IN THE SUPREME COURT
OF THE STATE OF NORTH DAKOTA
|State of North Dakota,|
|Supreme Court No. 20120187|
|Cass Co. No. 09-2011-CR-03610|
|Vincente Erasno Chacano,|
APPEAL FROM THE CRIMINAL JUDGMENT AND COMMITMENT ENTERED BY THE DISTRICT COURT FOR THE EAST CENTRAL JUDICIAL DISTRICT THE HONORABLE STEPHEN E. McCULLOUGH PRESIDING ON MARCH 30, 2012
BRIEF OF APPELLANT
|Mark T. Blumer|
|Attorney at Law|
|ND Bar ID#: 04669|
|P.O. Box 7340|
|Fargo, ND 58106|
|TABLE OF CONTENTS|
|Table of Contents.p.2|
|Table of Authorities.p.3|
|Statement of the Issues.... ¶1|
|Statement of the Case..¶2|
|Facts of the Case....¶6|
|Law and Argument Jurisdiction..¶21|
|1. The trial court erred in permitting the audio tape into evidence..¶1,23|
|2. Was it prosecutorial misconduct for the prosecutor to state during closing argument|
|that the defendant's testimony was a lie..¶1,26|
|3. Vincente Chacano's convictions should be reversed because the evidence is insufficient|
|to sustain the guilty verdicts. ¶1, 33|
|TABLE OF AUTHORITIES|
|City of Williston v. Hegstad, 1997 ND 56, ¶¶8,13, 562 N.W.2d 91...¶28|
|Government of Virgin Islands v. Turner, 409 F.2d 102, 103 (3rd Cir. 1968)..¶28|
|State v. Clark, 2004 ND 85, ¶6, 678 N.W.2d 765...¶29,30|
|State v. Igou, 2005 ND 16, 691 N.W.2d 213....¶34|
|State v. Knowles, 2003 ND 180, 709 N.W.2d 348....¶34|
|State v. Kruckenberg, 2008 ND 212, , 758 N.W.2d 427.¶32|
|State v. Schimmel, 409 N.W.2d 335, 343 (N.D. 1987)...¶28|
|State v. Schmeets, 2007 ND 197, 663 N.W.2d 637.¶34|
|State v. Schmidkunz, 2006 ND 192, ¶6, 721 N.W.2d 387..¶29|
|United States v. Davis, 548 F.2d 840, 845 (9th Cir. 1977)...¶28|
|United States v. Moreno, 991 F.2d 943, 947 (1st Cir. 1993)....¶28|
|STATUTORY MATERIALS AND RULES OF PROCEDURE|
|N.D.C.C. Sect. 29-28-03...¶21|
|N.D.C.C. Sect. 29-28-06.¶21|
|N.D.C.C. Sect. 12.1-16-01..¶35|
|N.D.C.C. Sect. 12.1-16-01(1).¶36|
|N.D.R.Evid. Rule 401..¶23|
|N.D.R.Evid. Rule 402..¶23|
|N.D.R.Evid. Rule 403..¶23|
STATEMENT OF THE ISSUES
[¶1] The trial court erred in permitting the audio tape into evidence;
Was it prosecutorial misconduct for the prosecutor to state during closing argument
that the defendant's testimony was a lie;
Vincente Chacano's convictions should be reversed because the evidence is insufficient
to sustain the guilty verdicts.
STATEMENT OF THE CASE
[¶2] This is an appeal from the Cass County Criminal Judgment and Commitment entered by the Honorable Stephen E. McCullough on March 30, 2012. (Appendix ("A") 4, Docket ("D") 88 A. 36-37).
