Appeal court hears case of man acquitted in shooting that left woman paralyzed
Crown wants new trial for Markel Jason Downey
February 15, 2018, 8:21 am ASTLast Updated: February 15, 2018, 8:21 am
The Nova Scotia Court of Appeal is being asked to order a new trial for a Cole Harbour man acquitted of attempted murder in a home invasion.
On Wednesday in a Halifax courtroom, Crown attorney Mark Scott said the original trial judge, Michael J. Wood, was mistaken in how he weighed evidence against Markel Jason Downey.
Downey, 22, was one of four men accused of forcing their way into a home in Cole Harbour in November 2014 and shooting three people.
He was acquitted of all 28 charges in February 2017.
Scott reminded the appeal court panel of a statement that victim Ashley MacLean made during her testimony. She testified that while in an ambulance after the shooting she said, “I saw him. And I heard him. And I know him.”
MacLean was shot in the spine and was left paralyzed from the neck down and confined to a wheelchair. She was 18 at the time. Two other male victims were injured but made full recoveries.
Patrick MacEwan, Downey’s lawyer, argued Wood was correct in saying MacLean could have been mistaken.
“Simply because it’s an early identification, does not make it a correct identification,” MacEwan said in court.
MacLean was the only witness to identify Downey as her shooter. Wood found her testimony alone was not enough to convict Downey.
MacEwan argued the judge was right in his decision that MacLean’s testimony was insufficient evidence. He questioned MacLean’s recollection of her shooter. She said he wore an all red tracksuit, while the other witnesses claim he was dressed in black.
“She was wrong about the one key feature that she said stood out more than anything else,” MacEwan told the appeal panel.
Another piece of evidence mentioned at the hearing was a single particle of gunshot residue found on Downey’s hand three hours after the shooting. It was the only forensic evidence presented in the original trial.
MacEwan defended Wood’s conclusion that the gunshot residue may not have come from Downey firing a gun. Wood noted in his decision that the gunshot residue could have come from the officer who arrested Downey or the back of a police car.
Scott told the appeal court the original trial judge erred when he held MacLean’s testimony to too high of a standard.
Scott argued Wood should have looked at all the evidence as a whole, instead of weighting each piece individually, saying the approach revealed “some degree of piecemealing” by the trial judge.
“Sometimes the whole is much, much greater than the sum of its parts,” he told the court. “Ms. MacLean’s evidence was left alone and left in strands.”
The three others accused in the home invasion were all youths at the time, so their identities are protected by the Youth Criminal Justice Act. They all pleaded guilty to lesser charges in 2015.
Appeals court Justices David Farrar, Jamie Saunders and Cindy Bourgeois have reserved their decision until a later date.
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