IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| State of North Dakota, | : | ||||||
| Plaintiff and Appellee | : | ||||||
| -v- | : | Supreme Court No.20060188 | |||||
| Dennis James Gaede, | : District Court No. 09-05-K-02878 | ||||||
| Defendant and Appellant | : | ||||||
APPELLANT'S BRIEF
APPEAL OF CONVICTION FOR MURDER, A CLASS AA FELONY FROM THE DISTRICT COURT OF CASS COUNTY, THE HONORABLE STEVEN B. MCCULLOUGH, PRESIDING.
| William Steven Kirschner | |||||
| Attorney for Dennis James Gaede | |||||
| Kirschner Law Office | |||||
| Suite 104, 1351 Page Drive | |||||
| Fargo, North Dakota 58103-3635 | |||||
| (701) 293-5297 | |||||
| ND Bar ID # 03713 | |||||
TABLE OF CONTENTS
| TABLE OF AUTHORITIES | [p.2-4] | |||
| ISSUES PRESENTED | ||||
| [p.5] | ||||
| STATEMENT OF THE CASE | ||||
| [1] | ||||
| FACTS | [4] | |||
| ARGUMENT | [57] | |||
| 1.THE COURT SHOULD REVERSE THIS CONVICTION BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO CONVICT DENNIS AS A MATTER OF LAW | [57] | |||
| 2. DENNIS WAS DENIED A FAIR TRIAL BECAUSE THE DISTRICT COURT ALLOWED THE STATE TO PRESENT A WITNESS WHO TESTIFIED ABOUT A COMMENT MADE BY DENNIS AFTER HIS ARREST | [78] | |||
| 3.DENNIS WAS DENIED A FAIR TRIAL BECAUSE THE DISTRICT COURT ALLOWED THE STATE TO USE THE EVIDENCE OF HIS PRIOR CONVICTIONS FROM WISCONSIN AND NORTH DAKOTA TO SHOW THAT DENNIS WAS A BAD FELLOW. | [84] | |||
| 4.DENNIS WAS DENIED A FAIR TRIAL BECAUSE OF THE DISTRICT COURT'S FAILURE TO INQUIRE AS TO WHETHER HE HAD KNOWINGLY WAIVED HIS RIGHT TO TESTIFY IN THIS CASE. | [100] | |||
| CONCLUSION | [114] | |||
TABLE OF AUTHORITIES
| North Dakota Cases | |
| City of Williston v. Hegstad, 1997 ND 56, 562 N.W.2d 91 | [81] |
| Dahlen v. Landis, 314 N.W.2d 63 (N.D. 1981) | |
| [85] | |
| State v. Antoine,1997 ND 100, 64 N.W.2d 637 | |
| [100] | |
| State v. Biby, 366 N.W.2d 460 (N.D. 1985) | |
| [85] | |
| State v. Bragg, 221 N.W.2d 793 (N.D. 1974) | |
| [79] | |
| State v. Brossart, 2007 ND 39 | |
| [58-9] | |
| State v. Carmody, 253 N.W. 2d 415 (ND 1977) | |
| [80] | |
| State v. Haugen, 449 N.W. 2d 784 (ND 1989) | |
| [65-6] | |
| State v. Helmenstein, 163 N.W.2d 85 (ND 1968). | |
| [61-4] | |
| State v. Hill, 1999 ND 26, 590 N.W. 2d 187 | |
| [82] | |
| State v. Igou, 2005 ND 16, 691 N.W. 2d 213. | |
| [58] | |
| State v. Kelley, 450 N.W.2d 729 (ND 1990) | |
| [69-70] | |
| State v. Knowels, 2003 ND 180, 671 N.W. 2d 816) | |
| [59] | |
| State v. Mulske, 2007 ND 43 | |
| [100-2] | |
| State v. Osier, 1997 ND 170, 569 N.W. 2d 441 | |
| [85] | |
| State v. Stevens, 238 N.W. 2d 251 (N.D. 1975) | |
| [86] | |
| State v. Thorson, 264 N.W. 2d 441(ND 1978) | |
| [67] | |
| State v. Zimmerman, 524 N.W. 2d 111 (N.D. 1994) | |
| [61,98] | |
| United States Supreme Court Cases |
| Doyle v. Ohio, 426 U.S. 610 (1976) |
| [78] |
| Faretta v. California, 422 U.S. 806 (1975) |
| [101] |
| Jones v. Barnes, 463 U.S. 745 (1983) |
| [101] |
| Miranda v. Arizona, 384 U.S. 436 (1966) |
| [78, 83] |
| Rock v. Arkansas, 483 U.S. 44 (1987) |
| [101] |
| Other Federal Cases |
| United States v. Pennycooke, 65 F.3d 9 (3rd Cir. 1995) |
| [100] |
| Other State Cases | |
| Barron v. State, 264 Ga. 865, 452 S.E.2d 504 (1995) | |
| [113] | |
| Commonwealth v. Siciliano, 471 N.E.2d 1359 (1984) | |
| [113] | |
| Culbertson v. State, 412 So. 2d 1184 (1982). | [103] |
| LaVigne v. State, 812 P.2d 217 (Alaska 1991) | [103] |
| People v. Curtis, 681 P.2d 504 (Colo.1984) | |
| [103-8] | |
| Phillips v. State, 105 Nev. 631, 782 P.2d 381 (1989) | |
| [113] | |
| State v. Gulbrandson, 184 Ariz. 46, 906 P.2d 579 (1995) | |
| [113] | |
| State v. Neuman, 179 W.Va 580, 371 S. E. 2d 77 (1988) | |
| [103-110] | |
| State v.Orr, 304 S.C. 185, 403 S.E. 2d 623 (1991) | |
| [103] | |
| State v. Walen, 563 N.W.2d 742 (Minn. 1997) | |
| [113] | |
| Tachibana v. State, 79 Hawai'i 226, 900 P.2d 1293 (1995) | |
| [103,111] | |
| North Dakota Statutes and Rules | |
| Section 29-21-14 N.D.C.C. | [60,69] |
| Rule 404(b) N.D.R.Ev. | [84, 86, 97, 98] |
ISSUES PRESENTED
1. Whether the evidence was sufficient to sustain the conviction of Dennis Gaede on the charge of Murder ?
2. Whether Dennis was denied a fair trial because the District Court allowed the State to present testimony regarding the his statements while incarcerated ?
3. Whether the Court's decision to allow the use of evidence showing the defendant's prior convictions deprived Dennis of a fair trial on this charge?
4. Whether the Dennis was denied a fair trial because the District Court failed to inquire of the defendant whether he was knowingly waiving his right to testify in this case?
