Slaying or self-defence? Fate of accused now in hands of judge

Security video captures a violent confrontation outside the Cork and Flame restaurant that ended in owner Kyriakos Vogiatzakis’s death at the hands of Curtis Dalebozik nearly two years ago.

How a judge interprets that video will decide whether Dalebozik, 40, is convicted of manslaughter or acquitted on the basis he was acting in self-defence.

“The evidence clearly establishes the offence in the form of unlawful act manslaughter, committed by way of assault,” Crown attorney Krista Berkis told King’s Bench Justice Sadie Bond in a closing argument Tuesday.

“The video surveillance presented at trial is key as it captures the entire incident and it is an objective record of the incident,” Berkis said.

A forensic pathologist testified Vogiatzakis, 51, died as the result of multiple blunt force trauma, asphyxia and the “physiological stress of the altercation.”

At the time, Dalebozik lived at a motel immediately west of the Cork and Flame restaurant.

Security video played for court showed him outside the restaurant’s west-side entrance shortly before 5:30 p.m., Jan. 24, 2024, when Vogiatzakis pulled into the parking lot beside him, exited his vehicle and confronted Dalebozik.

The video, which has no audio, shows Vogiatzakis pointing at Dalebozik and then toward Portage Avenue, at which point the accused is seen jogging toward a mobile sign by the roadside. Almost immediately, Dalebozik runs back toward Vogiatzakis, who punches or shoves Dalebozik in the chest.

“It is reasonable to infer Vogiatzakis believed the accused was using force against him,” Berkis said. “Mr. Vogiatzakis was the one defending himself at this moment. It was the accused who escalated the situation by running at Mr. Vogiatzakis.”

The men grappled with each other, making their way to the roadway, where Dalebozik punched Vogiatzakis in the head. Vogiatzakis delivered several uppercut punches to Dalebozik’s head and midsection before the accused “violently” dragged him to the ground, Berkis said.

Dalebozik overpowered and incapacitated Vogiatzakis, delivering several knee strikes to his midsection and, Berkis argued, compressed his chest and put him in a headlock for up to 90 seconds.

Vogiatzakis briefly attempted to get up on his knees before Dalebozik delivered another knee strike and took him back to the ground.

Berkis said Vogiatzakis was fighting to breathe at this point and posed no threat to Dalebozik.

Vogiatzakis was “a man in distress, not a man mounting resistance,” she said.

Vogiatzakis was no longer moving when Dalebozik got to his feet and kicked him four times in the head and body.

“These are not heat of the moment offences,” Berkis said. “Self-defence ends the moment the threat ends. (Dalebozik’s) actions exceeded the bounds of lawful self-defence by a large margin.”

While there is no doubt Vogiatzakis died following a “violent altercation” with Dalebozik, he was acting in self-defence and “his act is therefore excused,” argued defence lawyer Steven Brennan.

Brennan said the security video shows Dalebozik backing himself away toward the roadway in the early stages of the fight, “unable to defend himself in any reasonable way,” before the two men fell to the ground.

“It appears he was in continuous retreat,” Brennan said.

Once on the ground, Dalebozik, having been unsuccessful in retreating, did everything he could to gain control of Vogiatzakis, “who appeared at all times to be intent on punching him, beating him, seemingly without mercy,” Brennan said.

“I don’t know how the accused could possibly have any expectation that this beating would end if he didn’t do something to prevent it,” he said.

Court heard medical evidence Vogiatzakis had likely suffered a heart attack and wasn’t breathing when he stopped moving.

“Only then does the resistance stop and then (Dalebozik) gets off of Vogiatzakis,” Brennan said.

The defence lawyer argued the subsequent kicks Dalebozik delivered to Vogiatzakis are irrelevant in considering whether his client is guilty of manslaughter because they were not a contributing cause in Vogiatzakis’s death.

“We say that’s where the difficulty lies with the case,” Brennan said.

Last week, a former bartender at the restaurant, Shanise Powell, testified she recognized Dalebozik as someone staff had nicknamed Jesus due to his long hair and beard, and who on a number of occasions had been seen “loitering” around the restaurant entrance, asking customers for spare change or looking for cigarette butts.

Bond will deliver her verdict at a later date.

Dalebozik remains in custody.

dean.pritchard@freepress.mb.ca