



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Frimpong, 2013 ONCA
    243

DATE: 20130418

DOCKET: C53147

Doherty, MacPherson and Cronk JJ.A.

Her Majesty the Queen

Respondent

and

Kwaku Frimpong

Applicant (Appellant)

Frank Addario and Megan Savard, for the applicant (appellant)

Gillian Roberts, for the respondent

Heard:  April 8, 2013

On appeal from the convictions entered by a jury presided
    over by Justice Roydon Kealey of the Superior Court of Justice, dated November
    13, 2009.

By the Court:


I



[1]

The appellant was convicted of two counts of first degree murder.  He
    appeals his convictions on three grounds, all relating to the eyewitness
    evidence of Ziad Chammas.  The appellant submits that:

·

the trial judge should have excluded Chammas eyewitness
    testimony because its prejudicial effect outweighed its probative value;

·

the trial judge erred in excluding expert evidence offered by the
    defence to demonstrate certain frailties in Chammas eyewitness evidence;

·

the trial judges instructions on Chammas eyewitness evidence were
    inadequate.


II



[2]

The Crown alleged that the appellant and his very close friend, Phillip
    Salmon, went to a motel room under the pretense of selling drugs to Ziad Ahmad. 
    In fact, they planned to rob him.  They knew that Mr. Ahmad had a great deal of
    cash.  Mr. Ahmad and his friend, Ziad Chammas, were in the motel room.

[3]

Shortly after the appellant and Salmon arrived, Salmon attacked Ahmad. 
    The appellant stood near the doorway, pointing a gun at Mr. Ahmad and Mr.
    Chammas.  Salmon attempted to subdue Ahmad and a struggle ensued.  The
    appellant fired a single shot that passed through Mr. Ahmads head, killing him
    instantly, and into Mr. Salmons chest.  Salmon was badly hurt.  He ran from
    the room and the appellant followed.  Salmons body was found in a nearby
    parking lot.  The appellant fled the scene going over a fence and across a
    nearby construction site.  He surrendered to the police a few days later.

[4]

The Crowns case was based on the eyewitness evidence of Chammas and a
    body of circumstantial evidence that included cell phone records and evidence
    that the murder weapon and a related magazine were found along the flight path
    allegedly followed by the appellant after he left the motel room.

[5]

Identity was the only issue at trial.  It was acknowledged that whoever
    fired the fatal shot was guilty of two counts of first degree murder.

[6]

The appellant did not testify.  It was the defence position that the
    appellant was not the shooter.  The defence acknowledged that the appellant and
    Salmon were together much of the evening and in almost constant contact on the
    telephone when they were not together.  The defence also acknowledged that the
    appellant and Salmon had visited Ahmad and Chammas in the motel room about an
    hour to an hour and a half before the shooting.  Finally, the defence acknowledged
    that the appellant was in the immediate vicinity of the motel room when the
    murder occurred and that he fled the scene by climbing a fence and going
    through the construction site.

[7]

The defence maintained that although the appellant was with Salmon on
    his first visit to the motel room, someone else was with Salmon when he
    returned to the motel room at about 9:45 p.m. to commit the robbery.  According
    to the defence, that third person fired the fatal shot and fled the scene with
    the badly wounded Salmon.

[8]

The defence put considerable weight on the evidence of William Doughty
    who saw two people in the parking lot of the restaurant beside the motel shortly
    before 10:00 p.m.  One person, who turned out to be Mr. Salmon, was obviously
    badly injured.  The other person ran away, but not before Doughty was able to
    recognize him as a person Doughty had seen in the area earlier at around 6:30
    p.m.  Doughtys description of the person he saw was inconsistent with the
    appellants appearance.  Doughty was shown a photo line-up a few days later
    which included a photograph of the appellant.  Doughty did not make an identification.


III



chammas identification evidence

[9]

Chammas testified that he and his friend Ahmad were in the motel room on
    the evening of June 21
st
.  He was smoking marihuana and Ahmad was using
    cocaine.  Ahmad spoke to Salmon on his cell phone several times.

[10]

Salmon
    and a second person showed up at the motel room around 8:30 p.m.  The four men
    exchanged small talk.  Chammas identified the person with Salmon as the
    appellant.  He recalled speaking to the appellant about his ethnicity.  Chammas
    had not met the appellant previously.  He described the meeting as friendly and
    normal.

[11]

According
    to Chammas, Salmon and another man returned to the motel room at about 9:45 p.m. 
    Salmon entered and spoke to Ahmad.  The other man stood in the doorway.  Shortly
    after their arrival, Salmon physically attacked Ahmad.  The man in the door
    pulled out a handgun and pointed it at Chammas and Ahmad.  The gunman told Chammas
    to assist in restraining Ahmad.

[12]

The
    struggle between Salmon and Ahmad continued.  The man at the door fired the
    gun, killing Ahmad and seriously wounding Salmon.  Salmon immediately bolted
    for the door with the other man close behind.  Chammas called 911.

