Man appeals seven-year manslaughter conviction
Client was acting in self-defence after sex assault, defence lawyer reiterates
The seven-year sentence imposed for killing his neighbour during a boozy evening is excessive, lawyers for Nicholas Rasberry argued Tuesday in appealing his manslaughter conviction.
Defence lawyer Hersh Wolch also told the Alberta Court of Appeal that the verdict handed down was unreasonable, stating as he had in the 2015 trial that Rasberry was acting in self-defence when he stabbed Craig Kelloway 37 times in the convicted man’s Auburn Bay home May 4, 2013.
Court heard he used three knives in the slaying.
Rasberry testified he’d been sexually assaulted by teacher Kelloway in the kitchen of his home, and only stopped stabbing the man after he had collapsed.
The two had met for the first time the previous afternoon over a barbecue and drinks.
“In this case, the trial judge erred by holding a victim of sexual assault to an onerous and dangerous standard when finding Mr. Rasberry, with his wife oblivious and vulnerably asleep upstairs, somehow knew the extent of Kelloway’s injuries and somehow should have known he would have been disabled while still on his feet,” Wolch told the three-judge panel.
Wolch also said Court of Queen’s Bench Justice Robert Hall failed to properly appreciate Rasberry’s mindset as he reacted to being sexually assaulted.
“The trial judge failed to recognize the legal significance of Mr. Rasberry’s conduct after the fact; Mr. Rasberry did everything anyone could ask of an innocent person,” he told court. Rasberry, said Wolch, didn’t flee following the killing, instead promptly calling 911 and has been co-operative throughout the proceedings.
“Once he was safe, Mr. Rasberry was very concerned with Mr. Kelloway’s well-being and was expressing disbelief between dry heaving vomiting sounds,” said the lawyer, referring to a 911 call made by his client that day.
Rasberry was initially charged with second-degree murder, but was convicted of manslaughter.
In his ruling in 2015, Hall concluded Rasberry’s response to his fear of rape was excessive but that his fears couldn’t be dismissed.
The Crown is also appealing the 2015 verdict and sentence, arguing either for a new trial or a seconddegree murder conviction.
No date has been set for a decision.
Rasberry remains free until the panel makes its decision.