THUNDER BAY - Crown attorney Trevor Jukes conceded there is not enough evidence to convict Jonathan Massicotte of second-degree murder for his alleged role in the 2014 death of William Wapoose, but told the jury the evidence does prove beyond a reasonable doubt that Massicotte is guilty of manslaughter.
Closing arguments were presented by counsel to the jury on the fifth and final day of trial against Massicotte on Wednesday.
Massicotte pleaded not guilty to the charge of second-degree murder for his alleged role in the death of 32-year-old Wapoose, whose body was found near a bike path at the south end of Chapples Park Drive on Sept. 3, 2014.
A second accused, who was a youth at the time of the incident, was also arrested in 2019 in connection to Wapoose’s death and will stand trial on the charge of second-degree murder in October 2022.
Jukes began his closing statement by telling the jury that the Crown concedes there is not sufficient evidence to convict Massicotte beyond a reasonable doubt on the charge of second-degree murder.
“But the Crown is submitting there is sufficient evidence beyond a reasonable doubt that Mr. Massicotte is guilty of manslaughter,” he said.
The Crown’s case relied primarily on the evidence presented by a key witness who testified to being present at the time Wapoose was attacked. The witness was a youth at the time of the incident.
The witness testified that he was consuming alcohol with Massicotte, the second-accused, and a third individual on Sept. 2, 2014. The third individual became very intoxicated and the others walked him home. The witness testified to avoiding Chapples Park on the way because it was seen as dangerous, but on the way back, the three cut through the park and came across Wapoose, who was slumped over near a lamppost along the bike path.
The witness further testified that they gathered Wapoose’s belongings that were scattered around on the ground and placed them in his backpack and left. Not long after, the witness said the second accused suggested they go back and take his stuff.
After returning to the man, the witness said Massicotte and the second accused began assaulting Wapoose, that Massicotte hit him with a large pole he had found earlier, and that the two dragged Wapoose into the ditch and continued to punch and kick him.
Jukes acknowledged due to the passage of time, as well as the witnesses’ level of intoxication that night, that he was unable to recall all details, but added his testimony was corroborated by other evidence presented in the trial.
“His demeanour throughout, I suggest he was trying to be truthful throughout and that is a factor you should consider,” Jukes said. “Overall there are very few inconsistencies in his testimony.”
Jukes added that the witness was able to indicate the location where Wapoose’s body was found in the park, that blood found near the road demonstrates his knowledge of where the assault began, and his testimony to Wapoose being dragged into the ditch is corroborative with where his body was ultimately found.
“That would confirm the part of his story where he said he saw Mr. Massicotte and [the second accused] assault Mr. Wapoose,” Jukes said. “I suggest [the witness] did not receive any information prior to giving his statement to the police or testifying to where the body was found. Those parts of his testimony were all confirmed by photos and other physical evidence.”
Earlier testimony by the forensic pathologist who performed the post-mortem examination on Wapoose revealed that he suffered a skull fracture and several stab wounds, with one wound to the neck resulting in his death from a loss of blood.
The witness testified to seeing Massicotte strike Wapoose on the back of the head with the pole he was carrying, though the pathologist testified that the laceration and fracture were on the top of the head just above the forehead.
“[The witness] is clear that Mr. Massicotte still has the pole,” Jukes said. “In my submission, when you have all these things going on, it is very possible, and I am going to submit likely and probably, that [the witness] was accurate and correct when he said Mr. Massicotte swung the pole and hit Mr. Wapoose, but the exact location where it made contact, it is understandable, given all that was going on, that he might be mistaken as to that place.”
Jukes added that if the jury is satisfied that Massicotte assaulted Wapoose with the pole, he should be found guilty of manslaughter.
“You need to be satisfied that Mr. Massicotte did assault Mr. Wapoose on the side of the roadway with a combination of kicking and hitting him with the pole, rendering him unconscious,” he said.
Jukes also addressed potential perceived flaws in the investigation by police, including investigators not taking a DNA sample from Massicotte, who offered when asked during an interview in November 2014.
The logical inferences to be taken away from Massicotte willingly offering his DNA is either he was not involved, did not believe his DNA would be found at the scene, or called the investigator’s bluff, he said.
“The suggestion that the offer means he wasn’t involved in the killing of Mr. Wapoose is just one of the logical inferences you can draw,” Jukes said.
Several items were seized from the scene at Chapples Park, and while 13 unique DNA profiles were found, Massicotte was not linked to any of them.
With respect to why police did not obtain DNA samples from anyone else, including the witness who testified to being there, Jukes said the scene offered very little in terms of comparisons.
“There was little DNA found on Mr. Wapoose’s body other than his and DNA that was found was too little to make any suitable comparisons,” he said.
Jukes also asked the jury to consider other potential scenarios, namely that after Wapoose was assaulted, someone else came upon him in the tall grass and stabbed him.
“The possibility of another party coming along after Mr. Massciotte and [the second accused] dealt with Mr. Wapoose is speculative and is not a reasonable inference based on the evidence before you,” Jukes said, adding that when all the evidence is considered together, members of the jury should find beyond a reasonable doubt that Massicotte is guilty of manslaughter.
Defense questions reliability of key witness
Defense counsel George Joseph argued that the Crown failed to prove beyond a reasonable doubt that Massicotte is responsible for the death of Wapoose or that he was even in Chapples Park the night of Sept. 2, 2014.
“None of that evidence except for [the witness] points to Jonathan Massicotte,” Joseph said.
Joseph also asked the jury to question the evidence given by the witness, including his testimony that Wapoose was struck in the back of the head, that they avoided Chapples Park earlier that evening because it was too dangerous but cut through it later, and that he just wanted to go home but still went back to where Wapoose was after the second accused suggested taking his belongings.
“So the prosecution has to convince you to rely on the evidence of [the witness], who was intoxicated at the time and came forward five years later, and whose most common response was ‘I don’t know,’” Joseph said.
Joseph added that the witness continued to associate with Massicotte and the second accused after the incident, even though he testified to being afraid of them.
“At the scene, [the witness] exhibits none of the behaviours of someone who is scared,” Joseph said. “He doesn’t run, he doesn’t cry out, he doesn’t go to the police. Instead he hangs out with the perpetrators of the violence, for at least one year on one instance, so ask yourself how scared he could be.”
“[The witness] cannot be believed beyond a reasonable doubt and he could have been the one who perpetrated the violence against Mr. Wapoose.”
Regarding Massicotte’s interview with Det. Const. Shawn Whipple of the Thunder Bay Police Service in November 2014, Joseph pointed out that Massicotte was never given any information regarding the homicide and was unable to provide any details to police.
Joseph goes on further to say that Massicotte was asked if he killed Wapoose, to which he said no, and when asked to provide a DNA sample on two occasions during the interview, he agreed.
“This is a barely 18-year-old individual who has no idea of the evidence collected at the scene when he gives that offer,” Joseph said. “Would a guilty person agree to give police evidence that would link him to a crime?”
“It comes down to this, do you believe what Jonathan says in that statement? If you believe him, you have to find him not guilty. But even if you don’t believe him but could be telling the truth and you are left with reasonable doubt, you still have to acquit him.”
Joseph concluded his closing statement by saying William Wapoose did not deserve to die and what happened to him was senseless and tragic.
“But Jonathan Massicotte doesn’t deserve to be blamed for it either,” he said.
Justice Tracey Nieckarz will provide instructions to the jury on Thursday before they are sequestered until a verdict is reached.