[¶3] A Complaint was filed on May 17, 2011. (A. 2, D. 1, A. 6-12). An Information was filed November 2, 2009, charging Vincente Erasno Chacano ("Chacano") with fourteen (14) Counts of Attempted Murder, all Class A Felonies, in violation of N.D.C.C. §12.1-16-01 and N.D.C.C. §12.1-16-01(1). (A. 3, D. 18, A. 13-21). Chacano filed a Motion for Change of Venue and Brief in Support of Motion on September 9, 2011 (A. 3, D. 20, A. 22-27). The State's Response to Defendant's Motion for Change of Venue was filed September 21, 2011. (A. 3, D. 27, A. 28-30). The Order Granting Motion to Change Venue (to Cass County) was filed October 5, 2011. (A. 3, D. 30, 31). Defendant filed a Notice of Motion and Rule 403 Motion in Limine and Brief in Support of Rule 403 Motion in Limine on February 6, 2012. (A. 3, D. 52 and 53 respectively, D. 32-35). No response was filed by the Plaintiff.
[¶4] A jury trial commenced February 7, 2012. (See Trial Transcript ("T"). At the close of the State's case, Chacano made a Rule 29 Motion for Acquittal and the Motion was denied (T. p. 263, l. 12-20). At the close of all testimony the defense renewed its Rule 29 Motion which was denied. (Id. p. 315, l. 12-15).
[¶5] On February 9, 2012, the jury returned a guilty verdict to Count I, attempted murder of Jonathan Byers, and Count II, attempted murder of Eugene Molbert, and Not Guilty Verdicts to Counts III through XIV, the attempted murder of the twelve jurors at Chacano's trial on February 4, 2011. (A. 4, D. 66, T. p. 348, l9 p. 352, l. 22). On March 29, 2012, Chacano was sentenced, in part, to serve Count I: twenty years imprisonment and Count II: twenty years imprisonment, to run concurrent to each other but consecutive to Adams County, North Dakota Court File 01-K-2010-2. (A. 4, D. 88, A. 36-37). A Criminal Judgment was filed on March 30, 2012 (Id.). A Notice of Appeal was filed April 9, 2012. (A. 4, D. 89, A. 38). The undersigned attorney was assigned to represent Chacano on his appeal.
FACTS OF CASE
[¶6] Chacano had been charged in an Adams County criminal matter in 2008 with those charges being dismissed by the Adams County State's Attorney. (Id. p. 150, l. 2-16). Assistant Attorney General Byers, at the request of Adams County, North Dakota, reviewed the case and refiled charges against Chacano, prosecuted the case through a jury trial at the Adams County courthouse beginning February 1, 2011, and the jury reached verdicts mid-afternoon on February 4, 2011. (T. p. 138, l. 16 p. 139, l. 15).
[¶7] On February 3, 2011, the night before the verdict was reached, Chacano began feeling ill and he told his brother Alejandro Chacano ("Alejandro") that he was going to leave the hotel room to go get medication. (Id. p. 266, 20 p. 267, l. 13). Chacano testified that when he left the hotel he went to the gas station and bought some medicine and then drove his brother's car over to a friends. Chacano then decided to go to his house to get medicine that he knew would work better and so he drove his pickup home. (Id. p. 278, l. 21 p. 280, l. 4).
[¶8] While at home Chacano decided to feed the chickens and when he went to the chicken coop he saw what appeared to be a raccoon or weasel and some dead chickens. (Id. p. 280, l. 21 p. 281, l. 10). Chacano went to his shed and got a gun and ammunition to kill the animal but when he returned to the chicken coop it was gone. (Id. p. 281, l. 9- 19). He then went straight to his pickup, changed his pants and boots because they were wet due to the amount of snow he had walked through, then drove to his brother's house where he changed cars and then went back to the hotel. (Id. p. 282, l. 2 p. 283, l. 3).
[¶9] The next day, after lunch, he went to change into the clothes he had left in the pickup the night before. (Id. p. 284, l. 3 p. 285, l. 11). Chacano then drove his pickup back to the courthouse in his pickup while Alejandro took his car. (Id. l. 11-22). Alejandro also testified that after the case went to the jury, Chacano was still not feeling much better (Id. p. 267, l. 22-25) and that after lunch, Chacano went to the courthouse by himself in his pickup truck. (Id. p. 268, l. 16-17). Chacano testified that when he opened the truck door, he saw the gun on the seat and he put it at his back, thinking that he would leave it in the truck when he arrived at court but when he arrived he was thinking everyone was at the courthouse so [Chacano] went straight there. (Id. p. 285, 22 p. 286, l. 15). Chacano testified that he forgot to take [the gun] out and leave it in [his] vehicle before [he] went in, that it was a mistake, he wasn't thinking, and that it was never [his] intention to take a weapon into court. (Id. p. 291, l. 11-14).
