Cheyenne Learn was found guilty of second-degree murder by Justice Dev Dley to conclude his trial in the shooting death of Tammy Ellis in December 2007.
Learn was previously convicted of second degree murder in his first trial in 2009, but that was overturned on appeal in 2013 and he was awarded a new trial.
Second degree murder carries a life sentence, but crown and defence counsel will appear before Dley again in January to argue parole eligibility, which generally ranges anywhere from 10-25 years.
Dley made his judgement following an analysis of credibility of the evidence and testimony submitted by all the witnesses during the trial.
“Mr. Learn shot and killed Tammy Ellis,” said Dley, as he opened his ruling. “The issue is whether it was second-degree murder or manslaughter.”
He concluded elements of testimony from Learn and from his ex-girlfriend were unreliable. The ex-girlfriend’s name is protected by a publication ban and will referred to as B.L.
He said there were discrepancies from the first trial to this past one in regards to testimony from B.L. and Learn noting that it is unrealistic to assume that memory gets better with time. Dley also said that B.L. was evasive and argumentative during her questioning, and had misled police in her statement to police describing the nature of her absences from the residence in which she trafficked cocaine.
Dley also noted inconsistencies in Learn’s testimony, noting that there were additional details his his version of events that weren’t on record in the first trial.
Learn had testified about his vision being a grey haze and that Ellis’ voice was like being in a tunnel during an argument directly before the shooting—details which never came up in the 2009 trial because Learn claimed he wasn’t asked about them.
“I do not accept that important evidence was overlooked because he wasn’t asked,” said Dley.
Dley also said Learn had a selective memory on the night of the shooting due to his gross intoxication, as he remembered certain parts of the night, such as leaving his trailer and being inside the residence, but being unable to recall pulling the trigger or leaving the house.
He concluded that Learn’s testimony was not credible when it came to details on the shooting and his actions before, during and afterwards.
In reaching a second-degree murder conviction, Dley noted that Crown had to establish beyond a reasonable doubt that Learn intended to kill Ellis or cause bodily harm leading to death.
Dley referred to precedents established in other cases submitted by both the crown and defence, but noted that “drunken intent is still intent.”
Directly prior to the shooting, Learn and Ellis had an argument, where he claims she insulted his manhood by bring up intimacy issues between him and B.L.
Dley also concluded that the legal threshold wasn’t met for a defence of provocation.
Ellis died on Dec. 17, 2007 after sustaining a shotgun wound to the back after Learn kicked in the door, entered the home and pulled the trigger on a modified sawed-off shotgun.
Two eyewitnesses, including the homeowner and B.L. were present in the room when the incident occurred.
Learn fled the scene and tossed the gun over the bridge into a snowbank by Joseph Creek on 4th street behind the Save-on-Foods.
He was in a relationship with B.L. for two years, as both abused alcohol and marijuana on a near-daily basis.
A month before the incident, B.L. began trafficking cocaine for income as the two began planning a move to Kelowna, though B.L. claims she sold drugs as a way to make money in an attempt to escape the relationship.
Ellis met B.L. a few weeks before the incident and introduced her to crack cocaine.
Learn had testified he was concerned about her drug use following a late phone call the night before the shooting where she had used crack and was crying and complaining about a lump in her throat.
Learn testified he consumed three coolers, a two-litre of cider and half a mickey before heading over to the residence on his bike to shoot out the engine block of B.L.’s jeep as part of a plan to stop her from trafficking drugs.
He waited outside the house until B.L. showed up shortly after his arrival, and he decided not to carry out his plan in fear of being caught.
That testimony led Dley to conclude that Learn was able to reason and foresee consequences stemming fro his actions.