Street beggar jailed for stabbing                     

 

There are four kinds of street beggars. The first are the ones who are inoffensive and don’t say a word. They just put their hands out. The second kinds are those who will say something to you with their hands out. The third ones are those who will step out in front of you, thereby impeding your movement. The fourth kind of beggars are those who won’t take no for an answer and will assault you in some manner or another. This article is about the fifth kind of beggars.

 

In the early morning hours of August 9, 2007, Ross Hammond, a 32 year old married man, was stabbed on the north side of Queen Street West in the City of Toronto. He received multiple stab wounds to his chest and back as well as defensive wounds to his hands and arms. The most serious of his injuries were five stab wounds to his chest, two pierced his heart and one of those entered the chamber of his heart and ultimately proved fatal. Hammond died in the hospital as the result of those stab wounds two days after he was attacked.

                   

Hammond was stabbed during a fight with a number of “street kids”. (all of them in their late teens)  No one saw Hammond stabbed, and there was no direct evidence of who stabbed him. The identity of the person who stabbed him was the principal issue at trial.

 

This case involved the following types of circumstantial evidence: testimony from 17 civilian eyewitnesses, who saw the events of the evening from various vantage points; photographic aids and diagrams to establish sight-lines and illustrate the relevant locations; surveillance videotape recording portions of the events; forensic blood spatter and DNA evidence; a dying declaration from the victim; autopsy results; audio recordings of 911 calls and City TV video recordings which captured the immediate aftermath of the events and importantly, the appearance of the principal participants at the time.    

 

Ross Hammond and his friend and co-worker George Dranichak had been out for the evening with other co-workers. They parted company with the others and went to a club together at Queen and Bathurst Streets. On leaving the club they proceeded along Queen Street West looking for a place to have something to eat. The trial judge found they were both under the influence of alcohol. Dranichak decided he needed cash and they headed to the ATM machine located at the northwest corner of Queen Street West and Euclid Avenue. Either before or after he used the machine, he and Hammond were approached by a teenage female who asked them for $20. They responded to her request with rude, offensive remarks. The female responded loudly and with anger. The trial judge found that she began to yell at the two men “using equally obscene language” and that her response was also fueled by the alcohol she had consumed that day with her friends Faith Watts, Douglas Fresh and Jeremy Wooley. 

                                         

Before I go any further, let me say that you should never insult a beggar because of you do, you may be attacked by the beggar just as Hammond was.

  

The trial judge found that this female street kid who had asked for the $20 was Nicole Yvonne Kish (who is the person I am writing about) and that she was soon joined by her friend and fellow street kid, Douglas Fresh.  

                 

The dispute between Hammond and Dranichak on the one hand and Kish and Fresh on the other moved westward along the north side of Queen Street West. Kish was loud and angry. At one point either Dranichak or Hammond threw Fresh into a storefront window and knocked Kish to the ground. She and Fresh pursued Dranichak and Hammond, yelling at them and throwing bags of garbage at them. 

      

There was a stopped eastbound streetcar just west of the intersection of Queen and Niagara Streets. Dranichak and Hammond crossed diagonally from the north to the south side of Queen Street West in the direction of that streetcar.      

By now, Faith Watts, Douglas Fresh’s girlfriend, had joined Fresh and Kish. It was at this point that Fresh attacked Hammond. The trial judge reasonably concluded that it was more likely Hammond who had thrown Fresh into the window because it was Hammond who Fresh attacked. Dranichak left the scene when the fight on the south side of the streetcar began. As the trial judge concluded, no other witnesses observed Dranichak’s presence after this fight started. The trial judge noted that “while Fresh may have intended to even the score, he failed in that objective as Mr. Hammond quickly got the better of Mr. Fresh in the fight.” Hammond beat Fresh to the point where he was no longer defending himself and appeared to some to be unconscious. 

       

While Hammond was beating Fresh, two female street kids, Kish and Watts, were trying to get him off their friend. They were described as pulling and punching Hammond on the back. Their efforts did not seem to be having much of an effect on Hammond as he forced them away by what seemed as him swatting at them.            

  

These findings of the trial judge were supported by the evidence of Cam Bordignon, who observed the fight from the southwest corner of Queen Street West and Niagara Street, and the evidence of Molly Stopford and Jonathan Paget, who observed the fight from within the streetcar that had stopped on Queen Street West at Niagara Street.     

