BRUCE BUMSTEAD/BRANDON SUN
The Brandon Court House.
In a rare and stunning development, a Brandon judge has declared a mistrial in the case of a man accused of second-degree murder.
Crystal (Kristy) Dawn Elk, 37, was found stabbed to death on Nov. 1, 2011. (SUBMITTED)
Justice John Menzies informed the jury of his ruling in Brandon Court of Queen’s Bench on Tuesday, on what would have been the sixth day of trial.
The jury wouldn’t be able to finish the job it began, Menzies said.
"If you’re frustrated and you want to vent your anger, it’s at me ... It’s my decision that it can’t proceed any further," Menzies told jurors before discharging them.
It appears the case is now headed for a retrial with another jury.
"We’ll have to set a new trial," defence lawyer Bob Harrison said following Tuesday’s events. "We’re fully prepared to proceed with the trial."
Cameron Douglas Burnett, 53, is charged with second-degree murder in connection with the death of Crystal Dawn Elk, 37.
Burnett’s trial before a jury of eight women and four men began on Jan. 20.
At trial, witnesses testified that Burnett stabbed Elk outside a home on the 300-block of Dennis Street during an argument in the early morning of Nov. 1, 2011.
Crown attorney Jim Ross began the trial by telling jurors that he expected the evidence to show that Burnett didn’t like Elk — the daughter-in-law of his partner — and that the killing was deliberate.
The mistrial was declared before defence could present its case, but Burnett was expected to take the stand and argue self-defence.
During the first five days of trial, Ross called 23 witnesses that included two daughters of the deceased. One of those daughters broke down on the stand as she described her mother being stabbed.
As the Crown closed its case on Friday, what the jury didn’t know was — while they were out of the courtroom — Menzies had already called the trial into question.
The problem that ultimately led to the trial’s collapse had happened on Thursday, with the jury present in court.
Ross was about to play a video-recorded statement that the accused gave to police in the hours following Elk’s death.
As he questioned the police officer who led the investigation, Ross revealed to the jury that the statement had previously been the subject of a voir dire.
A voir dire is a hearing held to determine the admissibility of evidence at trial.
As Ross continued to question the officer, jurors heard that, as a result of the voir dire, it was decided at a certain point in the interview officers had pressed Burnett enough.
Ross told jurors that they’d be shown the portion of the interview up to the point that Burnett was adamant that he wouldn’t comment further.
The transcript of the video had been edited accordingly, and "extraneous" references also edited out.
Menzies then interjected as the transcript and video were entered as exhibits, and prior to the video being played to the jury.
He told jurors it would have been better if they hadn’t known that anything was said after the edited footage ends — that portion had been ruled inadmissible.
Menzies instructed jurors not to speculate about what was said after the edited video ended.
The trial continued and the edited video was played — in it Burnett calls the deceased a "whore," and claims that she took a swing at him during their argument and had reached for something. He doesn’t comment further, though.
But that wasn’t the end of the issue — unknown to jurors, another courtroom drama was played out at times they weren’t in the room.
On Friday morning, before the jury entered court for the day, Menzies raised the issue himself and asked Harrison and co-defence counsel, Norm Sims, whether they objected to the trial going ahead based on the Crown’s comments.
"I have a number of cases (case law) … I want to know whether you feel that that was a breach of your client’s right to a fair trial, I want to know whether or not you want a remedy," Menzies said.
"Defence has been sitting here not saying anything, and I’m not going to let this trial go and then have this issue raised at the court of appeal saying there should have been a new trial directed."
After a short break, and with the jury still out of the room, Sims indicated that he and Harrison had discussed taking the issue to the Manitoba Court of Appeal if their client was convicted.
However, after reviewing the case law provided by Menzies, Sims indicated it was the defence lawyers’ wish to call for a mistrial.
Menzies would later explain his concern, again with the jury out of the room. Jurors, he said, would speculate about what Burnett had told police in the portion of the statement they didn’t see.
As Crown and defence argued the mistrial motion in the jury’s absence on Monday, Sims said the juror’s minds had been "poisoned."
It’s not known what they were thinking, Sims said, but jurors might speculate that Burnett had confessed in the portion of the video statement they hadn’t seen.
Ross, on the other hand, apologized and admitted his comments were a mistake but urged the court to have faith in the jury and for the trial to continue.
He said if there was any prejudice against the accused, it was slight. It was remedied by Menzies’ mid-trial direction not to speculate, and could be remedied with further instruction to the jury.
Ross said jurors didn’t know whether Burnett had said anything at all after the video stopped.
"We’re engaging in speculation and conjecture on what jurors might speculate about," Ross said.
In fact, Ross said, Burnett hadn’t confessed or made any other damning statements during the portion of the interview unseen by the jury.
Menzies could tell the jury that Burnett told police officers nothing new, Ross suggested.
However, in his written decision issued on Tuesday after he declared the mistrial, Menzies stated Ross’s comments surrounding the video statement weren’t the only problem.
The video disc was marked "vetted copy," and on the transcript was a note that shows the interview continued four more hours after the edited statement ends.
The way the statement was edited invited jurors to speculate on what happened for those four hours, Menzies concluded. Ross’s remarks and the editing combined to be "highly prejudicial" to the accused.
Menzies wrote that he wasn’t convinced that direction to the jurors would remove the prejudice, and so the mistrial was declared.
Harrison said the case has been put to Feb. 10 to set a new trial date.
Meanwhile, Burnett remains in custody but Harrison said defence is considering a bail application.
If a retrial is held, all the witnesses will have to testify again.
The trial had been scheduled for two weeks. As of Tuesday, there were no dates available for such a trial during 2014. Court dates can open up depending on circumstances, however.
A member of Elk’s family indicated they were too upset to comment on the mistrial.
Republished from the Brandon Sun print edition January 29, 2014