Bosma Murder Trial - Weekend Discussion #14

[palisadesk]

because being involved in a robbery that end in a death is murder.

In Canadian law, that is not so. It's true in the states, but not here. The wording of the legislation is somewhat confusing, but it boils down to whether the person committing the robbery did something that he knew, or ought to have known, might result in someone's death.

See here:
http://laws-lois.justice.gc.ca/eng/acts/C-46/section-229.html

The relevant part, subsection c, reads "(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being."

If a juror believed that MS did not know DM had a gun, did not consider that anything they were doing was going to lead to a death, even by accident (for example, if the plan was supposed to be to take the truck and push out the owner in a remote spot, but leave him unharmed), that scenario would not constitute murder, whether first or second degree. Not for MS (in that scenario), but it would still IMO be a case for manslaughter.

In DM's case, since he obviously knew he had a loaded gun on his person on this "mission," it would be very difficult to maintain that he didn't know there was potential to cause the death of a person during the commission of his "unlawful object." However, it's conceivable that a juror or other observer of the case could conclude that MS did not foresee any such eventuality, did not have any knowledge of a planned homicide or the possession of a gun on the occasion by DM.

The judge will lay out all the possibilities for the jury in his charge; these would include murder 1, murder 2 and manslaughter, as well as acquittal; there are probably others. It would not surprise me if the jury ends up divided on the verdict for MS and compromises with second degree. I don't foresee anything less but it's possible of course.

 

[hellkat2]

.

Thinking out loud some more ....

I think DM and his lawyers were caught by surprise when MS took the stand and told his version of events. I think the judge and the court and all of us were also surprised.

And the first day was like they just got rolling , and everybody was looking forward to day 2 testimony which to everybodies surprise was cut short and ended in a whimper

Makes me wonder if DM and Lawyers threatened (wrong word) to put DM on the stand and absolutely prove MS was not telling the true story.

There has to be a reason MS and Dungey decided to cease and desist. Now that the battle is on , I secretly hope DM can and will take the stand

Can DM be put on the stand? I thought he missed the opportunity to do so?

 

[NoodlesMcgee]

Does 230 over-ride that?

Murder in commission of offences

230 Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high treason or treason or an offence mentioned in section 52 (sabotage), 75 (piratical acts), 76 (hijacking an aircraft), 144 or subsection 145(1) or sections 146 to 148 (escape or rescue from prison or lawful custody), section 270 (assaulting a peace officer), section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), 273 (aggravated sexual assault), 279 (kidnapping and forcible confinement), 279.1 (hostage taking), 343 (robbery), 348 (breaking and entering) or 433 or 434 (arson), whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if

• (a) he means to cause bodily harm for the purpose of
  • (i) facilitating the commission of the offence, or
  • (ii) facilitating his flight after committing or attempting to commit the offence,
  and the death ensues from the bodily harm;
• (b) he administers a stupefying or overpowering thing for a purpose mentioned in paragraph (a), and the death ensues therefrom; or
• (c) he wilfully stops, by any means, the breath of a human being for a purpose mentioned in paragraph (a), and the death ensues therefrom.

 

[hellkat2]

I think AJ and SS now have a severely damaged friendship/relationship because of differences in loyalty to DM and because of many LIES (see AM/MH).

When that man's grandchildren grow up they will know their grandfather told the truth. And the truth is never wrong.

 

[Sillybilly]

Smich is saying that the toolbox contained DRUGS and the gun. Is this a reporting mistake? If not, what kind of drugs were in the toolbox?

http://www.cbc.ca/news/canada/hamilton/news/tim-bosma-mark-smich-testifies-1.3581032

IMO, could be reporter error. It isn't a direct quote that says "... former roommate, handed him the toolbox" when it was not "handed", it was placed in the stairwell without MS present.

I therefore question the reporter's statement wrt "drugs and a gun".

