Killer of 96-year-old loses appeal

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This article was published 25/02/2022 (1346 days ago), so information in it may no longer be current.

A Manitoba man sentenced to life in prison for the shocking killing of a vulnerable senior has lost a second bid to have his conviction tossed out of court.

In 2017, a jury convicted Martin Sutherland of second-degree murder in the killing of 96-year-old MacGregor resident Niels Nielsen in 2014.

In an appeal rejected this week by Manitoba’s highest court, Sutherland, 62, argued the trial judge erred by admitting the evidence of a police officer regarding the absence of DNA at the crime scene.

Sutherland also argued the trial judge did not properly instruct jurors about a defence argument that the testimony of co-accused Jason Conway may have been tainted because he believed he was getting a deal to plead guilty to second-degree murder instead of first-degree murder.

The Manitoba Court of Appeal rejected both arguments and upheld Sutherland’s murder conviction.

The Crown’s case against Sutherland hinged largely on the testimony of Conway, who pleaded guilty to second-degree murder and was sentenced in June 2018 to life in prison with no chance of parole for 10 years.

Conway testified he and Sutherland had been drinking and wanted money for more alcohol, so they decided to rob someone and picked Nielsen’s house at random.

The men, each of whom had knives, knocked on Nielsen’s door and asked to use his phone. Once inside, they threatened Nielsen with a knife and demanded money. Nielson handed over about $800 in cash, at which point Sutherland and Conway stabbed him several times.

The men left Nielsen to die and walked to a nearby bar.

Sutherland denied any involvement in the killing, claiming Conway provided him with several hundred dollars before they headed to the bar together.

Court heard there was no DNA evidence at the murder scene that implicated either accused.

Sutherland argued a police officer who testified an absence of DNA evidence at homicide scenes was not uncommon was not a DNA expert. Sutherland said the judge’s decision to accept his testimony suggested to jurors there was no basis to accept the absence of Sutherland’s DNA pointed to a different suspect.

While some of the police officer’s “opinion evidence” should not have been accepted, the effect on the trial was “harmless or inconsequential,” Court of Appeal Justice Karen Simonsen wrote in a 31-page decision.

“In my view, the absence of DNA of the accused or Conway at the scene was not significant… to the jury’s determination of the accused’s guilt because there was no DNA found there other than that of the victim, despite the fact that the victim had clearly been killed by someone,” Simonsen said.

“As a matter of logic and common sense, the absence of DNA of the accused or Conway at the scene could not have impacted the jury’s determination regarding the accused’s culpability.”

As to the second ground of appeal, Sutherland conceded there was no evidence Conway had been offered a deal in return for his testimony, but argued he may have believed that was so and then lied when testifying.

Even if Conway did believe he had been offered a deal, jurors were warned by the judge to take great care in assessing his evidence, Simonsen said.

“The jury was properly and fairly instructed,” she said.

Following his 2017 conviction, but prior to sentencing, Sutherland argued his case should be tossed out due to delay, claiming the 49 months it took to prosecute him violated his charter right to be tried within a reasonable time.

In July 2016, the Supreme Court of Canada took aim at delays in the court system and imposed a 30-month limit to bring superior court matters, including murders, to a resolution and an 18-month limit for provincial court matters.

Manitoba Queen’s Bench Justice Robert Cummings rejected Sutherland’s delay motion, ruling his case was in the system by the time the new deadlines took effect.

dean.pritchard@freepress.mb.ca