Winnipeg Free Press Newspaper Archives Jul 18 2015, Page 6

Winnipeg Free Press (Newspaper) - July 18, 2015, Winnipeg, Manitoba C M Y K PAGE A6 A 6 WINNIPEG FREE PRESS, SATURDAY, JULY 18, 2015 SATURDAY SPECIAL winnipegfreepress. com Why a first- degree murder charge was dropped in the slaying of Kaila Tran THE CROWN’S SHAKY CASE I T’S almost unheard of for someone facing first- degree- murder allegations to be cleared of any criminal wrongdoing without standing trial. But that’s what happened to Drake David Moslenko, the Winnipeg man police believed was the mastermind of a murder- for- hire plot against his longtime girlfriend. The ambush and stabbing of Kaila Tran outside her St. Vital apartment on June 20, 2012, traumatized onlookers and triggered a hunt for her killers. When police arrested Moslenko and his friend, Treyvonne Willis, in connection with the slaying, there was relief. But in June 2014, the Crown stayed the first- degree murder charge against Moslenko. The Crown had one year to reinstate the charge, but that deadline has now passed. The 30- year- old is a free man. Earlier this year, a jury convicted Treyvonne Willis of first- degree murder. He was the friend Moslenko was accused of hiring to carry out the slaying. Jurors saw Willis, 22, confess to police on video that he ambushed and repeatedly stabbed the 27- year- old in exchange for getting off the hook from an unpaid debt. He got a mandatory life sentence with no chance of parole for at least 25 years. Willis has filed an appeal, claiming his trial was unfair based on several rulings by the judge, including whether his videotaped confession was voluntary. A hearing date has yet to be set. But what happened with the case against Moslenko — from the time he and Willis were arrested days after Tran’s killing to the 2014 preliminary hearing where the Crown’s case seemingly collapsed — has been shrouded in mystery — until now. The Free Press has reviewed key aspects of the case, many of which were under a time- sensitive publication ban that expired with the stay of the Moslenko prosecution and its year- long deadline for reinstatement. Those details can now be reported. One thing has become clear in the search to find out why Moslenko was charged, and why the allegations didn’t stick: from the start, something wasn’t right about the case against him. . . . As Tran lay bleeding to death in the parking lot of her Clayton Drive apartment block — the result of more than 30 knife wounds the smallframed woman suffered minutes earlier — Moslenko, stood shirtless nearby and watched as the aftermath unfolded. Some witnesses testified Moslenko didn’t rush to Tran’s side as she took her final breaths, with one woman describing his conduct as “ dramatized.” He didn’t cradle his dying partner in his arms. But what did that mean? As it turns out, Moslenko’s actions at the scene wound up being a crucial part of the Crown’s theory of their case against him. But that theory would also underline the fragile nature of the prosecution. Transcripts of the preliminary hearing in provincial court show there was never direct proof or physical evidence that Moslenko was involved in a plot to kill Tran. The Crown’s case against him crumbled when it lost a crucial legal ruling near the conclusion of the pre- trial hearing, one designed to test the evidence. The defeat led to the Crown’s decision to drop the charge and get a one- year grace period to reinstate it. In a nutshell, Judge Michel Chartier rejected the Crown’s arguments that would have seen hearsay admitted into evidence against Moslenko. Prosecutors alleged the hearsay comments implicated him in a “ common design” to kill Tran, when combined with circumstantial evidence. Treyvonne Willis, the confessed killer, allegedly made statements about Moslenko to another friend, Tremaine Sam- Kelly, who wasn’t being charged but was considered by the Crown to be an “ unindicted co- conspirator” in Tran’s killing. The comments allegedly made by Willis to Sam- Kelly were considered presumptively inadmissible hearsay in law because they involved what Moslenko was suspected of having said to Willis when Sam- Kelly was not present. In assessing Moslenko’s case, Chartier was legally bound to set aside Sam- Kelly’s hearsay testimony and look to Moslenko’s conduct for proof of his involvement in the conspiracy. “ In the circumstances, what are the words or the actions of ( Moslenko) that ought to be used to weigh against whether or not there’s probable membership in the conspiracy to kill Kaila Tran?” Chartier asked in framing his analysis of the evidence on June 5, 2014. Sam- Kelly told police he was present at the scene of the killing to give Willis “ emotional support.” His detailed testimony for the Crown became key in Willis’s jury trial earlier this year. But anything Sam- Kelly had to say allegedly implicating Moslenko during his preliminary hearing was barred from evidence under a complex legal safeguard governing exceptions to the use of co- conspirator’s hearsay. It’s known as the Carter Test, named after a landmark Supreme Court of Canada case dating back to 1982. Under the law, any hearsay comments implicating an alleged co- conspirator in that conspiracy can only be used