[¶10] After the jury verdict was read, the judge discharged the jury and the jury stood and began to leave. (T. p. 142, l. 10-13). Chacano does not remember the jury saying guilty but remembers thinking the police were going to search him and take the gun away so he looked under the seat to see if he could leave the gun there. (Id. p. 287, l. 13-20). Chacano did not leave the gun under the seat, and he testified that although he was thinking that, he began panicking and thought he would go to the side (of the courtroom) and get out of the courtroom and get rid of the weapon. (Id. p. 287, l. 22 p. 288, l. 5). After seeing a crowd in one direction he turned and went around and began "walking in the front". (Id. p. 288, l. 7-12). Chacano testified that the next thing he remembers was that he felt like electricity in his body, a pain in his head, a problem with his leg and that "[Chacano] didn't think [he] was in the courtroom or anything". (Id. l. 14-21). Chacano remembers holding the gun but that he was trying to get rid of it but his body wouldn't respond. (Id. p. 294, l. 12 p. 295, l. 4). Chacano remembers was being on the floor with the gun at the side. (Id. p. 289, l. 17-19). Chacano testified that he does not remember pointing the gun at anyone (Id. p. 290, l. 7-8) and that it was not his intention to kill Byers or Molbert (Id. p. 304, l. 18 p. 305, l. 2) or to hurt them (Id. p. 308, l. 5-9).
[¶11] Byers testified that he was standing up behind the counsel table and when he turned to face the jury box he heard a clicking noise and he turned back to face the front of the courtroom and saw Chacano standing in front of [Byers] counsel table with a handgun. (Id. l. 14-21). Byers testified that Chacano was probably three or four steps in front of the counsel table pointing the gun at [Byers] pulling the trigger. (Id. p. 142, l. 24 p. 143, l. 5 ). Judge Zane Anderson ("Anderson") testified that he saw Chacano walk quickly across the courtroom, point the gun at Byers, heard the gun click three times and Chacano pounded the gun on the butt of the gun. (Id. p. 163, l. 5-25).
[¶12] Byers decided to run at Chacano but that just prior to his lunging Chacano had turned and pointed the gun towards the jury, tried to fire the gun, and [Byers] heard the gun clicking three or four more times. (Id. p. 143, l. 19 p. 144, l. 25). Byers testified that Chacano then started to beat on the bottom of the clip and working the slider on the gun at which time Byers decided to run at Chacano. (Id. p. 144, l. 8-11). Byers testimony was that as he was running toward Chacano he pointed the gun back at Byers and tried to fire it a couple more times. (Id. l. 24-25). Byers also testified that Chacano had pointed the gun at Sheriff Eugene Molbert ("Molbert") and pulled the trigger, but also that he was still "playing with the slide and the clip". (Id. p. 145, l. 16-25). When Molbert saw Chacano with the gun and heard the clicks he rushed toward Chacano and tried to knock the gun out of his hand, missed Chacano and ended up by the jury box. (Id. p. 224, l. 4 p. 225, l. 2). After going by Chacano, Molbert testified that Chacano pointed the gun at [Molbert]. (Id. p. 226, l. 19-21).
