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Zombie bullets and ‘killing games’: What the jury didn’t hear in the Tim Bosma murder trial

National Post logo National Post 2016-06-14 Adrian Humphreys

Gun-Hand: This gun photo was found on Dellen Millard’s and Mark Smich’s computers.

This gun photo was found on Dellen Millard’s and Mark Smich’s computers.
© Court exhibit

HAMILTON, Ont. — The jury deciding whether Dellen Millard and Mark Smich are guilty of murdering Tim Bosma during a 2013 pickup-truck test drive began their private deliberations late Monday without being told both men are also charged with killing a young woman, and one of them is also charged with yet another murder — that of his own father.

That, however, is only the start of a long list of material jurors didn’t hear over 16 weeks of evidence at the high-profile murder trial, including additional evidence of extensive drug use, more guns and bizarre smuggling plots.

Justice Andrew Goodman deemed much material inadmissible at trial, typically to protect the rights of the accused at this trial or the next. Some of it can now be revealed because the jury has been sequestered, meaning they are kept behind closed doors with no outside contact except through an assigned court constable.

Millard, 30, of Toronto, has been charged with three murders, making him an alleged serial killer, with Smich, 28, of Oakville, charged alongside him in Bosma’s death and one other — the slaying of Laura Babcock, Millard’s former girlfriend.

The name Laura Babcock was strictly forbidden from being mentioned within earshot of jurors, and references to Millard’s father, Wayne, were carefully controlled.

Each case is being tried separately, and court rulings designed to protect the fair trial rights of the accused restricted the evidence Crown prosecutors could use when trying to prove Millard’s and Smich’s guilt in the Bosma case.

Here is some of what the jury didn’t hear:

• Millard hinted he planned a shooting

Millard hinted he was planning a shooting when he bought a black-market handgun before Bosma’s murder.

There were more than 26,000 text messages retrieved from Millard’s iPhone by police after his arrest. Some are surprising.

It is a sign of the times that Millard appears to have arranged to buy an illegal gun — a Walther PPK, named as the murder weapon at trial — through text messages. Many were read to the jury. Goodman, however, ordered prosecutors to remove the end of the conversation, which seems the most incriminating evidence.

On Feb. 9, 2012, Millard had a text conversation with Matthew Ward Jackson, a man Millard and Smich called by the nickname Iisho.

“Walther pk 9mill tomorow 2200?” Jackson asked Millard. (All texts are just as they were sent, including all spelling and syntax errors.)

“The walther. Can’t do a little better on the price? come with any amo?” relied Millard.

“Na walther is a really proper wanted one. And yes I can give y grains,” Jackson replies, suggesting “grains” is slang or code for bullets.

“Let’s do it. pick it up tonight?” said Millard.

“Can u be at my house soon?” asked Jackson. “22 cash plz I’m doing ya a big favor trust. I’m not making a penny.”

“Btw is it clean or dirty?” Millard asked.

“Clean,” replied Jackson.

The jury didn’t get to read what was said next.

“Bring her back safe, plz,” Jackson added.

“By the time I let her go, she’ll be a dirty girl,” said Millard.

“Thts fine, lol,” said Jackson, “I can change her print.”

“True,” Millard said.

Did this foreshadow a dark and perhaps deadly plan for the Walther PPK? The jury will not be considering that possibility.

• Bizarre smuggling plots

In one of the more bizarre twists, it was alleged Millard owned a fake pregnancy suit — a flesh-coloured, strap-on belly bulge — and wanted Smich’s girlfriend, Marlena Meneses, to wear it to smuggle ammunition across the border.

The pregnancy suit was revealed by Meneses when she was interviewed by police in 2013.

“Dellen Millard asked me to carry bullets from the U.S. to Canada in a baby — I mean pregnancy — suit,” she said when questioned about it when the jury was not in the room.

She described it as being “kind of like a bathing suit with a plastic belly, skin coloured.” It wasn’t just an idea or fantasy, it existed, he owned it, she said.

“I saw it, I tried it on.

