Daly didn’t notice anything out of the ordinary about his friend’s behaviour until the Thursday night of the week Tim Bosma was killed. He was waiting outside Smich’s mother’s house to collect some marijuana. “I remember Dell’s truck zooming by, Mark hopping out, running into the house, sending Marlena out a couple of minutes later, and then she basically told us to scram.” He found it strange that Mark, whom he thought of as his best friend, didn’t say anything to him. As Daly recalls, Smich told him about Millard’s arrest very soon after it happened, when he became nervous and jumpy and moved into Marlena’s sister’s place.
Smich told Daly there was a gun in the toolbox and that one of the reasons he had moved was that he didn’t feel safe being in the same place as the firearm, which he had stored in the bottom of either the washer or dryer in his mother’s garage. “He was just trying to lay low there, avoid being seen by anybody,” says Daly. “I think that he said people were looking for him.”
The next day or over the weekend, Smich told Daly that people were coming to get him. For some reason that is never explained in court, he was especially scared of the victim’s friends. “These guys don’t fuck around, they’re going to come back. They’re going to find me,” he said. “I fucked up, man. I fucked up. These niggas are coming to get me.”
Smich deleted his Facebook account, got rid of his phone, and generally acted paranoid. Daly had never seen him in such a state. He would use Marlena’s phone or borrow Daly’s, going out on the balcony to make calls or send texts. When he gave the phone back, all the recent activity would be deleted. When Daly asked Smich if he was involved in the Bosma case, Smich snapped at him, a reaction that Daly describes in court as more “defensive” than angry. The mood changed very quickly. Daly was nervous and let the subject drop.
Several days after Millard’s arrest—perhaps when he had begun to think he might have escaped police notice after all—Smich told Daly that the gun in the toolbox was his. The conversation took place while Smich was showing his friends a YouTube video about ammunition. “Some zombie bullets thing [that] went with the gun he wanted,” Daly says. But Mark didn’t purchase that gun, he adds. Dell bought the gun that used the so-called Zombie bullets, designed to expand upon impact.
Daly says he advised Smich to “put on a work vest and hard hat and go bury [the gun] somewhere. Just pretend to be a city worker.” But Smich told him he needed money for a lawyer and so intended to sell the gun as well as the weed in Michalski’s blue backpack. He asked Daly to arrange a meeting with a friend of his, nicknamed Bleach, who might want to buy the gun. Daly texted Bleach. “I said, ‘Do you have money?’ He said, ‘Why?’ I told him Mark had something he wanted to get rid of. That was the extent of the text messages.”
Smich was also feeling pressure from his mother and his older sister, Andrea. According to Daly, the media had shown up at their house, where preparations were taking place for his middle sister Melissa’s wedding on May 19. While Smich’s mother waited outside in the car, Andrea arrived at Elizabeth Meneses’s apartment. She was “yelling at him, telling him to get rid of everything. And then she started yelling at me,” Daly says. She told him it was a stupid idea to try to sell the gun. It is never explained how she came to find out about the gun.
As far as Daly remembers, the meeting with Bleach took place in the park beside the apartment building where Smich was staying. Mark wanted $1,000 for the gun, but Bleach had only $100 so the gun was never produced for him to see. A small marijuana transaction may have taken place. Daly says he thinks that he and Bleach hung out afterward and that Mark went his separate way. Daly doesn’t know what happened to the toolbox or the gun. The first time he has seen Mark Smich since his arrest is in court.
—
SHOCK AND OUTRAGE BEST describe the reaction to the testimony of Matt Hagerman, Andrew Michalski, and Brendan Daly, coming as it did on the heels of Shane Schlatman’s cross-examination. For many spectators, it was inexplicable that among all the people who had known something about Tim Bosma’s case, not one did the right thing. On social media, Millard’s friends became known as Millard’s minions and Millard’s morons. Once again, it fell to Mark Smich’s lawyer to express the collective anger, this time targeting Matt Hagerman. Dungey was the right lawyer at the right time, so long as you were prepared to overlook the evidence which showed that his client, his client’s ex-girlfriend, and his client’s sister all had knowledge of the crime and did nothing about it.
