Not enough evidence in pistol-whipping case, judge rules

A judge tossed out an assault charge Friday against Alexander McKenna after the victim of the alleged pistol whipping testified he has no memory of the April 16, 2013 incident.

Kim Danz repeatedly told the Crown during a preliminary hearing at the Sault Ste. Marie courthouse that "I can't recall" or "I don't recall" when asked about what had occurred that night at the Service Grill.

McKenna, 36, faced a count of assault with a weapon, which Ontario Court Justice John P. Condon dismissed after hearing little evidence from Danz, the only prosecution witness to take the stand at the hearing.

Danz, 38, said he was having a beer with a friend at the Korah Road restaurant, but couldn't remember the date of the incident that had brought him to court.

He indicated that he has known McKenna for years, but insisted he couldn't recall seeing the accused that night or giving police a video statement months later.

After Danz was given an opportunity to privately review the video statement, he told assistant Crown attorney Liron Taub that he didn't recall speaking with police or the contents of the conversation.

"I was drunk for a week . . . maybe two weeks," he said.

In the video, which was played in court, Danz told a city police detective McKenna tasered him in the forehead, then pulled out a gun and struck his head with the butt of the firearm more than 30 times while he was down on the ground.

After he played the video, Taub again asked Danz about what occurred and again received responses from the witness that he didn't recall.

After noting the inconsistencies between the statement and Danz's evidence, Taub made an application to have the video admitted as evidence and the judge conducted a voir dire - a trial within a trial - to determine the admissibility of the statement.

The Crown argued that the statement was admissible for the truth of its contents.

The video establishes that McKenna was at the Service Grill, that he pulled out something that looked like a gun and hit Danz repeatedly, he said.

"There is no other witness I can call who can identify Mr. McKenna as the person hitting Mr.Danz," Taub told the judge.

Sudbury lawyer Terry Waltenbury, who represents McKenna, argued that the prosecutor was trying to have hearsay entered as evidence.

Danz had testified that he'd given the statement when he was drunk for a week or two, and there was no evidence before the court about how the statement came about, he said.

There also seems to be a significant gap between the events and the statement, Waltenbury said.

Following the lunch break, Condon ruled that the statement wasn't admissible.

The judge said Danz seemed relatively coherent in the video, but he couldn't assess the man's co-ordination, had no information about Danz's tolerance for alcohol and heard no evidence about his condition from the officer who conducted the interview.

"I'm basically left with Mr.Danz saying he was drunk."

Condon said he didn't know the date of the statement and that he was mindful that Danz had indicated he had head injuries from being struck 30 times.

There also was no evidence that Danz had been advised by police of the legal consequences if he failed to tell the truth, he said.

The witness had been given opportunities to see if he recalled the incident and he testified under oath that he didn't recall what happened, the judge said.

McKenna is scheduled to go to trial in December on charges, including attempted murder, stemming from a shooting that occurred Oct. 20, 2013 at Roosevelt Hotel.

A man was shot in the torso and taken to hospital with life-threatening injuries, police reported at the time.