“I told Mark I was uncomfortable and didn’t want to do that and Mark said, ‘don’t, it’s a stupid idea.’”

Goodman would not allow questions to be asked of Meneses about the smuggling scheme in front of the jury.

There were other hints of smuggling interest.

There were few details, but there were repeated references to Millard having his mechanic modify a trailer to install special or secret compartments inside. It was suggested the compartments were designed to conceal drugs.

There was a push to get the compartments in the trailer finished at about the same time Christina Noudga, Millard’s girlfriend, said she and Millard were preparing to travel to B.C., court heard.

Noudga said if the opportunity presented itself, they might load up on high-quality marijuana while in the west. Perhaps the two schemes were linked but the issue was not explored.

There was also an allegation that Millard sent a computer with marijuana and steroids hidden inside it to his friend, Andrew Michalski, when Michalski was in Winnipeg.

A photo of a computer with the guts showing was discussed in court when the jury was not there; the photo had been sent between Millard and Michalski in text messages. The photo was seen as inconclusive and the issue not relevant to the charges.

Michalski also said during a hearing without the jury that he and Millard were in a mall in Peterborough, Ont., in 2011 when Millard was caught shoplifting a $3 DVD.

Asked why Millard would take such a risk for such a petty item, Michalski simply said: “So we could watch something on his boat.”

There was also mention of arson and setting cars on fire at Toronto’s Harbourfront Centre, but there were few details.

• Millard is “a sick, twisted prick”

Millard’s uncle, Robert Burns, is a veterinarian whose sister, Madeleine Burns, is Millard’s mother. He appears to detest Dellen Millard and his animosity made the court nervous that he might say something too inflammatory in front of the jury.

When Burns was interviewed by police before trial, this was his assessment of his nephew: “a sick, twisted prick.”

Burns was cautioned not to make a similar remark in front of the jurors, and lawyers were warned not to ask him about his statement.

Nonetheless, his dislike for Millard was abundantly clear when he testified that he had never considered nor even spoken to Millard about them going into the pet cremation business together, which was one story Millard used to explain why he needed a large incinerator, court heard.

• Extensive drug use

Drugs were a huge part of Millard and Smich’s life. That became clear to jurors — slowly — as the testimony dribbled in. There were, at first, passing references to marijuana, then drugs at parties.

By the end of the trial, however, drug use came to the forefront in the testimony of several witnesses who were friends of Millard’s and Smich’s.

Brendan Daly, who said he was Smich’s “best friend,” said he met Smich almost every day to drink and smoke pot. Noudga said she and Millard were stoned a lot, smoking pot almost every time they got together, often smoking a lot, even when they were driving.

But jurors were not told the full story on the alleged drug use of the two accused.

Goodman tried to restrict witness testimony to marijuana, but cocaine, heroin, steroids, pills, LSD and oxycontin all were part of the behind-the-scenes evidence.

Michalski told police during an interrogation that their circle of friends all used cocaine and that Millard had tried heroin.

The jury wasn’t told that a toolbox was filled with all kinds of different drugs that Millard would pull out at parties to keep guests entertained, with suggestions instead it was used for marijuana.

“I am going to ensure this trial does not degenerate into a free-for-all to drug abuse by either of the accused,” Goodman said in one ruling on the matter. He forbade any mention of steroids, heroin, cocaine, needles or other illicit drugs.

• Millard irate over “killing games”

Millard and Smich spent a lot of time playing video games before their arrests. Millard’s basement was a gamer’s nirvana with multiple computers and gaming consoles hooked up.

Two of their favourites were Halo and Halo Wars.

Michalski said they played every day, often for three to four hours. He described Halo in gamer’s language as a “first-person shooter,” meaning the action is experienced through the eyes of the gunman.

Thomas Dungey, Smich’s lawyer, seized on this during his cross-examination of Michalski, grilling him about spending so much time immersed in “killing games.” He repeated “killing games,” his voice suggesting some derision.

Millard at first gave an exaggerated eye-roll. He rolled his eyes each time Dungey said “killing game,” sometimes looking to Smich, as if expecting him to agree with his ridicule.