STATEMENT OF THE CASE
[1] This is the appeal of the conviction of the defendant on One (1) Count of Murder, a Class AA Felony in the Cass County District Court, the Honorable Steven B. McCullough, presiding. The Defendant was convicted after a trial before a Jury and was sentenced to the maximum sentence of life imprisonment without the possibility of parole (See Criminal Judgment and Commitment, Appendix pp. 13-14). After entry of Judgment, the Defendant filed his Notice of Appeal with this Court. (Appendix, p.15 ).
[2] The Defendant, Dennis James Gaede, hereinafter, "Dennis" was charged with one count of Murder in violation of N.D.C.C. § 12.1-16-01 by an Information dated August 3, 2005. (Appendix, p.5-6). He pled "Not Guilty" and was appointed counsel and the matter was set on for jury trial.
[3] The Defendant's appointed counsel filed no pretrial motions contesting the admission of any evidence. Although advised that the State intended to offer evidence pursuant to Rule 404 (b) of the North Dakota Rules of Evidence of other crimes, wrongs or acts of the defendant, counsel did not object to such testimony until the middle of trial, when he objected only to testimony concerning the use by Dennis of the victim's credit card, in Fargo, about a week after the murder. (Transcript, pp. 386-7, App. Pp. 7-8). At trial, the State produced 18 witnesses and offered into evidence 53 Exhibits. At the end of the State's case, Dennis moved for Judgment of Acquittal, which was denied (Tr. P. 584). Dennis did not testify and called only two witnesses. The State had a rebuttal witness. After instructing the Jury, and allowing closing arguments, the case was submitted to the Jury.
FACTS
[4] The State of North Dakota claims that the defendant, Dennis Gaede, killed the victim Timothy Wicks, at his home in Gardner, Cass County, North Dakota at the end of December, 2001. He and his wife, Diana, then cleaned up the kitchen floor, where the killing had occurred, and then transported the body to a place in Michigan where Mr. Gaede's family had a camp. At that location, Mr Gaede removed the head and hands from the body, and the body, head and hands were then disposed of separately.
[5] After killing Mr. Wicks, the parties returned to the Fargo area, and shortly thereafter fled the area and went to the Milwaukee area where they looted some bank accounts belonging to Mr. Wicks. Thereafter they purchased an RV and traveled around the country until they were captured in March, 2002.
[6] Diana Fruge grew up in East Troy, Wisconsin, a suburb of Milwaukee, where she was the oldest of 4 children. Her parents were the self-employed owners of a convenience store. (Tr. P. 146). Diana graduated high school in 1984 and attended Beauty School. She married Rayallen Fruge in 1987 and, her daughter, Raychel, was born during that marriage. (Tr. P. 147). Diana completed cosmetology school and worked for several salons. She owned her own beauty shop for a short period of time. (Tr. P. 148).
[7] While married to Mr. Fruge, Diana had an affair with Caytano Barranco, which led to the birth of her son, Joshua, in 1998.(Tr. P. 148). Diana claimed the relationship with Barranco was tumultuous and abusive and that she and her daughter had been verbally and physically abused by Mr. Barranco.(Tr. P. 149).
[8] Diana Fruge met Dennis Gaede in January, 2001 when Dennis came to an apartment building which she was managing, expressing interest in renting a store in one of the buildings. (Tr. Pp. 149-50). She thought Dennis was a funny, real nice guy. Dennis sent her roses and got her son a cute stuffed animal. Raychel fell in love with Dennis. (Tr. Pp. 150-1). Diana and Dennis were married on May 1, 2001. (Tr. P. 151).
[9] In July, 2001, Dennis told Diana that he had some felony matters pending against him in Monroe County, Wisconsin, and that he was innocent.(Tr. P.152). Dennis was convicted of the charges, and in the summer of 2001, he told Diana that he didn't want to go to prison for those charges, and that they should move to Fargo, North Dakota where he would assume another identity and they could start a new life. (Tr. P. 153). Diana agreed to do this.
[10] The Gaede's moved to Fargo at the end of August, 2001, and lived first at 1123 Third Avenue South. Right after they got to Fargo, Dennis got a driver's license in the name of Timothy Wicks. (Tr. P. 154). Dianna knew Tim Wicks from Milwaukee, as he was a fellow who hung out with Dennis. Dennis had done his tax return. Diana thought Tim was a nice guy, but she didn't hang out with him or have any interest in him. (Tr. P. 154-55). In the fall of 2001, Diana stopped calling herself Diane or Diana Gaede and started to refer to herself as Diane or Diana Fruge.
[11] Diana had previously been convicted of Driving under the Influence and she claimed she had a drinking problem while living with Dennis. She claimed she was drinking on a daily basis from eight to twelve beers a day. (Tr. P. 156). She claimed that as the months wore on her drinking increased and she would drink more hard liquor. (Tr. Pp. 156-7).
[12] In the fall of 2001, Diana spent five to seven days at the Prairie Psychiatric Hospital in Fargo, (Tr. Pp. 158-9). After release from the hospital, Diana started drinking non-alcoholic beer and then went back to drinking alcohol. (Tr. P. 159-60).
[13] While the Gaede's were living in Fargo, Dennis worked as a controller for Compressed Air Technologies, under the name of Tim Wicks. Diana also did some light secretarial work for them. Dennis also bought a big farmhouse in Gardner, under Timothy Wick's name. (Tr. Pp. 157-8).
[14] According to Dennis's employers, they had been happy with Dennis' job performance until they discovered that something was wrong and that he was embezzling money from them, and had stolen items from them. (Tr. Pp. 416-423, Exhibit 44).
[15] In December, 2001, the owners of Compressed Air discovered that Dennis, then known to them as Tim, had stolen money by changing computer records and taking checks for cash (Tr. P. 421). The Criminal Information charging this conduct and the Judgment of conviction were introduced and received in evidence over objection that it was improper other crimes evidence. (Tr. P. 413, App. Pp. ).
[16] Raychel Fruge came to visit the Gaedes in Gardner from December 19th until December 25, 2001. On December 25th, she drove back to Milwaukee with her mother and Dennis (Tr. Pp. 139 & 160). Raychel Fruge was 18 years old at the time of the trial and lived in Sulpher, Louisiana, where she was a senior at Sulphur High School. (Tr. P. 137). Raychel had lived in Milwaukee with her mother for about 13 years, until she was 15. (Tr. P. 137). Raychel liked Dennis Gaede (Tr. P. 137-8). Raychel had previously seen a handgun at a "fishing store" which Dennis had previously opened. (Tr. Pp. 139-40).
[17] Tim Wicks lived in Milwaukee. He was single and was a musician who played drums. (Tr. Pp. 125-6). Tom Neary, Tim's brother in law had last seen Tim on December 24, 2001 at Tim's house. (Tr. Pp126-7). At that time, Tim told him that he was leaving the next day, and was going to play drums in Canada with Dennis Gaede. He indicated that Dennis said it was a secret. (Tr. Pp. 127-8). Tim told Tom that Dennis was his accountant, and that they were going drumming together. (Tr. Pp. 129-30). Tom never saw Tim again after that meeting.
