A trial judge should not have deprived a jury from hearing evidence about the meaning or significance of a teardrop tattoo inscribed on the face of man on trial for first-degree murder, a Crown attorney has told the Ontario Court of Appeal.
The prosecution is asking the province's highest court to set aside Warren Abbey's acquittal in March 2007 and order a new trial.
Abbey was charged with the gang-related fatal shooting of Simeon Peter in Toronto's east end on Jan. 8, 2004.
The three-judge panel reserved its decision after hearing arguments yesterday and today that centered around the admissibility of expert opinion evidence and that of civilian witnesses.
During the six-week trial, the Crown sought to introduce evidence that Abbey got a teardrop tattoo within months of the killing of Peter as an admission of guilt. The Crown's theory was that a teardrop tattoo was a symbol of having killed someone.
But the jury "didn't hear a word about a teardrop tattoo," prosecutor Randy Schwartz told justices David Doherty, James MacPherson and Susan Lang.
"To put it bluntly, the Crown's case was devastated by the exclusion of the teardrop tattoo evidence," reads written material submitted by the Crown and filed with the court.
And that was the right decision, defence lawyer Catriona Verner argued today, adding there was no evidence that Abbey knew or agreed that was the reason why he got the tattoo.
There are also "multiple" reasons why someone gets a teardrop tattoo, such as a fad or fashion statement that has nothing to do with gangs or killings.
After the hearing ended, Verner's co-counsel, Christopher Hicks, said the the appeal is "unique because it raises an important issue about the trial process and the evidence that goes into it."
The appellate court can send the case back for a new trial if it finds legal errors would have altered the jury's verdict.