[¶13] Byers testified that he made contact with Chacano and the two were spinning and falling down and Molbert was able to grab onto them and went down to the floor with them, the gun came out of Chacano's hand and Molbert dug the gun out and moved the gun out of Chacano's reach. (Id. p.146, l. 4-17). Molbert saw Byers knock Chacano to the floor and Molbert jumped on top of them and got the gun from Chacano's hand. (Id. p. 225, l. 10-16). Molbert took the clip out of the gun, Chacano was searched and two more clips were found. (Id. p. 16-24). Current Adams County Sheriff Travis Collins had searched Chacano and found one of those loaded magazines in Chacano's shirt pocket. (Id. p. 250, l. 8-11). A total of 38 rounds were seized. (Id. p. 216, l. 3-5). Byers testified that this all took place in a very short period of time (Id. p. 153, l. 12-14) and that he couldn't say for certain how many total clicks there were. (Id. p. 156, l. 16-18). Chacano did not struggle and when the gun was knocked out of his hand he did not try to grab it. (Id. p. 154, l. 19 p. 155, l. 13). The chief deputy arrived and Chacano was handcuffed. (Id. l. 22-23).
[¶14] Lamont Jacobson ("Jacobson"), forensic supervisor for the North Dakota Crime Lab, testified that he is the firearms examiner for the lab (Id. p. 255, l. 1-13). Jacobson testified that he was requested to determine whether or not the gun taken from Chacano shoots and that he loaded the magazine with three cartridges submitted in the case, chambered a round and proceeded to fire three cartridges, and the pistol operated normally. (Id. p. 256, l. 19 p. 257, l. 3).
[¶15] North Dakota Bureau of Criminal Investigation Investigator Pat Helfrich testified that he questioned Chacano and Chacano told him that when the verdicts were read [Chacano] kind of blacked out and the first thing he remembered was a lot of people on top of him. (Id. p. 214, l. 5-11). Chacano told Helfrich that his clips were in his back pocket. (Id. p. 219, l. 12-14). Chacano did not tell Helfrich that he intended to shoot anyone. (Id. p. 218, l. 13-20). Helfrich spoke to Chacano in English not Spanish (Id. p. 213, l. 7-8), and an interpreter was not with them when he questioned Chacano. (Id. p. 217, l. 6-7).
[¶16] Byers testified that if Chacano was trying to go towards the exit he would have had to go by him. (Id. p. 155, l. 22-23). Anderson's testimony was that the exit was in the middle of the courtroom to the side, basically right next to the jury box. (Id. p. 169, l. 8-14). Clerk of Court, Ginger Dangerud ("Dangerud"), testified that as the jurors were being dismissed she saw Chacano standing at the table and "his eyes were darting, like he was looking which way to go". (Id. p. 184, l. 15-20). Dangerud further testified that when his eyes were darting it was like he didn't know what to do or where to go. (Id. p. 186, l. 14-18). Dangerud remembered a commotion but did not remember any noise or clicking from the gun. (Id. p. 187, l. 4-7).
[¶17] Court Recorder Gina Warner ("Warner") testified that all hearings at the courthouse are recorded and that Chacano's trial was recorded. (Id. p. 170, l. 19 p. 172, l. 11). For recording the trial, one microphone was located at the Plaintiffs table, one at Defendant's table, one at the judge's bench, one at the witness stand, one in front of the jury box. (Id. p. 179, l. 21 p. 180, l. 3). As part of the state's case, an audio recording of the events that took place after the verdicts were read was offered, the defense objected, and the court overruled the objection and received the exhibit. (Id. p. 173, l. 8-18). Outside the presence of the jury while discussing whether interpreters were needed, trial judge Stephen McCullough indicated that "I listened to [the recording]. [S]ome parts are very quiet, even before all hell breaks lose [sic]". (Id. p. 175, l. 11-12). The recording was then played for the jury. (Id. p. 176, l. 15).
[¶18] At the close of the state's case, Chacano made his Rule 29 Motion for Judgment of Acquittal. The State opposed the Motion and the trial judge denied the Motion. (Id. p. 263, l. 12-20). At the close of all testimony, Chacano renewed his Rule 29 Motion for Judgment of Acquittal and it was denied. (Id. p. 315, l. 12-15).