[13]

Chammas
    was shown a photo line-up by the investigating officer three days after the
    shooting.  Photo #8 was a mug shot of the appellant.  Chammas paused at photo
    #1 and photo #8.  He said he was not sure about photo #1 and that photo #8
    was similar to the shooter, except the person in the photograph had facial
    hair and bigger lips.  Chammas described the shooter as clean shaven.  The
    investigating officer reminded Chammas that things like hair and facial hair
    could change.

[14]

Chammas
    was shown a second photo line-up about five days later.  By that time, the
    appellant had been arrested.  The appellants mug shot from his arrest was
    included as photo #9 in the second photo line-up.  The appellant had facial
    hair in the mug shot.

[15]

Chammas
    looked at photo #9 for about 12 minutes.  He said:

He looks very much the same  guy, very, very, very much, he
    looks the same guy, but last week he had no hair, no beard, no moustache, but
    shape of face and the eyes and the nose it will show this is the one, Im not
    100 percent sure because this picture is different but  it is unbelievable.  I
    think that is him.  I think that is him; I think that is him.

[16]

After
    Chammas had seen all of the photographs, he said, referring to the photo of the
    appellant:  this is the one, this is the guy 100 percent.

[17]

There
    were several problems with Chammas evidence identifying the appellant
    beginning with the fact that he failed to make any identification in the first
    photo line-up and was shown a second line-up.  Chammas also insisted that the
    shooter was clean shaven.  There was evidence that the appellant always had
    facial hair.  However, by the end of the evidence, it was common ground that
    Chammas had correctly identified the appellant as one of the two men in the
    motel room at about 8:30 p.m.  The question for the jury was whether he was
    also correct in identifying the appellant as the person who returned to the
    motel room with Salmon about an hour and 15 minutes later.


IV



the admissibility of CHAMMas eyewitness evidence

[18]

A
    trial judge can exclude evidence offered by the Crown where the prejudicial
    effect of the evidence outweighs its probative value.  Evidence is prejudicial
    in the relevant sense if it threatens the fairness of the trial.  Evidence may
    be prejudicial if it cannot be adequately tested and challenged through
    cross-examination and the other means available in the adversarial process. 
    Evidence may also be prejudicial if there is a real risk that the jury will
    misuse the evidence (e.g. propensity evidence), or be unable to properly assess
    the evidence regardless of the trial judges instructions.  This latter form of
    prejudice must, however, overcome the strong presumption that jurors can and do
    follow the trial judges instructions.

[19]

Chammas
    eyewitness evidence could be fully tested by the defence.  The entirety of the
    identification process was fully documented and available to the defence.  Both
    photo line-ups were videotaped and the videotapes were before the jury.  All of
    the witnesses involved in the identification process testified and all of the
    officers had notes.  There was fertile ground for cross-examination and counsel
    worked that ground to full effect.  The alleged weaknesses in Chammas evidence
    were fully exposed for the jurys consideration.

[20]

There
    was also nothing peculiar or unique about Chammas evidence that would impair
    the jurys ability to fairly assess its credibility and reliability.  The
    assessment of identification evidence can be a difficult and, in some ways,
    counterintuitive process.  That is why special instructions are given to juries
    to assist in their assessment of identification evidence.  The potential
    problems with Chammas identification evidence, while numerous, were standard
    fare for identification evidence cases.  Juries, armed with the appropriate
    instructions, routinely assess that kind of evidence.

[21]

It
    follows from our finding of an absence of prejudice in the relevant sense, that
    Chammas identification evidence could not be excluded.  Absent prejudice, a
    trial judge cannot exclude evidence solely on the basis that the judge thinks
    that the evidence has little probative value.

[22]

The
    trial judge properly admitted Chammas identification evidence.


V



the admissibility of the experts evidence

[23]

The
    appellant has two submissions in respect of the experts evidence, one broad
    and one more narrow.  The broad submission asks this court to depart from its
    pronouncement in
R. v. McIntosh
(1997), 117 C.C.C. (3d) 385 and hold
    admissible expert evidence explaining in general the frailties and dangers
    inherent in eyewitness identification evidence.  This record offers no basis
    for any departure from
McIntosh
.  Dr. Lindsays [the defence expert] brief
    commentary on the abilities of jurors to properly assess identification
    evidence added nothing to the longstanding debate.  Judges, commentators and
    social scientists remain divided on whether expert evidence is necessary to
    assist a jury in assessing eyewitness identification.

[24]

In
    urging the court to move away from
McIntosh
, counsel submits that:

This court should now acknowledge that social science has
    eclipsed traditional judicial understanding about the value of eyewitness
    expert evidence.

[25]

With
    respect, nothing in this record would warrant any such acknowledgement.  The
    record suggests to us that the arguments for and against the admission of this
    kind of evidence are the same now as they were when
McIntosh
was
    decided.