But as the debate over the game continued in court, he grew more and more agitated. His face reddened. He wrote furiously. He shifted in his seat. He looked around imploringly.

Millard’s lead lawyer, Ravin Pillay, objected to Dungey’s repeated use of the words “killing game” and the jury was ushered out.

The moment jurors left, Millard could contain himself no more.

He jumped to his feet, his chair spring popping with the sudden movement.

“Your honour,” he said, essentially his only audible words since saying “not guilty,” on the opening day.

Looking startled, Goodman said: “Mr. Pillay, your client is standing up.” Proceedings were adjourned and Pillay and Nadir Sachak, another of Millard’s lawyers, spoke to Millard, who spoke with some intensity. Sachak tried to calm him.

Later, Goodman expressed “judicial notice” that playing Halo was not as deviant as suggested.

“It’s more popular than I was aware. Many individuals play that game now,” Goodman said, adding after a pause, “including people I know.”

• Scarface

Another text chat banned from being seen by the jury was one in a conversation between Millard and Michalski.

Millard was expounding on an apparent plan to launch criminal activity as a means to make up for a widening gap in his business income, and he suggested Michalski might not be up for his methods.

“Hard work is one thing, scary work is another,” Millard said, “and the law is very intimidating.”

The jury read those texts but was not allowed to hear Michalski’s comical reply.

“Say ello to my little friend,” he said, quoting a famous line from the movie Scarface when the lead character, gangster Tony Montana (played by Al Pacino), hoists a grenade launcher and shoots it at his enemies who are surrounding him.

Pillay asked for the line to be censored. Goodman, who did not know the reference, questioned whether jurors would even know such a thing. Other lawyers assured him they likely would.

Spectators in court chuckled.

• Smich’s raps

Jurors eventually read a few stanzas of Smich’s violent rap lyrics and saw one snippet of a video of Smich freestyling.

It was jarring and garish, replete with violence, anti-police sentiment and profanity. But it was among the mildest in his catalog.

Police retrieved 28 amateur rap performances captured on video on Smich’s iPad and many other written lyrics.

Millard’s lawyers were anxious for it to be seen by jurors.

Meneses had said Smich’s raps weren’t really about violence, saying it was more him “just being cocky with himself.”

Pillay showed another video to the court when the jury wasn’t there, in which Smich raps about blowing up houses.

There were also menacing photos of him holding a razor blade in his teeth and his Facebook profile photo holding a bullet with words written on it in marker: “Your name here.”

• Secret jailhouse letters

Millard was a prodigious letter writer when he was in jail and somehow his letters managed to get out of the secure prison and into the hands of various friends.

The jury read many of his letters.

What they read often featured black bars covering portions of the page, so they knew they weren’t seeing the full picture.

They likely wondered what was under the black bars, but Goodman warned them not to speculate about it.

The secret to the censored portions, however, cannot yet be revealed. The media is still prohibited from reporting the content of the redacted letters and the reasons why they were placed under a publication ban.

• Additional jailhouse letters

The jury heard about many of Millard’s letters to Noudga, but never heard about the letters to Shane Schlatman, his right-hand man at his airport hangar.

Both Schlatman and Noudga were on a court-ordered list of people Millard was to have no contact with.

The jury didn’t hear about Millard’s mother passing letters to Schlatman. Smich’s lawyers wanted to enter these letters into the record to show the range of people Millard was trying to control, direct or manipulate while he awaited trial.

“These are all people trapped in Dellen Millard’s net,” said Jennifer Trehearne, one of Smich’s two lawyers.

There was information, never explored in court, that Smich also reached out from jail. Someone called Meneses from behind bars asking her questions, apparently at the request of Smich. During the conversation, which lasted 10 to 15 minutes, the man knew details that only Smich would have known, she told police.

Pillay said it was an attempt to “keep her in the fold,” and loyal to him. He said there was a police investigation and Smich was charged with breaching the court order not to contact her.

• Zombie bullets and more guns

There was a passing reference to “zombie bullets” to the jury but it was quickly brushed under the carpet by the lawyers to comply with Goodman’s direction.

