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The Crown's shaky case: Why a first-degree murder charge was dropped in the slaying of Kaila Tran

Kaila Tran died after being stabbed in a parking lot in the St. Vital area in 2012.

WAYNE GLOWACKI / WINNIPEG FREE PRESS

Kaila Tran died after being stabbed in a parking lot in the St. Vital area in 2012.

Hey there, time traveller!
This article was published 17/7/2015 (1899 days ago), so information in it may no longer be current.

It’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 — had 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 abundantly clear in the search to find out why Moslenko was ever 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 small-framed 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 Winnipeg-based 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.

 

TRAN’S LIFE INSURANCE

Days after Tran’s death — and before he was arrested — Moslenko began asking questions about a life insurance policy she had through her work at Teleco. Moslenko visited Tran’s employer twice, quizzing whether her mother was named as a beneficiary.

Police said Moslenko and Tran had dated for about four years but split up shortly before she was slain.

The Crown suggested this was behaviour that should raise red flags because Moslenko stood to gain more than $100,000 from two separate insurance policies. Chartier disagreed, saying there was no evidence of Moslenko being in financial distress or having a monetary motive.

There was evidence Tran was estranged from her mother, which could explain why Moslenko wanted to see if she was included in the policy. It was unclear if Moslenko was aware of the existence of the second policy, Inness said.

"There’s no evidence that there were problems in the relationship, that he had any motive to kill her," Inness argued. "There’s no evidence that he made comments to anybody about what he was going to do or why he was going to do it, or any animus he had towards his girlfriend whatsoever," she said.

"Should he have been mourning rather than dealing with estate issues? I repeat: post-offence conduct by way of demeanour should also be considered of no weight," Chartier ruled.

Winnipeg police sent an email to Tran’s insurance company on June 24, 2014 — just days after the murder charge against Moslenko was stayed — telling them the case wasn’t considered closed.

"I will keep you updated on the direction the police and Crown’s office take against Moslenko but as far as we are concerned the investigation against Moslenko is not over yet," Det.-Sgt. Rob Stephanson wrote in the document, which the Free Press obtained through the civil court file.

Stephanson advised the insurance company at the time about the process for reinstating a charge within one year and said there were meetings planned between police and the Crown "to discuss the strategy of furthering the case against Moslenko and hopefully bring charges against him once again within the year."

 

GUILT BY ASSOCIATION?

There was evidence Moslenko and Willis knew each other and were friends on Facebook. But Chartier refused to go any further on that point, as the Crown suggested.

The Crown and defence agreed there were records of calls between phones registered to Moslenko and Willis. They show calls between the numbers a few weeks before Tran’s death and one call to Willis’s number from a phone linked to one of Moslenko’s relatives less than a day after Tran was stabbed.

"It cannot be confirmed (whether) the calls were answered or unanswered, voice mail was accessed and messages left or the calls simply left to ring… The service provider could not confirm one way or the other," an agreed statement of facts stated.

Nonetheless, the Crown suggested the calls were part of a murder conspiracy. Chartier called that a dangerous conclusion.

"What can I draw from this other than two individuals — acquaintances, friends — called each other? There’s no evidence that an actual communication (about the killing) occurred during any of these calls or attempts at calling," Chartier wrote.

❚ ❚ ❚

As the clock was ticking against reinstating the murder charge against Moslenko, Willis went on trial in the spring. Moslenko’s name came up several times during the hearing.

In a videotaped statement shown to jurors, police repeatedly tried to get Willis to implicate Moslenko. But he refused to budge, insisting he and his family would be in danger if he started "dropping names."

Police suggested Moslenko arranged the hit.

Willis denied that.

He also said he was never told why Tran had to be killed.

"I just knew she had to be dealt with, and that was it," Willis told police. "I deal with some bad people. I had to do what I felt necessary at the time."

At the start of his trial, Willis fought to be able to present jurors with the defence of "duress" — essentially arguing he should be acquitted based on the fact he was put in a position of kill or be killed.

His trial judge refused.

"The proposition that an accused perpetrator had no ‘realistic choice’ or option but to kill an innocent victim is both categorical and extraordinary in its breadth," Chief Justice Glenn Joyal wrote.

The decision, which lawyers for Willis say violates his charter rights to life, liberty and security of the person, will form a major part of his upcoming appeal.

Willis never named the mastermind he feared.

However, Sam-Kelly did testify at Willis’s trial that Moslenko knew about the murder plot against Tran. He told jurors Tran was going to be targeted because she was a "snitch" against Moslenko. He never said what she snitched on him about.

Sam-Kelly said Willis was offered a way out of a massive drug debt if he carried out the killing — although Sam-Kelly didn’t say who made the offer to Willis.

"(Willis) said he didn’t have any options. He decided to do a favour for somebody else. He said ‘I gotta rub somebody out in order to get paid,’ " Sam-Kelly said.

"(Willis) said if we get rid of her, he can give me the money: the boyfriend," he added.

Sam-Kelly said the plan involved stealing items such as Tran’s bank cards and even her car, which Moslenko would use to give money to Willis against his debts.

Following the killing, Willis didn’t receive the payout he expected because Tran’s car was impounded by police and her boyfriend had no access to it, Sam-Kelly testified.

"The boyfriend’s stuff was frozen," he told jurors.

As well, Willis didn’t steal any of her property because "there were too many people around" who heard Tran’s screams and rushed outside.

None of the evidence given by Sam-Kelly at Willis’s trial could be used to implicate Moslenko.

He gave much the same testimony at Moslenko’s preliminary hearing, where Chartier ruled the comments were inadmissible.

What did emerge at the hearing, however, was that it was unclear when Willis had made claims to Sam-Kelly that "the boyfriend" was involved.

Moslenko’s full name was never used in his testimony, and Sam-Kelly testified that Willis’s comments implicating "the boyfriend" may not have been uttered until after Tran’s killing, when Willis bought newspapers to check out what happened.

"You never knew the boyfriend’s name, ever, did you?" Inness asked him on March 27, 2014.

"No," Sam-Kelly replied.

❚ ❚ ❚

In a puzzling move, the Crown consented to Moslenko’s release on bail a few weeks after his arrest. It’s extremely unusual for justice officials not to fight the release of an accused in a first-degree murder case.

No explanation was given to the court, but it was likely a sign of just how shaky the case was against him from the start.

www.mikeoncrime.com

Mike McIntyre

Mike McIntyre
Reporter

Mike McIntyre grew up wanting to be a professional wrestler. But when that dream fizzled, he put all his brawn into becoming a professional writer.

Read full biography

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