New Brunswick’s Crown prosecutors will not appeal a provincial Court of Appeal decision to order a second murder trial for Marissa Shephard in the 2015 death of Baylee Wylie.
“To succeed in getting leave to appeal at the Supreme Court of Canada, it is necessary not only to allege an error of law on the part of the Court of Appeal, but that the alleged error is of national importance,” said Crown prosecutor Kathryn A. Gregory in a press release on Monday.
“We have concluded that a sufficiently compelling argument does not exist that the trial fairness issues of concern to the Court of Appeal in this case are of national significance.”
READ MORE: N.B. Appeal Court orders new murder trial for woman convicted in stabbing death
The Court of Appeal ruled in October that the judge of the 2018 jury trial “committed various errors of law in his charge to the jury and in allowing the jury to hear and consider inadmissible and highly prejudicial evidence.”
“He likewise erred in law in failing to appropriately deal with Crown counsel’s improper submission to the jury that Ms. Shephard had ‘in her own words, on direct examination, included herself in the killing of Baylee Wylie.”‘
During a trial last year, court heard that Wylie’s body was found in Shephard’s burned-out townhouse in Moncton on Dec. 17, 2015.
Court documents indicate that Wylie, Shephard, Tyler Noel and Devin Morningstar gathered at Shephard’s home for “some drug-fuelled excitement.”
The night ended tragically with Wylie being tied to chair, beaten and stabbed approximately 200 times with a variety of weapons.
Shephard, who was 20 at the time of her arrest, was the third person convicted of murdering Wylie.
Devin Morningstar was found guilty of first-degree murder in 2016, while Tyler Noel pleaded guilty in May 2017 to second-degree murder and arson with disrespect for human life. Both received life sentences.
Court erred in allowing prejudicial videos
As part of Shephard’s trial, the Crown relied heavily on videotaped statements given to police by Morningstar, who said Shephard had participated in the stabbing.
Morningstar repeatedly refused to testify in person during the trial.
A jury convicted Shephard after just four hours of deliberation, and she was later sentenced to life in prison with no chance of parole for 25 years.
The Court of Appeal found that the court erred in the way videos of Morningstar were presented during the trial.
The videos contained “inadmissible and prejudicial observations” that amounted to opinion, speculation and “prejudicial attacks on Ms. Shephard’s character,” the three judges ruled.
“All agree significant editing was required to remove those inadmissible and prejudicial observations,” the judges wrote.
“Unfortunately, there was no vetting and no editing before the recordings were played for the jury.”
READ MORE: Panel of 3 judges hear Marissa Shephard’s appeal of her first-degree murder conviction
Denied a ‘fair trial’
More importantly, the panel said the judge failed to address what they describe as the Crown’s wrongful claim Shephard admitted to participating in the crime during her testimony.
During her direct examination, Shephard stated she had argued against Noel’s plan to murder more people, saying: “No, like we’re not killing anybody else, Tyler,” according to the court document.
The Crown seized on this use of language during closing arguments, implying the use of the word “we” amounted to involvement in the murder. In fact, it was clear Shephard had meant no such thing and had repeatedly and consistently denied the allegations against her, the appeals court wrote.
“Crown counsel knew this was so, but unfairly and improperly exploited Ms. Shephard’s poor choice of words to argue she had, in essence, confessed to murder in her direct examination,” the court wrote.
This error alone, the judges concluded, “compels reversal because it denied Ms. Shephard a fair trial, a wrong that can only be remedied by setting aside the convictions and ordering a new
trial. We so order.”
Dates to be set in the ‘coming weeks’
Crown prosecutors say that in the coming weeks, they will return to the Court of Queen’s Bench to set dates for a new murder trial.
Shephard remains in custody at this time.
— With files from the Canadian Press
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