Not real sure about the direct quote where MS said "bringing me a bag of weed" (could indicate bringing to him personally, or bringing it to the pre-arranged drop-off in the stairwell). IIRC, testimony has consistently indicated it was not brought to MS directly.

 

[hellkat2]

Wasn't this testimony earlier on that each owned a gun? DM got the gun MS wanted, and MS got a different gun instead? Where is the second gun, which I'm presuming is MS's gun? Or did MS bury his gun and DM's is still out there? Or yes... Are both guns buried?

YES YES YES. Finally. I feel validated now. Thanks for your post. This is what I understood as well from the information I have read.

 

[Myvice]

Good point, SnooperDuper! I remained clueless about the possible significance until recently, so don't feel bad, you caught on while still on that same page that day!

Maybe it wasn't made much of at trial and if it appeared to have gone over the heads or fly under the radar of the jury, that could explain why TD didn't bring it back up to MS on the stand, and perhaps he is hoping that the Crown won't ask MS to explain, IMO. I doubt very much DM's defence team will touch the issue, IMO.

All MOO.

Just kind of jumping off your post because I'm so far behind but it seemed to me that maybe Smirch was trying to gloss over this when he stated that when DM would leave town he would leave town he would leave them some money and let them use the grill. I don't know how to post links but it was early in his first day or testimony. I may be reading in to that because I was waiting for him to address that issue so take this comment with a grain of salt and obviously JMO.

 

[Deleted member 102539]

On Igor's test drive MS seemed in a normal condition because if he had had an intensive alcohol smell then Igor would have mentioned it.
Next day MS seemed ill - sick - hungover and had to vomit. So after the first test drive (maybe unsuccessful in stealing although it was planned?) it appears MS had several bottles of alcohol, possibly much more than his usual dose. Why, I wonder. Because the real and final robbery incl. kidnapping and murder and incineration would have taken place the next day and he knew about? Did he fear the D-Day when the robbery would end with killing?

 

[palisadesk]

.

I secretly hope DM can and will take the stand

If DM insists, his lawyers can't stop him. They will certainly however be advising him under no circumstances to do it.

Why not? Because any testimony he offers will only damage his case even further (assuming such is possible!).

He has no credibility whatever. Consider what the jury knows so far:

- his behaviour in court, the smirking, waving, laughing and acting like he's a hero of some kind, can not have made a positive impression

- testimony from multiple witnesses has laid bare his habit of prevarication, manipulation, self-serving lies and promises, grandiose ideas (read:disconnect from reality), attempts to manipulate witnesses into changing their testimony, plans to frame MS, and more that I probably missed

- his taking an oath to "tell the truth" would mean absolutely nothing, as any observant follower of the case has probably realized by now that he has no concept of "truth," everything simply about Dell.

His lawyers can't stop him from taking the stand, but they can try to limit damage by choosing their questions to him very carefully and leaving as little as possible room for him to expose his fantasies. But his "story," whatever it turned out to be, would contribute nothing whatever to our knowledge of the true events of that terrible night.

I remember how confident Paradkar was at the outset, after DM's arrest. Anyone else remember that? He was probably high on the flights of fancy DM spilled forth. Once he had disclosure, we heard no more about how everyone would be surprised by the "real story" of this misunderstood young man. DM's legal team have been pretty subdued. They know he's a liar, too. They are doing what they can to make sure only valid evidence is presented, but they can't do a lot more than that.

 

[Myvice]

.

Nighttime , dark , outdoors .... Mark can remember seeing DM put a gun in his satchel

Nighttime , dark , outdoors .... Mark cannot remember where he biked to bury the gun

This really bothered me too. We know how dark it was out there and I can't believe there would be enough light to distinguish what DM was putting in the satchel. Why would MS's mind go straight to a gun rather than a phone or something else?

 

[hellkat2]

If DM insists, his lawyers can't stop him. They will certainly however be advising him under no circumstances to do it.

Why not? Because any testimony he offers will only damage his case even further (assuming such is possible!).