Right from the start of his cross-examination, Thomas Dungey makes it clear that there is more to Hagerman than the tearful young man the jury has seen for the past two days. He holds up a bound copy of Hagerman’s four police statements with bright-pink Post-it Notes sticking out all over. According to Dungey, they mark the many lies Hagerman has told. He says Hagerman’s strategy was to tell the police as little as he could get away with, revealing new information only after it was uncovered by investigators. “You can sit there now and snivel, Mr. Hagerman,” Dungey says. “The reality isn’t that you lied once or twice. You lied at least forty times.” As an example, Dungey cites how Hagerman misdirected the police when they asked if Millard had gotten in contact with him. “You were indicating that you got texts from Christina’s phone. You never mentioned it was Millard,” he says.
“You were his best friend?” continues Dungey, changing tack.
“I was friends with him over years,” says Hagerman. “I knew him from a young age.”
“Why does he come to you in the middle of the night, four in the morning, to hide a toolbox?”
“Either because I was a close friend or my house is the closest distance.”
Dungey says Millard could have hidden the toolbox at the farm, the hangar, any of his other properties. “You couldn’t have possibly thought it was drugs,” he insists, refusing to accept that Hagerman didn’t suspect it contained something else when Millard, dishevelled and agitated, dropped it off at four o’clock in the morning after a flurry of urgent texts.
Hagerman says it never occurred to him.
“Well, why are you so scared when you’re going to drop it off in Oakville if you think it’s drugs?”
“Because a friend of mine had been charged with a theft,” says Hagerman, referring to one of the two original charges laid against Millard, which were theft over five thousand dollars and forcible confinement.
“Well, if you never thought he would have been involved, less reason to ditch it,” says Dungey.
Again, Dungey insists that Hagerman knew, and again the witness denies it.
“Never crossed your innocent little mind?” says Dungey with contempt.
“I swear to you.”
“You, the innocent little criminal, you suspected more than just a truck being stolen.”
“I thought what I had in my possession wasn’t of interest to the police.”
“You had no consideration for the Bosma family or Mr. Bosma.”
“I didn’t want to be involved with the situation,” says Hagerman. “I called Crime Stoppers.”
“Well, that can’t be proved,” says Dungey. (Because Crime Stoppers operates on the principle of anonymity, Hagerman’s claim would be difficult, if not impossible, to confirm.) “You can easily say that, can’t you?”
“I told them that the other suspect they were looking for might be Mark Smich,” Hagerman says. “I told them about the farm and the properties.”
Dungey demands to know why Hagerman didn’t call the police, and then asks him, “What are you snivelling about?” Snivel is definitely the word for which this cross-examination will be remembered.
“I’m nervous right now.”
“You’re snivelling for yourself. You’re not snivelling for the Bosma family.”
“I think, Mr. Dungey, we can lower the tenor with respect to this witness,” says Justice Goodman.
Dungey goes back to hammering away about how Hagerman lied repeatedly, up until his fourth interview with police. Then
he says, “You even lied to your father.”
“Yes, I lied to a lot of people I cared about.”
“When did it dawn on you you should come up with some semblance of the truth?”
Hagerman says it was when his father pointed out to him that the toolbox was locked and there could have been anything inside it.
“You were afraid it would all of a sudden come out that you were a criminal,” says Dungey, pointing out that even in his fourth and final interview, where he supposedly told the police everything, Hagerman still didn’t mention the Bobcat mission. “Stealing a Bobcat, Mr. Bosma’s truck, you didn’t see any parallel there?”
“It never crossed my mind. We were there about the toolbox,” says Hagerman. “Knowing what I know now, I could have changed how things transpired.”
“It took three years to come to this conclusion?” asks Dungey.
“I’ve been thinking about this every day for three years,” he answers with a big sniffle. “I eventually told the truth.”
