COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Arrieta,

 

2012 BCCA 402

Date: 20121011

Docket: CA038263

Between:

Regina

Respondent

And

Mark Anthony Arrieta (A Youth)

Appellant

 

Before:

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice Garson

On appeal from: Provincial Court of British Columbia, Youth Court, July 23, 2009
(R. v. M.A.A., 2009 BCPC 238, Victoria Docket 4481)

Counsel for the Appellant:

J. J. Blazina

Counsel for the (Crown) Respondent:

M. Mereigh

Place and Date of Hearing:

Victoria, British Columbia

September 20, 2012

Place and Date of Judgment:

Vancouver, British Columbia

October 11, 2012

 

Written Reasons by:

The Honourable Mr. Justice Lowry

Concurred in by:

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice Garson


 

Reasons for Judgment of the Honourable Mr. Justice Lowry:

[1]             The appellant was convicted before the Provincial Court of one count of second degree murder and two counts of attempted murder.  He shot three young men in rapid succession with a .38 calibre handgun, killing the first and wounding the second two.  He shot all three in the chest from a short distance.  He was 17 years of age at the time.  He did not testify at the trial.  The judge imposed an adult sentence. 

[2]             He appeals his convictions for attempted murder.  His sole ground is what is said to be the lack of competence of his trial counsel in failing to adduce evidence of his poor eyesight about which his trial counsel acknowledges the appellant had told him.  The evidence of an optometrist, put forward at the sentencing hearing but not obtained until after the trial, establishes the appellant’s eyesight is significantly impaired (20/200 and 20/150) by moderate myopia and astigmatism which cause images to blur.  He once wore glasses but had not done so for some years.

[3]             The appellant seeks a new trial.

The Convictions

[4]             The shootings took place outside a nightclub after midnight in July 2008.  Several people witnessed what happened.  The evidence was sufficiently consistent to enable the judge to make clear findings of fact, the material aspects of which can now be briefly stated.

[5]             Two men, Chanthabouala (who was the appellant’s boss in an illegal street drug business) and Le, engaged in a verbal altercation inside the club that continued outside.  Both were in the company of others.  Before long, the appellant and two other men arrived in a taxi.  Although it was warm, the appellant was wearing a hooded sweatshirt and gloves.  He had a loaded handgun in his pocket.  He was directed by Chanthabouala to shoot Le.  Le was standing close to two of his companions, Truong to his left and Lepard to his right.  The appellant drew the handgun from his pocket, raised it to shoulder height, and pointed it with his arm extended directly at Le.  Truong said something and made some movement either forward or to his side.  The appellant stepped back and then shot Truong in the chest five to ten feet away.  Truong fell dead.  Without lowering the gun, the appellant proceeded to shoot Le in the chest and then Lepard.  They were ten to twenty feet from him.  Lepard had turned away such that he was struck in the arm before the bullet entered his chest.  Chanthabouala and the appellant then fled the scene.

[6]             At trial, charged with first degree murder and attempted murder, the appellant accepted he was guilty of second degree murder subject to raising a defence of provocation.  The judge concluded premeditation had not been proven beyond a reasonable doubt.  The appellant’s position was and remains he had no intention to kill anyone.  By virtue of s. 229 (a)(ii) of the Criminal Code, a conviction for murder does not require proof of intention to kill but only the intention to cause bodily harm with the knowledge it is likely to cause death, and recklessness whether death ensues.  Attempted murder, however, requires proof of the intent to kill.

[7]             The judge began his analysis of the Crown’s case of attempted murder with the recognition that it is difficult to prove.  He then reviewed what is required in law to establish the requisite intent:

[115]  The law generally allows a trier of fact to infer, however, that sane and sober persons intend the natural and probable consequences of their actions.  Thus, if a person acts in such a way as to produce predictable consequences it may generally be inferred that he intended those consequences. R. v. Seymour, [1996] 2 S.C.R. 252, at paragraph 19.

[116]  Applying that principle to the use of handguns, it may ordinarily be inferred that a person who fires such a weapon from close range at a vital portion of the body of another person intended to kill that person.  Thus, in R. v. Bains, [1985] O.J. No. 41 (CA); leave to appeal to SCC refused, [1985] 1 S.C.R. v., Cory, JA (as he then was) said at page 5:

All firearms are designed to kill.  A handgun is a particularly insidious and lethal weapon.  It is easy to carry and conceal, yet at close range, it is every bit as deadly as a .50 calibre machine gun.  It follows that when, at close range, a handgun is pointed at a vital portion of the body of the victim and fired, then in the absence of any explanation the only rational inference that can be drawn is that the gun was fired with the intention of killing the victim.  No other reasonable conclusion can be reached: a deadly weapon was used in the very manner for which it was designed – to cause death.  It is appropriate to conclude that in these circumstances the gun was fired in order that it might fulfill its design function and kill.  An element of surprise arises only if death does not occur.

