The accuracy of a Durham Regional Police officer’s memory was called into question Tuesday after she offered up fresh evidence about the high-profile alleged assault that left Whitby man Dafonte Miller badly injured.
Const. Barbara Zabdyr was among the first police officers summoned to Whitby’s Erickson Dr. in the early hours of Dec. 28, 2016, responding to a “suspicious person” call and a report that two males were breaking into cars.
When she arrived, she testified, she saw a white male on the side of the road “waving us down” and then two other males, one face down the ground and another — a white man with a beard — on top of him. There was some blood under the eye of the man on the ground who was being restrained, she said.
After she was told that the man on the ground — she later identified him as Miller — had been seen breaking into cars, he was arrested. Because of space constraints in the tight area where Miller was being constrained, Zabdyr said, she gave the handcuffs to Michael Theriault, an off-duty cop, to place on Miller.
She believes it was also Theriault who then patted Miller down, Zabdyr testified.
Theriault, who is currently suspended with pay from the Toronto police, and Christian Theriault, his civilian brother, are jointly charged with aggravated assault after Miller was injured in a violent altercation near the Theriault family home on Erickson Dr.
The Theriaults are separately charged with attempting to obstruct justice. Specifically, the Crown alleges that the brothers lied about the incident, including the claim that they were acting in self-defence and that Miller was in possession of a weapon at the time.
Both men have pleaded not guilty in the judge-alone trial before Superior Court Justice Joseph Di Luca.
Miller, then 19, suffered severe injuries to his eye, which had to be removed, as well as a broken orbital bone, a broken nose and a fractured wrist.
On the stand Tuesday, Zabdyr went over the events after she arrived on scene. Under questioning by Crown lawyer Linda Shin, Zabdyr detailed what she recalled Miller saying as she approached him when he lay on the ground.
“He was screaming that he was beat up by the males and that they were hitting him with something,” she said.
Michael Lacy and Alan Gold, lawyers for Michael and Christian Theriault respectively, animatedly questioned Zabdyr on that claim, asking why she’d never mentioned it at the 2018 preliminary hearing, during an interview with the Special Investigations Unit, or why it didn’t appear in her notes.
Zabdyr said the memory that Miller had claimed he’d been beaten up by the two males and hit with “something” had come to her relatively recently, following the 2018 preliminary hearing.
“After the (preliminary hearing), after certain questions were asked and I left the courthouse, I was able to remember other things,” she said.
Lacy asked Zabdyr if she was aware that Miller was alleging that he was assaulted by a weapon “based on what you read in the media?”
Zabdyr agreed that she has been reading news reports on the trial.
Gold asked Zabdyr why she didn’t raise this new information about Miller claiming he’d been hit with something with the Crown earlier — “it’s certainly relevant evidence.”
“You knew the rules about disclosure, you understood the significance of this new memory that had just come into your head,” Gold said.
“You tell his honour why you did not mention this new memory to the Crown,” Alan said.
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The lawyer then offered his own theory on why it wasn’t raised earlier: “Because you didn’t have this memory, did you? Until you started reading newspapers,” Gold said.
The trial has heard conflicting evidence about both the alleged assault and the events immediately before.
In defence statements filed in court, the Theriault brothers say they were at the family home at 18 Erickson Dr. having a smoke in their garage, when they heard noise from outside that sounded like someone was going through their parents’ truck parked outside.
The brothers say they opened up the garage door and found two males leaving the truck and running away. Both said they then chased one of the men down Erickson Dr. and began fighting with him between two houses down the street.
Both claim Miller then began wielding a pipe. Christian Theriault told police he assumed the pipe came “out of his pants.”
The trial has heard that an aluminum pole approximately one metre long was found by Durham police immediately after the confrontation.
“He sounded very, like, scared when he, I heard ‘he has a bat, he has a weapon,’” Christian Theriault told police in a videotaped interview in January 2017. “Right away that, like, sent a chill down — I was very scared. I feared for my brother definitely.”
In testimony Monday, court heard from two men who were with Miller immediately before the alleged assault. One of the friends, Bradley Goode, said the trio had been “car-hopping” on the night of Dec. 28, 2016, right before the alleged assault, while other man, Antonio Jack, denies the trio was robbing cars.
Goode said it was Miller’s idea to seek out unlocked vehicles and look for change, phones anything of value. Goode testified that they’d hit on about 15 cars when they opened the doors to a pickup truck in a driveway outside a home on Erickson Ave.
“They went into this truck. I remember hearing the garage door came open. Dafonte and A.J. hopped out of the truck, shut the doors and started bolting.
“I heard somebody yell “Hey!”, Goode testified. “Two guys were chasing them.”
Jack said he, Miller and Goode had gone to a friend’s house to get some marijuana and had been walking down the street when two or three white males began chasing them.
Asked on the stand by Michael Theriault’s lawyer, Michael Lacy, if Jack’s version of events was a “lie that Dafonte (Miller) wanted you to tell,” Jack replied that was incorrect.
The trial continues.