[18] Stacy Paprocki was 26 years old and married with 3 children and was pregnant, and living in Hales Corners, Wisconsin at the time she testified in this trial. (Tr. Pp. 132-3) She was a leasing consultant for Parkside Apartments, where Timothy Wicks lived. On Christmas day, 2001, Stacey had a conversation with Timothy Wicks, when Tim brought her his January rent check. In the conversation Tim told her that he and a friend were going to Canada. He said that he would be playing his drums on a band gig and might have to mail his February 1st rent payment to her. (Tr. Pp. 133-34). Tim gave her a slip of paper on which he had written the name Dennis and a telephone number, 701-799-0895.(Exhibit 43, Tr. P. 134). That day or the next, Stacy saw Tim loading his vehicle, with his drum kit. (Tr. P. 135). On January 9, 2002, Stacy gave the card with the phone number and name over to Detective Schoonover (Tr. P. 135)
[19] On December 26, 2001, the Gaede's returned to Fargo, along with Timothy Wicks. (Tr. P. 161). Prior to making the trip, Diana knew Tim was going to be coming back with them (Tr. Pp. 163-4). Tim drove his own vehicle up here. (Tr. P. 165).
[20] Prior to that trip, Diana claims to have overheard several conversations between Dennis and Tim Wicks. (Tr. Pp. 161-2). She claims that she overheard a conversation in December, after which Dennis told her that Tim had found out that someone was fraudulently using one of his credit cards. (Tr. P. 162-3). She also claimed that Dennis had told her that he wanted to bring Tim up to try to get him into Canada for a music gig, and also had mentioned that he might have to kill Tim, but she didn't take it seriously. (Tr. P. 163).
[21] After the parties got back to Fargo on the 26th, Tim stayed with them and slept on the couch. (Tr. Pp. 165-6). In the late morning of December , 26th or 27th or 28th, Jeff Paridon, one of the partners in Compressed Air Technologies saw Dennis driving a Black 2002 Chevrolet Cavalier with Wisconsin license plates. (Tr. Pp. 424-5). He saw Dennis' wife and another man in the car. (Tr. P. 425). On Thursday and Friday, the 27th and 28th, Diana claimed that she was home with her son, Joshua, and Tim was painting the hallway and helping her with stuff and that Dennis was working at Compressed Air. (Tr. P. 167).
[22] According to Diana, on the night of the 28th, Tim and Dennis had been down in the basement, smoking pot and drinking some beers, when Diana went upstairs with her son, Josh at around 9:00 p.m. and put him to bed. She said she feel asleep with him. (Tr. Pp. 167-8).
[23] Diana claimed that at around 11 p.m. or midnight, Dennis woke her and appeared real nervous and told her to come downstairs. (Tr. P. 168). She said that when she came down stairs, she found Tim Wicks lying on the floor between the foyer and the kitchen making some kind of snoring sounds. She said his legs and feet were on the carpeting, and the rest of his body was in front of the refrigerator on the kitchen floor. She asked Dennis what had happened, and Dennis said that he had shot Tim in the head. (Tr. P. 169).
[24] Diana said that she then "started going crazy." She claims she put her head between her legs, started pacing back and forth and asked Dennis why Tim was still breathing, if he'd been shot. According to Diana, Dennis said he didn't know, and then he put a garbage bag over Time's head, and then Diana saw blood and went and got sick. (Tr. P. 170).
[25] According to Diana, she helped Dennis place Tim's body on a paint tarp and drag it out to the barn, about a 100 feet from the door. (Tr. P. 171-2). Then they put on gloves and cleaned up the blood in the kitchen. (Tr. P. 173). They used a bleach or Clorox cleanup to clean the residence and put all the items they used to clean in a big empty box which items went in the back of a U-haul and were taken along with Mr. Wick's items and body. (Tr. Pp. 177-78).
[26] On December 29, 2001, Dennis, using Tim's name, rented some heavy equipment to dig a hole next to the house to bury the body, but the ground was frozen and he was unable to do that. (Tr. Pp. 178-80; Exhibit 52, Tr. Pp. 511-15).
[27] Also, on December 29th, Dennis called Jeff Paridon at home asking to use one of the service vehicle pickups to haul a trailer, because he wanted to rent a Bobcat. (Tr. P. 427). Dennis claimed that he needed this to deal with a foundation problem which he had previously shown Jeff. (Tr. Pp. 427-8). Jeff told "Tim" that he could not authorize the use of the truck because they were on call "24/7." Jeff acknowledged that no one used the trucks for business purposed over that weekend, and Dennis could have taken the truck without being discovered, but he didn't know if this had happened. (Tr. PP. 428-30).
[28] On December 30, 2001, Dennis went to Mills Fleet Farm, where Diana claimed he used Tim's credit card to purchase various items, including gloves, paint tarps, an ax and a hand saw (Tr. Pp. 180-81; but see Exhibit 45 which does not show purchase of either tarps or a hand saw; Tr. Pp. 461-464). The receipt showed that items had been charged to Tim's credit cards, and photographs and videotape was introduced into evidence to show that Dennis was the person in the store and that he checked out and was in the sporting goods section. (Tr. Pp. 460-462). Diana claimed these items were purchased to dismember Tim Wick's body (Tr. P. 181).
[29] On December 30th, Dennis also went to U-haul in Fargo, where, again using Timothy Wick's identity, he rented a 14 foot U-haul truck (Tr.pp. 182; Exhibits 50 & 51). In addition to the truck, Dennis also purchased a dolly, pads, boxes, a tape dispenser and tape and a padlock for the truck. (Tr. Pp. 498-99). The boxes were such that they could have been telescoped to place a body in them. The truck was driven 1786 miles and returned to U-haul in Fargo on January 4, 2002. (Tr. Pp. 495-500).
[30] According to Diana, Dennis backed up the truck to the farm door, and Diana helped him put the body in the back of the truck in the wardrobe boxes. (Tr. P. 183). The parties then left Fargo on New Year's Eve, looking for a place to dispose of the body. (Tr. Pp. 183-4).
[31] They drove the truck to Iron Mountain, Michigan where they stopped at 2:18 p.m to purchase diesel from a Citgo station. (Tr. P. 185, Exhibit 19 and Tr. Pp. 105-113). Dianna recognized Dennis' signing Tim Wick's name on the receipt from the gas station. (Tr. P. 186). Dianna said the parties had spent a night at a motel in Iron Mountain, but she couldn't remember if it was the night before or after they dumped the body. (Tr. P. 192).
