Man who killed ATM tech loses appeal of conviction
A man found guilty in the fatal shooting of an ATM technician in 2010 has failed in his bid to have his murder conviction overturned.
Daniel Smith, 62, was convicted of second-degree murder in the 2016 death of Roger Byer. He received a life sentence with no parole eligibility for 12 years.
Byer, 57, was last seen on Jan. 20, 2010, while servicing an ATM in Melfort. His body was found next to his truck on April 1 that year on an isolated and abandoned farmyard in east-central Saskatchewan. An autopsy revealed he had been shot three times, with the fatal bullet passing through his head.
Police also learned approximately $23,000 was missing from the truck.
Smith — who, at trial, unsuccessfully claimed it was his thencommon law partner wielding the gun that killed Byer — appealed, asking the province’s highest court to overturn the jury’s decision.
His case was heard by the Saskatchewan Court of Appeal in February and the court recently returned with its decision to leave the verdict as is.
At the heart of the appeal was testimony by two key Crown witnesses — Smith’s former commonlaw partner and the man from whom he got the murder weapon — and the trial judge’s decision not to caution the jury in relation to that evidence. By law, it is open to a judge to provide what’s known as a Vetrovec warning to a jury about evidence offered by witnesses in cases where it’s thought they might have something to gain in testifying a certain way.
Smith’s lawyer at appeal, Gordon Kirkby, argued there were credibility and reliability issues with both witnesses that called for such a warning. Among reasons, Kirkby pointed out Smith’s former spouse — who testified to witnessing the shooting — initially lied to police.
But Crown prosecutor Bev Klatt noted the credibility — or lack thereof — of both witnesses was addressed by trial Justice Timothy Keene, meaning the jury was aware of that issue going into deliberations. Additionally, Klatt pointed out Keene had been prepared to put Vetrovec to the jury, but was asked not to by Smith’s trial lawyer Morris Bodnar.
The Appeal Court’s decision — penned by Justice Lian Schwann — found the discussion between the trial judge and counsel suggests Bodnar was concerned a Vetrovec warning would have meant Keene having to highlight evidence that potentially backed that of the two witnesses.
While Kirkby argued such a warning was mandatory, the Court of Appeal found otherwise, noting case law from the Supreme Court that said a mandatory warning would rob defence counsel of the opportunity to make a tactical decision — such as Bodnar’s.
“A Vetrovec warning may, on balance, be more prejudicial to an accused because it draws the jury ’s attention to the Crown’s confirmatory evidence,” Schwann wrote. “The trial judge was alive to the possibility of indirect prejudice to Mr. Smith and was concerned that instructions containing confirmatory evidence could be perceived by the jurors as ‘showcasing ’ critical Crown evidence.”
The court also referred to Canadian case law that found the warning discretionary on the part of the judge. “I am satisfied from the record that the trial judge understood the law, understood the position of defence counsel, and had a clear foundational basis for not giving a warning in this case,” Schwann wrote.
The court further found itself persuaded by the Crown’s argument the verdict would have been the same even if a Vetrovec warning had been issued at trial.
Schwann’s decision was made unanimous by Justices Georgina Jackson and Neal Caldwell.