 

Molly Stopford was sitting on the passenger side of the stopped streetcar and Jonathan Paget was beside her, she had the window seat, he the aisle. The fight was ongoing immediately below where they were sitting. Stopford said that although both females were engaged in the effort to stop Hammond, one was more involved than the other. She said she assumed the two women were friends of Fresh because they were similarly attired, wearing baggy clothes and seemed to be yelling at the man, trying to get him to stop fighting with their friend. Stopford said that these women were similar in appearance. Both were white, of medium height, slim build, light brown hair and importantly, she testified, “I didn’t really differentiate between the two of them too much in my mind in terms of looks.” Stopford distinguished the women by the roles they played. She said that there was one woman that was more involved than the other one.                

 

Stopford observed that the more involved female had a knife. The handle was in her mouth, only the blade of the knife was exposed. She made this observation from only about four feet away through the open window of the streetcar. It is significant that within a few days of the stabbing, Stopford drew a diagram of the blade of the knife that she had observed in this woman’s mouth; including a round circle that marks a distinguishing feature of the knife that was used to fatally wound Hammond. In my opinion, her being very close to the scene of the attack adds a certain weight to Stopford’s evidence that she was able to accurately draw the knife that she said she saw, and that it very closely resembled the murder weapon.              

 

In any event, when she saw the knife, Stopford became upset and at that point she closed the window of the streetcar and deliberately turned her attention away from the fight. That is unfortunate because had she continued to watch the fight, she would have seen the stabbing of Hammond.  When she next looked out the window, she did not see the woman who had had the knife but she saw Fresh with blood on his face and noted that someone had helped him to the sidewalk. By the time Stopford’s attention was turned away from the window, the fight on that side was clearly over. She noticed that one woman appeared to have suffered an injury to her arm and that she was being tended to by another woman. 

 

Specifically, Stopford said that she saw the woman whom she had seen with the knife now on the other side of the street, and noted that another female had taken off her shirt and was wrapping it around the arm of the woman who had had the knife. Stopford thought these two females were the same two she had seen earlier, in the first fight. She also believed that the woman who was helping the woman who had had the knife was the other woman who had been the less involved female in the efforts to get Hammond off 0f Fresh. 

                                                                    

Stopford conceded on cross-examination that she didn’t see who did the stabbing. What she did see however was Hammond on the hood of a taxi cab on the north side of Queen Street West and at that point he was holding a knife in his right hand. She thought it was the same knife she had previously seen in the mouth of the more involved female. As it turned out, she was right about that. The weapon had obviously been used by Hammond on Kish. Both Hammond’s blood and the Kish’s blood were found on the area of the knife where the blade joins the handle. Hammond obviously pulled the knife out of his body so that he could attack Kish with it. I have to presume that he was aware that it was Kish who stabbed him.         

  

Jonathan Paget was seated beside Stopford, and his evidence largely supported hers. Paget observed two females in close proximity to where the fight between Hammond and Fresh was taking place. He said one of the women “approached the fight and ended the fight” and as she approached he very clearly recalled her yelling at the parties who were fighting in an effort to get them to stop. He described her as being dressed in “street fashion”. 

                                                                                                                           

He said that this female approached the fight “with intent”, moving toward the two male fighters very briskly with her arms out ready to help stop the fight. And she was able to stop the fight and got the short-haired male (Hammond) off the street kid (Fresh). Paget said that at some point during these events he noticed this female was holding a knife in her right hand. He only saw the blade of the knife, which he estimated to be about three inches long, the handle was concealed by the woman’s hand and fingers.  Paget said that he saw the knife twice during the events of that evening. The first time was when he saw it in the female’s hand. He could not say if it was before or after the fight between Hammond and Fresh, but he recalled the knife in her hand as she walked from the front of the streetcar toward where he (Paget) was sitting.       

 

The second time he saw that knife was when it was in Ross Hammond’s hand as he lay on the hood of a taxi on the north side of Queen Street West. Paget also noted that when the female with the knife first approached, she was with a second female. At the end of the altercation, he noticed this second female tending to the first female’s cut arm. The woman who had been cut, who was Kish, was very upset about having been cut on the arm. Paget believed the woman who was tending to Kish after the fight was the same female who accompanied her at the beginning of the fight on the south side of the street. Paget was clear in his evidence that the woman who brought the knife to the fight on the south side of the streetcar was the same woman who ended up with the cut arm on the north side of the street.      

 

He said it stuck in his memory because he had heard many times you should not bring a knife or a weapon into a fight because you may end up as the one injured by it. He was reminded of that saying at the time because the woman whom he had seen bringing the knife to the fight was the one who ended up with a cut arm.        

