Did Jessy Herlichka and Paul McClung intend to kill Andrew Mixemong outside Dino’s Deli three years ago? That will now be up to the jury to decide.
When instructing the jury on Wednesday, Justice Alfred Stong pointed out that because Herlichka and McClung played different roles the jury must deal with them separately when deciding on a verdict.
Since Herlichka admitted to causing Mixemong's death the jury must determine if he's guilty of second-degree murder or manslaughter. Based on the evidence the jury must determine if he intended to kill Mixemong.
There are three options for McClung, guilty of either second-degree murder or manslaughter or not guilty. The jury will have to decide whether McClung knew Herlichka intended to kill Mixemong and intended to aid and abetted him in committing murder.
McClung could be found guilty of manslaughter if he intended to help Herlichka with assault, but if there was no intent to kill Mixemong.
The jury will also have to consider the state of mind of both men and whether the alcohol and drugs they consumed impaired their judgement and if they were capable of murder.
The fight was captured on the deli's surveillance camera and is a key piece of evidence for the jury to consider along with testimony from several witnesses. All of it will help determine how the fight started and escalated.
The jury has heard throughout the trial both men had been drinking and using narcotics earlier in the day. Herlichka has testified he doesn't remember the altercation because he was drunk and high.
The Crown called it a senseless killing, arguing both men were capable of making decisions and were aware of their actions and the consequences of those actions.
However, Herlichka’s lawyer has argued there was no way he meant to kill Mixemong because he was intoxicated and incapable of thinking critically.
McClung’s lawyer has argued his client had no idea what Herlichka intended to do.
The jury has been sequestered to a hotel for the night and jurors won’t be allowed to talk about the trial with anyone. They will continue deliberations on Thursday morning.
