New trial for man convicted of killing nurse with hammer
The Canadian Press
Published Thursday, January 31, 2013 2:41PM PST
VANCOUVER -- The B.C. Court of Appeal has ordered a new trial for a man convicted in the 2008 murder of a nurse who was attacked with a hammer.
Kim Rothgordt was found guilty of second-degree murder in January 2011 for the death of James Shannon, whose body was found at his Port Alberni home after he failed to show up for work.
The appeal court ruling said the trial judge was wrong in telling jurors a conviction could be based on a lack of evidence and that he also erred in his instructions related to the defence of provocation and intoxication.
The decision released Thursday said B.C. Supreme Court Justice Ronald McKinnon made errors in admitting Rothgordt's criminal record and improperly instructed the jury on the meaning of proof beyond a reasonable doubt.
"It was not disputed at trial that the appellant killed Mr. Shannon," said the ruling written by B.C. Appeal Court Justice Lance Finch. "What was at issue was whether the appellant acted in self-defence, was too intoxicated to form the requisite intent for murder, or was provoked."
The Crown's theory was that the two men met at Shannon's home for consensual sex and that Rothgordt may have been confused about his sexual identity after his first homosexual experience before he snapped and killed the victim.
Rothgordt's defence lawyer said his intoxicated client was sexually attacked and provoked to act in self-defence when he struck Shannon with a hammer.
Finch wrote that the trial judge's instructions about provocation and intoxication may have been confusing.
"Where both intoxication and provocation are raised as defences care must be taken to ensure that the jurors are aware of the differences in how the two defences operate," he said.
The preferred approach should include the logical connection between intoxication and the requisite intent to murder, Finch said.
"The instructions twice suggested that provocation was to be used in a manner similar to intoxication. While the sections of the Criminal Code were provided, those alone were unlikely to have removed the confusion."
The trial also heard that after Rothgordt was arrested for being drunk in a public place he faked a suicide attempt so he could "lay low in hospital" while he considered his predicament, the ruling said.
"He told the hospital staff he had been sexually assaulted and said the same thing to the RCMP officer who took a statement from him."
The Crown said the whole scenario was a self-serving way for Rothgordt to avoid criminal responsibility.