He has no credibility whatever. Consider what the jury knows so far:

- his behaviour in court, the smirking, waving, laughing and acting like he's a hero of some kind, can not have made a positive impression

- testimony from multiple witnesses has laid bare his habit of prevarication, manipulation, self-serving lies and promises, grandiose ideas (read:disconnect from reality), attempts to manipulate witnesses into changing their testimony, plans to frame MS, and more that I probably missed

- his taking an oath to "tell the truth" would mean absolutely nothing, as any observant follower of the case has probably realized by now that he has no concept of "truth," everything simply about Dell.

His lawyers can't stop him from taking the stand, but they can try to limit damage by choosing their questions to him very carefully and leaving as little as possible room for him to expose his fantasies. But his "story," whatever it turned out to be, would contribute nothing whatever to our knowledge of the true events of that terrible night.

I remember how confident Paradkar was at the outset, after DM's arrest. Anyone else remember that? He was probably high on the flights of fancy DM spilled forth. Once he had disclosure, we heard no more about how everyone would be surprised by the "real story" of this misunderstood young man. DM's legal team have been pretty subdued. They know he's a liar, too. They are doing what they can to make sure only valid evidence is presented, but they can't do a lot more than that.

It has been stated several times by posters that they are of the understanding that DM only had one chance to take the stand and he declined it and does not get to change his mind. I have tried to research this but am coming up with nothing that backs this claim by some of the posters here. Lots of American law but not much Canadian. I feel that it would make sense that someone can choose to testify at any point in their trial. But...who am i?

 

[Sillybilly]

The judge will lay out all the possibilities for the jury in his charge; these would include murder 1, murder 2 and manslaughter, as well as acquittal; there are probably others. It would not surprise me if the jury ends up divided on the verdict for MS and compromises with second degree. I don't foresee anything less but it's possible of course.

<rsbm>

At this point (without benefit of cross-examination and based on what they currently know) I could see a jury having reasonable doubt on both FC and murder (whether 1st, 2nd or manslaughter). Given that MS was apparently driving the Yukon during a significant portion of the timeframe during which TB could have been forcibly confined and murdered, combined with reasonable doubt MS was involved in the planning, I think there's a good chance MS could be acquitted OR found to be AATF (if the judge includes AATF in his instruction re lesser charge).

JMO

 

[palisadesk]

Does 230 over-ride that?

As I understand it, 230 expands on it. But if MS's story is more or less accepted, it doesn't change anything because of the lack of intent to cause harm, or of any action likely to lead to the death of a person (if one takes MS's account as factually correct).

In that scenario, MS did not know of a plan to cause bodily harm in the pursuit of the robbery, did not know of DM's carrying a loaded gun, was not present when the shooting occurred and did not know about it until an undetermined length of time later.

If those basics are accepted as true, then MS is not guilty of murder, though manslaughter and AATF are both likely charges.

In the USA, by contrast, any death that occurs during the commission of a felony is first degree murder - I think that even extends to heart attacks etc. but would need to check; it does include accidental deaths, such as the victim of a robbery falling and fatally injuring himself.

 

[Claroon]

As I understand it, 230 expands on it. But if MS's story is more or less accepted, it doesn't change anything because of the lack of intent to cause harm, or of any action likely to lead to the death of a person (if one takes MS's account as factually correct).

In that scenario, MS did not know of a plan to cause bodily harm in the pursuit of the robbery, did not know of DM's carrying a loaded gun, was not present when the shooting occurred and did not know about it until an undetermined length of time later.

If those basics are accepted as true, then MS is not guilty of murder, though manslaughter and AATF are both likely charges.



In the USA, by contrast, any death that occurs during the commission of a felony is first degree murder - I think that even extends to heart attacks etc. but would need to check; it does include accidental deaths, such as the victim of a robbery falling and fatally injuring himself.