[117]  Those words have obvious application to the present case.  Estimates of distance show that the Defendant was perhaps 10 to 20 feet away from Thuan Le when he fired a .38 calibre revolver at him.  He was much the same distance away from Robin Lepard.  He was only about half that distance away from Phil Truong.

[118]  The first victim, Phil Truong, slumped to the ground grasping at his chest immediately upon being hit.  Yet the Defendant fired again.  His second shot caused Thuan Le to fall back against the booth of the parkade, also grasping at his chest.  Yet still the Defendant kept firing, striking Robin Lepard in the arm and upper body.  The sequence itself at least tends to suggest that the Defendant’s intent was nothing less than the specific intent to kill the victims.

[8]             The judge then stated the evidence supported a finding the appellant acted “methodically and deliberately” in shooting each of his victims:

[123]  The overwhelming weight of the evidence is to the effect that once the Defendant drew his revolver he extended his arm and pointed the gun directly at Thuan Le’s chest.  Thereafter the height of the gun never wavered.

[124]  I do accept that Phil Truong said something to the Defendant while the gun was in sight and I accept that it is likely that Mr. Truong made some movement, either sideways or forwards, immediately before the shooting which caused the Defendant to take a step or two backwards.  Acceptance of that evidence does not, however, lead to the conclusion, or even the reasonable possibility that the Defendant lost his composure or his focus on the task at hand.

[125]  On the contrary, the evidence is virtually consistent that the Defendant did not waver, but instead proceeded to direct his weapon methodically and deliberately toward each of the victims individually before firing. 

[9]             He then reviewed the testimony of several of the witnesses before concluding:

[139]  In the end result, my review of all of the evidence I have concluded that the Defendant deliberately moved the direction of the gun from victim to victim as he stood only a few feet away from them on View Street.  I do not know why he decided to shoot all three of the victims when it would appear that Mr. Chant[h]abouala was demanding only that he shoot Thuan Le, but I have no hesitation in finding that he did make that choice.  It must be remembered that the Crown is not required to prove motive, only intent.

[140]  I appreciate that there were factors pressing the Defendant to make decisions quickly and to act upon those decisions.  In the circumstances, it is likely that the formation of the intention to shoot to kill was not long in the making.  The length of time is not the crucial factor, however.  The essential issue is whether the Defendant made a deliberate, considered choice to kill each of the victims Thuan Le and Robin Lepard before he fired the handgun.  I find that he did so.  They nearly died.  That is because he intended them to do so.

The Appeal

[10]         The appellant contends his counsel’s failure to adduce evidence of his poor eyesight rendered the conduct of his defence below the standard to be expected and, because the evidence was not adduced, he suffered prejudice resulting in a miscarriage of justice mandating a new trial.  In the main, the appellant relies on R. v. Dunbar, 2003 BCCA 667, 191 B.C.A.C. 223, and R. v. Joanisse (1995), 102 C.C.C. (3d) 35, 44 C.R. (4th) 364 (Ont. C.A.), as the authority for the relief he seeks. 

[11]         The appellant maintains the nature of the evidence concerning his eyesight is such that it is clear the competence of his counsel was substandard.  He says the only real issue on the appeal is whether there is a possibility that the convictions for attempted murder could have been different if the evidence had been tendered at trial.  He says there can be no doubt the evidence could have affected the judge’s finding that he intended to kill Le and Lepard.

[12]         I am unable to accept the appellant’s contention the convictions for attempted murder could have been different.  The state of his vision cannot be said to have had anything to do with the clear manifestation of his intention.  His vision was not so impaired that without glasses he could not function.  He pointed and fired a loaded handgun at the chests of three men in turn in what the judge found on the testimony of the witnesses was methodical and deliberate.  It could not be suggested that, because of his eyesight, he did not appreciate that is what he was doing three times over in rapid succession.  He must, in the absence of evidence to the contrary, be presumed to have intended the natural consequences of his actions.  The chest cavity is the center of a person’s vital organs.  The natural consequence of firing a gun into the chest of a person standing a few feet away is that the person will die.  That is what the appellant did and his intention must be clear regardless of the strength of his vision. 

[13]         The appellant does suggest the evidence of his poor eyesight may have affected the judge’s interpretation of some of the testimony adduced, but I find him to be less than specific in articulating what testimony may have been interpreted differently or how a different interpretation of any of it could have altered the judge’s reasoning or conclusion, as quoted, concerning the appellant’s intent when he fired into the chests of Le and Lepard as he did.  I do not consider the evidence of the strength of his eyesight could have in any way affected the judge’s findings of fact or his conclusion that the appellant intended to kill Le and Lepard. 

[14]         I do not consider the appellant has shown that he was in any way prejudiced by the absence of evidence of the strength of his eyesight, and it then becomes unnecessary to consider whether the competence of his counsel in conducting the appellant’s defence was in any way below the standard to be expected.  

[15]         In my view, the appeal cannot succeed. 

Disposition

[16]         I would dismiss the appeal.

“The Honourable Mr. Justice Lowry”

I agree:

“The Honourable Mr. Justice Chiasson”

I agree:

“The Honourable Madam Justice Garson”