Marissa Shephard's 1st-degree murder conviction overturned

The New Brunswick Court of Appeal has overturned the first-degree murder conviction of Marissa Shephard and ordered a new trial.

Shephard, 24, was sentenced to life in prison with no chance of parole for 25 years in June 2018 in the murder of 18-year-old Baylee Wylie.

Wylie's body was found burned and beaten in a New Brunswick Housing tri-plex in Moncton in December 2015.

During Shephard's trial, the court heard of a drug-fuelled night of partying that resulted in Wylie being bound to a chair, beaten and stabbed with multiple objects. He suffered more than 140 "sharp-force injuries," a pathologist testified.

Two others are also in prison for Wylie's murder.

Tyler Noel pleaded guilty to second-degree murder and is serving a life sentence with no chance of parole for 16 years. Devin Morningstar pleaded not guilty to killing Wylie but was convicted of first-degree murder and is serving a life sentence of at least 25 years. 

The 41-page decision overturning Shephard's conviction says Justice Zoël Dionne "committed various errors of law" in his charge to the jury. 

The decision outlines a number of times where Dionne failed to intervene on key points during the trial.

The major issue surrounds a statement Shephard made while testifying in her own defence. She said that after Wylie's murder, Noel told her he was considering killing Morningstar and his 15-year-old friend Bailey Fillmore.

Shephard told the jury she tried to change Noel's mind and said, "We're not killing anybody else, Tyler."

Crown's statement 'unfair'

After Shephard's day-long testimony, the Crown did not ask her about that statement and cross-examined the then 22- year-old for less than five minutes.

But during her closing statement, Crown prosecutor Annie St. Jacques used Shephard's words as an admission of guilt.

In its decision, the Court of Appeal quotes St. Jacques as saying, "In [Shephard's] own words, she included herself in the killing of Baylee Wylie."

It calls that statement by St. Jacques "unfair and improper."

The Court of Appeal decision goes on to say "it is obvious Ms. Shephard meant 'you're not killing anybody else, Tyler'."

"Crown counsel knew this was so but unfairly and improperly exploited Ms. Shephard's poor choice of words to argue she had in essence, confessed to murder in her direct examination."

The Court of Appeal concluded the Crown should have given Shephard an opportunity to explain herself during cross- examination. Since the Crown didn't, and neither the defence lawyer nor the judge objected, Shephard was denied a fair trial.

Morningstar refused to testify 

Shephard appealed the jury's guilty verdict within days of her sentencing, 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.

During the trial, Morningstar was brought before the court and asked to testified three times. He refused each time.

But shortly after his arrest, Morningstar knowingly gave the police two taped statements, while a third statement was taken by an undercover police officer planted in a jail cell with Morningstar.

Shephard's defence lawyer argued against allowing the taped statements to be played in court, but after a lengthy discussion, Dionne allowed them to be played for the jury.

The Appeal Court called this decision an error, in part because, Dionne "allowed the recordings of the statements to be heard by the jury without deleting inadmissible and highly prejudicial observations by Mr. Morningstar."

During Dionne's final instructions to jurors, he said they could refer to the Morningstar statements "in the same way and with the same reasons and objective as if you had heard these words directly from him had he taken the stand."

Statements not made under oath

The Court of Appeal points out that Morningstar did not take an oath at the beginning of his taped statements and did not testify in court "with all eyes on him," and the jury "did not see him tested on cross-examination."

The court also found that Morningstar said things in the statement "which would not have been allowed in a trial setting."

Therefore the decision found, "the judge's instruction amounts to misdirection."

The ruling on the appeal concludes that the errors made, "can only be remedied by setting aside the convictions and ordering a new trial."

Crown to consider decision

In a statement, the New Brunswick Dept. of Justice said the Crown has been notified of the decision but will need time to review it and decide what to do next.

"We can say that the Crown has 60 days to consider an Application for Leave to Appeal to the Supreme Court of Canada."