On the American TV show Women in Prison (or something like that), one woman says she was forced by her abusive boyfriend to take him with a shovel to meet up with his accomplice to bury the woman they killed. She says she was in the car the entire time and only delivered the killer and watched him do the burying, and she still got a life sentence. Another woman there watched as her abusive boyfriend led her mom out of her house at gunpoint where he shot her in the field. She also got life.

 

[palisadesk]

It has been stated several times by posters that they are of the understanding that DM only had one chance to take the stand and he declined it and does not get to change his mind. I have tried to research this but am coming up with nothing that backs this claim by some of the posters here.

I have not researched it, but I think the confusion is stemming from the fact that the two are being tried together, but they are not being represented together (in fact, the two accused are basically antagonists here).

It's certainly true that in a regular trial, once the Crown concludes its presentation of evidence, if the defense then declines to call witnesses, they don't get to come back a few days later and say, Gee, we changed our mind. If the defense doesn't call evidence, the trial then moves to the next phase.

But in this trial, there are two accused.One argument that I've heard is that, if the co-accused presented new evidence, the other co-accused has a right to respond to that evidence with evidence (or witnesses) of his own.Now, we haven't heard whether DM's team in fact wants to do this, it's all speculation. However, I think it quite possible that IF DM's team wants to now call evidence to refute MS's testimony, they can make an application to do so, and the judge will rule on it in a voir dire.

I'm sure we'll find out next week what the story is. As I said elsewhere, I doubt DM's lawyers want him on the stand.

I haven't researched this particular issue, but I have followed a couple of high-profile trials in detail (Truscott, Morin, the Charles Smith victims) in great detail, reading all the trial transcripts etc., and remember some very anomalous requests being made to the court, (which were then discussed in voir dire and ruled upon by the presiding judge) so I don't see why, if there were a compelling legal reason to do it, a similar irregularity couldn't be allowed in this case.

 

[Claroon]

So thinking about DM's lawyers cross... what can they do?

They obviously will point out that MS was a criminal prior to meeting DM (not sure if they'll be able to mention that DM had no record). I assume they'll lay out some alternative sequence of events that shows MS shot TB unexpectedly that MS will deny just to get it out there. They can't really talk to any of the previous contact between the two since it would incriminate both.

Alternatively I suppose DM could just accept his goose is cooked and decide to take down MS with him.


Also not sure that even if the jury believes MS's story that he can get any less than second degree. I guess it would depend on if 'scoping' is considered part of a robbery, because being involved in a robbery that end in a death is murder.

Other times the judge has told the jury that a person's past offences or character aren't to be taken into consideration (a stupid rule if you ask me). What is more damning for MS is what is allowed to be considered which is he actions and participation after the event. At any time after the "event" he could have walked away and stopped his involvement. He went all the way 1.5 hr drive to burn things and clean things up, etc. No amount of duress from DM should have made him do that if he was innocent. A key question is what he would have done if DM was rotting in jail and he was never caught or if neither of them were caught. Likely he would have continued his association with DM and things would have escalated. IMO

The judge defined beyond a reasonable doubt to mean enough facts point toward guilt.

 

[brightii]

So any thoughts on what DM might do differently in the LB trial? I'm thinking he might want to get a lawyer rather than defending himself and....perhaps he will have to seriously consider testifying and presenting evidence so that MS doesn't throw him under the bus again. I think the fact that MS chose to testify has really taken DM by surprise. MOO

I think the fact that many of DM's friends testified against DM shocked him, as I think DM was convinced that they all idolized him and he absolutely expected that their loyalty to him should trump any consideration for themselves and the predicaments he got them into. Even AM, who I think reluctantly testified against DM, who was initially charged with first degree murder, even before DM was so charged, and yet in DM's letters his only concern was for himself, expecting that AM should lie and recant his statement about the planned truck theft. So, yes, DM I believe was shocked that MS too decided to testify, and that shows me how out of touch with reality DM is because he has sat beside MS for the past few months at trial and from all reports there is no more friendship between them, and MS is also facing life in prison, and still I believe DM expected that MS should sacrifice himself to save DM! Only DM matters in his own twisted mind.