Daly was asked by Assistant Crown Attorney Brett Moodie about the gun, described as the murder weapon. Daly said it was Smich’s.

He said Smich told him it was his when he was showing Daly a YouTube video about ammunition: “Some zombie bullets thing.”

There is a brand of ammunition called “Zombie Max” that is a hollow point bullet designed to expand after impact to maximize damage to the target. The marketing of Zombie Max bullets is to prepare for the “Zombie Apocalypse” since, in zombie lore, high damage to the head is necessary to stop the undead.

Behind closed doors, Smich’s lawyer objected to the description because of the prejudicial impact it could have on jurors. Trehearne said the ammunition is designed to “rip open when they go in.”

Jurors also didn’t hear about a Google search found in the browser history of Smich’s iPad for “Zombie rounds for 9mm.”

Daly said the Zombie bullets went with Millard’s gun. The gun in the toolbox was a .380-calibre handgun, clearly suggesting there were two different guns, one owned by each accused.

But this was information ordered withheld from jurors.

There was plenty of other talk of guns, multiple guns, at the trial, but Goodman instructed witnesses and lawyers to only discuss the Walther PPK.

Meneses, for instance, told police that Millard’s house was broken into and someone stole a bag with a gun in it and a lot of marijuana. The jury was not allowed to hear that.

Millard sent a photo to Noudga of two guns, but one of the handguns was edited out of the photo before it could be shown to the jury.

In fact, jurors were explicitly told by Goodman not to consider any evidence of anything other than the one gun.

“Disregard it,” he told jurors. “There is no evidence of two guns.”

• Mistrial applications

Over the course of the trial there were two motions for the whole thing to be scrapped and started again, but only one of them can be revealed at this time.

Both applications were made, argued and failed without the jury knowing.

Lawyers for Smich made the second mistrial application on April 11 regarding testimony by Daly.

“It is with great reluctance that we bring a mistrial application,” began Trehearne, complaining of harsh and “unfair” things Smich’s friend said about her client.

(The jury rarely heard from Trehearne, as Dungey questioned most of the witnesses, but she argued many of legal matters while the jury was not present.)

Trehearne said Pillay’s cross-examination of Daly suggested it must have been Smich who killed Bosma “because he has a short fuse, an anger issue and a propensity for violence.”

She complained of Pillay’s recitation of rap lyrics penned by Smich, which reflected an intimidating and controlling nature, his drug dealing and the interest in “Zombie” bullets.

“Because the jury secrecy rules prevent us from knowing their deliberations,” the court would never know what impact this evidence would have on jurors, Treahearne said, noting newspaper headlines about Smich’s outrageously violent rap lyrics.

“Unfortunately, the jury has heard evidence it ought not to have heard,” she said. Referring to Daly being a supposed buddy of her client, she quipped: “With friends like these, who needs enemies?

Pillay countered that Dungey made harsh character attacks on Millard during his questioning of other witnesses.

He said his questions were proper in the circumstances of the trial, where two co-accused were each pointing a finger at the other.

“It reflects what is going on in an antagonistic trial,” Pillay said.

Although the mistrial application was rejected, it did lead to the judge rethinking the “balancing” needed to level the playing field.

As Assistant Crown Attorney Tony Leitch cautioned during the debate: “This is not the Cold War, this is not Mutually Assured Destruction, we get some missiles, you get some missiles.”

Goodman agreed, saying, “This is a very crucial issue, delving into areas generally not admissible,” adding, “to use the vernacular, we’re flying by the seat of our pants.”

• Lawyers flap

For such a lengthy and antagonistic trial, the civility between all involved was remarkable. While lawyers argued strenuously for their positions, they maintained civility and collegiality.

There was only once when the stress seemed to seep out.

It was during Smich’s marathon testimony on the stand. He faced a barrage of questions and accusations in his battle with Sachak.

At a moment of dispute between Sachak and Smich, Goodman called for a brief recess.

As the jurors filed out, Sachak and Dungey had a discussion.