[¶19] Prior to closing arguments, Chacano's attorney made his objection to the State replaying the audio tape during its closing. The trial judge allowed it agreeing with the State's argument that it was an important component of proving intent in the State's case. (Id. p. 243, l. 11 p. 244, l. 18). The tape was then played to the jury during the State's closing argument. (Id. p. 318, l. 10). During deliberations, the State requested to hear the tape a third time and, over Chacano's objection, the trial court allowed it. (Id. p. 331, l. 13 p. 333, l. 2). During the State's closing argument, the State's Attorney told the jury "[T]he Defendant's testimony is a lie. I ask you to find the Defendant guilty of all 14 counts". (Id. p. 322, l. 16-17). The defendant did not object to the statement and the trial court did not admonish the jury to disregard that statement.
[¶20] Chacano was found guilty at trial on Counts I and II and he appeals his convictions.
LAW AND ARGUMENT
[¶21] Jurisdiction. Appeals shall be allowed from decisions of lower courts to the Supreme Court as may be provided by law. Pursuant to constitutional provisions, the North Dakota legislature enacted Sections 29-28-03 and 29-28-06, N.D.C.C., which provides as follows:
"An appeal to the Supreme Court provided for in this chapter may be taken
as a matter of right. N.D.C.C. § 29-28-03. An appeal may be taken by the
1. A verdict of guilty;
2. A final judgment of conviction;
3. An order refusing a motion in arrest of judgment;
4. An order denying a motion for new trial; or
5. An order made after judgment affecting any substantial right of the
N.D.C.C. § 29-28-06.
[¶22] The Court erred in permitting the audio tape into evidence.
[¶23] Rule 401 of the North Dakota Rules of Evidence provides:
Relevant evidence means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Rule 402 of the North Dakota Rules of Evidence provides:
All relevant evidence is admissibleEvidence which is not relevant is not admissible.
Rule 403 of the North Dakota Rules of Evidence provides:
Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
The jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
[¶24] At the trial of Chacano, numerous witnesses testified regarding the events that took
place in the courtroom after the verdicts were read. The testimony indicates that the entire
sequence of events took a very short period of time. Witnesses testified as to what they heard
and saw. Only three of the twelve jurors testified. The State argued that it was necessary to
admit the audio recording into evidence to prove intent on the part of Chacano to commit the acts
of murder, or attempted murder as charged. The tape does not provide proof of Chacano's
intent. The audio tape was not relevant as it did not have any tendency to make the existence of
any fact that was of consequence to the determination of the action more probable or less
probable than it would be without the audio tape. The purpose of producing the tape was to
show intent, not to provide additional, cumulative evidence of the fact he had a gun. Because the
audio tape was not relevant, it was not admissible.
[¶25] If relevant, it was not admissible due to the fact the probative value was outweighed by the
unfair prejudice. This evidence was an audio recording of the reaction of the crowd in the
courtroom, an emotional response of individuals in the courtroom. The alarmed state of the
persons heard on the tape could only inflame the passions of the jury, swaying them from clearly
giving the defendant a fair trial. The audio tape should not have been admitted into evidence and
should not have been played to the jury, once, twice or, as in this case, three times.
[¶26] Was it prosecutorial misconduct for the prosecutor to state during closing argument that the defendant's testimony is a lie.
[¶27] In the case at hand, Chacano and his brother Alejandro were the only two witnesses for the
defense. Alejandro's testimony was primarily used to corroborate Chacano's testimony as it
related to his feeling ill and that Chacano had gone to get medicine the night before the verdict
was read. Additionally, Alejandro testified that he and his wife drove to the courthouse to hear
the verdict while Chacano had taken a pickup truck. The state called Chacano a liar
and, in essence, called his corroborating witness a liar. The State's argument to the jury that
Chacano was a liar deprived Chacano of a fair trial. Although the defense did not object, it was
obvious error which requires reversal of his convictions.
[¶28] "The State's case has to be confined to the evidence and the proper inferences that flow
therefrom." City of Williston v. Hegstad, 1997 ND 56, ¶¶8,13, 562 N.W.2d 91. "A prosecutor's
personal evaluation of a case is improper." United States v. Davis, 548 F.2d 840, 845 (9th Cir.
