Attackers had intent to kill, Crown tells jury
The two men and one woman accused of chasing down, beating and kicking to death a man walking home with his groceries late at night more than three years ago should all be convicted as charged of second- degree murder, a jury was told on Thursday.
“On the basis of the physical evidence, the witnesses’ testimony, the post- offence conduct and even based on the evidence of ( Garrett) Smith and ( Jarod) Henry, all three of these accused committed the act and had the proper intent for second- degree murder,” Crown prosecutor Ken McCaffrey said in delivering his final argument of the trial.
“In the alternative, even if you do not agree with me on that, they still should be convicted of manslaughter.”
McCaffrey cited the testimony of several witnesses, who said they saw three people around the head of the victim and that they were all kicking him in that area. They then all fled the scene.
The lawyers for Chantelle Campbell, 30, Garrett Smith, 29, and Jarod Henry, 25, however, each said their client should receive a verdict for somewhat less than the Crown is seeking in connection with the fatal beating of John Fernando Herrera- Garcia on the night of May 23, 2012 — a brief incident that unfolded in less than 10 seconds.
In fact, Smith’s counsel Willie deWit argued for an acquittal for his client, who testified he was there with the two others but did not participate in the attack on the 49- year- old man.
“In order to convict him of murder the Crown has to prove he kicked the man in the head. There is no evidence of that,” deWit said.
“The Crown has witnesses who said everybody was involved equally. But they were all general, not specific. Two of the Crown witnesses said Mr. Smith wasn’t involved.”
Henry’s lawyer Andre Ouellette argued his client should be convicted only of assault as he tackled the victim to the ground, then kicked him once in the side after he was down, but did not kick him in the head as some witnesses have suggested.
“At first glance, the impression by the witnesses is that all three were involved,” said Ouellette. “But there is a difference between general impression and observation. Mr. Henry kicked him in the side and took him down, either of which is an assault.”
Patrick Flynn, lawyer for Chantelle Campbell, conceded that his client should be convicted of a homicide as she participated in the attack on Herrera- Garcia, but not murder.
“She didn’t have the intent for second- degree murder, but you should find her guilty of manslaughter,” Flynn said.
“She acknowledged her involvement in the death of this gentleman.”
Flynn also, in an unusual gesture at this stage of proceedings, read an apology to the victim’s family as dictated to him by Campbell.
“To the family of Mr. Herrera-Garcia, Ms. Campbell acknowledges her involvement in the incident that led to his death,” Flynn told the jury.
“She is deeply remorseful of your loss and her participation and truly wishes the incident never occurred.”
McCaffrey, who co- prosecuted the case with Jen Crews, said the extent of the injuries “in such a short time shows the ferocity of the attack.”
“I suggest that, on that basis, you can infer intent,” he said.
The incident was sparked moments earlier when Smith called the victim a “goof,” a highly derogatory insult in prison culture. At the time, the three accused were en route to an apartment building at 14th Ave. and 6th St. S. W., where they planned to retrieve a wallet that belonged to one of the group.
A short time after they parked, the accused said, they heard a noise like the car door being kicked and subsequently saw Herrera- Garcia standing beside the car.
They chased him down the street, where Henry caught up with him. The two then ended up on the ground together.
It was during that altercation that the victim was kicked three or four times in the head, leaving him in a vegetative state for four months.
He died from his injuries on Sept. 12, 2012.
Court of Queen’s Bench Justice Ged Hawco will deliver his final instructions to the jury on Friday. After that, the jury will begin its deliberations.