Verdict: GUILTY for both Millard and Smich of 1st degree murder #2

[canadiangirl]

Why did Smich and Millard take a gun to a test drive?

Which one took a gun to a test drive? Has this been determined? Did the other know? All unanswered questions.

 

[Tiggertoo]

Didn't someone post here a long time ago that murder during a theft is still M1?

 

[NoodlesMcgee]

This blog post points out that bad character evidence can be introduced for by a defendant against the other defendant in a cut-throat defense (with restrictions).

Main gist is that if it is allowed - the judge must point out that it can't be used to show guilt of one accused (can only be used to find the one presenting as not guilty). I would say the judge did it in this case. TD brought up the 'killing games' DM played and DM's lawyers brought up the rap stuff and the judge clearly told the jury to not consider those in determining guilt.


http://jmortonmusings.blogspot.ca/2010/12/bad-character-and-cut-throat-defence.html

 

[Tiggertoo]

Which one took a gun to a test drive? Has this been determined? Did the other know? All unanswered questions.

But the judge also pointed out that it didn't matter who shot TB so I wonder if it also didn't matter who brought the gun.

 

[otto]

One they couldn't get a hold of so it never happened. I suppose we can assume they never knew where that truck was located. The second truck with Igor well we all know what happened there. MS was sick. Didn't happen accordingly to both MS and DM because of that. However I truly don't think it was Igor's demeanor that stopped that truck heist, a gun and 2 men beats a human any day. MS testified there was GPS in Igor's truck. Regardless of size. TB was to be a scoping mission. So exactly.. If nothing happened in the others, why was this different?

If their only intent was to steal a truck, they would have stolen a parked truck off the street. Instead, they hijacked a truck, kidnapped the driver, murdered the driver, and used the incinerator to hide their criminal activities. The reason they did not kidnap Igor is because he is Israeli military.

 

[canadiangirl]

MS said that both he and DM did oxy the night before IT. The difference was that MS also drank which is apparently a bad combo.

You mentioned before that IT's truck had GPS according to MS. I hadn't heard that before but could have missed it.

Took me a bit to find it again. Couldn't link it but Susan Clairmont tweets. Closing arguments. Leitch states MS testified about Igor having GPS in his truck but Igor was never asked the question

 

[Typhoo1961]

The new normal for Sharlene Bosma .............

http://www.thespec.com/news-story/6730565-for-sharlene-bosma-the-new-normal-/

 

[palisadesk]

However I truly don't think it was Igor's demeanor that stopped that truck heist, a gun and 2 men beats a human any day. MS testified there was GPS in Igor's truck. Regardless of size. TB was to be a scoping mission. So exactly.. If nothing happened in the others, why was this different?

It seemed to me that a major factor differentiating the Igor truck drive and the TB truck drive was location, location, location. Igor being a really big guy and potentially difficult to take down may also have been a factor of course, but realistically, how were they going to off Igor in the middle of a highly populated area in north Toronto in the daytime? Without being noticed? That seemed to me to be pretty obvious, though I don't recall it being brought up. I figured the Igor business actually was a "scoping" mission but they reconsidered after checking out Igor himself, the truck (maybe it did have GPS?), the location (very busy and lots of activity around the clock), including I presume where the truck was regularly parked - would it have been in an underground garage, complete with security cameras, people coming and going? All strong arguments for giving this one a miss.

I didn't hear all these points addressed, but maybe they were. However, the rural location for TB's truck - they would likely have scoped it out on Google Earth or Google Maps ahead of time - provided many more concealment opportunities. My feeling was that when they left that night they didn't know for certain they were going to steal that truck, but they thought it highly probable and were prepared. Originally I believed that they intended to shove the owner out and dump him somewhere (alive but tied up or something) while they made a getaway, changed plates, hid the truck and so on. OTOH, the evidence about getting the incinerator ready, bringing loaded gun(s), convinced me that DM at least came prepared to kill if necessary, and MS probably knew the plan. As I said before, I missed too much of the MS part of the trial to be sure about him, but I do think he had the frame of mind for murder2 at minimum and he was a party to the offense if not the principal.

BTW, I think you present your reasoning very well. As I said earlier, I tend to agree with billandrew's summary of the case, but (as a member of AIDWYC!) I respect those who interpret the evidence differently from the majority. If I had followed the MS part of the trial more closely, I might agree with you (or not). I did think parts at least of MS's testimony were factually true, but I didn't for a nanosecond believe the gun story. He should have just said he threw it in Lake Ontario. That at least would have been believable. Then when I looked back, I didn't buy his version of when he got into the Yukon. The video evidence doesn't support it. On the rest of the details, I wasn't following so didn't have a fix on whether MS's part was "planned and deliberate," but the jury apparently was convinced, and they saw and heard more than we did so I'm satisfied with that.

