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Tim Bosma trial: What the jury wasn't allowed to hear

Guns, drugs and more — as jurors examine the facts to decide whether Dellen Millard and Mark Smich are guilty or innocent of murdering Hamilton man Tim Bosma, here is what they weren't told.

Jury deliberating on fate of Dellen Millard, Mark Smich after 4-month murder trial in Hamilton

Mark Smich, left, and Dellen Millard stand accused of the first-degree murder of Hamilton man Tim Bosma. The jury has begun its deliberations following a four-month trial. (Court exhibit)

The jury in the Tim Bosma trial in Hamilton never heard about Dellen Millard's drug dealing, nor the fact he and Mark Smich may have owned more than one gun.

Those are just two of the numerous pieces of evidence that Justice Andrew Goodman ruled as inadmissible in the trial of the two men accused of killing Bosma in 2013. 

The jurors are now in deliberations, so for the first time, CBC News is legally able to publish some of the details they weren't allowed to hear in court.

During the four-month trial in Superior Court in Hamilton, the jury was ushered out of the room dozens of times for legal arguments, as lawyers for Millard, 30, and Smich, 28, argued for specific evidence surrounding their clients to be disallowed.

In many cases, it was — evidence about drug use, weapons and other areas was ruled out, because it was deemed "bad character evidence," or was too closely linked to other charges the two accused are facing.

Millard and Smich have pleaded not guilty to first-degree murder charges in the case of Bosma, who disappeared in May 2013 after taking the two on a ride in the pickup truck he was trying to sell. The Crown alleges the co-accused shot and killed Bosma, and burned his body in an incinerator on the Millard family's farm.

Millard and Smich also face first-degree murder charges in connection with the death of Toronto resident Laura Babcock. Millard is additionally charged with first-degree murder in the death of his father — something the jury wasn't allowed to know, as the Bosma case has to be judged on its own merits.

Usually after a jury is sequestered, reporters are allowed to write about almost everything that was said in court while jurors are out of the room.

But in the Bosma case, many things that were discussed still can't be reported. Goodman has ordered an extended publication ban on more than a dozen other areas until the completion of the Babcock trial, which is set to begin in early 2017.

As the jury examines the facts to decide whether Millard and Smich are guilty or not guilty, here is some of what they weren't told.

An affinity for guns, and more than 1

Though the jury heard its fair share about Millard's and Smich's affinity for guns, lots of evidence was ruled out.

This photo of a gun, the Crown alleges, was sent via iMessage from Millard to his girlfriend, Christina Noudga. The jury saw this photo several times, but was never told that a second gun was pictured underneath the redacted portion. (Court exhibit)

Some of that evidence came from texts between Millard and alleged gun dealer Matthew Ward Jackson — also known as "lisho."

In one text message exchange from February 2012, when talking about brokering a deal for what is believed to be the gun used to shoot Bosma, Millard said to Jackson: "BTW, is it clean or dirty?" Jackson responded, "clean," and then "bring her back safe plz."

Millard then wrote, "By the time I let her go, she'll be a dirty girl." Jackson responded, "[that's] fine lol. I can change her print."

Several times, the jury saw a photo of a Walther PPK sitting on a table that was recovered from a device backup on a computer in Millard's home. What the jury didn't see is that in the lower right-hand redacted portion of the photo, there was another gun.

Another photo that was excluded came from Smich's Facebook page. The photo was of a bullet with "your name here" written on it with a marker, court heard.

Smich's affinity for bullets didn't end there. In a voir dire, his friend Brendan Daly talked about how Smich showed him a YouTube video for "zombie bullets," and said Smich told him, "The gun that went with those bullets is what he wanted."

Both legal teams for Millard and Smich said during the trial that a number of other gun and bullet photos were excluded in pretrial motions.

Perhaps most bizarrely, Smich's ex-girlfriend Marlena Meneses said in one of her police statements that Millard asked her to wear a prosthetic, hollowed out pregnancy belly to smuggle ammunition back to Canada from the U.S. "It's kind of like a bathing suit and then it had a skin-coloured plastic belly," Meneses said.

This plot never actually happened, she said, adding that Smich told her not to do it.