[32] Time lapse photographs taken inside the Citgo station in Iron Mountain, Michigan showed a picture of the person who had used the credit card..(Tr. P. 93; Exhibits 20-22 )
[33] Phyllis Allen works at the Citgo Station in Iron Mountain, Michigan and was also able to identify the credit card receipt which had been used to purchase 20.8 gallons of diesel fuel from her store on January 1, 2002 at around 2:18 p.m.(Exhibit 19, Tr. Pp. 105-112) She also identified the pictures from inside the store at about the time that the receipt was generated (Tr. P. 113, Exhibits 20-22).
[34] Anthony Krogh of the Cass County Sheriff's Department created Exhibits 20-22 from the videotape he received from the Michigan State police and believed that it was impossible from the pictures to identify anyone, due to the low quality of the photographs. (Tr. Pp. 115-119). He believes that the person featured in the pictures had some general features and body build as the defendant. (Tr. P. 120).
[35] According to Dianna, Dennis decided to dismember the body at his cabin in the area of Powers, Michigan (Tr. P. 186 & 189). Dianna said she later saw the hand saw which had been purchased from Fleet Farm covered in blood, so she thought it was used to cut off Tim's head and hands. (Tr. P. 191-2).
[36] After removal of the head and hands, Diana helped Dennis throw the Torso on the side of the road on the night of January 1, 2002 (Tr. P. 188-90). Dianna said they lifted the body, rolled it out of the tarp, and tossed it as far as she could lift it. (Tr. P. 194). She claimed that her black jacket was shining, full of Tim Wick's blood and was disposed of with the boxes and other stuff from the back of the truck when they subsequently went to Milwaukee and visited Dennis' mother. (Tr. Pp. 195 & 197). While at Dennis' mothers home, Dianna claimed that she overheard Dennis tell his mother that he had killed Tim Wicks and that he had his head and hands in a bucket at her home in Milwaukee. (Tr. P. 197).
[37] Diana claimed that at that time, she was drinking in excess of a 12 pack a day of alcohol. (Tr. P. 190). She says that she was unsure of dates and time because of her drinking. (Tr. P. 198). She said that she did not know what happened to Tim Wick's hands, but that she saw Dennis throw his head in the river, after the body was dumped. (Tr. P. 195-6).
[38] In late December, or early January, Jeff Paridon called Dennis because he needed to get some pass codes to use the computers, and only Dennis had them. When they spoke, Dennis told him that he was in Mexico and had been arrested and was on his way home. Jeff didn't believe him, because the geography didn't match. Dennis had told him that he had been in Tijuana and was coming home through Ohio. (Tr. Pp. 433-4).
[39] After Dennis t/k/a "Tim" didn't appear for work for a few days, Mr. Paridon, on January 2, 2007, drove up to the house in Gardner where he saw several cars, and tried to see if anyone was there. {Tr. Pp. 431-2). When no one came to the door, he called the Cass County Sheriff to come out and do a welfare check. He waited until the deputies came and left after they went in the house and told him no one was there. (Tr. P. 433).
[40] Patti Wasmuth, an experienced Cass County Deputy Sheriff was dispatched to the Gardner home on January 2, 2007, to do the welfare check. (Tr. P. 517). She was backed up by Deputy Bruce Renshaw. (Tr. P. 517). She went to the house, where she met Mr. Paridon, and when the officers received no response from knocking, she entered the residence to see if anyone was in need of help. (Tr. P. 517-8). No one was home and she left a note on the stove informing the residents about the entry. (Tr. P. 519). When she went to the residence, Deputy Wasmuth saw two vehicles sitting outside the home, including Mr. Wick's car with Wisconsin license plates. (Tr. P. 520).
[41] Also, on January 2, 2002, a Michigan State Police Officer, Greg Tamlyn, was called to the Nathan Bridge over the Menominee River by a State Trooper, because a geological surveyor had found a body near the bridge. (Tr. Pp. 70-71). The Menominee River separates Michigan from Wisconsin, and the body was found on the Michigan side of the river. (Tr. 74). Officer Tamlyn took photographs of the scene and the body. (Pl's Exhibits 3-10 and 14 & 15). The body had no identification on it, and was missing the head and hands (Tr. P. 72). The Michigan State Police sent out a broadcast to the upper Midwest looking for possible leads to the identity of this body. (Tr. P. 89).
[42] Dennis and Diana returned to Fargo by January 4, 2002 and returned the truck to U-haul. (Tr. P. 199; Ex. 50). After the parties returned to Fargo, they found the note left by the police who had done the welfare check, and Dennis left for a few days, and never returned to the house in Gardner. (Tr. Pp. 200-2). Dianna's memory about this time is not clear, but she remembers that her and Joshua met Dennis in Fargo, and then they left and went back to Milwaukee. (Tr. Pp. 2002-4).
[43] On January 7th, Dennis returned to work and then indicated that he had to leave for a doctor's appointment. Before Dennis left, Jeff managed to get him to pose for a picture for a "company bulletin board." Dennis never returned to work, and Jeff was able to show the picture to the Fargo Police Department. (Tr. P. 435)
[44] That day, or a few days later, Diana and Dennis and Josh left for Milwaukee. (Tr. P. 204). Once in Milwaukee, Dennis went to two different branches of the Marshall and Illsley bank in Milwaukee and withdrew $1500 on January 10, 2002 and $15,000 on January 11, 2002 and $500 on January 16, 2002. (Tr. Pp. 347-359, Exhibits 36-41). According to Diana, $8,000 of the money was used for an RV for them to travel in. (Tr. P. 204).
[45] Diana also claimed that on the trip to Milwaukee, Dennis cleaned the gun used for the murder, and dissembled it and drove to a bridge, where she threw 3 separate pieces in the Lake. (Tr. P. 321) The gun was not found, nor were Mr. Wick's hands.
[46] On January 16, 2002, Officer Tamlyn received a call from a detective with the Sheriff's department of the county north of Menominee county, who reported that a geological surveyor had been crossing the frozen river, when he thought he saw a human head on the river. (Tr. Pp. 82-3).
[47] Also, in the middle of January, Officer Tamlyn learned that there was a missing person's report on a Timothy Wicks from Hales Corners, Wisconsin. (Tr. P. 88). Officer Tamlyn had received a call from Detective Kent Schoonover of the Hales Corner Police Department because the general physical description of the corpse appeared to match Mr. Wicks. (Tr. P. 89).
[48] In addition to getting the information about Mr. Wicks, Officer Tamlyn also learned that the defendant, Dennis Gaede, was being investigated for identity theft of Timothy Wicks. (Tr. 89)
[49] Upon learning of Mr. Gaede's connection to Mr. Wicks, Officer Tamlyn investigated property records and discovered property in Menominee County registered to Dennis Gaede. (Tr. P. 90, Exhibits 11 & 12).
