IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|State of North Dakota,|
|Plaintiff/Appellee,||Supreme Court No. 20130074|
|Omar Mohamed Kalmio, a/k/a||District Court No. 51-2011-CR-01491|
|Omar Mohamed Kalmoi,|
APPEAL FROM THE DISTRICT COURT
CRIMINAL JUDGMENT AND SENTENCING, AND SENTENCING ORDER, DATED APRIL 30, 2013
IN AND FOR THE COUNTY OF WARD, STATE OF NORTH DAKOTA,
NORTHWEST JUDICIAL DISTRICT
HONORABLE DOUGLAS L. MATTSON
JUDGE OF THE DISTRICT COURT, PRESIDING
BRIEF OF APPELLEE
|Kelly A. Dillon #05296|
|Deputy Ward County State's Attorney|
|Ward County Courthouse|
|PO Box 5005|
|Minot ND 58702-5005|
|Telephone (701) 857-6480|
|Attorney for Plaintiff/Appellee|
|TABLE OF CONTENTS|
|Table of Authorities||iii|
|Law and Argument|
|I. The Trial Court did not abuse its discretion in allowing|
|hearsay testimony and testimony regarding Kalmio's|
|prior bad acts||2|
|II. The Trial Court did not err in not giving an alibi|
|III. The Trial Court did not abuse its discretion in denying|
|defendant's motion for mistrial on the grounds of|
|IV. The evidence was sufficient to support the|
|Affidavit of Service by Mail||14|
|TABLE OF AUTHORITIES|
|Bernhardt v. State, 684 N.W.2d 465 (Minn. 2004)||2|
|Duckett v. Godinez, 67 F.3d 734 (9th Cir. 1995)||8|
|Schumacker v. Schumacker, 2001 ND 75, 767 N.W.2d 636||2|
|State v. Alvarado, 2008 ND 203, 757 N.W.2d 570||6, 7|
|State v. Azure, 525 N.W.2d 654, (N.D. 1994)||10|
|State v. Burke, 2000 ND 25, 606 N.W.2d 108||10|
|State v. Chacano, 2013 ND 8, 826 N.W.2d 294||9|
|State v. Charette, 2004 ND 187, 687 N.W.2d 484||10|
|State v. Paul, 2009 ND 120, 769. N.W.2d 416||6|
|State v. Paulson, 477 N.W.2d 208 (N.D. 1991)||9|
|U.S. v. Curtin, 489 F.3d 935, (9th Cir. 2007)||7|
|U.S. v. Webster, 769 F.2d 487 (8th Cir. 1985)||8|
|Statutes, Rules or Other Authorities:|
On January 28, 2011, the body of Sabrina Zephier was found in her apartment in south Minot by her roommate. Transcript of Trial (hereinafter Trial tr.) 112. Sabrina had been shot at close range in the face and the head. Trial tr. 375-378. Her five-month-old daughter was unharmed. Trial tr. 144. Approximately one hour later, the bodies of Sabrina's mother, Jolene Zephier, brother, Dillon Zephier, and Jolene's boyfriend, Jeremy Longie, were found in their home in southeast Minot. Trial tr. 201. All three had been shot in the head while they slept. Trial tr. 385, 388, 392. A dog had also been shot at that location. Trial tr. 236. The same firearm was used to shoot all four people. Trial tr. 469-470, 474.
Omar Mohammed Kalmio, with whom Sabrina had a child, was charged with the murder of Sabrina Zephier in August, 2011. In May, 2012, he was charged with three additional counts of murder for the deaths of Jolene Zephier, Dillon Zephier and Jeremy Longie.
A hearing was held December 4-5, 2012, on the State's motion in limine to allow hearsay testimony of various witnesses and to allow testimony of Kalmio's prior act of exercising self-help in the custody of a child he had with another woman. The trial court issued an order with respect to each witness' testimony. Appellant's Appendix (hereinafter App.) 250, 270.
The matter was tried to a jury, commencing January 28, 2013. The jury returned a guilty verdict on all four counts on February 4, 2013. Kalmio was sentenced to four life terms, without the possibility of parole, on April 30, 2013.
LAW AND ARGUMENT
I. The Trial Court did not abuse its discretion in allowing hearsay testimony and testimony regarding Kalmio's prior bad acts.
The State offered evidence of the victims' states of mind through testimony of individuals who had spoken with the victims in the days prior to the murders, and of Kalmio's prior bad act of removing his child from the mother's home. The State conceded from the outset that the proffered statements were hearsay. The Trial Court issued its decision as to each witness' testimony. App. 250, 270.