if the court finds there is direct evidence to support the allegation he or she was probably a member of it. In a sharply worded ruling, Chartier said the Crown failed to meet this test. “ To conclude otherwise would be an exercise in speculation and guessing,” Chartier said. Below is a summary of several key points of the Crown’s case that it alleged pointed to Moslenko’s probable involvement in the conspiracy — allegations the judge found didn’t add up. TRAN’S WALLET The Crown theorized that Moslenko deliberately moved Tran’s wallet from her Dodge Charger after she was stabbed and secretly put it back in his apartment in an attempt to make her killing look like a robbery gone bad. Witness Kevin Olivier testified at the preliminary hearing he thought he saw Moslenko reach into the rear passenger side of the vehicle shortly after Tran was stabbed and then put something in his pocket — although he never saw anything specific in his hands. “ I have no evidence Mr. Moslenko put anything in his pocket from the car, let alone a wallet,” Chartier found. The judge noted Moslenko had “ walked directly towards the police and paramedics” after doing what Olivier described. Moslenko also consented to let police search the apartment he shared with Tran, where officers retrieved Tran’s wallet from a hallway. It was not hidden. “ There are so many inferences I would have to draw to get to that ultimate inference that the Crown is asking me to draw that it becomes speculation,” Chartier ruled. “ That isn’t just a bit of a stretch, it’s a quantum leap. Mr. Moslenko takes the wallet, places it in the apartment, is arrested, consents to the search of the apartment and leads police to the wallet — it makes no sense,” Chartier said. BEHAVIOUR AT THE CRIME SCENE The Crown questioned how Moslenko could seemingly stand by and watch as Tran died, noting after he called 911 on her phone, he took off on a bicycle in pursuit of the apparent killer. “ He did not want to stand by her, did not remain close, offered help by way of a 911 call, and he left the scene in pursuit of a male it doesn’t appear he had ever seen when another male had already returned unable to locate that male,” prosecutor Daniel Chaput argued. “ He got on a bicycle and left his partner lying in a pool of blood.” After returning to the parking lot a short time later, the Crown said Moslenko called a friend who ran in the same circles as he and Willis — a man witnesses said Willis told them he felt threatened by over an unpaid debt. This, combined with Moslenko’s demeanour, was suspicious, the Crown alleged. Defence lawyer Sarah Inness argued there was “ a lot of evidence ( Moslenko) was upset” at the scene and assertions to the contrary should be disregarded. “ Is that what the Crown is saying? That he didn’t get close enough to his partner?” she asked. “ He should have been somehow kneeling right down beside her and that would have somehow made his demeanour acceptable in the circumstances? That is absolutely not the kind of evidence… that this court can and should consider in deciding if he was somehow involved in the plan to kill his girlfriend,” Inness said. Chartier agreed. “ Post- offence conduct by way of demeanour should almost be considered of no weight.” A PLANNED STAGING? Witnesses said Moslenko had quietly stated at the scene he hoped a recent run- in he’d had with reputed members of the south Winnipegbased Goon Squad street gang wasn’t the reason for Tran being attacked. As well, a backpack worn by Willis that was found by police near the scene contained a green bandana, which was the colour worn by the Goon Squad gang. Court heard Moslenko told Det.- Sgt. Shawn Pike in a voluntary witness statement hours after Tran was attacked that he’d had a physical conflict with two males, describing themselves as Goon Squad members. It happened after a friend called him for help after being robbed at a party several weeks earlier. The Crown called Moslenko’s friend to testify. He had no recollection of being in a fight with anyone from the Goon Squad. But, he said, he’d been in numerous fights over the years, was usually drunk at the time and couldn’t recall details. The Crown alleged Moslenko’s Goon Squad story was evidence of an attempt at a “ planned staging” by throwing out a potential theory for police to pursue to get them off his trail. Chartier disagreed. “ The evidence I have in this regard is very clear. Mr. Moslenko was not walking around voicing his theory to whoever was prepared to lend an ear. He only offered this possible explanation when asked by individuals if he knew of any possible reason why someone could commit such an act,” he said. Continued on next page WAYNE GLOWACKI / WINNIPEG FREE PRESS FILES A member of the police identification unit gathers evidence at a scene in the 100 block of Clayton Drive where Kaila Tran ( below) was stabbed to death. FACEBOOK PHOTO Tran, 27, was attacked just as she left for work. FP EXCLUSIVE By Mike McIntyre and James Turner As Kaila Tran lay bleeding to death in the parking lot of her Clayton Drive apartment block... her boyfriend, Drake Moslenko, stood shirtless nearby and watched as the aftermath unfolded A_ 06_ Jul- 18- 15_ FP_ 01. indd A6 7/ 17/ 15 8: 25: 32 PM