Court reserves decision in Marissa Shephard murder appeal

The New Brunswick Court of Appeal has reserved its decision in the case of a Moncton woman found guilty of killing her teenage friend more than three years ago.

Marissa Shephard, 23, was convicted in May 2018 of first-degree murder and arson with disregard for human life in the death of Baylee Wylie, 18.

She is appealing the jury's guilty verdict, arguing the trial judge erred in law by allowing into evidence the "hearsay" videotaped statements one of her co-accused, Devin Morningstar, gave to police.

Shephard, who is serving a life sentence with no chance of parole for at least 25 years, did not attend Wednesday's hearing in Fredericton court or participate via video conference or telephone. Her lawyer Margaret Gallagher appeared on her behalf before the three-justice panel.

Justice Ernest Drapeau asked Gallagher if there would have been a case against Shephard without Morningstar's statements.

Gallagher said no. There was no forensic evidence implicating Shephard other than her DNA at the burned-out townhouse, where firefighters discovered Wylie's battered and burned body beneath a mattress during the early morning hours of Dec. 17, 2015.

But Shephard's DNA at the crime scene was easily explained because she lived in the New Brunswick Housing unit, said Gallagher, as members of Wylie's family, who travelled from Moncton, looked on.

Wylie suffered more than 140 "sharp-force injuries" — most of them while he was still alive, Shephard's trial heard.

During a drug-fuelled night of partying, he was bound to a chair, his face was covered in plastic wrap, and he was beaten and stabbed with multiple objects, including a broken mirror, a box cutter, a curtain rod, screwdrivers and a dagger.

He was "quite simply tortured to death," the trial judge had said.

Morningstar was found guilty in May 2016 of first-degree murder and arson with disregard for human life in Wylie's slaying. He unsuccessfully appealed in June 2017 and is serving a life sentence with no chance of parole for 25 years.

Tyler Noel pleaded guilty in May 2017 to the lesser charge of second-degree murder and arson with disregard for human life and is serving a life sentence with no chance of parole for 16 years.

Four other people were convicted of being accessories after the fact.

Morningstar gave three statements after Wylie's death — two to police and one to an undercover officer.

He refused three times to testify at Shephard's trial, despite the threat of being found in contempt of court.

When he was called to the witness box the third time, Court of Queen's Bench Justice Zoël Dionne asked him if he'd swear on the Bible, and once again, Morningstar said no.

The judge asked him if he'd take a solemn oath, and he said no. Dionne finally asked him if he'd answer questions without swearing or taking an oath and without hesitation, and Morningstar said no.

After nearly three weeks of debate, the judge allowed into evidence the videotaped statements Morningstar gave to RCMP in which he detailed Wylie's final hours.

Morningstar placed Shephard at the scene and said she took part in the murder.

Truthfulness questioned

On Wednesday, Gallagher questioned the truthfulness of Morningstar's statements. With no opportunity to cross-examine him during the trial, Shephard's defence lawyer at the time was deprived of the chance get to test his claims, she said.

Shephard might not have testified in her own defence if the Morningstar's statements had not been admitted, she added.

Shephard testified she was out working as an escort or in another room when Wylie was stabbed in her house, and after she saw him wounded and dying, she was too afraid to call anyone for help.

Crown prosecutor Kathryn Gregory argued Morningstar incriminated himself in his statements, which should be a sign he was being truthful.

If anything, he minimized Shephard's participation, she said, noting Morningstar told police he loved her and wanted to protect her and her son.

Gregory acknowledged Morningstar's statements were "a critical aspect" of the case against Shephard, but argued she could have still been convicted without them.

Gallagher countered that if Shephard is successful in having her convictions quashed and a new trial ordered, different evidence might be presented. Morningstar might change his mind and testify, or Noel could be called, she said.

The defence lawyer also argued the trial judge erred in his instructions to the jury on the issues of the lack of cross-examination Morningstar and the Crown's brief cross-examination of Shephard.

No date for decision

The appeal panel, which also included Chief Justice Marc Richard and Justice Margaret Larlee, reserved their decision. No timeline was provided.

Shephard filed her appeal last June, just days after being sentenced.

Shephard was arrested at a hotel in Moncton in March 2016, along with a man and another woman, after being on the run for more than 10 weeks.

A Canada-wide arrest warrant had been issued in January 2016 for her and Noel.

Noel was arrested with two other men in Petitcodiac about two weeks after the warrant was issued.