked the male past her in handcuffs she confirmed to the officer he had detained the correct person. [ 13 ] The attending RCMP officer was dispatched to the cottage to the report of a possible impaired driver. He spoke briefly with the complainant. He determined the accused to be the registered owner of the suspect vehicle.

Two young Caucasian males approached and he asked them who was driving the suspect vehicle and they said they did not know. [ 14 ] Understanding from the complainant that the suspect was not white and was older than the Caucasian males, he attended to the door of the cottage and asked a young Caucasian male where the driver of the suspect vehicle was. In cross examination he conceded it was possible he may have asked “whose car is that?” but he believed he would not have asked for the owner because he was looking for the driver.

He was advised the individual was sleeping. [ 15 ] Approximately two minutes later, the accused attended to the door and identified himself by name confirming he was the registered owner of the vehicle. The officer formed a suspicion the accused had been operating a vehicle while impaired and proceeded with his investigation, arresting the accused following a fail reading on the officer’s Approved Screening Device. [ 16 ] The officer did not identify any of the other individuals at the scene. He agreed that he could not see from the door how many other people or who else was inside the residence.

He confirmed he did not inquire whether there was anyone else in the residence matching the description articulated by the complainant. [ 17 ] There was an inconsistency between the evidence of the complainant and that of the police officer. The complainant says after the accused was arrested his brother attended outside and spoke to the police officer. The police officer did not mention any such interaction in his narrative. [ 18 ] Both crown witnesses identified the accused in court. Aside from the Court party, there was a Caucasian child and a Caucasian male in the gallery of the courtroom.

The accused was the only non-Caucasian person in the courtroom. [ 19 ] Both the complainant and the officer testified in a straightforward manner. They seemed to be credible witnesses doing their best to provide an accurate account of the event. Analysis [ 20 ] The inherent frailties of eyewitness and in-court identification of accused persons are well known and have been the subject of considerable analysis in courts across the country.

This is particularly so in respect of the risk of wrongful convictions flowing from seemingly decisive but, in fact, defective eyewitness identification. [ 21 ] The Court must be cautious about convicting an accused based on eyewitness identification and in-court identification evidence. The Court should be mindful that credible, persuasive, and well-intentioned eyewitnesses can be mistaken. It is important to assess the circumstances in which the identification occurred.

I am mindful in this case as well of the particular frailties inherent in cross-racial identification. [ 22 ] The complainant in this case testified in a credible and persuasive manner. She is subjectively confident in her identification of the accused as the driver. However, the circumstances in which she made her observations relevant to identification were not ideal. [ 23 ] Her interaction with the suspect was brief - more than one minute but not more than five.

For at least some of that time she was physically close to the suspect, however, her attention was divided between calling police and the interference of a number of aggressive males. [ 24 ] While most of the other individuals on scene were Caucasian there was at least one other non-Caucasian individual who identified himself as the accused’s brother and whom the complainant concedes was similar in appearance to the suspect. [ 25 ] There was a forty to fifty minute delay in police attendance during which time the complainant could not see the suspect.

There is a discrepancy in the evidence such that I am not able to say with certainty the complainant had the opportunity to see, compare, and contrast both the accused and his brother after the delay and close in time to the arrest. [ 26 ] There may have been people coming and going from the scene and the cottage. It is not apparent on the evidence who or how many people of what description may have been inside or coming and going from the cottage during the relevant time period.

People at the cottage were consuming alcohol such that it is possible more people on scene than just the accused were impaired by alcohol. [ 27 ] The officer is unable to say with certainty the words he used when asking for the suspect at the door of the residence. It is possible

the officer’s inquiry might have been interpreted as a request to speak with the registered owner of the vehicle. [ 28 ] The details of the identification evidence are also problematic. [ 29 ] The complainant testified she relied primarily on the face of the suspect to identify him. Her description of his face was vague. She did not identify a skin tone other than “unwhite”. She was unsure about the presence of facial hair other than to say he did not have a full beard. [ 30 ] There was another male present similar in appearance to the suspect.

The complainant said they looked “similar but different” and insisted she could distinguish between them. She provided no evidence detailing or contrasting their facial or other features, including clothing. [ 31 ] The in-court identification of the accused by the witnesses does not bolster the eyewitness identification evidence. The accused was conspicuous as the only non-Caucasian individual in the court room and by virtue of his position proximate to defence counsel. Conclusion [ 32 ] I commend the complainant for her actions in this matter.

She abandoned her personal plans out of concern for public safety and she persevered beyond the point many others would have given up. Her grit may very well have saved someone’s life that day. But for her doggedness, the likely impaired driver of that vehicle might have resumed driving dangerously in a highly populated family vacation destination. [ 33 ] While I suspect the complainant is correct in her identification of the accused as driver of the vehicle at the relevant time, the court must not enter a conviction unless the evidence rises to the rigorous standard of proof beyond a reasonable doubt.

Because it does not, I acquit the accused. “original signed by ACJ Hewitt-Michta” Associate Chief Judge S. Hewitt-Michta