Murder conviction overturned, new trial ordered in Vancouver killing

British Columbia's highest court has thrown out a first-degree murder conviction and ordered a new trial in the killing of a senior on the doorstep of his East Vancouver home.

Zenen Cepeda Silva, 69, was shot dead on his porch in 2019. His wife, who was with him when the single gunshot rang out, testified that her husband's dying words identified Alvaro Julio Roche-Garcia, 58, as the shooter.

Roche-Garcia was arrested two days later and charged with the killing. A jury convicted him after a five-week trial, though clear evidence of a motive was never established. He was sentenced to 25 years in prison with no chance of parole for the murder, which the trial judge characterized as "cruel," "cold-blooded," and "cowardly."

But the B.C. Court of Appeal on Monday, more than five and a half years since the murder, overturned Roche-Garcia's conviction, finding the trial judge erred by allowing the jury to hear preliminary testimony about the shooting victim's alleged dying words without first conducting an inquiry into the admissibility and reliability of the evidence.

"I consider the consequences of this error in law to be serious," Justice Gregory Fitch wrote on behalf of the three-judge Appeal Court panel. "Identity was the main issue at trial. As is evident from their questions, the jury was focused on this very issue."

The statement identifying Roche-Garcia as the shooter wasn't the only error the appellate court found when it ordered a re-trial.

The lower court judge failed to properly instruct the jury that they must acquit the accused if they either believed his denial of guilt or if the denial raised reasonable doubt about whether he was the shooter, the Appeal Court found.

Additionally, the trial judge erred in allowing the prosecution to elicit a "highly prejudicial" statement from the victim's granddaughter, which identified Roche-Garcia as the shooter, while on the witness stand, the court ruled.

'I've been shot'

Police responded to a 911 call about a shooting on Fraser Street near East 51st Avenue at 11:47 p.m. on Jan. 26, 2019.

Cepeda Silva and his wife, Maria Baldivia, had been sitting on the front step of their home while their granddaughter, Kadesha Fuste, watched a movie inside.

Fuste testified that she heard a gunshot and then ran outside to find her grandmother screaming for help as her mortally wounded grandfather repeatedly said, "Look how this son of a b**** just killed me" and "Call the police, I've been shot."

Cepeda Silva had been shot once from behind, the bullet entering his upper right buttock and exiting his left front groin area, severing a critical artery in his pelvis and causing fatal blood loss.

During a police interview, Fuste told investigators "my whole family knows who did it," referring to the shooting. "It's fairly obvious" the shooter was Roche-Garcia, she said, according to the court transcript.

On the witness stand, Fuste testified that she did not hear her grandfather identify the shooter by name.

Speaking through a Spanish language translator, Baldivia testified she was having a cigarette with her husband on their porch and had just stood up and turned to go inside when she heard a loud bang from behind.

Cepeda Silva fell into the door and Baldivia turned to see a man holding a handgun in his outstretched arm behind a low wall on the side of the property, she said. No words were exchanged before the shooting and the couple had not spoken to anyone while outside that evening, she said.

Baldivia testified she recognized the shooter as Roche-Garcia, a man the couple had met "a long time ago" when they were living in New Mexico. She said that as she held her dying husband, he said, "Look how Alvaro has killed me."

Her testimony was given during a preliminary inquiry, rather than before the jury, because she suffered a stroke before trial and was unable to take the witness stand. In his appeal, Roche-Garcia argued that this evidence was not properly tested or challenged in court, but was "whisked into evidence" in the preliminary hearing without jury instructions from the judge.

Video of suspect vehicle

Police obtained surveillance video from the back of a restaurant near the family home on the night of the shooting. The video showed a man parking a black Hyundai and exiting the vehicle wearing a beige jacket and baseball cap, walking with an "irregular or laboured" gait in the direction of the home at 11:40 p.m., according to court records.

The man returned to the vehicle approximately 30 seconds before the first 911 call was made. Before driving away, he placed what appeared to be a handgun on the roof of the vehicle.

The owner of the vehicle recognized the car shown in the video as her own. She testified she had loaned it a week or two before the shooting to Roche-Garcia, who was a regular at the bar where she worked.

Weeks before the loan she had taken Roche-Garcia to the hospital with injuries to his face and knees after he complained of being assaulted. He told her someone had tried to run him over in a parking lot and he was worried they might recognize his vehicle and attack him again, she said.

They agreed to swap vehicles for his own protection. Roche-Garcia returned the Hyundai the morning after the shooting, she said.

Crown prosecutors suggested Roche-Garcia believed Cepeda Silva was responsible for the earlier attack and decided to exact his revenge.

Forensic evidence obtained

Roche-Garcia was arrested on Jan. 28, 2019. He wearing a beige or light-grey jacket with a black back and sleeves, the court heard. The arresting officers testified the suspect walked with a limp and needed help getting in and out of the police wagon on his ride to jail.

The bullet that killed Cepeda Silva was found lodged in the front door of the home. Forensic investigators matched it to a bullet found embedded in the refrigerator of Roche-Garcia's apartment.

Roche-Garcia did not testify at trial and called no evidence in his own defence.

Writing on behalf of the Appeal Court, Justice Fitch acknowledged the case against Roche-Garcia was "a formidable one even without Cepeda Silva's declaration identifying (him) as the shooter." However, the errors made at trial were too serious to disregard.

"There are problems with the eyewitness identification evidence, there was no clear evidence of motive, and the jury, or at least some of its members, wrestled with the central issue in the case – whether the appellant was shown beyond a reasonable doubt to have been the shooter," Fitch wrote.

"Further, first-degree murder is the most serious offence known to law and, on conviction, carries with it a sentence of life imprisonment with no parole eligibility for 25 years. There is, in my view, a compelling individual and public interest in having this charge determined by a jury of the appellant's peers on properly admissible evidence."