JIM RANKIN
Jun. 20, 2005. 12:49 PM
On
the eve of his trial last month for the attempted murder of two Toronto police
officers, Andre Burnett received some unexpected news.
Fresh information had come to light. Provided he pleaded guilty to possessing the handgun from which police allege he fired a single shot toward them on a warm July night two years ago, the Crown was willing to withdraw all other charges.
On Tuesday, May 17, the 24-year-old, who has a criminal record for drug and firearms offences, took the deal and walked free. He had served 21 months and 17 days in custody, most of it in the Metro West Detention Centre and some in hospital, recovering from a single police bullet to his back, left of the spine, that same July night.
What really happened that night was never determined in a court of law. Instead it was bargained aside, leaving key questions unanswered.
Did Andre Burnett pull the trigger that night?
Or, as his lawyer was prepared to argue, was he shot in the back because he ran from the police?
Until the offer came, Burnett's lawyer was readying an argument that the young black man had been the target of racially biased policing. That argument was never heard in court.
Instead, the Crown told defence lawyer Jennifer Budgell that one of the two officers her client was charged with trying to kill had changed a small but crucial part of his story.
The officers — Const. Michael DeZilva and Const. Joseph Gidari — told the preliminary hearing last October that they were part of a special operation on the night of July 28, 2003, near Jane St. and Driftwood Ave. They were pursuing Burnett on foot through Edgeley Park when, they testified, they saw a muzzle flash and heard a shot. The officers fired four shots at Burnett, who was struck once in the back.
The province's Special Investigations Unit searched the area of the shooting but failed to turn up physical evidence that Burnett had fired the 9-millimetre semi-automatic that police found near him.
The Special Investigations Unit announced in March 2004 that the two officers had been justified in shooting Burnett, who, by then, was facing 11 charges including attempted murder, endangering life, wearing a disguise and firearms offences.
The case against Burnett unravelled after one of those officers changed his story. He had testified at the preliminary hearing that he wrote up his notes on the incident at home after the shooting. Now, on the eve of the trial, he said he'd written up his notes at the home of the other officer.
That small change could have been used to question the reliability of the rest of the officer's testimony. It could have also been used to question the independence of the officers' versions of events — crucial in any case.
An internal police investigation is under way. Burnett's lawyer is calling for the SIU to reopen its own investigation. He and his family are considering a lawsuit.
"It just calls into question how they could find this to be a justified shooting when all of the forensic evidence supported Mr. Burnett's (version)," said Budgell, who has represented Burnett since October.
And there remains the thorny issue, raised by Burnett's lawyer, of why police chased him in the first place.
Budgell's client admits he has had run-ins with the police in the past. In fact, seven months earlier, he'd made the Toronto CrimeStoppers 10-most-wanted list as a suspect in another shooting. But he wasn't the man they were after that night. It was another man — one considered armed and dangerous, and well known to the officers of 31 Division. They had been briefed and shown a mugshot of the target.
"He looks nothing like Mr. Burnett," said Budgell. "He is a young black male, but beyond that, there was really nothing in common."
What follows comes from transcripts of Burnett's preliminary hearing, as well as a legal document based in part on SIU interviews and a court application to have charges stayed which were entered in court by his lawyer in preparation for a trial that will never take place.
It was after 9 p.m. on July 28, 2003, and getting dark. The police operation headed up by officers from 31 Division's Major Crimes Unit was not going to involve a lengthy stakeout. They'd received information that a man wanted for a carjacking, among other things, was in the area of Driftwood Court and Driftwood Ave.
| `Mommy, I didn't have a gun'
Andre Burnett
|
Officers were told to focus on the area itself, "just to confirm if (the target) was there or if somebody else that we might be interested in, is there," the "eye," Det. Todd Storey, said at Burnett's preliminary hearing.
At one point, it seemed they had the target spotted. He was on a bike — white T-shirt, white shoes. But it's unclear whether the man on the bike was ever investigated. Things were about to get hairy.
Const. DeZilva and Const. Gidari, both with a few years on the job, had parked their cruiser in an unobtrusive spot, and had been on foot five or six minutes when a man ran toward them. It was Andre Burnett, in a black T-shirt, black shoes. Part of his face was covered.
Two other officers had spotted Burnett earlier as he stepped out from the area of a town house. Burnett saw the other officers and began walking away. Then, according to the officers, he broke into a run — right into Gidari's path.
Gidari testified that he was standing still as Burnett ran up to him. He attempted to pin Burnett against a wall, he said, but Burnett caught him "flat-footed." Burnett brushed past and into a partially lit area of Edgeley Park.
The officers began to go after him. They testified they were about 15 metres away when they heard the crack of a gunshot and saw a muzzle flash.
The officers testified they immediately unholstered their handguns and returned fire. Both aimed for the centre of the largest target, the torso, as they had been trained to do.
Gidari, to DeZilva's right, fired just once. DeZilva squeezed off three shots. At about that moment, Erik, a police dog, was approaching, off leash. The police handler yelled for the officers to stay still. The dog went high on Burnett, the only person still moving, and down he came.
Within seconds, police, including plainclothes officers, had arrived. Police testified that a 9mm semi-automatic handgun — loaded with an eight-round clip that contained six rounds, and had another ready to fire in the chamber — was almost immediately found on the ground near Burnett.
