A Delburne man facing life in prison for murdering his wife has had his appeal denied.
The Alberta Court of Appeal dismissed Brian Clarence Volker’s appeal of his 2011 murder conviction Monday.
The judgement came less than two weeks after his appeal was heard on Sept. 10 in Calgary.
Volker was facing life in prison with no chance of parole for 23 years after he was convicted of first-degree murder.
His appeal hinged on the Court of Queen’s Bench Justice Doreen Solyma’s instructions to the jury during his trial and whether or not she had adequately told the jury they could consider a second-degree murder or manslaughter conviction instead of first-degree murder.
Volker was convicted of shooting his estranged wife once in the head in the early morning hours of Feb. 23, 2009, with their three adolescent children in the house. The children testified that they saw Volker leaning over her with what looked like a gun. After he pushed the children out of the room, the victim told one of the children to call the police, the children heard loud bangs and after calling the police, ran from the home.
Volker’s wife was found dead it the bedroom with a single gunshot wound to the head from a sawed-off .22-calibre rifle.
He was charged with the murder on Feb. 24, 2009, and convicted on April 5, 2011.
Central to his appeal was that the justice erred in her instruction to the jury in their deliberation, which misled the jury and deprived Volker of a verdict on a lesser charge.
Throughout trial and sentencing, Volker maintained he had no recollection of the event after taking five sedative pills and some whiskey at about 10 p.m. on Feb. 22, about four hours before his wife’s murder. This amnesia was also central to his appeal.
During Solyma’s jury instructions she said “the fact that a person has amnesia, does not remember what happened, does not necessarily mean that he did not intend to do what he did at the time of the offence.”
Court heard from Volker’s counsel that the jury should have been told that if they did not reject his evidence of his amnesia, they still had to assess whether he had the gun when it was discharged. Volker’s counsel argued the Justice’s instruction left the jury only with a choice of either conviction of first-degree murder or acquittal.
Appeal Court Justices Ronald Berger, Bruce McDonald and Barbara Veldhuis reviewed the instructions Solyma had given to the jurors and ruled she had more than adequately presented the alternatives to the them.
The Appeal Court Justices were satisfied the jurors understood the issues involved, the law relating to the charge of first-degree murder, the law relating to the included offences and the evidence they should consider.
They found no merit to the appeal.