Crown rests its case in Marissa Shephard murder trial

The Crown rested its case at Marissa Shephard's murder trial in Moncton on Tuesday, weeks earlier than expected.

The surprise move caught defence lawyer Gilles Lemieux off-guard.

"I wasn't expecting this," said Lemieux.

Shephard, 22, is charged with first-degree murder and arson with disregard for human life in connection with the death of Moncton teen Baylee Wylie.

The 18-year-old's body was discovered by firefighters in Shephard's burned-out townhouse at 96 Sumac St. on Dec. 17, 2015.

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• Marissa Shephard at centre of competing affections as Baylee Wylie died, trial hears​
• Baylee Wylie's last hours detailed during police interview with Devin Morningstar

​The trial started on March 6, following jury selection, and is scheduled to run until June 8.

The Crown called 40 witnesses, including police officers and experts who described the crime scene and evidence collected, but Lemieux told the Court of Queen's Bench he was expecting another 20.

He requested the jury be excused so he could discuss the matter with the Crown and judge.

​It may sound like intellectual gymnastics … I have confidence you will be able to deal with that.- Zoël Dionne, judge

When the jurors returned, Justice Zoël Dionne told them he had "good news and bad news."

The good news, he said, is that the Crown's case was shorter than expected, so the trial will wrap up earlier than scheduled.

The bad news is the defence needs time to reassess its position, so "you're done for this week," Dionne said.

The trial will resume on Monday morning, when Lemieux is expected to present his case.

It's unclear whether he will call Shephard to testify in her own defence.

Mid-trial instructions

Earlier in the day, the judge cautioned the jurors against putting too much weight on an audio recording of Devin Morningstar secretly made by an undercover police officer posing as his cellmate.

Dionne told the jurors not to consider the recording they heard on Monday for "the truth of its content," but only "as a tool" they can use in their analysis.

They should also ignore parts of the two "formal statements" Morningstar gave police in determining Shephard's guilt or innocence, Dionne said during his mid-trial instructions.

"​It may sound like intellectual gymnastics … I have confidence you will be able to deal with that."​

In criminal trials, witnesses normally undertake to tell the truth and are subjected to cross-examination, Dionne told the jury.

But Morningstar has been called three times to testify at Shephard's trial and each time, he refused.

'Unusual way to present evidence'

Instead, the jury has heard three police recordings of Morningstar, including his videotaped interview with Codiac Regional RCMP Sgt. James MacPherson on Dec. 20, 2015, the day of his arrest, the secret audio recording by the undercover officer in his cell later that night, and his sworn videotaped statement to Cpl. Laurent Lemieux on Dec. 22, 2015.

"This is an unusual way to present evidence," said Dionne. "I had to decide if, in light of Devin Morningstar refusing to testify, if I would let his out-of-court statements admitted as evidence.

"This was not an easy one."

Guided by Supreme Court of Canada case law, the judge decided only the two "formal statements" taken by identified officers met the required standard.

The secret audio recording did not, he said, remarking, "I never heard that much [profanity] in my life," prompting laughter in the courtroom.

Ignore parts of 'formal statements'

"In this case, you will be allowed to look for answers in the two formal interviews."

Among the questions the jury needs to address, he said, are whether Shephard was present and if so, did she participate?

Some information from the two admissible statements, however, should be ignored, said Dionne.

For example, Morningstar told police Shephard likes "bad boys," but his thoughts on what qualities she may be interested in are of no value, the judge instructed.

In addition, whether there was oral sex between Wylie and Tyler Noel, and whether Shephard and Wylie were dating is hearsay and will be struck from the transcripts of the statements, he said.

Dionne said he expects about two pages of the transcripts to be redacted in total.

"I hope I did not put you all to sleep."

Morning without jury

Dionne gave the mid-trial instructions following discussions held in the jury's absence Tuesday morning.

The judge instructed a sheriff's deputy to tell the jurors only that the court was dealing with "a matter of evidence" in their absence.

What occurs without the jury present cannot be reported.

"The court is working hard," Dionne assured the 14 jurors upon their return.

"It has been a long process," he added.

Stabbed with broken mirror

Morningstar, in his two admissible statements, described the events leading up to the murder and graphic details about the slaying.

Wylie was stabbed about 200 times, the courtroom heard.

Morningstar initially told police Shephard inflicted about 25 of the wounds, but later estimated 50.

"I know at one point she took the broken mirror … and put it that far in his neck."

He admitted to stabbing Wylie three times under pressure from Noel, and attributed the rest of the wounds to Noel, who used a knife with a two-inch blade.

On Tuesday afternoon, Shephard's defence lawyer cross-examined Lemieux, the officer who took Morningstar's sworn statement on Dec. 22 at the Shediac detention centre.

Lemieux agreed there were some inconsistencies.

"If I notice something felt inconsistent … I did try to ask some questions around it."

Morningstar "was allowed to give his story, inconsistencies and all?" the defence asked.

'He was allowed to give his version of events, yes," replied Lemieux.

The officer, who also seized Morningstar's clothing, was asked whether he noticed any blood or red stains. He did not, he said.