Court overturns murder conviction
A Penticton man convicted of first-degree murder for killing an 85-year-old woman is getting a second trial after an appeal hearing decision on Tuesday.
Corey Wolf Swite, who was 21 at the time of the offence, was convicted of first-degree murder in the August 2006 smothering death of an elderly woman at her Bel Air apartment on Fairview Road. Swite told police he broke into the victim’s apartment to steal money and cigarettes, but when she woke up he smothered her with a pillow and stole $150 cash. Swite was found guilty by a jury in Kelowna Supreme Court in March 2009, receiving life in prison with no parole for 25 years.
The basis for the appeal did not engage in the facts of the murder, rather procedures by the trial judge. Counsel for Swite, Joseph Blazina, was appealing the manner in which the trial judge dealt with the application to challenge potential jurors for cause. The B.C. Court of Appeal have allowed the appeal, set aside the conviction and have ordered a new trial.
“Mr. Swite was concerned that his status as an Aboriginal person could give rise to a bias on the part of some of the prospective jurors. He chose not to apply for static triers on his challenge for cause, but to rely on the statutory default position of rotating triers, to determine who would decide his guilt or innocence. His choice was thwarted by the procedure chosen by the trial judge. In my view, not only was the process fatally flawed, but the appearance of justice was compromised,” wrote Justice Jo-Ann Prowse, with the agreement of the other two appeal board members Justice Edward Chiasson and Justice Pamela Kirkpatrick.
Swite wanted jurors screened with questions to determine whether they could view the evidence without bias, prejudice or partiality because he is an Aboriginal person and the fact the victim is an 85-year-old woman. Amendments made to the law around challenging jurors resulted in errors and confusion in the selection of the jury. The appeal court also agreed there was a potential for prejudice when one unsworn juror clearly stated her belief in Swite’s guilt in the presence of the other sworn jurors.
“The fundamental nature of the error made by the trial judge was such that the curative provisions were simply not available. In the alternative, if they were available, Mr. Swite suffered both presumed and actual prejudice such that the error could not be cured,” read the decision.
A publication ban was also ordered by the appeal court that will not allow for the victim’s name to be revealed.