1977). In this latter regard, "A prosecuting attorney's improper argument 'may induce the jury
to trust the government's view rather than its own judgment of the evidence when deliberating.'"
Hegsted at ¶8, citing State v. Schimmel, 409 N.W.2d 335, 343 (N.D. 1987). The State should
not appeal to the jurors' emotions, United States v. Moreno, 991 F.2d 943, 947 (1st Cir. 1993),
and should not poison the jury's mind against the defendant." Government of Virgin Islands v.
Turner, 409 F.2d 102, 103 (3rd Cir. 1968).
[¶29] In State v. Schmidkunz, 2006 ND 192, ¶6, 721 N.W.2d 387, the North Dakota Supreme
Court held that "[T]his Court exercises it authority to notice obvious error cautiously and
only in exceptional circumstances in which the defendant has suffered a serious injustice." citing
State v. Clark, 2004 ND 85, ¶6, 678 N.W.2d 765 (additional cites omitted). In analyzing obvious
error claims under North Dakota law, we have applied a plain error framework, explaining an
appellate court may notice a claimed error that was not brought to the district court's attention if
there was "(1) error, (2) that is plain, and (3) affects the substantial rights." (additional cites
omitted). This Court further held that "[O]nce the defendant establishes that a forfeited plain
error affects substantial rights, this Court has discretion to correct the error, and should correct
the error where it seriously affects the fairness, integrity or public reputation of judicial
[¶30] "In controlling the scope of closing argument, the district court is vested with discretion,
and absent a clear showing of an abuse of discretion, we will not reverse on grounds the
prosecutor exceeded the scope of permissible closing argument." Id. at ¶7. "Unless the error is
fundamental, a defendant must demonstrate a prosecutor's comments during closing argument
were improper and prejudicial. In order to be prejudicial, the improper closing argument must
have 'stepped beyond the bounds of any fair and reasonable criticism of the evidence, or any fair
and reasonable argument based upon any theory of the case that has support in the evidence.'"
Id. (cites omitted).
[¶31] Chacano has a fundamental right to a fair trial and it is the role of the prosecutor and trial
court to not simply convict the guilty, they are also responsible for providing a procedurally fair
trial. The prosecutor exceeded the scope of permissible closing argument by telling the jury that
Chacano's testimony was a lie. This comment was improper and prejudiced Chacano by
depriving him of the right to have the jury determine credibility of the witnesses and to weigh the
evidence. The comment of the prosecutor stepped beyond the bounds of any fair and reasonable
criticism of the evidence (testimony of the defense witnesses) and was not a fair or reasonable
argument based upon any theory of the case that has support in the evidence.
[¶32] In State v. Kruckenberg, 2008 ND 212, , 758 N.W.2d 427, this Court explained that
"prosecutorial misconduct may 'so infect the trial with unfairness as to make the resulting
conviction a denial of due process.' However, we have also recognized that not every assertion
of prosecutorial misconduct, followed by an argument the conduct denied the defendant his
constitutional right to a fair trial, automatically rises to an error of constitutional dimension. 'To
constitute a due process violation, the prosecutorial misconduct must be of sufficient significance
to result in the denial of the defendant's right to a fair trial.' To determine whether a
prosecutor's misconduct rises to a level of a due process violation, we decide if the conduct, in
the context of the entire trial, was sufficiently prejudicial to violate a defendant's due process
rights." Id. at ¶20. The prosecutor's statement that the Defendant's testimony is a lie resulted in
a denial of due process for Chacano.
[¶33] Vincente Chacano's convictions should be reversed because the evidence is insufficient to sustain the guilty verdicts.
