The Nova Scotia Court of Appeal has quashed Ricardo Jerrel Whynder’s conviction for second-degree murder in the October 2013 shooting death of Matthew Sudds and ordered a new trial.
Whynder, 36, stood trial in Nova Scotia Supreme Court in Halifax in June 2019 on a charge of first-degree murder. The jury deliberated for about six hours before finding him not guilty of first-degree murder but guilty of the lesser offence.
Justice Denise Boudreau imposed the automatic sentence of life in prison and decided that Whynder would have to serve 17 years before he would be eligible for parole.
Whynder’s appeal of his conviction was heard in the Appeal Court this September. Roger Burrill, Whynder’s appellate lawyer, argued that the conviction should be overturned because the trial judge’s instructions to the jury were flawed.
Burrill said the judge failed to properly relate the evidence to the issues the jury had to decide regarding Whynder’s liability for murder as a party, and, in particular, the position of the defence that he was present for the killing, but no more.
The appellant also claimed the judge failed to instruct jurors on the proper use they could make of evidence of his after-the-fact conduct.
Crown attorney Mark Scott maintained that even if the trial judge erred in law, the Appeal Court should uphold the conviction because the error was harmless or trivial.
The three-judge appellate panel unanimously agreed with Whynder’s arguments.
In a decision released Friday, Justice Duncan Beveridge said the trial judge’s instructions to the jury failed to pass “legal muster.”
“I would allow the appeal on both grounds and order a new trial on the charge of second-degree murder,” Beveridge wrote for the panel, which also included justices David Farrar and Anne Derrick.
Prosecutors alleged at trial that Sudds, 24, was shot in the head and killed on the night of Oct. 10, 2013, shortly after getting into the front seat of a black Dodge Charger that had been rented by a female associate of Whynder.
Sudds’ body was found in a ditch along Africville Road in north-end Halifax by a woman walking her dog four days later.
The Crown theory was that Whynder worked in concert with a man named Devlin Glasgow to commit the planned and deliberate murder of Sudds. It said Whynder, through text messages and phone calls, set up a meeting with Sudds at the Burger King parking lot at the corner of Young Street and Kempt Road.
Prosecutors said Whynder was present in the Charger as Sudds was yanked back in his seat and driven from the parking lot to Africville Road, where he was shot and left in an overgrown ditch.
Whynder fled the province with Glasgow the next day to escape liability, the Crown said, and lied to Sudds’ mother and police about his involvement.
The defence contended that although Whynder admitted in a call to the province’s Rewards for Major Unsolved Crimes Program from British Columbia in March 2017 that he was in the vehicle around the time of the killing and also told police he had information about the murder, he did not commit the offence. The Crown did not prove beyond a reasonable doubt that Whynder did anything in relation to Sudds’ death, the defence said.
“The appellant, Crown and the trial judge recognized there was an air of reality to the issue of the appellant’s liability as an accessory,” Beveridge said in the appeal decision. “In these circumstances, I agree with the appellant that it was vital to inform the jury that liability as an aider or abettor could only be established if the appellant had the requisite knowledge of the principal’s intent and assisted or encouraged him for the purpose of carrying out the offence.
“At no time did the trial judge (instruct) the jury on these requirements or that if they had a doubt about the knowledge component of accessory liability, it could lead to a manslaughter conviction.”
Those errors were not minor or insignificant, the Appeal Court found, and were compounded when jurors were improperly told they could draw an inference about Whynder’s intent based on his lies.
Glasgow, 34, was arrested in Mission, B.C., in October 2019 and brought to Nova Scotia to face a charge of first-degree murder in the case. His trial is set for five weeks beginning April 19, 2021.
