New trial ordered in alleged murderby-truck Olds case

CALGARY — The first driver in Canada ever to be convicted of murder for using a vehicle as a weapon, for plowing into a crowd outside an Olds bar and killing a college student almost three years ago, has been awarded a new trial.

The Alberta Court of Appeal on Monday overturned the second-degree murder conviction against Jeffrey Kevin Leinen, 26, of Calgary, in a split 2-1 decision.

In its ruling, the court said the trial judge did not properly instruct the jury with regards to a “panic response defence” when she gave her final instructions.

“We are not persuaded that we can classify as harmless the failure to point out the legal implications of the panic response defence,” wrote justices Connie Hunt and Beth Hughes. “The appellant was entitled to a properly instructed jury. The matters on which the charge was deficient went to each of the offences on the indictment. The error may have had an impact on the verdict.

“In making this assessment we must ‘afford any possible measure of doubt concerning the strength of the Crown’s case to the benefit of the accused person.’

“We must ask whether the verdict would have been the same if the errors had not been committed.

Leinen was found guilty of striking and killing Nicholas Baier, 18, and injuring Dan Scocdopole, 19, with his truck outside the Texas Mickey bar on Oct. 29, 2010. Both victims were Olds College students.

Frank Van Humbeck, Baier’s uncle, said he and other family members were “kind of in shock” after hearing of the appellate court’s ruling.

“It was not the outcome we expected,” he said. “It appears two judges didn’t feel there was enough instruction on the defence of panic attack.

“It’s going to really be tough to go through another trial.”

Van Humbeck had said after the arguments four months ago, he believed the convictions would stand.

Court heard that Leinen was drinking at a bar when he got into a fight. Three bouncers escorted him outside, where he got into a scuffle.

Leinen then got into his truck with a passenger. Someone hit the back of the truck from outside and uttered obscenities or threats. Leinen then accelerated the truck toward a crowd that had gathered outside the bar, striking the two victims.

His defence at trial was that his acceleration was an involuntary panic response. It was argued he did not intend to kill or injure anyone and what happened was an accident.

Defence lawyer Jennifer Ruttan had argued at the appeal that Leinen’s conviction of second-degree murder should be overturned. She argued that Court of Queen’s Bench Justice Marsha Erb erred in allowing certain evidence from a Crown witness, Dr. Kenneth Hashman, as well as allowing information on Leinen’s criminal record to be heard.

During the trial, Hashman was asked by the Crown to reply to evidence given by a defence expert, psychologist Thomas Dalby, regarding Leinen’s intent when he got into his truck outside the bar, drove forward, stopped for 14 seconds, then plowed into the crowd and fled.

Court also heard that, at the time of the incident, Leinen was on parole after serving part of a two-year prison sentence for two counts of dangerous driving.

During the appeal, prosecutor Josh Hawkes said any potential errors made by the trial judge were minor and do not warrant overturning the verdict.

“One only has to look at the video clip in question (which the jury did) to realize that the panic response defence lacked any ‘air of reality,’” wrote Justice Bruce McDonald, in dissent.

Leinen is expected to be back in Court of Queen’s Bench this fall to set a date for his new trial.