Telltale teardrop quashes acquittal

Aug 28, 2009 04:30 AM

In North American gang culture, a teardrop tattoo on your face often means you’ve killed a rival gang member.

But the jury that acquitted Warren Abbey of the execution-style shooting of a supposed gang rival two years ago never heard about the teardrop he had inked on his face four or five months after the murder.

Yesterday, the Court of Appeal quashed the acquittal of the associate of Toronto’s notorious Malvern Crew, ruling that the trial judge had erred in excluding such evidence as too prejudicial.

Ontario Superior Court Justice Todd Archibald should not have barred testimony from a gang expert and three Malvern Crew members that could have bolstered the Crown’s case that Abbey had a teardrop tattooed under his right eye to show he had shot Simeon Peter, 19, the appeal court ruled.

Archibald used faulty criteria to exclude the evidence of street gang expert Dr. Mark Totten, demanding that it meet tough scientific standards, rather than the accepted methodology of his field, the three-judge panel ruled in a decision released yesterday.

"The trial judge mischaracterized Dr. Totten’s opinion as involving a novel scientific theory," wrote Justice David Doherty, with Justices James MacPherson and Susan Lang agreeing.

The jury should have been allowed to make up their own minds about his opinion that a teardrop tattoo, in gang culture, could mean the death of a fellow gang or family member, that the wearer had served time, or that he had murdered a rival gang member.

"Neither the methodology used by Dr. Totten nor his opinion concerning the teardrop tattoos were complex or difficult for the layperson to understand and evaluate," Doherty wrote. "This was not rocket science."

As part of Totten’s work, he interviewed 300 gang members, 97 of whom had been convicted of homicide-related offences. Of that group, 71 had teardrop tattoos. All 71 explained that the teardrop represented the murder of a rival gang member, the judges noted.

Abbey was charged with first-degree murder in Peter’s Jan. 8, 2004 shooting. The 19-year-old victim was fingered by Abbey’s friends as being a member of their hated rivals, the Galloway Boys. On that freezing afternoon, a man followed Peter and his girlfriend down a walkway near Morningside and Sheppard Aves. and fired several times.

Although the three fellow Malvern Crew members could not explain exactly how they had come to form their view of the teardrop’s meaning, they should have been allowed to testify on this issue, the appeal court ruled, adding that weaknesses in their evidence could have been exposed on cross-examination.

One of the gang members, who can only be identified as G.B., testified out of hearing of the jury that he saw Abbey in the summer after the murder and noticed the tattoo on his face, which to him meant "`you took a life,’" Doherty wrote.

G.B. said he asked Abbey what happened. In response Abbey "immediately launched into a detailed description of his murder of Mr. Peter," the appeal judge wrote.

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