I can't wait until LB's trial when I believe we will have so many now missing puzzle pieces neatly put into place. At that trial, if DM defends himself without benefit of legal counsel, and if MS retains TD for the LB trial, I think DM will be convicted. He has no skills to defend himself as his letters to CN show, and he will only incriminate himself if he acts as his own lawyer. I really want to see what evidence there is that relates to both DM and MS in the LB murder and I hope there is enough to convict them both.

All MOO.

 

[Claroon]

So thinking about DM's lawyers cross... what can they do?...

Perhaps ask:

1. why the heck they hid the Yukon where they did? If they were going back they could have just as easily changed cars to protect their identity. Usual timing for thefts was 2-3 am, so they would have had to wait a good 4 hours after the test drive to go back and steal it. Lots of time to change clothes and cars.
2. why didn't they take the red RAM? Could it be because it suddenly had no plates on it?
3. did he know today's Rams require a chipped key? If that was the case they knew they needed the key. How did they plan to get it from teh owner?
4. what actually happened in the neighbour's field?
5. why did he request DM bring him duct tape, what is orange thing--is it an orange tarp? Hangar neighbour recalls seeing an orange tarp being stuffed in the trailer.(I know LE found a green tarp, but he had time between the hangar and picking up CN to put the orange one somewhere--maybe at Riverside where he would try to wash it.)
6. Isn't it possible he also got out of the vehicle at Bobcat? Isn't it possible he was DM's hit man and the signal was, "when we stop, get out and come and shoot him?"
7. Who threw the phone? Which arm is dislocated right or left? With sore arms how did anyone throw it that far from the road? (seems to me it was thrown about 50 ft from the road and that would be flipped over the roof of the car) (I wish LE had done a throwing comparison test). Is that where you f'd up, throwing out the phone?

Just a few thoughts. Please feel free to add to the list.

 

[Myvice]

.

Thinking out loud some more ....

I think DM and his lawyers were caught by surprise when MS took the stand and told his version of events. I think the judge and the court and all of us were also surprised.

And the first day was like they just got rolling , and everybody was looking forward to day 2 testimony which to everybodies surprise was cut short and ended in a whimper

Makes me wonder if DM and Lawyers threatened (wrong word) to put DM on the stand and absolutely prove MS was not telling the true story.

There has to be a reason MS and Dungey decided to cease and desist. Now that the battle is on , I secretly hope DM can and will take the stand

I'm unfamiliar with how things work in the Canadian system but I wondered if maybe Dungey thought he could present the most believable story in one day, give the jury a chance to believe it was a possibility in the overnight hours, then let Smirch say he didn't remember where the gun was. Would Dungey have thought there may be a possibility that the judge would have started cross immediately thereby glossing over the fact that Smirch may not be being forthcoming?

Sorry, this probably doesn't even make sense. But Smirch kind of had me the first day but coming back on the second day and not remembering such an important detail made me not believe anything he said. Going back through testimony of the first day he seemed to be just covering his tail.

 

[Typhoo1961]

.Now I flip to one of the most "telling" facts in this case to indicate killing was always in the plan because they headed toward the farm (incinerator) the moment they left Ancaster.

From the tweets below from MS's testimony it sounds like it was strictly DM's idea to head to the farm and not part of 'the plan' that MS knew about ............




Lisa Hepfner &#8207;@HefCHCHNews 18m18 minutes ago
Millard sent Smich to get the license plates from his red Dodge Ram. Smich says he was protesting that this was not the plan




Peter Akman &#8207;@PeterAkmanCTV 18m18 minutes ago
"This is not the plan, this is not how it is supposed to go down." Smich to Millard. He yelled at him to go get new plates #Bosma @CTVNews


molly hayes &#8207;@mollyhayes 18m18 minutes ago
Smich says he was saying "this was not the plan, what the **** is going on." #Bosma


Susan Clairmont &#8207;@susanclairmont 18m18 minutes ago
He didn't look like his normal self. He said go get the plates from his red Dodge Ram. At that point I was still freaking out."


