What the jury didn't hear at Marissa Shephard's 1st-degree murder trial

Jurors at Marissa Shephard's first-degree murder and arson trial were out of the courtroom for days while lawyers argued before the judge about evidence and the charges.

Before jury deliberation Shephard's defence lawyer asked that 1st-degree murder be removed from the charges

Marissa Shephard was found guilty this week of first-degree murder in the death of 18-year-old Baylee Wylie, whose body was found in her burned-out townhouse in December of 2015. (RCMP)
A morally bound fear of divine punishment in the justice system, we don't give much weight.- Zoë​l  Dionne, Court of Queen's Bench justice

It took a jury only about four hours to decide Marissa Shephard was guilty of first-degree murder and arson without regard for human life.

It took days — with jurors out of the room — for the court to decide whether Shephard should even be charged with first-degree murder, whether a much lesser offence should be among the jury's options, and whether the words of another of Baylee Wylie's killers should be admitted as testimony.

On Tuesday, the 22-year-old Shephard became the third person, along with Devin Morningstar and Tyler Noel, to be convicted of murdering Wylie, 18, during a drug-fuelled night at Shephard's home in Moncton.

Wylie's body was found stabbed, beaten and burned in Shephard's smouldering New Brunswick Housing unit in the early morning hours of Dec. 15, 2015.

Shephard's trial moved in fits and starts over two months. After its start on March 5, five days were lost to snowstorms and icy roads. 

But at least 12 days were set aside for voir dires, which take place with the jury absent and can't be reported on at the time. Here's what happened during those hearings.

Defence asks to remove 1st degree

On April 30 and May 1,  Gilles Lemieux, Shephard's defence lawyer, asked Court of Queen's Bench Justice Zoë​l  Dionne to remove first-degree murder from the list of possible verdicts the jury could return with.

From early on in the case, Lemieux has said there was a lack of physical evidence placing Shephard as a participant of the murder.

Wylie was stabbed and beaten to death by Morningstar, Tyler Noel and Shephard in December 2015. (Submitted)

"You have to find evidence somewhere she planned and aided and abetted," Lemieux said during the voir dire.

Crown prosecutor Annie St. Jacques responded saying: "There was planification."

She pointed to statements made to police by Morningstar, who was arrested three days after the victim's body was found.

During the following two days in police custody, Morningstar gave three taped statements. 

Two he agreed to, sitting in interview rooms, answering questions from police. A third statement was taken by an undercover agent planted in Morningstar's jail cell.

After lengthy discussions that were also held in the absence of the jury, Dionne allowed the statements to be played in court. 

Devin Morningstar, convicted in November 2016, of Wylie's murder, was called to testify at Shephard's first-degree murder trial three times, but refused each time. (Facebook)

In those statements, Morningstar tells of an elaborate, yet poorly executed plan to frame Wylie for stealing pot.

Morningstar said Shephard came to him with the plan that involved his weed going missing. Morningstar was supposed to accuse Wylie of stealing it.

But Morningstar said he was on so many drugs, he forgot what he was supposed to do. Morningstar said Shephard took him aside and told him, he was ruining the set-up.

St. Jacques pointed to this, saying, "there was a plan."

"It's clear the plan was to never let [Wylie] leave the scene."

Lemieux said the plan wasn't about murder.

"Nowhere in the plan does it come in to end anyone's life," he said. "We're talking about weed."

The fact that Wylie was later killed doesn't mean it was part of the plan Morningstar spoke of.

Dionne listened, to both sides, then decided against the defence.

"Why can't you make these arguments in front of the jury?," the judge asked Lemieux. "If she is found guilty, take this to appeal."

Lesser charges

The judge told jurors they had four options for the charge of first-degree murder: guilty as charged, not guilty, guilty of second degree, guilty of manslaughter.

Defense lawyer Gilles Lemieux, with lawyer Alison Menard at the Moncton courthouse. (CBC News )

But the defence had tried to get lesser charges, such as assault or aggravated assault, added to the options.

"The charge should include some alternate counts," Lemieux said during a voir dire.

Dionne was quick to quash the idea, saying, "It's not acknowledging the seriousness of the situation."

"I would feel almost embarrassed … for the family of Baylee Wylie and Baylee Wylie in general."

Dionne said he wasn't catering to public opinion but was concerned with the administration of justice.

Any lesser charges between manslaughter and acquittal, "I'm not willing to consider."

Morningstar's statements

The longest voir dire of the trial started on March 27 and lasted until April 18. The court needed the time to address the Morningstar statements, which became an issue because Morningstar refused repeated requests that he testify in person at Shephard's trial.

Ten police officers were called for the hearings, and all three of Morningstar's statements were played.

Zoël Dionne presided over Shephard's trial and allowed Morningstar's taped statements to police to be admitted as evidence. (Andrew Robson)

Lemieux and his law partner Alison Menard were against allowing the jury to hear the statements, in which Morningstar describes how Wylie's last day unfolded and ended with his being stabbed about 200 times by Shephard, Noel and Morningstar.

Menard argued Morningstar, a convicted murderer, could not be trusted to tell the truth.

"Yet, he incriminated himself, big time," Dionne responded.

Menard came back with, "The man doesn't understand the law, that doesn't mean he didn't try to lessen his role." 

The Crown argued that two of the statements were given under oath, with Morningstar swearing to tell the truth.

Dionne was quick to say, with a laugh: "A morally bound fear of divine punishment in the justice system, we don't give much weight."

"It's 2018, we're no longer there."

The judge did give more weight to the jail sentence that can be handed down for perjury, a maximum of 14 years in prison.

Crown prosecutors Annie St. Jacques and Eric Lalonde leaving the Moncton courthouse. (CBC News )

The jury had been out of court for 18 days when Dionne delivered his decision.

He acknowledged that no cross-examination could take place without Morningstar in court, but he decided that with three statements the jurors could cross-reference each point Morningstar made in the separate statements to help them test his truthfulness.

"In court, you would have heard him only once," Dionne said. "Now [you have] access to three statements."

In explaining his decision to allow the statements, Dionne pointed to different things Morningstar said, including his mention of objects police gathered from the crime scene.

"A broken bong, firearms, all these items were found," the judge said. "It proves he had a good memory of events."

Angela Wylie, Baylee Wylie's aunt, told reporters outside the courthouse Tuesday it was too soon to comment. (Tori Weldon/CBC)
Then he turned to what Morningstar said about Shephard.

"If we consider her conduct after the events it proves extra-corroborative evidence."

After Wylie was killed and Shephard's house was set on fire, she made no effort to contact her landlord about her belongings, the judge said.

A surveillance video shown to the court, taken at a gas station after the killing and showing Morningstar, Noel and Shephard, also supported his decision that Morningstar was telling the truth, Dionne said.

"She looks very friendly with Tyler Noel and especially Devin Morningstar," he said, noting Shephard made no effort to distance herself from the men.

Tyler Noel pleaded guilty to second-degree murder in Wylie's death and to arson with disregard for human life. (RCMP)
Finally, police had a warrant out for Shephard's arrest for two months. When she is confronted by an officer in Moncton, "she identifies herself falsely."

"That's what you would suspect from someone who is a culprit in murder and arson," said Dionne.

Angela Wylie, Baylee Wylie's aunt, sat through the voir dire. Normally composed, when Dionne declared Morningstar's police interviews admissible as evidence, she broke down in tears.

The Crown rested its case weeks earlier than expected, shortly after the statements were played to jurors.

About the Author

Tori Weldon

Reporter

Tori Weldon is a reporter based in Moncton. She's been working for the CBC since 2008.