 

The evidence is clear that Kish was the person who ended up with the cut arm on the north side and that it was Faith Watts who was assisting her  and that this was at the very end of the events that took place on the north side of the street. 

 

The trial judge accepted the evidence of Stopford and Paget. He concluded that Kish had the knife on the south side and used it to get Hammond off Fresh by inflicting superficial wounds to his back. Further, the trial judge concluded that Watts stayed behind with Fresh after he was pulled, unconscious, to the south sidewalk, while Kish went around the front of the streetcar in pursuit of Hammond.

 

After the fight with Fresh, Hammond moved around the streetcar to the north side of Queen Street West and became involved in a second fight. This time he was outnumbered – two men and a woman set upon him and he was put to the ground. He suffered stab wounds to his chest that would cause his death two days later.         

 

Melissa Gallately had a bird’s eye view of the fight on the north side. She lived in an apartment over the Select Mart, on the south side of Queen Street. The apartment consisted of the second and third floors above the store. On the evening in question, Gallately was in bed on the third floor with her infant son, trying to settle him, when her attention was drawn to the street by screaming and yelling. She went out onto the balcony for a closer look and saw three people – two males and a female – on top of one person. The taller of the two men wore a shirt that was totally unbuttoned and he wore nothing underneath it. The other male was shorter, with shorter hair and he wore shorts. The female was wearing a longer black skirt and a black tank top. Her hair was either in dreadlocks or it was matted and half-pulled up. Her hair was dark.  

 

The question is, was Kish the woman who with the other two men set upon Hammond? And if so, was it she who stabbed Hammond in the chest?  The trial judge concluded that Jeremy Wooley, an unknown male and Kish were engaged in that second fight with Hammond. But was it Kish who stabbed Hammond? 

  

Although Hammond was making an effort to get up, the blows kept coming and knocked him to the ground. He tried several times and eventually got up and stumbled away. Gallately went on to describe Hammond’s effort to stop a cab for assistance, but her attention was more focused on the girl who had been involved in the fight. She remained screaming on the sidewalk with the two men calling for an ambulance and yelling that she was bleeding.  All three were soon approached by a police officer.

 

Kish was the only one wearing a long black skirt and black halter top and her hair was in dreadlocks. Faith Watts on the other hand, was wearing gray shorts and Doc Marten style calf length boots.

 

Kish’s lawyer raised two grounds of appeal:

 

1.   The trial judge accepted and relied on manifestly unreliable evidence in concluding that the Kish was the female armed with a knife on the south side of the street and was the person who took that knife to the north side of the street where she used it to fatally stab Hammond. This resulted in an unreasonable verdict.

2. The trial judge misapprehended, or failed to confront, items of exculpatory evidence that could have contributed to the existence of a reasonable doubt. Most significantly, he did not consider the possibility that Faith Watts, Jeremy Wooley or the unknown third man involved in the final fight on the north side of Queen Street could have been the stabber.

Quite frankly, I really believe that the two lawyers representing Kish were reaching for a straw to save their client from drowning in all that evidence.  After all, she was seen with the knife clenched in her teeth and both her blood and the blood of the victim were on the blade of the knife.  It makes you wonder why the two lawyers that represented Kish would actually take a case like hers to the court of appeal. Where they desperate for work? I appreciate the fact that everyone has a right to be represented in court but they also have an obligation to advise their clients if there is no real hope of ever winning their appeal when the evidence against them is so obvious.   Of course, Kish didn’t have to pay them since she had no income so Legal Aid footed the lawyer’s bill. But even they could have refused to foot the bill if they had looked at the evidence very carefully and realized that there was no hope of every getting this woman acquitted or even a new trial. Let’s look at their grounds for the appeal.                                                            

They said that the evidence against their client was manifestly unreliable that she was the person armed with the knife on the south side of the street. The witness, Stopford observed that the more involved female had a knife. The handle was in her mouth, only the blade of the knife was exposed. She made this observation when she was in the streetcar and only about four feet away from the woman when she was looking through the open window of the streetcar. She also said that another female had taken off her shirt and was wrapping it around the arm of the woman who had the knife. Well the only woman who had the cut in her arm from the knife was Kish. The other witness, Paget said that at some point during these events he noticed a particular female holding a knife in her right hand. Both witnesses identified Kish as the woman in possession of the knife.   

