New trial ordered in slaying of U of C student
Alberta’s top court on Wednesday overturned the second-degree murder conviction of Calgarian Mitchell Harkes, sending him back for a second trial.
A three-member Alberta Court of Appeal panel agreed with defence lawyer Michael Bates that jurors who convicted Harkes in the slaying of U of C student Brett Wiese were given improper instructions.
Bates argued that Justice Rosemary Nation should not have told jurors they could find Harkes guilty of second-degree murder if they ruled he would have known an accomplice to a break and enter would likely commit murder.
Wiese was fatally stabbed on Jan. 12, 2013, by a 17-year-old girl who had returned to a house party with a posse of friends, including Harkes, after she’d previously been ejected.
The group stormed into the residence, where Wiese was attending the party with university friends, and Harkes attacked two males before he was subdued and began to retreat.
As he was trying to flee the home, others grabbed him and he stabbed Wiese six times in the back, chest, abdomen and face.
Wiese walked away from Harkes and was stabbed once more in the back by the girl, a wound that was ultimately fatal.
The appeal judges agreed with Bates that Nation erred by telling jurors they could find Harkes was guilty as charged because the murder was committed in the course of a common unlawful purpose with the young offender.
At Harkes’ trial, the Crown argued Nation should only tell jurors they could find Harkes guilty of having the common unlawful purpose to commit manslaughter and only convict him of murder if they found he had the necessary intent, or was a party to the young offender’s actions.
But Nation disagreed, instructing jurors they could find Harkes had the common unlawful purpose of breaking into the home knowing the girl was likely to commit murder.
“To be liable for murder (on that ground) the accused must actually have known that murder was a probable consequence of carrying out the common unlawful purpose,” the appeal judges said in their written decision.
“In our view, to reach the conclusion that the appellant had the necessary subjective knowledge for unlawful purpose murder would require a string of inferences that no reasonable jury, acting judicially, would draw on the evidence presented at trial.
“We agree with (Crown) counsel that there was an evidentiary basis to conclude that the appellant ought to have known there was a prospect of serious violence or even death, but there is insufficient evidence on which to conclude that he knew that anyone would likely commit a murder in carrying out the original common purpose.”
The judges rejected several other grounds of appeal, but found Harkes’ conviction could not be upheld based on Nation’s improper instructions on that one area of law.
Harkes was also convicted of attempted murder for stabbing another partygoer, Colton Lewis, and charges of assault causing bodily harm and break and enter. Those convictions were upheld. Harkes remains in custody pending a second trial.