cgy-Matt-Mckay

17-year-old Matt McKay was killed by Marko Miljevic, then 19, who struck him in the head with a pickaxe in 2007. ((CBC))

A Calgary man's murder conviction for killing a teenager with a pickaxe at a party three years ago has been upheld by Alberta's top court.

Marko Miljevic, 21, was convicted in December 2008 of second-degree murder in the death of 17-year-old Matt McKay.

McKay died at a party in a garage in the Queensland area on Sept. 29, 2007.

Miljevic — high on cocaine and drunk — hit him in the head with a pickaxe after a minor dispute.

Miljevic appealed his conviction, arguing that the trial judge made a mistake by not fully answering a question from the jury on the difference between manslaughter and second-degree murder.

In a two-to-one decision released Wednesday, the Court of Appeal said Justice Earl Wilson's brief answer to the jury — that the difference has to do with an accused's mental state — does not warrant a new trial for Miljevic.

"It would be tempting to state that jury questions must always be answered," said Justices Jean Cote and Bruce McDonald, writing for the majority.

"However, it is also fairly common for juries to ask questions on legally irrelevant questions. Routinely, trial judges decline to give any substantive answer to such questions."

However, the Court of Appeal did grant Miljevic the automatic right to now appeal the case to the Supreme Court of Canada to clarify some points of law. Miljevic's lawyer says he will recommend that his client do so.