[¶34] The appellate standard of review regarding a claim of insufficiency of evidence
is well-established. In State v. Schmeets, 2007 ND 197, ¶8, 742 N.W.2d 513, the
court stated: "When the sufficiency of evidence to support a criminal conviction is
challenged, this Court merely reviews the record to determine if there is competent
evidence allowing the jury to draw an inference reasonably tending to prove guilt and
fairly warranting a conviction." State v. Igou, 2005 ND 16, ¶5, 691 N.W.2d 213. The
defendant bears the burden of showing the evidence reveals no reasonable inference
of guilt when viewed in the light most favorable to the verdict. Id. "A conviction
rests upon insufficient evidence only when no rational fact finder could have found
the defendant guilty beyond a reasonable doubt after viewing the evidence in a light
most favorable to the prosecution and giving the prosecution the benefit of all
inferences reasonably to be drawn in its favor." State v. Knowels, 2003 ND 180, ¶6,
671 N.W.2d 816.
[¶35] N.D.C.C. § 12.1-16-01, Murder:
"1. A person is guilty of murder, a class AA felony, if the person:
a. Intentionally or knowingly causes the death of another human being;
b. Causes the death of another human being under circumstances manifesting extreme indifference to the value of human life; or
c. Acting either alone or with one or more other persons, commits or attempts to commit treason, robbery, burglary, kidnapping, felonious restraint, arson, gross sexual imposition, a felony offense against a child under section 12.1-20-03, 12.1- 27.2-02, 12-27.2-03, 12.1-27.2-04, or 14-09-22, or escape and, in the course of and in furtherance of such crime or of immediate flight there from, the person or any other participant in the crime causes the death of any person. In any prosecution under this subsection in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:
(1) Did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid the commission thereof;
(2) Was not armed with a firearm, destructive device, dangerous weapon, or other weapon which under the circumstances indicated a readiness to inflict serious bodily injury;
(3) Reasonably believed that no other participant intended to engage in conduct likely to result in death or serious bodily injury.
Subdivisions a and b are inapplicable in the circumstances covered by subsection 2.
2. A person is guilty of murder, a class A felony, if the person causes the death of another human being under circumstances which would be class AA felony murder, except that the person causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. The reasonableness of the excuse must be determined from the viewpoint of a person in that person's situation under the circumstances as that person believes them to be. An extreme emotional disturbance is excusable, within the meaning of this subsection only, if it is occasioned by substantial provocation, or a serious event, or situation for which the offender was not culpably responsible."
N.D.C.C. § 12.1-16-01.
[¶36] N.D.C.C. § 12.1-06-01(1), defines criminal attempt:
"A person is guilty of criminal attempt if, acting with the kind of culpability otherwise
required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime. A 'substantial step' is any conduct which is strongly corroborative of the firmness of the actor's intent to complete the commission of the crime. Factual or legal impossibility of committing the crime is
Not a defense, if the crime could have been committed had the attendant circumstances been as the actor believed them to be.
N.D.C.C. § 12.1-06-01(1).
[¶37] In order to convict Chacano of the crime of Attempted Murder the prosecution must prove that Chacano acted intentionally and for the purpose of committing the murder of Byers and Molbert. Chacano's testimony shows that he failed to leave the weapon in the pickup and that after the verdict was read, he was looking for a place to get rid of the weapon and that he panicked and was attempting to leave the courtroom. The State failed to prove that Chacano was acting with the kind of culpability otherwise required for commission of the crime of murder or that he intentionally engaged in conduct which constituted a substantial step toward the commission of the crime of murder.
[¶38] The court erred in admitting the audio tape and allowing it to be played to the jury as the probative value was outweighed by the unfair prejudice and requires a reversal of the convictions and remand for a new trial. The state's attorney committed prosecutorial misconduct in closing argument which denied Chacano a fair trial and was a denial of due process for Chacano which requires reversal of the convictions and remand for a new trial. The evidence presented at trial was insufficient to support the verdicts of guilty and the verdicts and requires a reversal of the convictions.
|Respectfully submitted this 31st day of July, 2012.|
|Mark T. Blumer, ND Bar ID #: 04669|
|Attorney at Law|
|P.O. Box 7340|
|Fargo, ND 58106|
|Attorney for Defendant/Appellant.|