IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|State of North Dakota,|
|Supreme Court No. 20130074|
|Ward County No. 51-2011-CR-1491|
|Omar Mohamed Kalmio, a/k/a|
|Omar Mohamed Kalmoi,|
BRIEF OF APPELLANT
APPEAL FROM CRIMINAL JUDGMENT AND
SENTENCING, AND SENTENCING ORDER
DATED APRIL 30, 2013
WARD COUNTY DISTRICT COURT
NORTH WEST JUDICIAL DISTRICT
THE HONORABLE DOUGLAS L. MATTSON, PRESIDING
|MYHRE LAW OFFICE|
|By: Russell J. Myhre|
|Attorney at Law|
|341 Central Avenue, Suite 3|
|PO Box 475|
|Valley City, North Dakota 58072-0475|
|Telephone: (701) 845-1444|
|Fax: (701) 845-1888|
|ATTORNEY FOR DEFENDANT-|
|TABLE OF CONTENTS|
|TABLE OF CONTENTS||p. 2|
|TABLE OF AUTHORITIES||p. 3-4|
|STATEMENT OF THE ISSUES||¶1-4|
|STATEMENT OF CASE||¶5-6|
|STATEMENT OF THE FACTS||¶7-13|
|LAW AND ARGUMENT||¶14-33|
|TABLE OF AUTHORITIES|
|Statutes and Rules||Paragraph|
|North Dakota Century Code 12.1-16-01||¶ 6|
|North Dakota Century Code 14-09-06.6||¶ 26|
|North Dakota Century Code 29-28-03||¶ 15|
|North Dakota Century Code 29-28-06||¶ 15|
|North Dakota Rules of Criminal Procedure 12.1||¶ 11, 20, 27|
|North Dakota Rules of Evidence 404||¶ 10|
|North Dakota Rules of Evidence 802||¶ 24|
|United States Constitution Sixth Amendment||¶ 23|
|Bernhardt v. State, 684 N.W.2d 465 (Minn. 2004)||¶ 23, 26|
|Crawford v. Washington, 541 U.S. 36 (2004)||¶ 23|
|Davis v. Washington, 547 U.S. 813 (2006)||¶ 23|
|In Re Glasmann, 175 Wash..2d 696, 286 P.3d 673 (2012)||¶ 30|
|Schumacher v. Schumacher, 2011 ND 75, 796 N.W.2d 636||¶ 23, 26|
|State v. Blanchard, 315 N.W.2d 427 (Minn.1982)||¶ 26|
|State v. Blue, 2006 ND 134, 717 N.W.2d 558||¶ 23|
|State v. Fischer, 457 N.W.2d 818, 820 (N.D. 1990)||¶ 23|
|State v. Gregory, 158 Wn.2d 759, 147 P.3d 1201 (2006)||¶ 30|
|State v. Igou, 2005 ND 16, 691 N.W.2d 213||¶ 32|
|State v. Knowels, 2003 ND 180, 671 N.W.2d 816||¶ 32|
|State v. Lewis, 291 N.W.2d 735 (N.D. 1980)||¶ 15|
|State v. Pena Garcia, 2012 ND 11, 812 N.W.2d 328||¶ 28|
|State v. Sevigny, 2006 ND 211, 722 N.W.2d 515||¶ 27|
|State v. Sorenson, 2009 ND 147, 770 N.W.2d 701||¶ 23|
|State v. Schmeets, 2007 ND 197, 742 N.W.2d 513||¶ 32|
|State v. Vondal, 1998 ND 188, 585 N.W.2d 129||¶ 15|
|United States v. Bordeaux, 400 F. 3d 548 (8th Cir. 2005)||¶ 23|
|Case Note, The Right of the Prosecutor to Advance||¶ 27|
|Notice of the Defendant's Alibi Defense,|
|2 Pepperdine Law Review 417 (1975)|
STATEMENT OF THE ISSUES
[¶1] Whether the trial court abused its discretion in allowing the Defendant's Prior Bad Acts and the testimony thereon at trial?
[¶2] Whether the trial court abused its discretion in denying the Defendant's request for a jury instruction for alibi because the Defendant failed to provide a notice of alibi under Rule 12.1, NDREvid?
[¶3] Whether the trial court abused its discretion by denying the Defendant's Motion for Mistrial on the grounds of prosecutorial misconduct in the State's closing argument?
[¶4] Whether there is insufficient evidence to support a conviction?
STATEMENT OF THE CASE
[¶5] A. Nature of the case, course of the proceedings, and disposition in the trial court.
