Steve Pirko is charged with the murder of Chris Ausman, who was found dead on a Rutland street in January, 2014.

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KELOWNA - Was Steven Pirko drunk, scared and compelled into action to protect a friend or simply intending to kill Jan. 25, 2014 when he fatally swung a hammer at Chris Ausman's head.

That's the question jurors must consider as the seven-week second degree murder trial wraps up.

Crown counsel David Grabavac told jurors Pirko entered someone else’s fistfight with a hammer, knowing perfectly well the consequences could be fatal.

That understanding of the power he wielded, Grabavac said, is what is at the core of Crown’s argument that Pirko should be convicted of second degree murder in the Jan. 25, 2014 death of Chris Ausman.

“Ausman and (Elrich) Dyck were willing participants in a fight. They engaged in a consensual fight,” Grabavac said. “Pirko agreed in cross-examination that it was consensual… Ausman wasn’t the aggressor. There was no aggressor, it was consensual.”

Yet, 75 seconds into the fight Pirko entered the scene.

“Ausman didn’t agree to fight two people,” Grabavac said. “Then Pirko hit him in the head not once, not twice, but three times.”

He brought a hammer to a fistfight and the reason was to cause enough damage that it could potentially kill Ausman, said Grabavac.

“The motive is the reason why someone does something… a sympathetic motive (like trying to help a friend) does not negate the intention,” he said.

“His intention was to cause Ausman’s death or likely death.”

Grabavac said that Ausman likely never saw or considered the blows that ended his life, but Pirko would have had time to think about them.

“(Pirko told police) he hit him in the legs because he realized people aren’t made of titanium,” Grabavac said.

“Before Ausman was hit, or (when) he was hit with lethal blows, Pirko knew a hammer could inflict a fatal blow.”

What he did after also doesn’t indicate that he was out of his mind, drunk or on drugs, said Grabavac.

He remembered to get his iPod, which he left at the scene, and he changed his hat and his jacket, so as not to be identified.

The only one that the jury can say for sure was intoxicated was Ausman, whose blood alcohol was three times the legal limit for driving when he died.

Video footage from the night he was killed showed that his reactions were slow and it took him longer to get money out of the 7-Eleven bank machine than his fatal fight lasted.

Even his and Dyck’s injuries, Grabavac said, indicate he took more of a beating than he gave, before the hammer entered the scene.

He was missing a tooth and his nose was broken. Dyck, on the other hand, just had a red face.

Jordan Watt however, said the evidence doesn't point to second degree murder. 

Pirko, he said, had cause to act in defence of his friend, Elrich Dyck because, as Dyck once told an undercover officer, “he was getting tooled by (Ausman) and Pirko saved his life.” 

Pirko, he said, didn’t intervene until Dyck called his name because he felt he was losing the fight.

Watt told jurors that Pirko, Dyck and Ausman were all wasted the night of the fatal altercation.

He pointed to Pirko and Dyck’s testimony that they shared a 26 to 40-ounce bottle of hard alcohol and smoked a joint.

“They (plus another friend) finished that bottle at the Petro Can (in Rutland) and that was right before they met up with Mr. Ausman,” said Watt.

Ausman was no better off.

Watt highlighted testimony from a friend of Ausman’s who was at a poker match with him that night and the doctor who performed the autopsy.

Ausman drank half a flat of beer and two to three shots of moonshine over that night. His blood alcohol was 237 mg of alcohol in 100 ml of blood, in his autopsy.

Watt also told jurors that Ausman was in an aggressive mood after losing at poker.

“We know Pirko, Dyck and Ausman were drunk,” said Watt.

“We know they were amped up. We know that Mr. Ausman runs across the road and gets into a fight with Dyck. We know that Dyck becomes immobilized as he is losing the fight and calls for help.”

Dyck in testimony during the trial said that he never called Pirko and that he never actually hit Ausman. Watt said that while Dyck’s testimony was spotty during the trial, his story more consistent prior to the court date. He also asked jurors to take into account that at the time he testified, Dyck was struggling with homelessness and had not taken medication for his diagnosed illnesses of bipolar disorder or schizophrenia for some time.

“Mr. Pirko did not get involved in the altercation until Mr. Dyck called him,” he said.

Watt then said that Pirko was a skinny 21-year-old, with an injured hand at the time of the fight.

“The reasonableness of the act (of hitting Ausman in the head with a hammer), not the consequences,” is what should be considered, Watt said.

“A person who is defending someone just has to believe it was reasonable. If Mr. Pirko reasonably believed he needed to use the hammer, he’s not expected to measure the exact amount of force needed to protect. Also he didn’t have to measure whether any other option was available.”

He also said that it didn't matter that Ausman showed significantly more damage than Dyck, who just had a red face after the fight, that he was missing a tooth, and had multiple abrasions on his face and head could have been done with a single punch, noting that it's luck of the draw when it comes to fights.

Closing submissions continue.

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