Crown lawyers on Wednesday looked to use evidence to fill alleged holes the defense had raised during Andrew Berry’s double-murder conviction appeal.
Berry is appealing his conviction on both counts of second-degree murder for the deaths of his two children, Aubrey, 4, and Chloe, 6, who were found stabbed to death in their beds in Berry’s home on Christmas Day 2017. The appeal seeks a new trial.
In their first chance to present during the hearing, Crown lawyers on Wednesday picked away at defense lawyer Tim Russell’s criticisms of the trial judge. Megan Street laid out several cases where no evidence backed up Russell’s claims, while evidence, however, did justify trial justice Miriam Gropper’s rulings.
Russell took issue with the judge’s finding that “the firefighters and paramedics did not have the ability to influence the prosecution” while performing medical care after an injured Berry was found in his suite’s bathtub. His argument said Gropper shouldn’t have admitted statements Berry made at the crime scene to first responders.
The defense pushed the idea that Gropper didn’t properly weigh how Berry would’ve perceived all the first responders – including firefighters and paramedics treating him – to be police officers because they were coordinating his care together and wore similar-looking uniforms.
Russell said this meant all the first responders should be considered persons in authority who could all be seen by Berry as investigators of the killings – something Gropper ruled against.
“There was no evidence they had been acting on behalf of or in concert with police or the prosecuting authority and no evidence that the first responders did anything other than provide medical care to (Berry),” Street said.
The Crown lawyer added the defense never entered evidence on Berry’s perception as it’d be impossible to prove what was going on in his mind – especially as he “waned” in and out of consciousness while being treated.
Street also noted not a single responder testified they had been confused with police, but there was trial testimony on how first responders can be distinguished by their equipment and badges.
“(Gropper) had no direct evidence on the issue from the appellant and she did not (speculate) or rely on hearsay in reaching this conclusion,” Street said.
Russell also criticized Gropper’s ruling that Berry wasn’t detained. He said Berry not being “free to go” after telling responders to “leave me alone” while injured in the bathtub and how the state “took physical control over him” meant the father could’ve perceived that he was detained.
Street said evidence shows Berry was never told he was detained, never put in restraints, never searched for weapons, there was no hard entry and police didn’t have guns drawn on him. She added it took four first responders just to remove Berry from the tub due to his injuries.
“It was open for the trial judge to find there was no objectively reasonable basis for the first responders to be viewed as persons in authority,” Street said.
Russell’s claim that statements made to Berry’s sister were also inadmissible simply because she is also a police officer, and therefore a person in authority, was also disputed by the Crown. Street said police officers can only be persons in authority when they’re clearly acting in their official capacity.
“There was absolutely no evidence that she acted in her official capacity during her visits with (Berry),” Street argued.
She also targeted “inaccuracies” made by the defense, including the sister “reporting back” to a superior that she didn’t even work for and that she was “taking notes” while talking with Berry in the hospital. Those “notes” refer to a single question on paper handed to Berry, which he then responded to, as Crown said this is how the two communicated after the father had a tracheotomy.
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