—
CROSS-EXAMINATION OF WITNESSES is an opportunity for a defence team to build its theories of the crime and make the case for its client’s innocence. And if necessary, the lawyers will also try to destroy the witnesses’ credibility. While Dungey is determined to portray Dellen Millard as a master manipulator who dragged his friend Smich into a murder, Nadir Sachak wants to dispel the image of his client as controlling, someone who forced others into a life of crime. Yes, the rich guy liked stealing for kicks, he argues, but it was the crazy, violence-prone Smich who transformed theft into murder. When Sachak questions Hagerman and then Michalski, he makes it clear that they participated in Millard’s thieving missions voluntarily.
“There is no duress, right?” Sachak asks Hagerman.
“Correct.”
“There’s no control?”
“Correct.”
“There’s no domination over you?”
“Correct.”
To Michalski, Sachak points out that he was ready and willing to go along on the Bobcat mission even before he knew what it was about. He wanted to participate so much that he was prepared to ditch his girlfriend, who was staying over for the night.
“It was voluntary?” says Sachak.
“Yes,” answers Michalski.
“Consensual?”
“Yes.”
Sachak drives the point home. “Willing?”
Michalski agrees, but pushes back. He tells Sachak he didn’t actually want to do it. Though he is not at all analytical, Michalski explains that, for him, there’s a difference between willing and wanting to do something—that he was willing to participate in missions even if he didn’t particularly want to.
“I don’t want to get into semantics,” Sachak replies. “There was no coercion, control, domination. You and your friends wanted to steal for a sense of adventure?”
Again, Michalski agrees, but as contradictory as his answers seem, in the courtroom they add to his credibility as a witness. Michalski isn’t minimizing his misbehaviour and criminal acts to make himself look better. He is simply acknowledging that a part of him always knew better and didn’t want to do the things he did, even if he went along with them willingly.
Michalski’s and Hagerman’s testimony about the thefts is not good news for their once good friend Dellen Millard. Both of them are testifying against their own interests, albeit in the face of undeniable text message evidence. With Hagerman, the best that Sachak can really do is to contrast the thieving missions with the events of the night Tim Bosma was murdered in an attempt to show they are completely different operations. He describes the past missions as methodical and carefully thought out. “There are precautions taken to ensure you guys don’t get caught and if need be to abandon the mission,” he says. The implication is that the theft of Tim Bosma’s truck doesn’t fit the pattern, therefore it could not have been planned by Dellen Millard. It’s not much to work with, but it’s all Sachak’s got.
He has more to go on with Michalski, who, Sachak reveals, was arrested by police for the first-degree murder of Tim Bosma on May 13. In the police statement he gave at the time, Michalski said Smich sounded forceful and angry when he called him on the night of May 10 after Millard’s arrest. “There are numerous calls and texts between you and Smich,” Sachak tells Michalski. “They deal with one topic and one topic only. Smich wants those drugs in Dell’s house. He wants you to meet with Hagerman. He wants the thing that Hagerman has…Smich made it abundantly clear he wants the toolbox…Smich is directing your movements. He’s quarterbacking your movements.”
Michalski agrees that he did what Smich wanted on Friday night—but not on Saturday. He answers repeatedly that he refused to deliver the toolbox and backpack personally to Smich. He was scared of where that might lead, which was why he arranged a drop spot. He sticks to his story throughout repeated questioning by Sachak, and then by Dungey, who attempts to get Michalski to admit he was doing Millard’s bidding and trying to frame Smich by dropping the gun on him.
Dungey knows that Michalski is a far stronger witness than Schlatman or Hagerman. He’s not telling preposterous stories like the former and, unlike the latter, he is owning up to his bad behaviour. The jury might not like it if Dungey directly attacks Michalski, so he starts off gently.
“You come from a good family,” Dungey says. “What caused the thievery?”
Michalski answers that he felt safe around Millard.
“Why is that?”
“I can’t explain it.”
“Thinking you were indestructible?” says Dungey. He suggests there was a special kind of bonding between Michalski and Millard, and Michalski agrees.
“If you hadn’t met Mr. Millard, you wouldn’t have got to stealing things?”
“Probably not,” says Michalski. “He had money, he could protect me. I felt confident he would do that for me.”
“Did he tell you that?”
No, says Michalski. It was a feeling he got.
As he did with Hagerman, Dungey has a bound copy of the transcript from Michalski’s first interview with police. It’s ninety pages long, and Dungey says that for the first sixty pages, Michalski is resisting the officer.
