Lawyers for two men convicted of first-degree murder in Justin David Breau's 2022 killing argued that statements made by an eyewitness out of court shouldn't have counted in their trial.
Donald Robert Walker, 53, and Charles William Shatford, 50, made their case to the New Brunswick Court of Appeal in Fredericton Thursday. The men are applying to have their 2023 convictions for first-degree murder overturned after a jury found them guilty in the Aug. 17, 2022 death of Justin David Breau.
Four other people pleaded guilty to lesser charges in Breau's death, including Evan Louis Tobias, 31, who was sentenced to nine years for manslaughter after admitting to stabbing Breau in the leg.
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During a trial which ran from Sept. 16 to Oct. 7, 2024, lawyers for the Crown argued Walker and Shatford were part of a group of people who gathered at Walker's Celebration Street residence, and then drove to Breau's neighbourhood, entered his Charles Street apartment, and stabbed him to death, leaving 13 wounds on his legs, back and chest.
The Crown argued Walker was in a conflict with Breau over his girlfriend, Megan Ross, and that both men wanted revenge for the death of Shatford's brother, Mark Shatford, after Breau had been acquitted of second-degree murder two years earlier after claiming self-defence.
Ross, 28, testified "there was a knock on the door, three guys bust in that were masked, and stabbed him to death." She said Breau hadn't said anything before being stabbed and said she couldn't describe the men who attacked him.
Court heard that Ross called 911 at 3:57 p.m., made a statement to police and went to the hospital, where she met Breau's mother Susanne Breau in a hospital waiting room. A police officer, Const. Duane Squires, testified he saw Susanne Breau start "almost yelling, 'Did you see who did it?'" and that Ross replied "Donnie Walker."
At trial, Ross said she didn't remember making the statement when asked about it, didn't remember speaking with police that day, and, on cross-examination, changed her testimony to say she didn't remember the details of the attack at all.
Justice Darrell Stephenson ruled during the trial that the jury would be allowed to hear the complete 911 call and view Ross's recorded statement to police, in which she gave a clearer account of the attack, with physical descriptions. He also allowed testimony from Squires and another person present in the hospital room.
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In the Court of Appeal on Thursday, Walker's lawyer Ben Reentovich argued, among other things, that both decisions were errors, serious enough on their own to merit a new trial.
Hearsay evidence is allowed only when it's proven to be necessary and reliable, and Reentovich said the 911 call and the statements were the same facts as in Ross' initial testimony.
The fact that the statements appeared to corroborate Ross' testimony made it "difficult to make other arguments," such as that there had been a verbal confrontation between the men, as Shatford had told police, or that Breau had attacked first, Reentovich said.
Stephenson had found that other evidence supported Walker being in the apartment. But Reentovich said the judge instead should have asked whether Ross could have known it was Walker. Reentovich said if she hadn't heard or seen him, than she would be working on speculation or something she might have heard.
Reentovich said that in the 911 call and police statement, she says she doesn't know who the men are.
"If that's an inherently reliable statement, how does the hospital utterance become inherently reliable? The two don't mix," Reentovich asked.
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"I was going to say, it's kind of bizarre that you would allow (both) ... There's a real contradiction," Chief Justice Marc Richard answered.
Walker's lawyer conceded there was a "strong case" against his client, and said that Ross's testimony would have been the difference between first-degree murder and second-degree murder.
Richard noted there was more evidence towards first-degree murder than just Ross, and Crown prosecutor Joanne Park said there was "voluminous" evidence, including Breau's 13 knife wounds and the surveillance evidence and phone records.
She said that introducing the 911 and police statements was necessary because Ross became non-responsive on the stand. When asked about whether it creates a fairness issue through repetition, Park said it was necessary to trust the jurors.
Charles Bryant, who had also been Shatford's trial lawyer, said it's not questionable that Shatford was found guilty, but said that a "properly instructed" jury could have found him guilty of manslaughter instead of murder.
Shatford changed his story multiple times, eventually claiming that he fell during a confrontation with Breau in his apartment, and that when he recovered he saw Breau on top of Walker, and that he stabbed Breau in defence of Walker.
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The jury was advised to decide whether Shatford was acting in self-defence separately from the test for whether he and Walker had intent to kill. Bryant argued, among other things, that the judge failed to connect the two in his jury instructions.
Park argued that lawyers had "extensive" opportunities to review the jury instructions, and argued that the judge "generously" summarized Shatfords's self-defence arguments, which she called a "very incredible story" that changed constantly.
She said that if the jury rejected the self-defence argument, there "wasn't much left to tell" regarding intent.
Richard thanked both lawyers and said the court would release its decision at a later time.
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