unreliable to be heard by a jury. If the trial judge had known
about the fresh evidence, he would have ruled Totten’s evidence
inadmissible. And the absence of Totten’s evidence would reasonably be expected to have affected the jury’s verdict. I would
admit the fresh evidence, allow Abbey’s appeal, overturn his
conviction and order a new trial.
(a) The murder of Simeon Peter
[ 11] On January 8, 2004, in the middle of the afternoon, Simeon
Peter was shot and killed in Caronia Square, near Sheppard
Avenue East and Morningside Avenue in Scarborough. He was
19 years old. Abbey, then 18 years old, was charged with first
[ 12] Abbey was an associate of the Malvern Crew, a street
gang in Scarborough. Back in 2004, the Malvern Crew was
engaged in a brutal turf war with another Scarborough street
gang, the Galloway Boys. The Crown alleged that Abbey killed
Peter, believing him to be a member of the Galloway Boys. Sadly,
he was not. He was simply in the wrong place at the wrong time.
(b) The first trial
[ 13] The first trial took place in 2007. The parties agreed that
whoever shot Peter was guilty of murder. As I have said, the
main issue at trial was identity: who was the shooter. The secondary issue was whether the murder was planned and deliberate, thus elevating it to first degree murder.
[ 14] The Crown relied on the evidence of three other Malvern
Crew gang members, each of whose evidence implicated Abbey.
The Crown also sought to lead evidence about the meaning of
Abbey’s teardrop tattoo. That evidence was to come from Totten
and the three gang members. Totten was prepared to give evidence that one of the meanings of a teardrop tattoo was that the
wearer had killed a rival gang member. The three Malvern Crew
gang members were prepared to testify to a similar understanding of the teardrop tattoo. Totten claimed that his opinion was
based on academic literature and his own clinical research; the
three gang members said that their understanding came from
television and movies.
[ 15] The trial judge ruled that neither Totten nor the three
gang members could give evidence about the meaning of a teardrop tattoo because the evidence was too unreliable. Abbey did
not testify. As I have said, the jury acquitted him.