In court documents filed by Burnett's lawyer, civilian witnesses spoke about what happened next. They told SIU that Burnett was kicked, and, according to one witness, called an "asshole" by an officer. Burnett, according to another witness account, was calling for an ambulance when another officer said, "That's what he gets."
A crowd had begun to gather, and it wasn't police friendly. According to another civilian witness who spoke to the SIU, guns that had been trained on Burnett were now being pointed in the general direction of the crowd. According to one witness, an officer pumped the shotgun he was carrying, and said, "Get the f--- back or else I'm going to shoot."
In her Charter application, Budgell argues that: "The evidence at the preliminary inquiry reveals that the officers believed they were entitled to investigate any young black male in the area who remotely matched (the target's) description. "The applicant was perfectly entitled to walk and/or run from police, and he was not required to speak to them."
The Crown's response to the allegations of police bias never came. Once the plea bargain was cut, there was no legal need to file one. Because of the internal probe, police cannot address that question, either.
SIU investigators spent five days searching Edgeley Park and the surrounding area. Forensic investigator Richard Goodship described the search, which was supported by Toronto and York Region police, at Burnett's preliminary hearing.
"A walk-through was done, then a crawl-through was done. That area was raked; York Regional — their Forensic Archeological Unit was in. It was vacuumed. We did everything but bring in a backhoe and sift the sand underneath the grass."
The SIU found four 40-calibre shell casings from the police guns, and two 40-calibre slugs that had penetrated the ground. They found a 45-calibre shell below the ground — a remnant, perhaps, of a previous shooting. What they didn't find was forensic evidence that Burnett had fired the 9mm found at his side. No 9mm shell casing. No 9mm projectile. A forensic expert testified she found no gunshot residue on Burnett's clothes.
The expert said she found unburned powder in the barrel that indicated it had been fired — but it was not possible to determine when.
| `(Burnett) was perfectly
entitled to walk and/or run from police'
Jennifer Budgell, defence lawyer
|
It is not unusual for officers to complete notes on their next shift, or together with their partners. But, because of the shooting, the next shift for these officers would be some time away, and with an incident that would clearly involve an SIU probe, different rules applied.
In an event likely to involve the SIU, officers must complete their notes "forthwith," and "remain separate from, and not communicate with, other involved officers, including any incident debriefing, until otherwise instructed" by a Toronto police SIU liaison officer.
Just how and when the officers did their notes, and when and if they were given the all-clear to communicate with each other, as well as the change in the police story, are at the centre of the internal probe now underway.
Not until Friday, May 13 — three days before Burnett's trial for attempting to murder the two officers — was there any indication that the officers had completed their notes together, and it came from DeZilva.
"During an interview with a potential police witness, P.C. Michael DeZilva, some information came to light that we feel obliged to disclose," reads a letter, signed by two Crown attorneys. "P.C. DeZilva has advised us that he was at P.C. Joe Gidari's home at the time that he wrote his memo book notes relating to Mr. Burnett's investigation."
A deal was placed on the table the following Monday. Until then, the Crown had been offering six to seven years in a penitentiary in exchange for a plea of guilty to discharging a firearm with intent.
This new deal was good, and Burnett was anxious to take it.
He had been denied bail and was coming up on two years of "dead" time in jail while he waited for his case to be heard. He pleaded guilty to possession of a loaded firearm the next day, and walked free before the sun set.
"He'd been wanting to get the hell out of jail for a long time," said Budgell. "When this whole thing came to light, Andre jumped at it. He fully admitted he had a gun."
The senior Crown on the case said she wasn't at liberty to discuss details, but a spokesperson for the Attorney General told the Star that, in light of the new information, the Crown felt there was no longer a reasonable prospect of successfully prosecuting a number of the charges against Burnett, including those of attempted murder.
Following initial inquiries from the Star, the SIU conducted a review of its decision to clear the officers and there are no plans to re-open the investigation. "If there's anything that comes to light as a result of (the internal police) investigation, then we'll review it at the time," said spokesperson Rose Bliss.
The 40-calibre police bullet that entered Andre Burnett's back caused nerve damage to his left arm, which, as he sat in an interview room at the Toronto Star, was tucked tight against his torso. The arm is half the diameter of his right arm, and his fingers curl in at the second knuckle. He can't hold a can of pop. A doctor tells him he may re-gain 80 per cent use of the arm within a couple of years.
He wore a black 76ers ball cap his mother had bought for him and said very little in response to most questions. He said he couldn't remember much after he was loaded into the ambulance.
His mother, Cecile Case Holder, filled in some of the gaps.
She said she remembered her son's picture had appeared in a newspaper in December, 2002. The Toronto Sun, reporting on a CrimeStoppers' 10-most-wanted list, said Burnett and another man were believed to be behind a non-fatal shooting near Jane St. and Finch Ave. in 2002.
Burnett, after police shot him, was charged in connection with that shooting. That charge was eventually withdrawn. Budgell said there were "identification" problems with that case.
Burnett's mother said the shooting has changed her son, and that his mind isn't working the way it once did. She also said her son said this to her a few days after his release: "Mommy, I didn't have a gun."
Burnett also told the Star he didn't have a gun that night, and that he has no idea where the 9mm police said they found near him came from. In court, however, in his plea arrangement, he admitted it was his.
If that wasn't the case, why plead, Burnett was asked.
"To get out," he said. "I just wanted to get out early."
613-797-3237
613-797-DADS