What the jury didn't hear in Peter Khill's second-degree murder trial

After hearing weeks's worth of evidence, the 12 jurors tasked with deciding Peter Khill's fate are finally deliberating behind closed doors.

They'll have to unanimously determine if Khill is guilty of second-degree murder or of the lesser charge of manslaughter after he shot and killed Jon Styres in February 2016.

Styres was stealing Khill's truck parked outside of his home in rural Hamilton.

Khill has pleaded not guilty and said he shot Styres twice with a shotgun to defend himself.

The current trial is Khill's third. In the first, he was acquitted but in 2021, the Supreme Court ordered a new trial. The second lasted only a few days in November and ended in a mistrial. 

After only a few hours of deliberating Thursday, the jury wrote a letter to Superior Court Justice Andrew Goodman asking about Khill's testimony.

They asked if Styres moved between the first and second shot and if so, how much did he move and in what direction.

Goodman told the jury Khill said he couldn't tell if Styres moved between the first and second shot, but said after the second shot, Styres stumbled a few steps before falling onto the muddy driveway.

CBC Hamilton can now reveal some of what the jury didn't hear during the trial since jurors are sequestered while they reach a verdict.

Why a juror was discharged

On Day 6 of the trial, Goodman discharged a juror after a surprising revelation from defence lawyer Jeffrey Manishen.

Sometime in between jury selection for the second and current trial, one of the people who ended up becoming a juror in the current trial allegedly spoke to a co-worker about jury duty — and also brought up what they thought of Khill.

"The comment I heard initially ... apparently, at least second- or third-hand, were comments to the effect of, 'He deserves to go to jail for what he did, he shouldn't have done what he did, he's going to get what he deserves,'" Manishen told Goodman.

"The other comment I heard was to the effect of ... 'The guy stealing stuff should not have been shot, the man [Khill] should've called the cops.'"

Manishen said Khill heard the information from a friend who is friends with the husband of the juror's co-worker.

During jury selection at the start of the trial, each one was asked what they heard or read about the case, if they formed any opinions based on that and if they could put those opinions aside and be unbiased.

During jury selection, the now-discharged juror said they heard about the case after jury selection from the second trial but didn't form a belief about Khill's guilt or innocence.

After Manishen told Goodman about the juror's alleged comments, Goodman said he would hold a private inquiry the next morning. 

Media were not allowed to attend the inquiry.

While it's unclear what was said in the private meeting, when all parties returned to open court, Goodman told the rest of the jury that one juror had been discharged.

"You are not to speculate as to the reason why ... it is of no concern to you," he told jurors.

"[It] shall not form any part of deliberations, you are not to draw any inferences whatsoever in that matter."

The jury eventually lost one other person because they got sick on the last day of evidence and Goodman didn't want to delay the trial any further.

Justice's unfiltered opinion on expert witness

During the trial, blood stain analyst Colin Hoare faced a tough cross examination from defence lawyer Jeffery Manishen.

On Thursday, while Goodman was delivering his charge to jurors, he told them he believed Hoare provided "inconsistent evidence" and they "may decide to assign less or no weight to some of his ultimate conclusions where not conceded by the defence."

But before the jury entered the courtroom, Goodman acknowledged what he was going to tell jurors was a "watered down" version of his thoughts.

Goodman noted how Hoare's testimony about what kind of blood spatter was found on Khill's truck changed between the first trial and the current trial.

The blood spatter can help determine what position Styres was in and how close Khill was to him when the shots rang out.

In the first trial, Hoare said he couldn't determine what kind of blood spatter was on the truck. In the second trial, he said it was back spatter — while also still testifying his testimony from the first trial was true.

Goodman also spoke about how Hoare described an "experiment" in 2019 where he and some police officers fired various guns at a pork shoulder filled with blood to observe various types of blood spatter and said it helped inform his opinion.

Goodman casted doubt on that, saying it was "scientifically devoid of any merit."

"I actually [was going to tell jurors] you may want to assess his objectivity and may find he's not objective in this case given the change of position from the first trial to the second trial, so I actually watered it down," Goodman told Crown prosecutors.

"Frankly, as rare a day it is I criticize an expert but this is a case where I'm not about to change that."

Styres's fingerprints

During Day 2 of the trial, Manishen was poised to ask Doug Moon, who was a forensic investigator with Hamilton police at the time of the killing, about how police were able to identify Styres after he died — a seemingly innocent question that Crown prosecutor Paul McDermott feared could lead down a slippery slope.

McDermott told Goodman he worried that would lead to the mention of Hamilton Police Services and Royal Canadian Mounted Police (RCMP) having Styres's fingerprints on file.

"Mr. Styres having fingerprints with the RCMP and the Hamilton police can only lead to an inadmissible issue where the jury considers Mr. Styres's character," McDermott said.

"There's no application in this trial for any evidence of discreditable conduct by Mr. Styres," he said, adding the jury could be left with an "inevitable impression" that Styres has a criminal record.

Manishen said Styres had no identification on him when he died and said it was valid to know how police identified him and how far Styres lived from Khill's home.

McDermott said he didn't think where Styres lives is relevant.

He said if the jury learns Styres lives on Six Nations, jurors may think his Indigenous identity may be relevant, too.

While Styres's killing had an especially high-profile in 2016 because of its similarities to the 2016 shooting death in Saskatchewan of 22-year-old Cree man Colten Boushie, and potential jurors were asked about any racial biases they may have, Styres's Indigenous identity hasn't come up in the trial.

Goodman ultimately ruled the defence could ask Moon about Styres's name, date of birth and address as a matter of fact, but couldn't bring up evidence related to Styres's character or reputation.

He also said the defence couldn't ask about anything which would suggest a rise in truck thefts in Hamilton and that the truck thefts can be linked to Indigenous or Six Nations people.

There were also voir dires — a trial within a trial — to determine what evidence from forensic pathologists and a forensic psychiatrist could be admissible in court.

The jury continues to deliberate Friday. It's unclear when it will reach a verdict.