[¶6] This is an appeal from a criminal judgment and sentencing from a jury trial in which the Defendant [hereinafter "Kalmio"] was convicted of four counts of Murder, each of which are Class AA Felonies pursuant to Section 12.1-16-01(1), North Dakota Century Code. Kalmio was sentenced to four (4) consecutive life sentences without the possibility of parole. He was also sentenced to fees in the amount of One Thousand Five Hundred Fifty Dollars ($1,550). Kalmio filed a timely appeal in this matter on May 3, 2013.
STATEMENT OF THE FACTS
[¶7] Four (4) murders were reported in Minot, North Dakota, on January 28, 2011. The victims were found in two (2) different locations, but the victims were all related in some manner. The first victim, Sabrina Zephier, was found first in her apartment. The remaining victims were found later approximately an hour later in their trailer home. The three victims were Jolene Zephier, who was Sabrina's mother; Dylan Zephier, who was Sabrina's brother; and Jeremy Longie, who was Jolene's boyfriend. Several months later, on August 3, 2011, a warrant was issued for Kalmio's arrest for the murder of Sabrina. Kalmio was denied bond at his Initial Appearance, and a notice of trial was provided which indicated that the trial was to begin on June 4, 2012. However, on May 18, 2012, just two (2) weeks prior to trial and over nine (9) months since Kalmio's arrest, the State filed a Motion to Amend Information and Calendar Preliminary Hearing to amend the Information to include the murders of Jolene Zephier, Dylan Zephier, and Jeremy Longie. The North Dakota State Crime Laboratory had identified the firearm used in these murders to be the same weapon used in the murder of Sabrina.
[¶8] There were extensive amounts of discovery which were exchanged and multiple pre-trial motions which were filed in this matter, with appropriate pre-trial hearings, which were mostly, but not exclusively, based upon the proposed evidence which would be presented at trial. Nevertheless, the evidence presented at trial was almost exclusively circumstantial.
[¶9] On the day of the murders, Kalmio was working in the Williston, North Dakota, area and was staying at one of two oil rig sites. There was no testimony that Kalmio left the oil rig site during the time frame for the murders. Kalmio and Sabrina had previously been in a relationship and had a minor child together. The State presented testimony from a number of witnesses regarding the tumultuous and sometimes allegedly violent relationship between Kalmio and Sabrina. However, none of these witnesses had directly witnessed any violence between Kalmio and Sabrina. The State presented testimony that Kalmio and Sabrina had disagreements over the care, custody, and control of the minor child, and that Kalmio, who also had a child from another relationship, had taken that other child for a month, but that situation was resolved with a civil custody determination and not a criminal action. The State presented testimony that Kalmio had access to a generic white pickup through his employment. A white pickup was seen near Sabrina's apartment on the night of the murders, but despite extensive investigation of the route between Williston and Minot, including hundreds of hours of video at gas stations, convenience stores, and businesses along the route, there was no video of a white pickup traveling the route during the time frame for the murders to occur or of Kalmio at any of those businesses. Although forensic testing indicated that the same gun was used in all four murders, the murder weapon was never found and there was no testimony or evidence that Kalmio had a gun or had purchased a gun or ammunition. The State also presented testimony that Jolene had unsuccessfully attempted to claim Kalmio's minor child on her income taxes in order to receive a refund of several thousand dollars. There was also testimony that Jolene was involved with drugs and often had to borrow money. Two jailhouse snitches also testified and indicated that Kalmio had made incriminating statements to them about a month before trial. However, none of this testimony and evidence directly linked Kalmio to the murders.
[¶10] Prior to trial, the State filed a Notice of Intent to Use Evidence of Prior Bad Acts Pursuant to N.D.R.Ev. 404(b) and Motion in Limine (2nd). Both the State and the defense briefed the issues, a hearing on the motions was held on December 4-5, 2012, and the District Judge issued an Order on State's Notice of Intent to Introduce Prior Bad Acts and Motion in Limine (2nd). Appendix 1, 2, 3, 4, and 5, respectively.
[¶11] It is undisputed that Kalmio did not submit a Notice of Alibi pursuant to Rule 12.1, NDRCrimP. However, at the conclusion of testimony Kalmio requested that an alibi instruction be included in the Jury Instructions, which was denied by the Court. Transcript, pp. 922-926.