In determining the majority of the proffered statements were admissible, the trial court relied on Schumacker v. Schumacker, 2001 ND 75, 767 N.W.2d 636. The Schumacker Court analyzed the admissibility of statements indicating state of mind in domestic violence situations. Schumacker, 2001 ND 75, at ¶15. The Trial Court found the Schumacker test more persuasive and controlling than that set out in Bernhardt v. State, 684 N.W.2d 465 (Minn. 2004), cited by Kalmio. App. 253. The Schumacker decision is based on an analysis of Rule 803(3), N.D.R.Ev. The Rules of Evidence are applicable in both civil and criminal cases. N.D.R.Ev. 1101(b).
This Court found that, in order for a statement to be admissible under the state of mind exception to the hearsay rule, "the declarant's statement must be contemporaneous with the mental or emotional state sought to be proven, there must be no circumstances suggesting a motive for the declarant to misrepresent his or her state of mind, and the declarant's state of mind must be relevant to an issue in the case." Schumacker, 2001 ND 75, at ¶15; citations omitted. This Court further stated that state of mind declarations "may not be offered to prove the truth of the underlying facts, but only to show the declarant's state of mind or emotional condition." Id. Finally, this Court found that statements "indicating a state of mind or emotional condition resulting from domestic violence in the home may be admissible under the state of mind exception to the hearsay rule, not to prove the facts of the domestic violence, but to prove the state of mind" of the declarant. Id. The trial court in the instant case determined the Schumacker test was applicable to its analysis inasmuch as "both situations involve a state of mind resulting from domestic violence and are not used to prove that domestic violence actually occurred, but instead are used to show the state of mind of the victims." App. 253.
The trial court analyzed each witness' proffered testimony. Analysis with respect to those witnesses who actually testified at trial will be addressed herein.
Kari Salmon, Kalmio's and Jolene Zephier's probation officer, met with Jolene Zephier and Sabrina Zephier on December 21, 2010. App. 255. Salmon was allowed to, and did, testify about Sabrina Zephier's physical condition, specifically, an injury to her left eye. Trial tr. 535. She was not allowed to testify as to statements made by Sabrina as to mechanism of injury. App. 257.
Ashley Counts, children's coordinator at the Minot Domestic Violence Crisis Center, met with Sabrina Zephier on December 22, 2010, to discuss Sabrina's situation. App. 258. The trial court ruled that statements Sabrina made to Counts were not testimonial because the statements were elicited to assess Sabrina's needs, rather than for pursuing a criminal investigation. App. 258-259. Relying on Schumacker, the trial court found Sabrina's statements to Counts to be contemporaneous with her emotional state of fear, that there was nothing to indicate a motive for Sabrina to misrepresent her emotional state, and that her state was relevant to the reasoning behind actions Sabrina took. App. 260. Counts testified at trial about her meeting with Sabrina, the injuries she observed on Sabrina, and about Sabrina's demeanor at that meeting. Trial tr. 541, 544. The trial court received into evidence a "Lethality Assessment Form" which had been completed by Sabrina. The form was redacted to read only "Assessment Form." App. 260, trial tr. 542.
Terri Zephier, Jolene Zephier's daughter and Sabrina Zephier's sister, testified to communication she received from Sabrina on December 20, 2010, via Facebook, about an assault committed on Sabrina by Kalmio. Trial tr. 278-280. The trial court ruled that testimony admissible if the State met the contemporaneousness and relevance requirements of Schumacker. App. 262. The only objection to this testimony at trial was with respect to that portion of the Facebook exchange preceding December 20, 2010. Trial tr. 299.
Rochelle Greger, Sabrina Zephier's aunt, testified at trial that Sabrina had called her on the telephone and told her that she had been beaten by Kalmio with a belt. Trial tr. 562. She testified that she could not recall when the conversation had taken place, but her memory was refreshed with a transcript of a statement given to law enforcement that the conversation was sometime after Christmas of 2010. Trial tr. 564-565. The trial court did not rule on the admissibility of Greger's testimony pretrial. App. 263. No objection to this testimony was made at trial and no cross examination was conducted. Trial tr. 565.
Joyce Tacan, a friend of Sabrina Zephier, testified at trial that she had seen bruises on Sabrina, that Sabrina had told her she wanted her mother to claim Sabrina's baby for tax purposes, and that Sabrina asked her to stay at Sabrina's apartment the night before she was murdered because she was afraid Kalmio would come to the apartment. Trial tr. 567-568. This statement was made by Sabrina the day before the murders. Trial tr. 567. The trial court had previously ruled that this testimony was admissible if the State met the contemporaneousness and relevance requirements of Schumacker. App. 263. No objection was made to this testimony at trial and no cross examination was conducted regarding these points. Trial tr. 568.