[50] In addition, Officer Tamlyn learned that there had been a gasoline purchase on a credit card belonging to Timothy Wicks made at the Citgo station in Iron Mountain, Michigan on January 1, 2002. Iron Mountain is located close to the area where Mr. Gaede has property, and where the body and head were found.(Tr. Pp. 92-92, Exhibit 2).
[51] Both the head and body were sent to the Medical Examiner's office in Milwaukee County where the examiner performed an autopsy and was able to identify the head and body as being from the same person. The medical examiner was able to identify the cause of death as being a bullet wound to the head. (Tr. P. 86; Exhibits 16). Through the use of dental records, the forensic dentist was able to identify the corpse as that of Timothy Wicks. (Tr. 97-98, Ex. 17).
[52] Also in January, 2007, the police obtained and executed several search warrants to search for evidence of the killing of Timothy Wicks at the home in Gardner. (Tr. Pp. 476-7, 526). In addition, the F.B.I. conducted a later search of the premises, and a search was made of the rental truck. Samples were sent to the North Dakota State Criminal Laboratory, which yielded no positive results. (Tr. P. 579). However, the police did find an empty shoulder holster rig in a file cabinet in the store room of the house. (Tr. Pp. 482-3). No handgun or firearms were found, although one of Dennis' former employers did report that Dennis had a long gun when they had gone hunting together some time ago. (Tr. Pp. 482 & 452).
[53] On January 19, 2007, Detective Schoonover called the telephone number he had been given by Mrs. Paprocki. A "Dennis Johnson" answered the telephone and said he lived at 1123 Third Avenue So. in Bismarck, North Dakota. (Tr. PP. 370-1). He said he had never heard of Timothy Wicks and asked why they had called him. Detective Schoonover was suspicious after the conversation, and called the Bismarck police department to check on this information. He found out that there was no such address in Bismarck and that the prefix on the telephone number was for a Fargo phone (Tr. Pp. 371-2). He also found out that Tim Wicks had a Wisconsin driver's license which had recently been surrendered in North Dakota. (Tr. P. 373). Thereafter, Detective Schoonover contacted Fargo Police Detective Tammy Lynk, and learned that the street address he had been given was a street address where Dennis had lived in Fargo. (T. P. 375). After speaking to Detective Lynk, both surmised that the Timothy Wicks who the Fargo Police were investigating in regard to a theft case was actually Dennis Gaede. (Tr. P. 376).
[54] Diana, Dennis and Josh traveled all around the country until they were arrested in Nebraska in March, 2002. (Tr. Pp. 204-5).
[55] Diana claimed that she and Dennis concocted a plan whereby she would say she killed Tim Wicks because he raped her. (Tr. P. 208). Diana admitted that she told Sherry Starner at the Nebraska jail, as well as Biggie, her roommate at the Nebraska jail and Bridgette Boyle, a prisoner whom she met in jail in Wisconsin, as well as her public defender in Wisconsin that she was responsible for the death of Timothy Wicks. (Tr. Pp. 208-9, 238-241, 319). She admitted to telling other inmates that she had killed Mr. Wicks , and to writing a note saying she was responsible for his death(Tr. P. 241).
[56] The State called Sheri Cotter, the Nebraska correctional officer who had heard Diana's confession to testify in rebuttal. She was asked if she had interviewed Dennis to gauge how he was coping with confinement. (Tr. P. 608). She had previously testified that she had given Diana a copy of the March 6th Lincoln Journal Star, which had created a lot of publicity around the arrest of Dennis and Diana. (Tr. P. 593). In response to reading the article, Diana became tearful and stated "I did it; he didn't." (Tr. P. 595). The State asked Ms. Cotter to testify about the defendant's reaction to the story. (Tr. P. 608). Over defense counsel's hearsay objection, Ms. Cotter testified that he knew about the person stated in the article and that he didn't commit the crime. (Tr. P. 608-9). Counsel asked the witness whether Dennis had asked what he was being charged with or if he asked any questions about the murder. (Tr. P. 609). The newspaper article was an account involving speculation about Dennis' involvement in the death of Tim Wicks. (Tr. P. 611).
ARGUMENT
1. THE COURT SHOULD REVERSE THIS CONVICTION BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO CONVICT DENNIS AS A MATTER OF LAW.
[57] The Defendant maintains that this Court should reverse his conviction because the evidence which was introduced at trial was insufficient, as a matter of law, to sustain his conviction.
[58] In reviewing challenges to the sufficiency of the evidence, this Court reviews the record to determine if there is competent evidence to support an "inference reasonably tending to prove guilt and fairly warranting a conviction." State v. Brossart, 2007 ND 39 ¶6 quoting State v. Igou, 2005 ND 16 ¶5, 691 N.W. 2d 213.As noted by this court, "the defendant has to burden to show that the evidence when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt." Id.
[59] " A conviction rests upon insufficient evidence only when no rational factfinder 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. (Citing State v. Knowels, 2003 ND 180, ¶ 6, 671 N.W. 2d 816).
[60] The sufficiency standard is somewhat altered when the testimony which is used to find such sufficiency is that of an accomplice in the commission of a crime. Section 29-21-14 N.D.C.C. provides:
"A conviction cannot be had upon the testimony of an accomplice unless he is corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof."
[61] The purpose of corroborative evidence is to show that a testifying accomplice is a reliable witness and worthy of credit. State v. Zimmerman, 524 N.W.2d 111, 113 (ND 1994). The evidence is corroborative if it tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. State v. Helmenstein, 163 N.W.2d 85, 87-8 (ND 1968). The corroboration must tend to connect the defendant with the commission of the offense. Id. at 88.
[62] An accomplice is a person who unites in or in some way is concerned in the commission of a crime for which the accused in on trial. Helmenstein, at 88. The grade of guilt of such witness is not important, so long as he/she has "in some way" concerned in the commission of the offense." Id.
[63] The Court has considered several ways of stating the test, "whether the witness could be charged with the same offense for which the defendant is being tried," or "whether such person can be indicted and punished for the crime with which the defendant is charged," or "whether the witness in any way, directly or indirectly, aided and abetter the perpetrator by acts or encouraged him by words or gestures. Id. at 88-89.
[64] In Helmenstein, the testimony which supported the defendant's conviction came from a witness who was present during the planning of the crime, and agreed to it, and went with the others to the place, but then waited in the car and took no part in the actual burglary. The witness assisted in concocting a story to tell the investigating officers in the event the parties were to be questioned, and he helped divide the loot. In that case, the Court found that the witness, who had assisted in the planing and the post burglary cover-up was an accomplice and that his testimony was not the corroboration which was required under the statute. In addition, the Court found that the owner of the store, who's only testimony was that the store had been burglarized, and who could not connect the defendant with the offense was not the necessary corroboration. The evidence therefore was insufficient, and the conviction was reversed.