[¶12] In the State's closing argument, it supplemented its closing argument with a Power Point presentation. As the State was making its closing argument, the defense objected and moved for a mistrial on the grounds that the presentation was inflammatory and intended to incite the passions of the jury because it showed images of a gun and blood droppings. The District Judge denied the motion for a mistrial, but ordered that the State had to remove images of a gun because no gun had been admitted into evidence and further gave the jury an instruction not to consider any images in their deliberations. Transcript, pp. 942-946. No copy of this Power Point presentation is available to the Defendant.
[¶13] Kalmio was found guilty of all four (4) counts of Murder, and he filed a timely Notice of Appeal on May 3, 2013.
LAW AND ARGUMENT
[¶14] A. Jurisdiction
[¶15] 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, NDCC, which provide 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. Section 29-28-03.
An appeal may be taken by the defendant from:
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 party.
N.D.C.C. Section 29-28-06. State v. Lewis, 291 N.W.2d 735 (N.D. 1980). The Defendant's right to an appeal was reiterated in State v. Vondal, 1998 ND 188, 585 N.W.2d 129.
[¶16] B. Standard of Review
[¶17] The standard of review in an appeal from a criminal proceeding wherein a trial court has allowed admission testimony relating to a defendant's prior bad acts, refusing to allow an alibi jury instruction, and denying a motion for mistrial based upon prosecutorial misconduct is the abuse of discretion standard.
[¶18] C. Issues
[¶19] Whether the trial court abused its discretion in allowing the Defendant's Prior Bad Acts and the testimony thereon at trial?
[¶20] Whether the trial court abused its discretion in denying the Defendant's request for a jury instruction for alibi because the Defendant failed to provide a notice of alibi under Rule 12.1, NDREvid?
[¶21] Whether the trial court abused its discretion by denying the Defendant's Motion for Mistrial on the grounds of prosecutorial misconduct in the State's closing argument?
[¶22] Whether there was insufficient evidence to support a conviction?
[¶23] The trial court correctly described the problem presented by the first Issue, in that the Sixth Amendment right to confront and cross-examine witnesses is endangered when testimony is admitted at a trial which may be hearsay. The United States Supreme Court drew a distinction between testimonial and non-testimonial testimony in Crawford v. Washington, 541 U.S. 36, 68 (2004); see also State v. Fischer, 459 N.W.2d 818, 820 (N.D. 1990); State v. Sorenson, 2009 ND 147, ¶ 16, 770 N.W.2d 701; Davis v. Washington, 547 U.S. 813 (2006). However, the Supreme Court did not define what a testimonial statement is, but generally observed "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who make a casual remark to an acquaintance does not." Crawford at 51; see also Order at p. 2. Drawing on Davis, State v. Blue, 2006 ND 134, ¶ 11, 717 N.W.2d 558, and United States v. Bordeaux, 400 F. 3d 548, 556 (8th Cir. 2005), the trial court outlined a three-prong test to determine that out-of-court statements are deemed to be testimonial when (1) they are the product of a formal interview; (2) the government was involved in obtaining the statement; and (3) the government has a law enforcement purpose. The trial court then adopted the test articulated in Schumacher v. Schumacher, 2011 ND 75, ¶ 15, 796 N.W.2d 636. The trial court disregarded a case cited by Kalmio, Bernhardt v. State, 684 N.W.2d 465, 474 (Minn. 2004), which held that statements of fear in the cases at bar are inadmissible.
[¶24] Kalmio objected to all of the statements on the grounds that all of the statements were hearsay; he was never formally charged with assaulting the victim; and the individuals testifying did not witness the victim's alleged assault and therefore did not have any firsthand knowledge. Rule 802, NDREvid.
[¶25] The trial court then analyzed the testimony of specific witnesses from the December 4-5 hearing and made individual determinations about admissibility of those witnesses proposed testimony. Order, pp.6-20.
[¶26] Here, Kalmio argues that the trial court's analysis and adoption of the Schumacher test was erroneous. Schumacher can be distinguished from the case at hand: that case involved a civil post-divorce matter regarding a denial of a petition for a change of custody and whether a prima facie case for a change of primary residential responsibility under Section 14-09-06.6, NDCC, had been made. The statements made by the children of the parties in affidavit form were only for the purpose of establishing whether Schumacher could then proceed to a hearing on the issues where the credibility of the claims could then be weighed by the trier of fact. Further, a civil case is subject to an entirely different burden of proof than a criminal case. Bernhardt was a post-conviction case upon an underlying murder conviction based entirely upon circumstantial evidence. The Minnesota court held that evidence of a victim's fear of a perpetrator is admissible only when all three of the following conditions are met:
a. The victim's state of mind must be a relevant issue. The victim's state of mind is generally relevant only where the defendant raises the defense of accident, suicide, or self-defense.
b. The trial court must weigh the probative value of the evidence against the risk of unfair prejudice to the defendant.
c. A proper limiting instruction must be given to the jury.