[26]

The
    narrower basis upon which the appellant sought to introduce the experts
    evidence relates to the experts description of two phenomena which he called
    change blindness and unconscious transference.  Both phenomena were said to
    explain how Chammas might have erroneously but honestly thought that the same
    person came to the motel with Salmon both times.  In other words, the expert
    wanted to explain to the jury that Chammas having been introduced to the
    appellant with Salmon about an hour earlier might have mistakenly believed that
    the appellant was the person with Salmon when Salmon returned to the motel room
    for the second visit.

[27]

The
    trial judge ruled that the experts evidence did not meet the necessity
    criterion for the admissibility of expert evidence.  In his view, the jury
    would be able to properly assess the evidence using their own common sense,
    human experience, and the instructions provided by the trial judge.  The trial
    judge said:

Most of what he [the expert] would speak to can be conveyed in
    the final instructions.  Generally, the issues involve the age old problem we,
    as humans, have in accurately observing, remembering and recalling so as to be
    able to reliably identify people and describe events.

[28]

In
    determining whether the experts evidence was necessary, the trial judge was
    effectively weighing the benefits of admitting the evidence against the
    potential costs of that admission.  That process is entitled to deference in
    this court.  We would not interfere with the trial judges determination that
    the evidence was not necessary.


VI



the trial judges instructions

[29]

Counsel
    for the appellant made essentially three submissions as part of this ground of
    appeal:

·

the caution was inadequate;

·

the trial judge failed to give an adequate 
Hibbert

instruction cautioning against reliance
    upon the certainty of Chammas identification evidence; and

·

the trial judge failed to expressly identify the weaknesses in
    Chammas identification evidence and to relate those weaknesses to the position
    of the defence.

[30]

The
    instruction on eyewitness identification was detailed and comprehensive.  The
    trial judge began with the general caution about reliance on identification
    evidence.  In the course of that caution, he instructed the jury to be very
    cautious about relying on the eyewitness testimony.  He further indicated
    that:

All identification evidence suffers from an inherent frailty. 
    The fact is human observations and recollections are notoriously unreliable in
    this area.

[31]

A
    jury having heard the trial judges instructions, particularly after hearing
    defence counsels closing address, would have no doubt about the dangers
    inherent in identification evidence.  The caution was adequate.

[32]

The
    trial judge also instructed the jury that identification evidence could be
    erroneous even when coming from a witness who seemed confident about his or her
    identification.  The trial judge said:

Eyewitness testimony is an expression by a witness of his or
    her belief or impression.  It is quite possible for an honest, confident
    witness to make a mistake in identification.  Honest people do make mistakes. 
    An apparently convincing witness can be mistaken.

[33]

The
    above-quoted instruction was sufficient to alert the jury to the potential
    disconnect between the witness confidence in his or her identification and the
    reliability of that identification.  In
R. v. Hibbert
(2002), 163 C.C.C.
    (3d) 129 at 53, a case dealing with in-court identification, Arbour J. noted:

What will be required to displace the danger that the jury will
    give an eyewitness identification weight that it does not deserve will vary
    with the facts of individual cases.

[34]

The
    final and most formidable argument aimed at the trial judges instructions
    stresses the difference between identifying potential factors relevant to the
    jurys assessment of the reliability of eyewitness evidence and instructions
    that certain factors must inevitably detract from the reliability of that
    evidence.  Counsel submits that the trial judge may have done the former, but
    did not do the latter.

[35]

As
    we read the charge, the trial judge combined both approaches.  He outlined
    numerous factors relevant to the jurys assessment of the identification
    evidence and he also specifically identified various factors that would
    potentially undermine the reliability of that evidence.  After referring to the
    description provided by Chammas and the circumstances of his purported
    identification, the trial judge outlined some eight factors that could assist
    the jury in weighing that evidence.  Most of those factors clearly had a
    negative impact on the potential reliability of the evidence.  For example, the
    trial judge specifically referred to the fact that Chammas expected that the
    same two men would return to the motel room and that this expectation could
    well have affected the accuracy of his identification of the appellant as the
    shooter.

[36]

The
    trial judge also outlined the photo identification procedures in great detail
    and again referred to several factors which could only adversely affect the
    reliability of Chammas identification.

[37]

Lastly,
    and perhaps most importantly, the trial judge instructed the jury to consider
    Chammas evidence in the context of the rest of the evidence.  He outlined that
    evidence, including the substantial body of circumstantial evidence
    incriminating the appellant and Doughtys identification which clearly tended
    to exculpate the appellant.

[38]

Considering
    the instruction as a whole, we are satisfied both that the jury was properly
    alerted to the various weaknesses in Chammas evidence and that his evidence
    was properly placed in the context of the rest of the evidence.  The instructions
    adequately equipped the jury to assess Chammas evidence.


VII



conclusion

[39]

The appeal is dismissed.

RELEASED:  DD  APR 18 2013

Doherty J.A.

J.C. MacPherson J.A.

E.A. Cronk J.A.