Amy Dauphinais, Jolene Zephier's former employer, testified at trial, without objection, that Jolene had expressed fear of Kalmio several times throughout the year prior to her death, and that she was worried about how Kalmio would react when he found out she had claimed Sabrina's baby on her tax return. Trial tr. 527-528. The trial court had previously ruled this testimony admissible, dependent upon the State meeting the contemporaneousness and relevance requirements of Schumacker.
Gloria Carbajal, a friend of Jolene Zephier, testified at trial that Jolene had told her of threats made by Kalmio to kill Jolene and her family if Jolene reported him, and of claiming Sabrina's baby on her tax return. Trial tr. 549-550. The trial court had previously ruled this testimony admissible under Rule 803(3), N.D.R.Ev., to show Kalmio's intent, plan, and/or motive. App. 266. The trial court further ruled the statements admissible under Rule 803(3) to show Jolene's state of mind of fear. App. 266.
Elizabeth Lambert, Sabrina Zephier's roommate, testified at trial that neither she nor Sabrina had a key to the apartment but that Kalmio did, and she and Sabrina gained entry using their identification cards. Trial tr. 98-99. She testified that she moved into the apartment in January, 2011, at Sabrina's request because Sabrina was afraid of Kalmio. Trial tr. 99. The trial court had ruled this testimony admissible based upon the test articulated in Schumacker and on Rule 403, N.D.R.Ev. App. 271. The trial court found Sabrina's statements to Lambert to be contemporaneous to her emotional state of mind and that there were no circumstances suggesting a motive for Sabrina to misrepresent her state of mind. App. 271.
The State offered testimony, under Rule 404(b), N.D.R.Ev., from Kenzie Goodhouse about Kalmio taking their child from Fargo to Minot without her permission, and keeping the child until she obtained a court order, in order to show Kalmio's motive, intent and plan to take the child he had with Sabrina Zephier from her home. In analyzing the admissibility of this testimony, the trial court applied a three-step test articulated in State v. Paul, 2009 ND 120, 769. N.W.2d 416. That analysis requires the trial court to look to the purpose for which the evidence is introduced, the reliability of the evidence, and whether there exists proof of the crime charged, independent of the evidence of prior bad acts. Paul, 2009 ND 120, at ¶18. On satisfaction of that three-step analysis, the trial court must consider whether the probative value of the evidence outweighs the prejudicial effect. State v. Alvarado, 2008 ND 203, ¶19, 757 N.W.2d 570.
Kenzie Goodhouse testified at trial she and Kalmio have a child and that Kalmio went to her home in Fargo and "took off" with the child. Trial tr. 504. She further testified that Sabrina Zephier took care of the child at that time. Trial tr. 506. The trial court ruled this testimony to be admissible under Rule 404(b), N.D.R.Ev., to show Kalmio's motive, plan, and/or intent to take the child he had with Sabrina, and to show Sabrina's fear that Kalmio would do just that. App. 267. In so doing, the trial court reasoned that Rule 404(b) covers, not just other criminal acts, but also "other acts" that are relevant to the purposes specified in the rule such as intent, motive, preparation, knowledge. U.S. v. Curtin, 489 F.3d 935, 943 n.3 (9th Cir. 2007) (citations omitted). This Court has ruled that evidence of prior conduct may be "admissible to provide a more complete story of the crime by putting it in context of happenings near in time and place." Alvarado, 2008 ND 203, at ¶16. This evidence was relevant to the State's case to show Kalmio's motive in eliminating the Zephier family's perceived interference with his relationship and rights to his and Sabrina's child.
Natasha Hunts Along, a friend of Sabrina Zephier, testified at trial that Sabrina wanted, and took steps, to move into Hunts Along's apartment to get away from "the abuse." Trial tr. 555-556. She testified to an altercation between Kalmio and Sabrina that she witnessed in October of 2010, during which Kalmio was "angry and physical." Trial tr. 556-557. She testified to various injuries she had observed on Sabrina. Trial tr. 557-558. She testified that Sabrina had asked her to watch her child for the weekend following the murders and to not allow Kalmio to take the child because she feared Kalmio would not return the child. Trial tr. 558-560. In reliance on Rules 404(b) and 403, N.D.R.Ev., the trial court had ruled that Hunts Along could testify to the injuries she observed on Sabrina. App. 268. The trial court ruled admissible Hunts Along's testimony about Sabrina's concerns over Kalmio taking the child out of state, and about Sabrina having to use a plastic card to gain entry into her own apartment. App. 269. On cross examination, defense counsel explored further Hunts Along's knowledge of Sabrina's fear that Kalmio would take the child. Trial tr. 560-561.
