Millard, Smich choose not to testify in defence
As the jury filed out — not for the first or last time Wednesday — Mark Smich turned around and grinned at Dellen Millard.
Hard to evaluate that brief smile between the one-time best friends and, allegedly, buddy-killers in the murder of 23-year-old Laura Babcock. Hostile? Triumphant? Sly?
But it was the only time, with jurors at least sort of present, that the two men co-accused of firstdegree murder have looked directly at each other in a trial that began Oct. 23.
It’s been as if they hardly inhabit the same space, even if with their fates intertwined.
Millard, who’s representing himself, has been a primary player in the courtroom, cross-examining witnesses and, over the past several days, conducting direct questioning of the three individuals summoned in his own defence, increasingly confident in his imitation of a lawyer.
Smich, with his head down at the defence table, scribbling on a notepad throughout, has been scarcely a tangible presence, although certainly coming to life via scores of text messages. Those texts, along with photographs and testimony from witnesses, illuminate the intense friendship which had existed between Millard and Smich, with Millard — the rich-boy heir to a family’s aviation fortune — a generous benefactor of his “wingman.”
They were joined at the hip. And, says the prosecution, enjoined in an unspeakable crime.
Court has also seen a frequently replayed rap video shot a month after the Crown maintains Babcock’s body was incinerated. In the video, Smich spits out lyrics that he’d apparently written on a laptop that had been loaned to Babcock by her ex-boyfriend before she van- ished just after Canada Day 2012. Lyrics that Smich had entered into the laptop on the very night, July 23, the prosecution says, that Babcock’s corpse was allegedly fed into “The Eliminator,” a commercial monstrosity intended for the disposal of animal carcasses.
“The bitch started off all skin and bone/now the bitch lay on some ashy stone/last time I saw her’s outside the home/and if you go swimming you can find her phone.”
Babcock’s iPhone, which fell silent on July 3; on which her last eight texts sent had been to Millard, a phone that continued to emit a GPS signal into July 4, pinging off cellphone towers as it moved westwards from the area around Millard’s Maple Gate Court residence in Etobicoke, along the QEW to the vicinity of his Waterloo-area farm and his family’s plane hangar. The Crown has alleged Babcock was killed July 3-4 and the phone’s lastgasp signals tracked the route to the Ayr farm property. Calls made to Babcock’s phone by worried family and friends went to voicemail until it finally died.
It seems so long ago when the jury heard all these details. So much longer — five years — since Babcock was last seen alive.
Presumed dead, her remains have never been found.
Both Millard and Smich have pleaded not guilty.
On Wednesday, the prolonged evidentiary phase of the trial ended.
“I’m not calling any further evidence,” said Millard, at precisely 2:38 p.m.
That brought a full stop to speculation over whether Millard would put himself on the stand, a possibility that had been teased out. No accused is compelled to testify but the courtroom was packed, just in case — which would have seen Millard basically giving a narrative, as if asking himself the questions, but would have exposed him to crossexamination.
Instead, Millard merely entered some exhibits — documents and photos he’d used in the defence portion — and a couple of agreed submissions, statements of fact acknowledged by the defence and the Crown.
“Once again you’ve been waiting patiently,” Justice Michael Code told the jury when they first took their seats Wednesday. “Things are moving rapidly. The parties have sensibly agreed to a couple of simple submissions.”
Millard, always so obsequiously polite in front of the jury: “Good morning members of the jury. Sorry for the wait.”
First, he told jurors that everyone agreed on the date he (and Smich) had been arrested and charged with the murder of “Miss Laura Babcock:” April 10, 2013.
Second, the parties agreed on the provenance of a handgun that, as the jury has already heard, ultimately came into the Millard’s possession.
“In late spring of 2012, Mr. Nando LaRocca purchased a .32-calibre Smith and Wesson firearm from Miss Theresa Boisvert. This is the same .32-calibre Smith and Wesson that was later found at 5 Maple Gate Court in the fall of 2012. He paid $100 for it. On June 24, 2012, Mr. LaRocca sold this firearm to Mr. Matthew Odlum. He did so at the corner of Baby Point Rd. and Humbercrest Dr. in Toronto. When Mr. LaRocca sold the firearm to Mr. Odlum there was no ammunition in it.”
There has been considerable talk of guns during the trial, although the Crown has not made any claim about how Babcock was actually killed. In a tangential bit of evidence earlier this week, Millard showed the jury a photo of his late father, Wayne, purportedly from a firearms licence. A defence witness on Tuesday, Millard Air and Millard Properties bookkeeper Lisa Williams, testified that Wayne Millard had “passed” in late 2012.
Wayne Millard casts only a slight shadow across these proceedings, recalled by witnesses as the man who always “stayed upstairs” at the family home, while his son entertained friends — some of whom lived at the house for periods — in his black-painted basement mancave and around the saltwater pool outside.
With the agreed statements of fact entered, Code sent the jury off again while legal and procedural matters were discussed.
“We’ve got one final issue we’ve got to sort out,” he said. “It’s realistically going to take us the morning. I’m going to ask you to find a nice patio or restaurant and have a slow relaxed morning drinking good coffee or something else — non-alcoholic.”
Reassembled in the early afternoon, jurors heard Millard say he had no more evidence to call. And he sat down.
Code turned to Smich’s lawyer, Thomas Dungey. “Mr. Dungey, on behalf of Mr. Smich, are you calling any evidence?”
Dungey, standing: “No we are not calling any evidence.”
Code explained to the jury what will happen next. “This isn’t evidence anymore, it’s argument.”
Millard will deliver his closing address to the jury on Tuesday, Dec. 5; Dungey on Wednesday, followed by the Crown on Thursday, after which Code will charge the jury, a lengthy process he warned, expected to run from next Friday to the following Monday.
“I’ve agreed to a fairly luxurious schedule, I would call it,” said Code, who has tried mightily to keep this trial moving forward despite much jury up-and-down for legal arguments and procedural wrangling.
“Not what I would normally like to do,” Code added, “but the parties have persuaded me, as it has been a long trial with six weeks of evidence, some of it quite complex, and Mr. Millard is self-representing.”
Jury deliberations, said Code, would likely begin the week of Dec. 11.