[65] State v. Haugen, 449 N.W. 2d 784 (ND 1989) was a case where the Court found sufficient corroboration for the convictions in three burglaries, but insufficient corroboration to sustain the convictions in two others. In all five cases, the defendant's accomplice in committing the burglaries testified against him. In the cases where the convictions were sustained, there was independent evidence putting the defendant in the company of his co-defendant, both before and after one of the burglaries, and evidence found only hours later of the possession of many coins which were the kind of booty taken in the burglary. In addition, in another case, there was possession of a particular item, a specific kind of battery cable, which had "the tendency to make more probable the fact of [the defendant's] involvement in the burglary." The Court also found that the evidence that two of the burglaries were sufficiently contemporaneous, and involved businesses in the same building, made the corroborative evidence that the defendant had committed one of the burglaries, sufficient to connect him to the other.
[66] However, the Court found the mere fact that one of the other burglaries was committed on the same night as the other three, and that the entry method used by the burglars was a similar mode of forced entry was not sufficient corroboration, because the burglaries were committed 20 miles apart, and there was no independent evidence placing the defendant at the scene of the fourth burglary. Similarly, the Court found that the presence of an ordinary, unidentified vehicle similar to one owned by the defendant, seen in the neighborhood of the fifth burglary about 15 minutes before the burglary, did not connect the defendant to the crime, because it would require the Court to speculate regarding the ownership of the vehicle, and the identities of the driver and the passenger.
[67] In State v. Thorson, 264 N.W. 2d 441(ND 1978), the North Dakota Supreme Court held that in situations where it is unclear as to whether or not the person testifying against the defendant is an accomplice, the Court would leave the decision regarding whether or not a person is an accomplice to the jury. In Thorson, the Court found that the testimony of two witnesses who placed the defendant in the company of accomplices at or near the place of the crime shortly before or after the crime may be sufficient corroboration that tends to connect the defendant with the commission of the crime. Id at 445-46. The Court also found that the presence of a filter cigarette of the type smoked by the defendant in the cab of the tractor which had been the subject of the criminal mischief charge could be sufficient to meet the legal requirement.
[68] It appears then, from the cases, that the standard of evidence required to send the issue of whether the witness was the defendant's accomplice and whether his/her testimony is corroborated is for the jury in most situations.
[69] State v. Kelley, 450 N.W.2d 729 (ND 1990), was a case where the facts are substantially similar to those presented in this case. In that case, only Kelley and his girlfriend, Nicki Stoner were present with the victim, when the victim was killed. Each of the parties had a different version of events, with Ms. Stoner testifying that the defendant had killed the victim and the defendant saying that she had done the killing. During the trial Kelley requested the Court give the jury instruction regarding corroboration under Section 29-21-14 N.D.C.C. and the Court refused holding that there was no evidence to indicate that Stoner had acted as an accomplice to effect the death of the victim.
[70] The Court noted, that where the facts of the witness' culpability is neither disputed nor susceptible of different inferences, then the question of whether the witness was an accomplice is a question of law. Id. at ___. In his concurring opinion, the Current Chief Justice stated, "I am convinced that the rationale which requires that the testimony of an accomplice be corroborated in order to convict should apply in this instance." Justice VandeWalle concurred in the opinion in Kelley, because in his opinion the jury was well aware that the outcome of the trial would depend on whether the jury chose to believe Stoner, and he believed there was "sufficient corroborative evidence that tends to connect Kelley with the commission of the crime." He found the failure to give the requested jury was error, but that it was harmless in this case.
[71] In this case, the question is whether the evidence which is being used to corroborate Diana's story is corroborative of her claim that Dennis killed Tim Wicks, or of Dennis's claim that his wife was the killer and that his sole role was to help cover up the killing.
[72] Dennis acknowledges that the jury could find that a great deal of Diana's story is true, and that everything that went on after the killing, in terms of the hiding of the crime, is true, but those facts are equally as capable of proving that Dennis was merely helping to cover up Diana's crime, as they are of proving that he murdered Tim. This is particularly so, because Dennis did not take the witness stand in this case.
[73] Although trial counsel, in his arguments, may have contested the presence of Tim Wicks in North Dakota at the time of the killing. It is clear that the evidence was uncontested that Dennis had come to North Dakota to flee a impending imprisonment in Wisconsin. He had taken on the identity of Timothy Wicks, whom he had previously met in Wisconsin. Dennis had gone to work for Compressed Air and while working there had engaged in embezzlement and theft of money and property from the business.
[74] At the invitation of Dennis, Tim came to North Dakota at the end of December and was staying at the Gaede home when he met his death.
[75] From the time of his death onward, both Dennis and Dianna were involved in the furtive attempt to hide the crime, both by hiding the dead body, and by renting the truck and traveling to the Iron Mountain and then Milwaukee areas, where the body and head were disposed of. During this time, the parties used Tim's credit card.
[76] The parties traveled back to Fargo, and then thinking that the police were closing in on them because of the theft and perhaps the murder, the parties fled North Dakota, and went to Milwaukee where they drew a large amount of money out of Tim Wick's bank accounts, and purchased an RV and then went "on the lam," until they were finally caught in Nebraska.
[77] While Dennis' criminal history, and actions in fleeing and trying to hide the body are certainly incriminating, there is really no evidence, other than the testimony of his former wife which indicates that he, rather than she, committed this offense. Because Dianna has been shown to be a dishonest person and a liar, and because she has repeatedly confessed to the commission of this crime, the defendant maintains the evidence is insufficient as a matter of law to convict him of this crime.
2. DENNIS WAS DENIED A FAIR TRIAL BECAUSE THE DISTRICT COURT ALLOWED THE STATE TO PRESENT A WITNESS WHO TESTIFIED ABOUT A COMMENT MADE BY DENNIS AFTER HIS ARREST.
[78] In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court mandated that police officers inform suspects whom they arrest that they have the right to remain silent after their arrest. In Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme Court held that the use for impeachment purposes of a defendant's silence, at the time of arrest, and after he/she had received his/her Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. The Court held that post-arrest silence following such warnings is insolubly ambiguous and that it would be fundamentally unfair to allow an arrestee's silence to be used to impeach his testimony subsequently given at trial.
[79] In State v. Bragg, 221 N.W.2d 793 (N.D. 1974), (a case in which the defendant did not voluntarily take the stand), this Court held that the admission of testimony by a police officer that the defendant after his arrest, had stated that "his knowledge of the burglary was none of the investigating officer's business" was an invocation of the defendant's Fifth Amendment privilege to remain silent and that even though the defense counsel had not objected to the question, the Court found that the admission into evidence of the defendant's statement was the type of obvious error which could be recognized under Rule 52 N.D.R.Crim.P. The Court found that under the circumstances, this error was not harmless and the conviction was reversed and the case remanded for a new trial.