The trial court gave a limiting instruction to the jury, advising that testimony of fear of Kalmio expressed by "certain individuals" is not to be used to prove the truth of underlying facts or intent or future conduct of the defendant. Trial tr. 991. Rather, the jury was instructed, this evidence could only be used to "show the declarant's state of mind or emotional condition, to provide a more complete story of the case by putting certain events into context, or to explain certain actions taken by a particular declarant." Trial tr. 991.
II. The Trial Court did not err in not giving an alibi instruction.
It is undisputed that the defense did not file a notice of alibi defense pursuant to Rule 12.1, N.D.R.CrimP. Trial tr. 912. The State offered testimony that the defendant claimed to be in Williston when the murders were committed. Trial tr. 819. However, no evidence was presented to verify defendant's claim that he was in Williston for approximately twelve hours during which it is believed that the murders were committed.
Refusal to give an alibi instruction is harmless error where the defendant raised his claimed alibi in closing; the government did not mention the claimed alibi in rebuttal, but instead relied on other compelling evidence; the court gave several instructions regarding the government's burden of proof as to each and every element of the offense; and other evidence of the defendant's guilt was substantially stronger than the relatively weak evidence of the defendant's claimed alibi. U.S. v. Webster, 769 F.2d 487, 490 (8th Cir. 1985); see also Duckett v. Godinez, 67 F.3d 734 (9th Cir. 1995).
In this case, defense counsel argued alibi to the jury. Trial tr. 964, 972, 974, 976, 977. The State rebutted the defense argument with just some of the circumstantial evidence presented. Trial tr. 978-984. The trial court instructed the jury on the State's burden of proof. Trial tr. 985-986. The court instructed the jury on the elements of the offenses charged. Trial tr. 986-988. The court instructed the jury that all of the essential elements of the offenses must be proven beyond a reasonable doubt in order for it to find the defendant guilty. Trial tr. 988-989. As is more fully set forth below, the evidence against Kalmio was substantial, while the evidence of his alibi was relatively weak. Indeed the only evidence of his alibi was his own self-serving statement to Detective David Goodman. Trial tr. 819.
The trial court did not err in refusing to give an alibi instruction. If such refusal was error, it was harmless in light of the evidence supporting the conviction.
III. The Trial Court did not abuse its discretion in denying defendant's motion for mistrial on the grounds of prosecutorial misconduct.
Trial courts have broad discretion over closing arguments. State v. Paulson, 477 N.W.2d 208, 210 (N.D. 1991) (citations omitted). Motions for mistrial are left to the discretion of the trial court and will not be reversed "absent a clear abuse of discretion or a manifest injustice." Id. "Granting a mistrial is an extreme remedy which should be resorted to only when there is a fundamental defect or occurrence in the proceedings that makes it evident that further proceedings would be productive of manifest injustice." Id. (citations omitted). Even if a prosecutor's argument is deemed improper, the defendant must show it affected his substantial rights. State v. Chacano, 2013 ND 8, ¶24, 826 N.W.2d 294.
The State used a PowerPoint presentation in its closing. Defense counsel objected to the presentation, citing "subliminal messaging attached" to it. App. 278-279. The images objected to were a background silhouette of a gun and red circles which the defense called blood. App. 279, 281. The State argued that the PowerPoint presentation was supported by the evidence. App. 279-280. The trial court directed the State to omit images of a gun and red circles which might be perceived as blood. App. 280-282. The court instructed the jury to disregard those images. App. 282.
This Court has said that a verdict will not be reversed on the ground that a prosecutor exceeded the scope of permissible closing argument unless the defendant shows the comments were improper and prejudicial. State v. Burke, 2000 ND 25, ¶31, 606 N.W.2d 108 (citations omitted). In order to be prejudicial, improper closing argument "must have proceeded 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 having support in the evidence." Id.
The jury was instructed that statements of counsel are not evidence and are not to be considered as such. Trial tr. 993. The jury was also instructed to disregard any statements by counsel which were not supported by the evidence or by the instructions. Trial tr. 993. It is presumed that the jury will follow the trial court's admonition and instructions. State v. Azure, 525 N.W.2d 654, 655 (N.D. 1994).
