Family members of slain flea market vendor Rino (Ray) Johnson were disappointed, but not surprised, when told one of his killers had appealed her first-degree murder conviction.
Tosha Mary Hubler, 31, filed her notice of appeal Monday with the Alberta Court of Appeal, just 12 days after a jury convicted her and husband Jason Miles Hubler, 36. They were both sentenced to life imprisonment with no chance of parole for 25 years.
"It’s not good news," Bonnie Gillard said just hours after Tosha Hubler filled out her court papers. "Emotions are still pretty raw, yet. It’s hard to know it’s happening already, but we kind of expected it."
Gillard’s husband, Garry, however, expressed his frustrations.
"They get a chance to appeal their life sentences; Ray doesn’t get a chance to appeal his death sentence," he said.
In her two-page, handwritten notice outlining her grounds for appeal, Tosha Hubler suggested Court of Queen’s Bench Justice Colleen Kenny erred in her final instructions to the nine-woman, three-man jury.
She said: "The judge did not instruct the jury properly with respect to the evidence or on the defence of duress."
Crown prosecutors Frances Turner and Mike Ewenson had argued for the most severe conviction and penalty in the Criminal Code for what they called a premeditated, senseless killing.
Laurie Bowie, another of the victim’s daughters, said although the family will have to endure an appeal, she hopes the verdict will stand.
"I really thought the judge was really good in crossing all the T’s and dotting all the I’s," Bowie said via phone from Red Deer.
"We knew there would probably be an appeal and I’m kind of shocked it happened so suddenly. We wonder about the justice system, but it’s their right. We haven’t slept properly for over two years."
Tosha Hubler had testified during the four-week trial that she was under extreme fear of her husband, Jason, when Johnson was lured to their Bridgeland home on Jan. 30, 2009, and Jason struck the victim over the head several times with hammock poles taped together.
Her lawyer, Allan Fay, told the jury his client should have been acquitted because it was her husband’s plan and he carried it out.
Fay said Tosha Hubler did not seriously believe her husband would commit the crime and was afraid to argue with him because of past physical abuse.
She did, however, admit covering the windows and opening the door for the victim to enter the home.
Court heard that the couple, after Johnson’s skull was crushed, then stuffed his body into a wooden trunk and dumped it in a southeast industrial area near some railroad tracks, where it was found the next day by a homeless man.
Both were also convicted of causing an indignity to a human body.
Jason Hubler has 30 days to file a notice of appeal. His lawyer David Chow said after the pair were sentenced that he expected his client to "exhaust all avenues of appeal."
Court heard during trial that the Hublers lured Johnson, 77, a regular at Hillhurst-Sunnyside flea market for 15 years, to their Bridgeland home that day on a ruse to buy some tools they had advertised on the Internet.
However, court heard, their goal was to steal his 2008 GMC Sierra truck.
Jason had bragged to friends about coming into such a vehicle for up to two weeks, all the time with his eye on Johnson’s truck.
Tosha Hubler admitted they drove around the city in Johnson’s truck for six days before they were arrested in it near Banff.
According to Tosha’s evidence, on the day of the killing she opened the door for the victim, with Jason waiting on the other side of the door with the murder weapon. Johnson’s skull was then crushed.
Later, Jason Tasered him behind the ear to ensure he was dead.
An appeal is not expected to be heard for at least a year.
Calgary Herald
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