A Toronto man acquitted of a 2004 shooting death will face a new trial after Ontario's highest court quashed the jury verdict Thursday, saying excluded evidence related to a teardrop tattoo could have affected the outcome.

The Ontario Court of Appeal ordered Warren Abbey to stand trial again for first-degree murder charges in the death of Simeon Peter. He was acquitted in March 2007 after a trial in Ontario Superior Court.

A teardrop tattoo, inked on Abbey's face four or five months after the slaying, is at the heart of the three-member panel's reason for allowing the appeal.

The panel agreed with the Crown's argument that the trial judge should not have excluded evidence collected from five witnesses relating to its potential meaning.

"Viewed cumulatively, the excluded evidence could reasonably present a compelling picture for the Crown," reads the court's decision.

Gang-related shooting

Peter died on Jan. 8, 2004, after being shot three times while walking with his girlfriend in the Malvern district of Scarborough, in Toronto's east end.

The killing happened at a time when two Toronto street gangs, the Malvern Crew and the Galloway Boys, were fighting a bloody turf war involving several drive-by shootings. If a member of one group was seen in the other's so-called territory, violence could break out.

Abbey, allegedly associated with the Malvern Crew, was arrested 14 months after the slaying. During his trial it was agreed the shooting was gang-related and at least one Malvern member had killed Peter, believing he was a member of the Galloway Boys.

During arguments without the jury present, the Crown argued Abbey's teardrop is a symbol within urban street gang culture and sought to introduce it as an admission of guilt.

But the trial judge excluded all proposed testimony relating to the tattoo because he said it was prejudicial.

Among those excluded from testifying were Dr. Mark Totten, an expert in the culture of Canadian street gangs who suggested such a tattoo could mean that person recently murdered a rival gang member, the Appeal Court's decision notes.

Also excluded was more specific evidence from alleged gang members who explained the meaning of the tattoo within their group.

One individual also alleged he had heard "implicit acknowledgment" from Warren that the teardrop symbolized "his murder of Mr. Peter," the court's decision says.