Jorrell Simpson-Rowe, 21, was convicted of murder in the death of Jane Credba. His lawyer will argue the jury was clouded with emotion surrounding the case.CTV
The role of one of the main participants in the shootout that claimed the life of Jane Creba was repeatedly played down by the Crown Tuesday as it tried to uphold the murder conviction of another man in the case, Jorrell Simpson-Rowe.
"You can exclude Louis Woodcock as a shooter," Crown attorney Lucy Cecchetto told a three-judge panel of the Ontario Court of Appeal.
Mr. Woodcock was convicted of manslaughter by a jury last year in a separate trial and accused of either firing a 9mm semi automatic handgun used in the Boxing Day 2005 shootout, or transferring it to Mr. Simpson-Rowe to fire.
The Crown's declaration that he didn't shoot a gun during Mr. Simpson-Rowe's appeal hearing was unexpected: Mr. Woodcock is also appealing his conviction, which is likely to be heard next year.
Mr. Simpson-Rowe is seeking to overturn his December 2008 second-degree murder conviction in Jane Creba's death by a jury, arguing that it was an "unreasonable verdict" based on emotion, rather than the evidence.
The now 23-year-old was found with a 9mm handgun when he was arrested less than 30 minutes after the shootout. He told police he was handed the weapon and told to dispose of it by Mr. Woodcock immediately after the gun battle ended. DNA evidence from the slide and the grip of the handgun matched that of Mr. Woodcock.
Neither defendant was accused of killing Ms. Creba directly, but of being responsible for her death by firing at Jeremiah Valentine, during the confrontation between two groups of young men outside a Foot Locker store. (Mr. Valentine fired a .357 Magnum that "very likely" was the source of the fatal shot. He pleaded guilty last year to second-degree murder.)
Several times during her arguments Tuesday, Ms. Cecchetto said there is no eyewitness evidence that Mr. Woodcock did more than transfer his gun at some point. Instead, the testimony implicates Mr. Simpson-Rowe as the 9mm shooter, she said.
The Court of Appeal panel appeared unconvinced as Ms. Cecchetto recounted the evidence of David Tarnowski, a civilian who was in a car a few metres from where the shootout took place. He described seeing a silver gun, fired by someone who was between five and six-feet tall and either white or black.
"That is very generic stuff," noted Justice Robert Armstrong.
"If you're going to nail someone for murder, you've got to have evidence beyond a reasonable doubt," he said.
The Crown attorney responded that "in a normal identification case, this would not be sufficient," for a conviction. However, by using the evidence of Mr. Tarnowski to exclude other suspects, it is more likely Mr. Simpson-Rowe was the 9mm shooter, she said.
Another argument for the appeal alleges that Ontario Deputy Attorney-General Murray Segal improperly invoked a rarely used power under the Youth Criminal Justice Act to order Mr. Simpson-Rowe to be tried by a jury instead of judge alone. No reasons were given for the decision.
"Why couldn't he give some reasons," asked Justice Armstrong.
"To require that he gives reasons, would mean they are subject to review by the Court," replied Ms. Cecchetto. "He is not required to give reasons."
The Court of Appeal reserved its decision, which is not expected to be released for several weeks.