  

The lawyers also argued that the trial judge misapprehended, or failed to confront, items of exculpatory evidence that could have contributed to the existence of a reasonable doubt. What exculpatory evidence are they referring too? Exculpatory evidence is evidence that the wrongdoer was justified in doing what he or she did. Was Kish justified in stabbing the victim? 

  

The victim, Hammond was attacked by Fresh and he got the better of Fresh so Kish and Watts, were trying to pull him off their friend. They were described as pulling and punching Hammond on the back. Their efforts did not seem to be having much of an effect on Hammond as he forced them away.

                                                                                        

The third witness was Melissa Gallately who had a bird’s eye view of the fight on the north side. She went out onto the balcony for a closer look and saw three people—two males and a female on top of one person. She identified the female as the woman charged with the stabbing of the victim.  There is no justification in using a knife on someone who is helpless after three people are on top of him.

 

Further, it must be kept in mind that Hammond didn’t start the fight. He was first attacked by Fresh and initially was justifiably defending himself.  However Hammond continued to beat Fresh to the point where he was no longer defending himself and appeared to some to be unconscious. He was wrong in doing that. The others were justified in trying to pull Hammond off of Fresh. But where the justification was no longer valid was when Kish stabbed Hammond with her knife. There was no justification for that especially since Fresh had been pulled away from underneath Hammond so obviously Fresh was no longer in danger. 

                                            

The trial judge was clear in his reasons that he was very much aware of the frailties of eyewitness evidence, and explained that trial judges “caution jurors very strongly about these frailties and the need to take special caution in approaching such evidence. 

 

There is no doubt the trial judge was aware that Stopford conceded in cross-examination that she may have been interchanging the two females and that her recollection may have been influenced by the media. As for Paget, on cross-examination he maintained that he was “fairly certain” the woman he’d seen with the knife in her hand on the south side was the same woman he saw with the cut arm on the north side of the street. He was vague on any details which could help to identify Kish however.  He said that a saying had stuck in his mind at the time; that you should never bring a knife or a weapon to a fight because it may end up being used on you. He was struck by the irony that Kish took the knife to the fight and ended up being cut by it.

 

Paget thought this at the time the events occurred, and while it is not identification per se, it is an indication of the impression made on his memory at the time, that being that the woman with the knife on the south side was the same woman who got stabbed on the north side. It is unlikely his memory would have been jogged that way if it had been someone other than the woman he had seen with the knife on the south side who ended up wounded on the north side.

 

In my view it was open to the trial judge to accept the evidence of Stopford and Paget. While their evidence was not identical, each was corroborative of the other’s on the material points. Both said the woman they had seen with the knife on the south side was the same woman who ended up with the cut arm on the north side and there certainly is no doubt that the woman with the cut arm was Kish.

      

The trial judge found, and his finding is not challenged, that the two women involved in the south side fight were Faith Watts and Kish. Faith Watts admitted in her video evidence that the knife, ultimately found to be the murder weapon, was her knife. She said she pulled it out during the south side fight and was almost immediately disarmed by Hammond.        

 

She didn’t say that she then picked it up. The evidence is clear, however, that Watts remained on the south side and did not go to the north side until the fight on the north side was over. At that time, she went over to assist her friend, Kish, who was bleeding. Since Kish wasn’t bleeding when she was on the south side, it follows that she got the cut from Watts’ knife when she was fighting with Hammond on the north side of the street.

  

There were only four people involved in the fight on the south side of the streetcar – Watts, Kish, Fresh and Hammond. The knife is seen by both Paget and Stopford on the south side. Watts and Fresh stay on the south side, which leaves only Kish or Hammond to take the knife to the fight on the north side. Hammond, as indicated earlier, is captured on video between the two fights and he does not have a knife in either hand and does not appear to be seriously injured at that point. By process of elimination, that leaves only Kish who could have taken the knife to the north side. This fact, coupled with the evidence of Stopford and Paget, is strongly persuasive that it was Kish who had the knife on the south side and the only one who could have taken it to the north side.  That this was the knife, identified by both Stopford and Paget, that was used to stab Hammond fatally and wound Kish of there can be doubt.    

  

If the appeal lawyers had read the transcript of the trial thoroughly and looked at the video carefully, they would have come to the conclusion the appeal judges had and that was that Kish had no grounds for an appeal and thusly, the appeal was a fool’s errand conducted on behalf of Kish at the expense of the taxpayers.  

  

The appeal of her conviction by Kish was dismissed. Since she didn’t appeal the sentence, she would have to finish her twelve-year sentence of incarceration.