R. v. Heickert, 2014 MBCA 81

Citation: R. v. Heickert, (S.M.) et al., 2014 MBCA 81 Date: 20140905 Docket: AR 13-30-07972 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Alan D. MacInnes Madam Justice Diana M. Cameron BETWEEN: HER MAJESTY THE QUEEN ) A. L. Sansregret and ) L. J. Anderson Respondent ) for the Appellant ) - and - ) N. M.

Cutler ) for the RespondentSEAN MICHAEL HEICKERT ) ) Appeal heard and (Accused) Appellant ) Decision pronounced: ) September 5, 2014 HAMILTON J.A. (for the Court): [1] The accused appeals his first degree murder conviction by judge alone for the murder of Bekim Zeneli on December7, 2007, in Thompson, Manitoba. The accused and the victim were rival drug dealers in Thompson at that time. [2] The accused has many grounds of appeal.

His overarching assertion is that the trial judge failed to properly weigh theevidence given its circumstantial nature, particularly with respect to her findings and inferences about what occurred the night of themurder, and when, including the time of death. [3] More specifically, he argues, among other things, that the trial judge erred by admitting his jacket and shoes seized atthe time of his arrest because his arrest was unlawful; by accepting the evidence of certain unsavoury witnesses; by finding that theforensic evidence with respect to gunshot residue found on the accused’s jacket and glass fragments in his shoes were of any evidentiaryvalue; by improperly relying on hearsay evidence for the truth of its contents; and by improperly linking the accused to the type of gunthat killed the victim. [4] We agree with the trial judge’s written reasons that the police had both subjective and objective reasonable grounds toarrest the accused.

The decision the next day by the police to release the accused, because they concluded that they did not havegrounds to lay a charge, does not mean that they did not have reasonable and probable grounds to arrest, as argued by the accused. Because the arrest was lawful, so too was the seizure of the accused’s jacket and shoes, as counsel for the accused fairly acknowledgedwould be the case if the arrest was lawful. [5] The trial judge found that the gunshot residue and glass-fragment evidence was of “low evidentiary value” (at para.37), which she was entitled to do.

She was not required to find that it had no evidentiary value, as argued by the accused. She was alsoentitled to find that the accused had access to a gun similar to that used to murder the victim. [6] With respect to the unsavoury witnesses, the trial judge cautioned herself appropriately under Vetrovec v. The Queen, (SCC), [1982] 1 S.C.R. 811. She understood the importance of looking for confirmatory evidence. Her detailed reasonsdemonstrate that she carefully reviewed the evidence and explained why she believed the witnesses when she did.

She was entitled tobelieve the evidence of Bobby Dhand, who testified that the accused admitted killing the victim and stated that he got paid for it. Thefindings of fact that she made and the inferences that she drew with respect to time of death were available to her on the evidence. [7] We agree with the accused that the trial judge erred when she considered the hearsay evidence about a $3,000 drugdebt owed to the victim by the accused, which she considered as a motive for the killing.

However, we are of the view that this error isof no moment, given the evidence before her of the rivalry and the animosity between the two that the trial judge detailed in her reasons. [8] In the end, on the totality of the evidence that she accepted, she was satisfied that the Crown had proven the guilt ofthe accused beyond a reasonable doubt on the charge of first degree murder. She explained that “this is a case where the evidence pointsconclusively to [the accused] as the perpetrator of the crime and excludes any reasonable hypothesis of innocence” (at para. 50).

[ 9 ] The accused has not persuaded us that the trial judge made any error that would permit appellate intervention and we dismiss his appeal. J.A. J.A. J.A.