Identity of killer key factor in decision to order new murder trial

Law360 Canada (August 28, 2024, 11:17 AM EDT) --

John L. Hill

The Crown alleged that Zenen Cepeda Silva, 69, was sitting on the front porch of his Vancouver duplex late on the evening of Jan. 26, 2019, when he and his wife, Maria Baldivia, were approached by Alvaro Julio Roche-Garcia, 58, who fired one shot at Cepeda Silva, hitting him in the pelvis area and severing an artery.

Baldivia screamed for help, causing her granddaughter to come out of the house. Police were called, and despite efforts to revive him, the victim died later in hospital. There was surveillance video of a vehicle parked behind a nearby restaurant linking Roche-Garcia to the scene, and a spent bullet recovered from the accused's home was matched to a bullet retrieved from a door frame at the crime scene. Roche-Garcia was charged with first-degree murder and convicted by a jury in 2021. He received the mandatory sentence of life imprisonment without parole eligibility for 25 years. He appealed his conviction and, in August 2024, the British Columbia Court of Appeal found errors in the trial proceedings and ordered a new trial (R. v. Roche-Garcia, 2024 BCCA 298).

Shortly before the five-week trial, Baldivia suffered a stroke and was unable to testify. At the preliminary hearing, she had testified that she was acquainted with and recognized Roche-Garcia as the shooter. Shortly before dying, the victim said to his wife, “… look how Alvaro has killed me.” Video surveillance evidence taken from the back of a restaurant near Cepeda Silva’s residence captured a man arriving in a vehicle minutes before the shooting. He parked the vehicle and left. Very shortly after the shooting, he returned and briefly placed what appeared to be a handgun on the roof of the car before driving away.

Another witness, Allison Latimer, identified the vehicle captured on the video as her own. She had loaned it to the appellant before the shooting. The appellant returned the vehicle to her the morning after the shooting. Roche- Garcia’s roommate, David Galan Lago, identified the appellant as the person depicted in the video. Forensic evidence showed the bullet that killed Cepeda Silva passed through his body and was found lodged in the front door of his side of the duplex. A second spent bullet was found in a search of the appellant’s residence that had been fired by the same gun that killed Cepeda Silva. Roche-Garcia did not testify.

The central issue at trial was establishing the identity of the killer. The appeal focused on the admissibility of Cepeda Silva’s dying declaration and its admissibility without having its admissibility tested. It was also contended that the trial judge erred by failing to charge the jury adequately on the provisions of R. v. W. (D.) [D.W.], [1991] 1 S.C.R. 742, as it related to the statements of Latimer, Galan Lago and a neighbour regarding observations made after the shooting. Finally, the defence challenged the propriety of the admission of Baldivia’s out-of-court statements that identified Roche-Garcia as the shooter.

The Crown conceded that Baldivia’s recounting of her husband’s words was not akin to a Criminal Code s. 715(1) statement that allows a video recording of a victim or a youthful witness made shortly after the commission of a crime to be admitted. The Crown bore the burden of establishing Cepeda Silva’s statement identifying the appellant was presumptively admissible (R. v. Starr, 2000 SCC 40). Even though the trial counsel did not object, it was the trial judge's duty to assess and exclude inadmissible evidence (R. v. A.L., 2020 BCCA 18). Without testing the statement, the preliminary hearing record of Baldivia’s recollection of her husband’s statement should not have been admitted.

The defence argument that the W.(D.) instruction misguided the jury was considered, but the appeal court confirmed that what matters is the general sense of the words conveyed when used in the jury charge (R. v. Daley, 2007 SCC 53). Here, there was no misguidance.

The third ground that Baldivia’s out-of-court identifications were improper. The appeal court relied on the Ontario case of R. v. Tat (1997), 14 C.R. (5th) 116) that would disallow out-of-court identification of a person not testifying at trial put into evidence by, in this case, repetition of Baldivia’s statements by a police officer.

Even with the inclusion of evidence not properly admitted, the Crown urged the appeal court to apply the curative proviso of the Criminal Code s.  686(1)(b)(iii)) and dismiss the appeal — however, the B.C. appeal court noted the jury deliberated for five days, and jury questions focused on identity. Even though the case against the accused was exceedingly strong, the curative provisions of the Code would effectively deprive Roche-Garcia of the right to have the most serious allegation of first-degree murder determined by a jury that considers only adequately admitted evidence. Thus, a new trial was ordered. 

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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