Millard, Smich sold and used drugs

The jury heard that Millard and Smich smoked pot, that Smich used Oxycodone and was once arrested for cocaine possession, and that Andrew Michalski rounded up all the drugs in Millard's home and dropped them in a stairwell for Smich after Millard's arrest.

The jury wasn't told, however, that Millard and Smich were involved in a lot more than just marijuana — and while Millard's lawyers made sure to point out that Smich sold drugs every chance they could, Millard sold drugs too.

That was pulled out of evidence at Goodman's order that the trial not "degenerate into a free-for-all" about drug abuse, and thus, bad character evidence.

The jury was told Millard's friend and former roommate Andrew Michalski rounded up weed from Millard's house to give to Smich. What the jury didn't hear is that bag contained more than just pot. (Facebook)

Millard's friend Michalski provided a stark look into Millard's affinity for drugs — both using them and selling them.

"Dell used heroin once. Cocaine, we all did it," Michalski said in one of his police statements, adding that Millard also used steroids. The bag that Michalski used to round up drugs from Millard's house had "more than just weed" in it, prosecutor Craig Fraser said during one legal argument.

Millard also sent a computer packed with drugs like steroids and pot to Michalski at one point when he was in Winnipeg, court heard. During Arthur Jennings's testimony, there was a voir dire where Millard's lawyers talked about a trailer that mechanic Shane Schlatman was building for Millard with secret compartments built inside. 

Speculation was that it was designed to import narcotics.

Smich's drug use often popped up when the jury was out of the room, too. He used cocaine, LSD and the powerful prescription painkiller Oxycodone.

At one point in a voir dire of Michalski, Millard's lawyer Nadir Sachak said, "Mr. Smich sold crack," before Goodman abruptly stopped him.

Robert Burns hates his nephew

Veterinarian Robert Burns's hostility toward his nephew, Millard, was palpable when he testified, but the jury never got to see the full extent of his feelings. (Yelp.com)

Robert Burns's hostility towards his nephew, Millard, was palpable when he testified — but the jury never got to see the full extent of his feelings.

Burns said in a police statement read in court that he believes his nephew is a "sick, twisted prick."

This wasn't allowed to go before the jury at Goodman's instruction to not go into areas of character.

Lawyers on all sides tiptoed around Burns when he was testifying, for fears that he could say something incriminating enough to cause a mistrial.

Defence pushed for a mistrial, twice

On two separate occasions, the defence for the accused did apply for a mistrial, which would have started the gruelling trial process all over again.

The first came three weeks in, and was a joint application between lawyers representing Millard and Smich. The details of the application are under an extended publication ban, and cannot be reported.

In the end, Goodman denied it.

A second mistrial application came on April 11, when Smich's legal team alleged that lawyer Ravin Pillay's cross-examination of witness Brendan Daly impugned their client's ability to get a fair trial. They based that application on what Daly told the jury about Smich's anger issues, and his sometimes violent rap lyrics.

Again, the application was thrown out.

Bad behaviour from witnesses

Bosma vanished on May 6, 2013, from his home in the Ancaster area of Hamilton after going on a test drive in the pickup truck he was trying to sell. (Facebook)

Millard's friends weren't angels. The jury heard several of them were involved in criminal plots to steal everything from construction equipment to plants. Some conduct, though, wasn't talked about in open court.

When police went to question Lisa Whidden (who said she had an "intimate relationship" with Millard), she tried to run after saying she had information about the case. That's why she was put in handcuffs and her phone was seized — because they were afraid she would delete things that were on it. The officer's notes at the time describe her as "unco-operative, combative and rude."

As well, Millard didn't solely write letters to his then girlfriend, Christina Nouga. He also wrote letters to his mechanic, Shane Schlatman, and in doing so, breached a second court order to not contact someone. Those letters were mostly centred on Schlatman caring for Millard's cars, court heard.

It is expected the jurors will deliberate from 9:30 a.m. to 8:30 p.m. ET each day — their window to decide on a verdict.

adam.carter@cbc.ca

About the Author

Adam Carter

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Adam Carter is a Newfoundlander who now calls Toronto home. He enjoys a good story and playing loud music. You can follow him on Twitter @AdamCarterCBC or drop him an email at adam.carter@cbc.ca.