Dungey said something to Sachak and Sachak said something back.

Dungey complained to the judge that Sachak had said, four times, that Dungey “shouldn’t put up a perjurer” (on the stand.) Some members of the jury were still in the room. Several people in the courtroom heard it.

Dungey was upset.

He said he would consider a complaint to the law society.

Sachak apologetically told Goodman he had responded “in the heat of the moment” to something Dungey had said to him, but declined to say what that was.

It took Goodman by surprise.

“I didn’t hear (the words), which suggests to me the jurors didn’t hear them as they were shuffling out,” said Goodman. “I’m not prepared to address the matter further.”

• The moment of truth

The jury also missed out on one of the most dramatic moments of the trial — the time when Goodman asked lawyers for the accused if they “contemplated” calling any evidence, an indication of whether Millard or Smich was preparing to take the stand in their own defence.

It was one of the biggest mysteries and among the most speculated aspects of the trial among regular observers.

There was wide expectation that Millard would testify.

Goodman wanted to know — unofficially — if the court needed to start making plans for security and scheduling. The official announcement was to be made in front of the jury.

Millard, named first on the indictment, had to answer first.

After a pause and some consultation, Pillay rose.

“We do not contemplate calling evidence,” he said.

There was an audible gasp heard in court.

Goodmen paused and took it in and then turned to Dungey and asked the same question regarding Smich.

“Excuse me,” Dungey said, placing his hand on his chest, “I’m short of breath here. That’s not exactly what I anticipated. I don’t mind saying I was expecting Mr. Millard to testify.”

He asked for time to discuss it with his client before answering.

At most trials there is information deemed inappropriate to be put before a jury, for various reasons. Sometimes it is improperly obtained, other times it is deemed irrelevant, other times it is too prejudicial but not directly germane to the charges.

And sometimes the reason seems mystifying outside legal circles.

Sometimes Goodman was upfront about the discussions going on without jurors, once telling them after a lengthy delay: “We were working very hard” to ensure the evidence proffered “is properly before you.”

Millard and Smich started the trial in the prisoner’s box at the back of the court, but jurors never saw them in it.

Before the jury was ushered in, both accused killers shuffled in their leg shackles to a table behind their lawyers, where they would sit beside each other throughout the trial.

Smich was nearly always ramrod straight and still.

He usually rested his hands on the table in front of him or on his thighs. He sometimes wrote notes, occasionally folding one and passing it to one of his lawyers, who sat in front of him.

Occasionally his sister and mother came to court and he greeted them with a broad smile.

Millard was rarely as still and calm as Smich.

He made plenty of notes. Once in a while he could be seen doodling.

He nodded frequently to people in court when he was arriving and leaving. Millard was particularly interested in the spectators in the last half of the trial when a blonde woman sat in the seats reserved for the defendants’ supporters. She read from a large Bible as she waited for court to start each day and refused to talk to reporters.

Once, early in the trial, an old man made his way to the front as Millard was being led away by guards. The man waved to Millard and Millard greeted him with a broad smile and thanked him for coming.

Afterwards, the man, Irv Gendel, 85, said he had been a pilot with Millardair and had been close to Millard’s grandfather, Carl, who founded the aviation dynasty, and Millard’s father, Wayne, whom Millard inherited it from after his death.

Gendel said Millard’s mother, Madeleine Burns, had asked him to come down and send regards to Millard and show support.

“I just cannot believe this has happened,” he told the National Post afterwards. “I hope he didn’t do it. This guy had everything going for him. You have no idea the toys this guy had.”

He said Wayne Millard bought Millard and his friends jet skis and they jet skied right around Manhattan island.

“Thank God Carl and Wayne aren’t alive to see this,” Gendel said, shaking his head.

He showed no sign of grasping the irony of his statement, given that Millard still faces trial for the murder of Wayne Millard.

The case in the death of Babcock, 23, is set to begin early next year. The trial in the death of Wayne Millard, 71, will start after that.

It is not known how long the jury in the Bosma case will deliberate for or when they will return a verdict.

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