Lawyers present final arguments in Rasberry trial

It’s now up to a judge to determine if Nicholas ( Nick) Rasberry’s repeated stabbing of neighbour Craig Kelloway during a social evening at the accused’s Auburn Bay home in southeast Calgary on May 4, 2013, is second- degree murder, self- defence or even manslaughter.

It all depends on whether one believes the accused’s story to both 911 and to a police detective the following day that he was defending himself from a sexual attack, if it started out as self- defence and he went overboard, or if something is missing from his statements that would make him an intentional killer.

Rasberry’s story that he was attacked and threatened with sexual assault against himself and his wife by his neighbour may sound plausible but, as Court of Queen’s Bench Justice Robert Hall pointed out during defence lawyer Hersh Wolch’s final argument on Monday, “the elephant in the room” is the fact Kelloway sustained 37 stab wounds and incisions with three separate knives.

“At first blush, to many, when is enough — five, 10 stab wounds? When do we draw the line?” said Wolch. “Do we tell people being attacked they are only entitled to so much? Instead, ( the Criminal Code) says you’re entitled to whatever it takes until it’s safe.

“Very few of us in our life are put into a life- and- death situation. No one would recommend you lie down and let someone rape them. Most people would rather be shot than raped — if you survived — as long as you’re in fear, there is no proportionality ... ( 37 stab wounds) is not the elephant in the room, it’s a strong man with a blood- alcohol level of .30 threatening to sodomize another and his wife. I submit that is the true elephant in the room.”

Crown prosecutor Todd Buziak admitted in his argument that the incident may have begun as selfdefence but, at some point, Rasberry, 32, formed the intent to kill. That, he said, is murder.

He pointed out the sheer number of stab wounds, the seriousness and placement of many of the injuries to Kelloway, the enormous amount of blood in the home and lack of wounds on Rasberry as evidence it was a one- sided fight.

“What happened in the living room is not explained. There is no air of reality to it,” Buziak argued. “The third knife is not explained. Why is it bloody, when was it changed? No explanation.”

Buziak noted that the six wounds to the diaphragm and lungs resulting in internal bleeding could each interfere with the normal ability to breathe, the two injuries to the liver would result in significant blood loss and the most significant wound to the aorta would result in major blood loss as it is the vessel that oxygenates blood carried to the body.

“There may be a legal excuse in self- defence. But he exceeded what he’s doing under the circumstances he finds himself in,” said Buziak. “Evidence from Mr. Rasberry is he had Mr. Kelloway in control and in retreat.

“There’s no evidence of physical injuries to Mr. Rasberry and yet how many injuries to Mr. Kelloway would cause tremendous blood loss and infringe his ability to breathe?”

Wolch pointed out that Kelloway, 31, was so drunk, he likely lost his inhibitions and lost control.

As for the 37 wounds, Wolch said: “Mr. Rasberry was on the accelerator because he was in a fight for his life.”

The judge adjourned his verdict to Oct. 28.