 

[canadiangirl]

Then why were they allowed into evidence to begin with, doesn't make sense. If they were important enough to be mentioned in the Judge's address it should have been obvious, prior to them being presented and should have been withheld at that point. I don't think it is enough to say, after the fact, "ignore" anything worth mentioning in the address should have been originally held back such as text's between IIsho & Milllard (just one example) Again, IMHO

This is exactly my point. Thank you.
I'm sorry but you can't unhear or unsee things.

 

[otto]

https://www.defencelaw.com/appeals.html

This was an interesting read regarding appeals. Unders reasons for appeal, it lists judge improperly admits evidence. Question for the legal minds, is this when the evidence itself shouldn't have been entered at all, or that his procedure was incorrect? If the former, perhaps the rap video could fall under that. You can't have a jury watch that then tell them to disregard it and don't factor it into your decision

Not a legal mind, but it is that evidence was admitted when it should have been suppressed. Smich's lyrics, written within 2 weeks of the murder, were admitted as evidence because they appear to be a statement about the murder. I would think that any statement about a murder, regardless of whether it is spoken or sung, is admissible.

 

[canadiangirl]

It seemed to me that a major factor differentiating the Igor truck drive and the TB truck drive was location, location, location. Igor being a really big guy and potentially difficult to take down may also have been a factor of course, but realistically, how were they going to off Igor in the middle of a highly populated area in north Toronto in the daytime? Without being noticed? That seemed to me to be pretty obvious, though I don't recall it being brought up. I figured the Igor business actually was a "scoping" mission but they reconsidered after checking out Igor himself, the truck (maybe it did have GPS?), the location (very busy and lots of activity around the clock), including I presume where the truck was regularly parked - would it have been in an underground garage, complete with security cameras, people coming and going? All strong arguments for giving this one a miss.
.

Snipped for space.
Before going on the test drive(s) they would know the exact location of where they were headed. So to me we can't reasonably assume it was just decided not to kill Igor due to location. They knew in advance IT was in Toronto. DM gave the impression they were all scoping missions IMO because like you said, killing Igor especially given where he lived didn't make sense. MOO

 

[otto]

Which one took a gun to a test drive? Has this been determined? Did the other know? All unanswered questions.

The question was whether the murder was premeditated. If murder is not part of the plan, why take a gun to a test drive?

Which of the two had the gun in his pocket is another question. Perhaps Smich had the gun in his pocket, gave it to Millard, Millard pulled the trigger first, Smich pulled the trigger second, then they passed the gun back and forth before hiding it.

 

[palisadesk]

Didn't someone post here a long time ago that murder during a theft is still M1?

No, there have been posts about that, but the law making murder (or even accidental death) during a felony like theft or burglary automatically Murder 1 is a USA law, not Canadian.

It's automatically Murder 1 here if it occurs during a hijacking, kidnapping, terrorist incident and a few other circumstances but not holdups, bank heists, theft or even armed robbery necessarily.

You can see all the conditions for 1st degree murder here:

http://laws-lois.justice.gc.ca/eng/acts/C-46/section-231.html

 

[Typhoo1961]

especially given where he lived didn't make sense.

Nothing DM did made any sense.

BTW ............


The new normal for Sharlene Bosma .............

http://www.thespec.com/news-story/67...e-new-normal-/

 

[JuneBug67]

Everyone that suggests that MS does not deserve the first degree murder charge is missing the big picture, IMO.

DM and MS are enemies now, sure, but at the time of the murder they were best buds who texted their love to each other.

There is just no way that MS did not know what was going down.

I think this is what is at the heart of my last niggling doubts about Smich's culpability. Millard is a psychopath or something very much like it. This personality type doesn't have relationships like normal people do, just a series of exploitive and/or self serving arrangements. Noudga evidence made it clear that Millard manipulates and leverages emotional or initimate bonds to get what he wants, and I have very little doubt that he thoroughly capitalized on the desire of the fatherless, brotherless Smich for a close male relationship. Millard's thoughts and perceptions and dizzying sense of entitlement are so very clearly utterly abnormal that I don't feel I can make the leap that what was in DM's head had to be in MS's. Or be completely certain that DM's impulsivity and poor self control didn't drag MS into a nightmare.