In light of all the evidence presented, the images on the PowerPoint presentation were not prejudicial and improper and, as such, do not warrant a reversal.
IV. The evidence was sufficient to support the verdict.
In reviewing challenges to the sufficiency of the evidence, this Court views the evidence most favorable to the verdict and all reasonable inferences drawn from that evidence to determine whether the conviction is warranted. State v. Charette, 2004 ND 187, ¶7, 687 N.W.2d 484 (citations omitted). "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." Id. (citations omitted).
The evidence presented against Kalmio, while largely circumstantial, was vast. Evidence was presented of Kalmio's motive and his opportunity. Four people were shot in the head at two different locations, by the same firearm, on the same day. The only person with motive to kill all four of those people was Kalmio.
Testimony was presented by Elizabeth Lambert, Terri Zephier, Natasha Hunts Along, Rochelle Greger, Joyce Tacan, and Laura Giberson, as to the volatile relationship between Kalmio and Sabrina Zephier. Trial tr. 99, 102, 106, 107, 109, 549, 556-558, 562, 567-568, 590-594. As outlined herein, several witnesses testified to disputes between Kalmio and Jolene Zephier, and threats made by Kalmio. Trial tr. 109, 122, 279-280, 550. Testimony was received about Kalmio being angry with Jolene Zephier for claiming his daughter on her tax return. Trial tr. 550, 567, 761. Testimony was received that Kalmio wanted his mother to have custody of the child. Trial tr. 608.
Testimony was received about Kalmio's ability to enter Sabrina's apartment with a key. Trial tr. 98-99, 278, 564. There were no signs of forced entry into the apartment when Sabrina's body was found. Trial tr. 143. Sabrina Zephier's cell phone was never located. Trial tr. 401-402, 839, 842. Records of her text messaging history showed a conversation with Kalmio, two days before the murders, in which he said, "I don't care if you live in the trash." Trial tr. 828-830, 936. That conversation had been deleted from Kalmio's phone. Trial tr. 827, 829.
Testimony was received about Jolene Zephier's home being quite cluttered, which would tend to indicate the perpetrator was familiar with that location in order to navigate the clutter to get to the back of the trailer home where Jolene Zephier's and Jeremy Longie's bodies were found. Trial tr. 216, 222, 228, 271, 272, 273, 284, 352. Testimony was received that a coffee table that was usually across the doorway to the hall area had been moved. Trial tr. 221, 229, 282-283. Terri Zephier testified that Kalmio lived at Jolene Zephier's home for a time. Trial tr. 282, 285. She testified that Kalmio was afraid of the dog that had been shot. Trial tr. 286.
Co-workers of Kalmio testified to seeing him at a rig site, other than the one at which he was staying, in his work truck, a couple of hours before the murders are believed to have been committed. Trial tr. 617-619, 623, 625-626. An independent truck driver testified to seeing a truck matching the one Kalmio used for work near Sabrina Zephier's apartment approximately two and one-half hours after Kalmio was seen in the truck at the rig site, and to seeing a male running from Sabrina's apartment to that truck, and the truck leaving the area rapidly. Trial tr. 631-638. Several witnesses testified to Kalmio asking them to help him get a gun in the months prior to the murders. Trial tr. 666, 672, 675-676, 687. One witness testified to seeing Kalmio with a gun approximately six months before the murders. Trial tr. 649-650.
Testimony was received about Kalmio's calm demeanor when talking about Sabrina's death. Trial tr. 644, 653, 672, 677-678, 820, 823. Witnesses testified about incriminating statements made by Kalmio while incarcerated. Trial tr. 114, 115, 692-693, 748-749, 757-776. Testimony was received that Kalmio talked about facts specific to the manner in which the murders were committed prior to that information having been released. Trial tr. 718, 721, 730, 790-792, 815-819, 821-822. Detective Goodman testified about Kalmio's reference to Jolene Zephier, Dillon Zephier and Jeremy Longie in the past tense prior to Goodman telling Kalmio they were dead. Trial tr. 821.
Ample competent evidence was presented in this case to allow the jury to draw an inference reasonably tending to prove guilt and fairly warranting the verdict.
Based upon the foregoing argument and the evidence presented, the State requests the Court affirm the convictions and sentence herein.
|Respectfully submitted this ____ day of October, 2013.|
|Kelly A. Dillon #05296|
|Deputy Ward County State's Attorney|
|PO Box 5005|
|Minot, ND 58702-5005|
|Attorney for Plaintiff/Appellee|