Michalski denies that he was lying. “I was basically talking to get comfortable with the situation,” he explains.
“I appreciate that. I have empathy. But these are police officers asking specific questions, and you’re just not telling them the truth,” says Dungey. “You’ve been put into this position because of Mr. Millard, that’s correct?”
“Yes.”
“You know he’s involved?”
“Yes, sir.”
“You leave out the pertinent fact of Mr. Millard and the stealing of the truck?”
“Yes, sir.”
Dungey suggests again that it’s because of what he repeatedly calls the “bonding” between Michalski and Millard, that it must be very strong if Michalski is protecting Millard when he himself might face first-degree murder charges for a crime he did not commit. “You hold back, and at times you lie to police, until you get to the point you realize you’re in big trouble, because you want to protect your good friend Millard.”
“And myself,” says Michalski. “I’m also trying to escape from underneath it, just to not be involved.”
Somewhat disingenuously, Dungey tells him that he wasn’t involved, that he wouldn’t have gotten in trouble.
“But I am here,” says Michalski. “I am involved.”
When Dungey suggests, as he did so effectively with Schlatman and Hagerman, that Michalski was just trying to protect Millard, it doesn’t work. Michalski has already undermined that idea when Dungey asked him earlier about Millard’s motives for stealing. “Why does this guy with all this money, all the possessions he has, why does he have to go steal off somebody a truck? In your mind, why do you think he does this?” Dungey asked.
“For the thrill of it,” Michalski said.
“For the thr
ill of it,” Dungey repeated for emphasis. “Because he’s getting a thrill out of this thieving?”
“That’s correct,” said Michalski.
When Michalski has said this, it’s hard for Dungey to argue now that he really wanted to protect Dellen Millard.
Dungey and Ravin Pillay, Millard’s lead defence counsel, both have a tricky time cross-examining Brendan Daly, because his testimony supports some elements of their individual defence theories and undermines others. One minute Daly says something that works in either Millard’s or Smich’s favour, the next minute he makes the same defendant look bad. For example, Daly tells Pillay that Smich has a mean streak and difficulty controlling his anger, that his talk about violence sometimes made Daly uncomfortable. But when Pillay cites lyrics found on Smich’s iPad—“My 380 [gun] is no stranger / When i’m angered you’re in danger”—Daly says firmly, “No, I don’t remember that.” And while Daly readily agrees with Pillay that Smich talked about owning a gun and said it was his gun in the toolbox, he also insists that Smich told him Millard also had a gun.
Likewise, Daly agrees with Dungey that Smich feared Millard was going to try to frame him. He confirms that Smich needed money to hire a lawyer, which is why he tried to sell the gun. But when Dungey suggests to Daly that he wasn’t pressured into helping with the sale, Daly firmly contradicts him, answering, “Yeah, I was.” Daly also won’t go along with Dungey’s narrative that Smich was expecting only a drug drop-off, not the toolbox, and that he never owned a gun.
“Mr. Smich never told you that his gun was the one in the toolbox,” Dungey says.
“Yes, he did,” says Daly.
ELEVEN
INVESTIGATIONS ARE ONGOING
In late May of 2013, a small local newspaper on Manitoulin Island, in Lake Huron, got a big scoop when it learned that Ontario Provincial Police officers had been to Little Current, the island’s largest settlement, to investigate a sailing trip Dellen Millard had made in the summer of 2011. Investigators arrived after Chris Blodgett, whose family owned and operated Discovery Yacht Charters in Little Current, recognized a familiar red mohawk on the evening news and realized Millard had been a customer. “His name never left my memory, especially considering the strange circumstances of his charter,” Blodgett told The Manitoulin Expositor. Millard had rented a sailboat for a ten-day cruise of the North Channel. Thanks to his aviation background, navigation skills, and previous charter experiences, he easily met the requirements to sail a Discovery vessel. Blodgett remembered him as intelligent and well spoken, despite the hairstyle. Nor was it Millard’s fault when the yacht suffered a mechanical failure while at anchor and Blodgett was called out to fix it.
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