That combined with the kind of evidence that contributed to the conviction - its vulnerability to subjectivity and post hoc analysis - I just can't feel certain in the same way that many can. Maybe things will look different to me after the LB evidence comes in. I'm 100% open to changing my mind and seeing things differently, there just hasn't been any evidence or argument that has done that. Yet.

 

[XiolaBlueX]

Thank you for this...
I can honestly say, when MS took the stand, I was conflicted. I literally sat down those evenings and went through testimony and compared it to billadrew's time line.
For me, it truly boiled down to simply not believing that there could be 2 people so sick and twisted in this world to carry out this act together. I was becoming emotionally charged and had to remain factful/mindful of the facts presented.
IMO, the jury got it right BUT we are all entitled to our own opinions and I value that others share theirs here on the forum.

Thx, I Agree with your post. What's interesting to me is having just read your post, and the one you responded to is I just had a bit of an epiphany: If I end up (completely speculating) seeing strong evidence that showed MS was involved before and/or after LBs death, including knowing what the incinerator was actually for (if for LB)it would change my perspective on much of the texts in this case involving MS- as they are/could be in fact*consistent* with planned and deliberate murder. They are consistent with IMO, but on their own many MS texts in this case alone could have other interpretations.

Still have had reasonable doubt that MS was involved in a planned and deliberate murder of DM or target of vehicle. That he was trying to rob the truck with DM from TB, by scaring him, or confining him and leaving him out in the middle of nowhere with no phone and MS 'accidentally' or inadvertently killing him? It's possible, and was typically what I speculated for the past 3 years happened.

The crowns motive they outlined in closing of 'killing the witnesses ' theory falls flat for me - IMO, why be so concerned about a witness for theft of a truck that you premeditated killing the driver, thereby creating 2 additional witnesses for a murder instead? (SB and W) I'd rather have 3 witnesses of theft of a truck, then 2 for a planned abduction and murder.

 

[canadiangirl]

Not a legal mind, but it is that evidence was admitted when it should have been suppressed. Smich's lyrics, written within 2 weeks of the murder, were admitted as evidence because they appear to be a statement about the murder. I would think that any statement about a murder, regardless of whether it is spoken or sung, is admissible.

Then how do you explain the conversation between Isho and DM stating the gun would be a dirty girl when it came back but no worries. Isho could change her print.

 

[otto]

Snipped for space.
Before going on the test drive(s) they would know the exact location of where they were headed. So to me we can't reasonably assume it was just decided not to kill Igor due to location. They knew in advance IT was in Toronto. DM gave the impression they were all scoping missions IMO because like you said, killing Igor especially given where he lived didn't make sense. MOO

Millard and Smich were intimidated by Igor, and that's why they did not kidnap him.

"Igor Tumanenko, a former Israeli soldier by way of the Soviet Union, became an integral part of the police investigation into the disappearance of Bosma on May 6, 2013 because he went on a test drive with Dellen Millard and Mark Smich just a day earlier."

https://www.thestar.com/news/gta/20...before-tim-bosma-considers-himself-lucky.html

“I told him I was familiar with this engine from Israeli army experience,” said Tumanenko.

He said there was a pause and then the short guy, who had “been quiet like a fish,” asked what he had done in the army.

“You don’t want to know what I did there,” Tumanenko replied.

He described the tall guy turning around to the short guy, a look passing between them.

The test drive ended and Tumanenko didn’t make the sale"

https://www.thestar.com/news/crime/...case-as-tim-bosma-murder-trial-continues.html

 

[Typhoo1961]

Millard and Smich were intimidated by Igor

Rightly so. Igor is a BIG guy.

 

[deugirtni]

Susan Clairmont's answer to someone who asked whether MS could be charged with AATF if he was acquitted was NO.

She didn't specify why but maybe because of the protection provided by the Canada Evidence Act.

I read (in one of the post-verdict articles) that the reason the jury wasn't given by the judge 'AATF' as a verdict option for MS, was because he had never been charged with that. Also adding that AATF is not one of the 'lesser and included' findings when the charge is murder.

Canadian law specifies that a person cannot be tried twice for the same offence (except under certain conditions such as an appeal, and I believe if new evidence comes to light?), so it is my belief that that is why, even if MS had been acquitted for murder, hands would be tied as far as laying different charges and being tried for the same case after the trial. moo

CONSTITUTION ACT, 1982 [SUP](80)[/SUP]

PART I

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:
Guarantee of Rights and Freedoms

....

Legal Rights

Proceedings in criminal and penal matters

....

11. Any person charged with an offence has the right

....

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

....

http://laws-lois.justice.gc.ca/eng/const/page-15.html