Judge acquits man acting in self-defence in teen’s stabbing death

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This article was published 07/02/2024 (617 days ago), so information in it may no longer be current.

A 41-year-old Winnipeg man has been acquitted in the stabbing death of a teenager outside a North End convenience store after a judge ruled the accused was acting in self-defence.

Clayton Marcano stood trial last month charged with second-degree murder in the July 2021 killing of 17-year-old Andy Joseph McKay.

Security video outside the Salter Street 7-Eleven store captured much of the confrontation between Marcano and McKay, another male and a teen girl shortly after 1 a.m., including a 36-second struggle between Marcano and McKay for control of a knife.

“Marcano acted for a defensive purpose,” King’s Bench Justice Joan McKelvey wrote in a 40-page decision released Wednesday.

“His actions were carried out to defend himself from the use or threat of force from McKay brandishing the knife,” McKelvey said. “While the results of the confrontation and the loss of life of this young man are tragic, it would be difficult to consider Marcano’s conduct during the 36-second struggle to have been unreasonable.”

Video evidence showed McKay and his companions were waiting outside a service window at the convenience store when a verbal dispute arose with Marcano, a stranger to the group.

McKay chased Marcano with a knife, before Marcano pulled a pellet gun from his backpack and gave chase to McKay and his companions.

Marcano abandoned the chase and was returning to the store less than a minute later when security video showed him raising his right hand, holding the pellet gun as McKay attacked him, knife in hand.

“The raising of the right arm by Marcano could have been undertaken to fend off the attack, rather than endeavouring to fire the handgun,” McKelvey said. “The attack was a blindside action by McKay on Marcano who, it could be inferred, thought all contact with the three individuals had broken off.”

Security video showed the two struggling on the ground “in a likely attempt to gain control of the knife,” McKelvey said.

A police officer testified it was not possible to determine from the security video whether Marcano or McKay had their hands on the knife at the same time or how many blows were struck by either male. The officer said the video, which did not include any audio, showed Marcano on the ground, possibly calling for help and cradling McKay’s head following the confrontation.

Police arrived to find both Marcano and McKay severely injured, lying in a pool of blood.

A pathologist testified McKay died as the result of a stab wound to the heart.

Marcano was taken to hospital with life-threatening stab wounds to his head, back, legs and arms.

As an adult, Marcano could have made decisions that would have prevented the fatal confrontation, McKelvey said.

“However, when attacked unexpectedly in the dark, I am satisfied that the nature and proportionality of Marcano’s response was reasonable,” she said.

dean.pritchard@freepress.mb.ca