[80] In State v. Carmody, 253 N.W. 2d 415 (ND 1977) this Court recognized that Doyle was violated when a prosecutor cross examined the defendant concerning his failure to testify at the time of his preliminary hearing. The Court found that this questioning was a constitutional error. While the Court found that an error had occurred, it reasoned that under the harmless error doctrine, the error was harmless, although Justice Vogel in his dissent reminded the Court that the standard for finding constitutional error harmless, is that the "[C]ourt must be able to declare a belief that it was harmless beyond a reasonable doubt." 253 N.W.2d at 421. Justice Vogel did not believe this to be the case.
[81] In City of Williston v. Hegstad, 1997 ND 56, 562 N.W.2d 91, this Court reversed the defendant's conviction for actual physical control because of the prosecutor's comments in closing statement, which included a statement commenting on the defendant's invocation of the Fifth Amendment, and included the prosecutor's improperly vouching for the testimony of the police officers. In reviewing the argument surrounding the comments made about the defendant's remaining silent after his arrest and warning, the Court indicated that after a violation of this type, it is the prosecutions burden to prove that this constitutional error was "harmless beyond a reasonable doubt." at ¶10.
[82] In State v. Hill, 1999 ND 26, 590 N.W. 2d 187 this Court held that where the comment on the defendant's silence came in response to questioning by the defendant's attorney, that the Court would consider the following factors, among others, in determining whether this constitutional error was harmless:
1. The use to which the prosecution puts the postarrest silence
2. Who elected to pursue this line of questioning?
3. The quantum of other evidence indicative of guilt
4. The intensity and frequency of the reference
5. The availability to the trial judge of an opportunity
to grant a motion for mistrial or to give curative
instructions.
[83] Defendant submits that the same sort of analysis needs to be done with regard to the obvious error created by the State by questioning Sherri Cotter about the defendant's "reaction to the newspaper story concerning the charges against him." This line of questioning, which was at the climax of the trial, was the last testimony that the jury got to hear. Since the defendant did not take the witness stand, and did not testify, this testimony which attempted to show him as uncaring and aloof when facing these serious charges, as contrasted with the reaction of his wife, was a violation of his right to remain silent, and transmitted to the jury information which Miranda was designed to protect. Considering the lack of credibility of Diana, this evidence may have been the deciding factor in the jurors conclusion deciding that it was Dennis and not Diana who pulled the trigger and killed Timothy Wicks. Because this Court cannot say that this error was harmless beyond a reasonable doubt, the conviction of this defendant must be reversed.
3. DENNIS WAS DENIED A FAIR TRIAL BECAUSE THE DISTRICT COURT ALLOWED THE STATE TO USE EVIDENCE OF HIS PRIOR CONVICTIONS FROM WISCONSIN AND NORTH DAKOTA TO SHOW THAT HE WAS A BAD FELLOW.
[84] The admission of evidence of other crimes committed by a Defendant who does not take the witness stand is governed by Rule 404(b) N.D.R.Ev.
"(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. However, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial."
[85] Under this rule, evidence of prior crimes committed by the defendant is generally not admissible "unless it is substantially relevant for some purpose other than to point out the defendant's criminal character and thus to show the probability that he acted in conformity therewith. State v. Osier, 1997 ND 170, ¶4 569 N.W. 2d 441 citing State v. Biby, 366 N.W.2d 460, 463 (N.D. 1985). The rule does not authorize automatic admission merely because the proponent advances a proper purpose for the evidence, instead the relevance and probative value of the evidence must be demonstrated. Osier, supra, quoting Dahlen v. Landis, 314 N.W.2d 63, 70 (N.D. 1981)..
[86] In State v. Stevens, 238 N.W. 2d 251 (N.D. 1975), this Court analyzed the standard under which a Court is to act in considering the admissibility of prior bad act evidence. The Stevens opinion enumerated the criteria to be considered whenever Rule 404(b) evidence is offered. Id. at 257. The initial inquiry with regard to this evidence must be what purpose the evidence is offered for. The Court noted that the standard with regard to relevance may be stricter in some cases than in others. Id.
[87] In this case the State has offered two examples of prior crimes committed by Dennis. In one case, Diana testified that Dennis was convicted of a crime in Wisconsin and because of this conviction, and the possibility that Dennis was going to go to prison, he decided to come to North Dakota and adopt the identity of the victim. (Tr. P. 153). This evidence was offered to "explain" why Dennis was in North Dakota, and why he was using the identity of "Timothy Wicks." This evidence was not objected to nor was it ever contested.
[88] The problems created by this evidence were twofold. Firstly, the fact that Dennis had committed a prior crime or prior crimes, the nature of which were never explained to the jurors, had no relevance to whether or not he killed Tim Wicks. No connection between this other crime, or other crimes and Tim Wicks was ever provided to the jurors or the Court.
[89] Since the fact that Dennis was living in North Dakota under a false identity was not contested, there was no probative value with regard to any particular element of the crime charged which was proven by the introduction of this evidence.
[90] While the State may rightfully argue that the evidence that Dennis was living under an assumed name, and that name was the same as the victims, as it is relevant under the State's theory of the case, because the State contends that was the reason for the defendant killing Tim Wicks, there is no reason the jury needed to know that Dennis was a fugitive from justice, in North Dakota at the time he allegedly killed Tim Wicks, other than to show that Dennis was a man of bad character.
[91] That this was the purpose for which this evidence was offered is highlighted by the mention of the evidence in the State's closing argument to the jury. In that argument, the State's Attorney makes reference to the Wisconsin conviction in two ways, firstly by claiming that "he's the guy who ....fled because he was terrified of going to jail." and then as corroboration for the testimony of Diana that Dennis concocted the story of her commiting the killing because of his fear of going to prison. (Tr. Pp. 627-8). Both of these uses of the Wisconsin conviction are the same thing as saying, Dennis was a criminal and fled before, and so he's a criminal because he fled now. Considering that the evidence of Dennis fleeing was uncontested and further considering that the State requested and received an instruction with regard to Flight, the real argument which was made by the State based upon the Wisconsin conviction was that he was a bad guy then, and therefore he's a bad guy now.
[92] Additionally, there was no evidence that Tim Wicks was aware of Dennis's fugitive status or that it entered into Dennis' alleged motivation to kill Tim. It was not something that the State argued nor was any evidence presented to show it had any connection with the killing.
[93] The other problem in the way this evidence was admitted was that the jury was left to speculate as to what crime Dennis had committed which caused him to flee the jurisdiction. Had he killed before? What had he done? Because of the way this evidence was presented, there is no question that if the jurors considered this evidence in their deliberations, and they were not advised not to. They were free to speculate regarding this other crime and it is impossible to know just what role this speculation played in convincing them to convict Dennis. It is impossible to say that this error was harmless beyond a reasonable doubt.