Colin Butler &#8207;@ColinButlerCBC 18m18 minutes ago
Smich says he was freaking out. Millard told him to get license plates. "He was loud and forceful" Smich says. "He looked mad like a lunatic


Lisa Hepfner &#8207;@HefCHCHNews 18m18 minutes ago
"He was loud, he was forceful, telling me to go get the plates. I'd never seen him like this. He looked mad. Like a lunatic."


Alex Pierson &#8207;@AlexpiersonAMP 18m18 minutes ago
"Del gets out of the vehicle. Walks towards me. Looks like he was putting a gun in his satchel. I ask him what's going on" @AM900CHML


molly hayes &#8207;@mollyhayes 18m18 minutes ago
He says Millard looked like a "lunatic." #Bosma


Shannon Martin &#8207;@ShannonMartinTV 18m18 minutes ago Toronto, Ontario
Smich on Millard: "He looked mad, like a lunatic, like something came over him." #Bosma #HamOnt


Peter Akman &#8207;@PeterAkmanCTV 19m19 minutes ago
"He looked mad, like a lunatic, like something had come over him." Smich about Millard. #Bosma @CTVNews


Susan Clairmont &#8207;@susanclairmont 19m19 minutes ago
"He looked mad. LIke a lunatic...I did not know that he brought a gun." No plan to use a gun to steal truck.


Shannon Martin &#8207;@ShannonMartinTV 19m19 minutes ago Toronto, Ontario
Dungey: Did you know he brought a gun? Smich: I had no idea #Bosma #HamOnt


molly hayes &#8207;@mollyhayes 19m19 minutes ago
Dungey asks if Smich knew Millard had a gun. He did not. Says it was not mentioned in truck theft plan. #Bosma


Lisa Hepfner &#8207;@HefCHCHNews 19m19 minutes ago
"He looked like something took over him," Smich says he went and got the plates. Says he didn't know Millard was bringing a gun. #TimBosma


Colin Butler &#8207;@ColinButlerCBC 18m18 minutes ago
I did what he said, Smich says. He says he didn't know Millard had a gun and never mentioned one in the plan. #Bosma




molly hayes &#8207;@mollyhayes 19m19 minutes ago
Smich says as he changed plates Millard was wiping down a phone. "He said everything's going to be alright, just follow me." #Bosma


Shannon Martin &#8207;@ShannonMartinTV 19m19 minutes ago Toronto, Ontario
Smich: He (Millard) said everything's going to be alright. Don't worry, just follow me. #Bosma #HamOnt


Colin Butler &#8207;@ColinButlerCBC 19m19 minutes ago
Smich finished with the plates and saw Millard wiping off a phone. Millard told him everything would be ok, just follow me. #TimBosma


Peter Akman &#8207;@PeterAkmanCTV 19m19 minutes ago
"He said, everything is going to be alright, just get in the vehicle and follow me." Smich about Millard after shooting #Bosma @CTVNews


Lisa Hepfner &#8207;@HefCHCHNews 19m19 minutes ago
After they switched plates, Millard was wiping off a phone. Smich says he was freaking out. Millard told him to follow. Forcefully


molly hayes &#8207;@mollyhayes 20m20 minutes ago
Dungey asks about his tone. "He was very forceful at first. It didn't change much as time went on." #Bosma


Lisa Hepfner &#8207;@HefCHCHNews 19m19 minutes ago
"He was telling me not to worry because I was shocked, panicked," Smich says.


Colin Butler &#8207;@ColinButlerCBC 19m19 minutes ago
"He was very forceful in his tone" Smich says. "It did not change much as time went on." #TimBosma