Id., citing State v. Blanchard, 315 N.W.2d 427, 432-33 (Minn.1982). The Bernhardt case also involved a tape recording of false statements by one of the investigators in the case which was played for the jury and the jury was not informed these statements were not true. Applying the Bernhardt-Blanchard test, the testimony of the witnesses should not have been admitted because it was unduly prejudicial to Kalmio.
[¶27] There is no question whether the defense submitted a timely Notice of Alibi pursuant to Rule 12.1, NDREvid. It did not. Transcript, pp. 922-926. The trial court denied the request for a jury instruction relating to alibi, relying upon the holding in State v. Sevigny, 2006 ND 211, 722 N.W.2d 515 ¶¶ 11-15]. However, Sevigny may be distinguished based upon the facts. Sevigny was charged with multiple counts of gross sexual imposition over an extended period of time and wished to testify that he was not home during only one of the incidents which victim claimed to have occurred. Here, the State's entire circumstantial case is based upon a fairly tight timeline in which it asserted Kalmio could have traveled from outside of Williston to Minot; killed four people in two different locations; and returned unnoticed by others to where he was staying at his work site outside of Williston. Sevigny also claimed his constitutional rights were violated because he was not allowed to testify that he was not in town on that one occasion. Id. ¶¶ 16-20]. This court held that because Sevigny did not testify as to his alibi and no order disallowing his testimony was entered by the trial court. However, this court also went on to point out:
We have said that time is not an element of the offense of gross sexual imposition and an alibi defense is not likely to be a viable defense when a defendant has continuous access to a child, especially since it may be impossible to specify when an event occurred if the allegations are by a minor child. (Citation omitted.) Sevigny claimed an alibi for one incident out of several alleged incidents with S.S., and we are not persuaded his claimed alibi would necessarily have made an acquittal more likely. On this record, we conclude any exclusion of Sevigny's testimony about his alibi is harmless beyond a reasonable doubt.
Id. ¶ 20. This instant case can easily be distinguished from Sevigny because, unlike that case, time was an element of this murder case, the time of the homicides could be specified within a certain range of time, and this case was literally an all-or-nothing venture, in that if the State could not prove Kalmio was present in Minot on January 28, 2011, its entire case would fall. Indeed, the State presented testimony from several witnesses to show that it may have been possible for Kalmio to leave the Williston area, travel to Minot, commit the homicides, and return to his Williston work site. Kalmio did not testify on this issue; the State's witnesses provided the testimony. The State would not have been surprised or prejudiced by such an instruction because the State itself provided the necessary evidence and testimony to allow Kalmio to assert an alibi defense. The rationale behind the notice requirement to allow alibi testimony is to prevent the prosecution from being surprised and thereby disadvantaged, and to allow the prosecution to conduct its own investigation of the supposed witnesses to establish the alibi. Case Note, The Right of the Prosecutor to Advance Notice of the Defendant's Alibi Defense, 2 Pepperdine Law Review 417 (1975). However, in this instance the State's entire case was premised on attempting to discredit Kalmio's already established alibi, that he was at his work site near Williston and could not have murdered four people in Minot during the time period established in which the murders occurred. Kalmio did not have to present testimony that he was not in Minot when the murders occurred--the State presented that testimony. The underlying premise of the rule requiring notice does not apply in this situation, and therefore Kalmio was entitled to have an alibi jury instruction.
[¶28] A defendant claiming prosecutorial misconduct must show both improper conduct and resulting prejudice.
A de novo standard of review applies to whether facts rise to the level of a constitutional violation, including a claim that prosecutorial misconduct denied a defendant's due process right to a fair trialThis Court has said:
[P]rosecutorial 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.
When there is a claim of prosecutorial misconduct, we determine whether the prosecutor's actions were misconduct and, if they were, whether the misconduct had prejudicial effect... If the prosecutor's comment is improper, we consider the probable effect it would have on the jury's ability to fairly judge the evidence... "'Inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding.'"[Citations omitted.]
State v. Pena Garcia, 2012 ND 11 ¶6, 812 N.W.2d 328. Here, the State's case was based upon circumstantial evidence, and the PowerPoint presentation depicting blood drops and other matters was intended to inflame the jury and prejudice the defendant. Although the trial court ordered that the slides depicting a gun, which had not been admitted into evidence and had not been viewed by the jury, be removed, the trial court only admonished the jury to disregard the images. However, because the evidence was not overwhelming, there can only be one conclusion as to the intent behind these images, which was to unduly inflame the jury and prejudice the jury against Kalmio.
[¶29] While the use of technology in trials can be a useful tool to organize information for a jury, especially in long and complicated trials, this use of technology is a two-edged sword. PowerPoint presentations in closing arguments are not prescreened by the trial court or the defense, so there is no opportunity for the defense to object to any or all of the proposed presentation before it is viewed by a jury.
[¶30] Prosecutorial misconduct can occur in many ways. In In Re Glasmann, 175 Wash..2d 696, 286 P.3d 673 (2012). the prosecutor presented at least five slides which represented the defendant's booking photograph, in which the defendant appeared bloody and unkempt. Each slide contained a caption: WHY DO YOU BELIEVE HIM?; WHY SHOULD YOU BELIEVE ANYTHING HE SAYS ABOUT THE ASSAULT?; and the three following photographs had the word GUILTY superimposed across the defendant's face. The prejudice in this case was held to be so prejudicial that it could not be cured by an instruction. "Highly prejudicial images may sway a jury in ways that words cannot" and, thus, "[m]ay be very difficult to overcome with an instruction." Id. at 707 (citing State v. Gregory, 158 Wn.2d 759, 866 -67, 147 P.3d 1201 (2006).
[¶31] Here, it was prosecutorial misconduct for the State to submit unadmitted evidence to the jury in its closing argument and to attempt to stir up the passions of the jury by submitting slides showing gratuitous blood and blood drops. The use of highly inflammatory images unrelated to the evidence was misconduct that contaminated the entire proceedings. The trial court's admonition to the jury to ignore the images in its deliberations was not sufficient to overcome the impact of such powerful but unquantifiable material on the jury is exceedingly difficult to assess but substantially likely to have affected the entirety of the jury deliberations and its verdicts.
[¶32] 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.
[¶33] The case against Kalmio is based entirely on circumstantial evidence. It is undisputed that Kalmio was at his worksite in the early morning hours of January 28, 2011, and was at his worksite, where he stayed, early that afternoon. There is no direct evidence that he took the generic white pickup during that period of time. Gas usage in North Dakota in January may often be extreme when vehicles are left to idle in the cold weather. The extensive video coverage which was observed did not identify that generic white pickup, and no witnesses positively identified that vehicle in Minot. There was no direct evidence such as DNA, GSR, fingerprints, or other hard, direct evidence to link Kalmio to these homicides. No one identified Kalmio as being in Minot when these homicides occurred. No gun was found, and there was no evidence that Kalmio had purchased a gun or ammunition. The State's case basically relied upon establishing that Kalmio had engaged in prior bad acts, and as set forth above, the trial court erred when it incorrectly applied the wrong test to allow in evidence about Kalmio's relationship with Sabrina and her family and Sabrina's state of mind. The trial court erred when it refused to allow an alibi jury instruction, even though the State had already established a classic alibi defense. And the trial court erred when it refused to grant Kalmio's motion for mistrial based upon prosecutorial misconduct. The accumulation of these deficiencies in the evidence, coupled with the trial court's errors in the trial proceedings, allowed the jury to become inflamed and prejudiced to such an extent that they wrongfully convicted Kalmio.
[¶34] The case against Kalmio is based entirely on circumstantial evidence, and although convictions may be obtained based entirely upon circumstantial evidence, three major errors occurred during the course of this trial which were adverse to Kalmio. The trial court incorrectly applied a test in a civil custody case regarding affidavits to establish a prima facie case which was limited to pleadings to allow hearsay testimony into the instant proceedings regarding a decedent's supposed fear of the defendant, thereby denying Kalmio of his right to confront and cross-examine the witness. The trial court erred in not allowing the Defendant's request for a jury instruction on alibi, when the State's entire case was based upon punching holes in the Defendant's alibi. The trial court also erred in not granting a mistrial when the State presented slides in a PowerPoint presentation in its closing argument which was not based upon the evidence in the case and which gratuitously added blood and/or drops of blood to incite the jury's passions.
These errors constituted an abuse of discretion by the trial court, and therefore, this case must be reversed and remanded for further proceedings.
|Dated this 9th day of September, 2013.|
|Russell J. Myhre|
|Attorney at Law|
|ND ID#: 03180|
|341 North Central Avenue North STE 3|
|P.O. Box 475|
|Valley City, ND 58072|
|Telephone: (701) 845-1444|
|Fax: (701) 845-1888|
|Attorney for Defendant-Appellant|