[94] The second instance of other crimes evidence that the jury was given was the evidence of the accusation and conviction of the defendant for his thefts and embezzlements from his employer, Compressed Air. (See Ex. 44, App. Pp. 9-12 ). This evidence was presented through both the testimony of Mr. Gaede's employers and the introduction into evidence of the criminal Information and Judgment of conviction. Again, as with the evidence of the Wisconsin conviction, defense counsel made no effort prior to trial to seek the exclusion of this evidence, nor any attempt during the trial to object to it's entry.
[95] Because of this inaction, it is difficult to determine under what exception to the general exclusionary rule, this offer of prior bad act evidence was made, and therefore somewhat difficult to determine how the District Court would have dealt with the issues of balancing the issues of relevance and unfiar prejudice.
[96] Fortunately for this defendant, the closing statement of the State makes clear the purpose for which this conviction was offered. In his closing argument, the State's Attorney refers to the embezzlement of funds from Compressed Air in the section of his closing argument where he is discussing the post murder actions of the defendant in withdrawing money from Tim Wick's bank accounts. He notes that they [Diana and Dennis] are on the run and do not want to get caught and that they are "a little short of cash to begin with." At that point, he mentions that Dennis had "Borrowed some money from Compressed Air Technology, folks. Embezzled money from Compressed Air Technologies. " He then goes on to state that they need money and need to steal Tim Wick's money.
[97] What then is the point of providing the evidence of Dennis' prior embezzlement? To prove that he's capable of stealing? It is clear from the argument that the point of the introduction of this evidence is to show the defendant is a person of bad character, a thief previously, and therefore a killer now. This is precisely the use of character evidence which Rule 404(b) is designed to prevent. The State was proving that the defendant was a person of bad character, and therefore he acted in conformity therewith.
[98] As this Court has previously noted, Rule 404(b) is designed to protect a defendant from conviction because of the use of "unfairly prejudicial evidence. State v. Zimmerman, 524 N.W. 2d 111 (N.D. 1994). In Zimmerman, this Court noted that "unfair prejudice" was created where the evidence was such that it would cause "an undue tendency to suggest decision on an improper basis" or where the prejudice results from other than relevant evidence. Id. at 115.
[99] In this case, the evidence of the defendant's prior convictions in Wisconsin and here in North Dakota had no tendency to prove that the defendant was the more likely of the two possible people to commit the murder, but was offered by the State to show that the defendant was a bad man who did this bad thing. Under the circumstances, where the defense was able to show that Diana Fruge was a liar who had repeatedly confessed to the commission of this crime, the State's desire to present this evidence is understood. However, the District Court's willingness to allow this evidence, even though the defense had not objected, denied the defendant a fair trial.
4. DENNIS WAS DENIED A FAIR TRIAL BECAUSE OF THE DISTRICT COURT'S FAILURE TO INQUIRE AS TO WHETHER HE HAD KNOWINGLY WAIVED HIS RIGHT TO TESTIFY IN THIS CASE.
[100] Recently, this Court reaffirmed it's position taken in State v. Antoine,1997 ND 100, ¶ 5, 64 N.W.2d 637 that the District Court does not have a duty to verify that the defendant who is not testifying has waived his or her right voluntarily. The Court reiterated it's position that the District Court is entitled to presume the attorney and the client discussed the right, and the defendant voluntarily agreed upon the final decision. State v. Mulske, 2007 ND 43, citing United States v. Pennycooke, 65 F.3d 9, 11-12 (3rd Cir. 1995) (which provides a list of federal case law supporting this contention and explaining "a trial court's advice as to the right to testify could inappropriately influence the defendant to waive his or her constitutional right not to testify").
[101] In reaching its conclusion, this Court did not deny that the right to testify in one's own defense is constitutionally guaranteed. Mulske, at ¶ 5 citing Rock v. Arkansas, 483 U.S. 44, 49-53 (1987). Nor did this Court contest the fact that the right is personal and that only the defendant may waive it. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983) ("the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal"). Nor does the Court contest the fact that this is a constitutional right which is "essential to due process of law in a fair adversary process." Rock v. Arkansas, 483 U.S. at 51, 107 S.Ct. at 2709 (quoting Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562 (1975)).
[102] However, instead of weighing the burdens of requiring the Court to inquire, whenever a defendant does not testify, whether the waiver is being done knowingly and intelligently and voluntarily, and comparing it to the potential problems that may come from pointing out this right to the defendant, and without mentioning the arguments contained in the decisions rendered by other State Courts which have concluded that this inquiry is required, or advisable, this Court relied on it's previous decision and the "presumption" that the attorney and the defendant have discussed the right and that the attorney has informed the client and that the client has knowingly, intelligently and voluntarily waived that right. Id. at ¶ 11. Counsel, by his failure in the Mulske brief, to cite those other cases accepts responsibility for this result, but requests that this Court seriously consider, at this time, the various positions taken by the other State Courts.
[103] While this Court is correct in noting that the Federal Courts seemed to have unanimously decided that the trial court has no duty to verify that the defendant's waiver of his right to testify is being knowingly, intelligently and voluntarily waived, several State's Court have decided that the insignificant burden of spending a few minutes in a colloquy with the defendant is a small burden to guarantee that the defendant is knowingly and intelligently and voluntarily waiving this right. People v. Curtis, 681 P.2d 504, 507-08 (Colo.1984); LaVigne v. State, 812 P.2d 217, 222 (Alaska 1991); Tachibana v. State, 79 Hawai'i 226, 900 P.2d 1293, 1303 (1995); State v. Neuman, 179 W.Va 580, 371 S. E. 2d 77 (1988). State v.Orr, 304 S.C. 185, 403 S.E. 2d 623 (1991); Culbertson v. State, 412 So. 2d 1184 (1982).
[104] In reaching its decision to require that the defendant waive his constitutional right to testify on his own behalf, on the record, the Colorado Supreme Court in People v. Curtis, 681 P.2d 504, 513-14 (Colo.1984) considered several important factors. Firstly, the Court noted that "the decision on whether to testify is crucial in governing the defendant's fate. The value of the right to testify is inestimable." (citations omitted). The Court noted that while the defendant's interest in the outcome of the litigation, and his impeachment by evidence of prior convictions may cause the trier of fact to question his credibility, the "finder of fact will often deem the defendant's testimony compelling and conclusive because it is he-and only he-who offers direct evidence of his state of mind bearing on such intangibles as intent, insanity, self-defense, duress, mistake, entrapment and motive." Id at 513. The Court further noted that "the defendant's testimony gives the jury an immediate and visible impression of him as a person, which may color their view of the entire case against him." The Court then quotes the US Supreme Court's own words where it acknowledges that even "the most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." (Cit. Omitted). Id.
[105] In addition, the Court notes that the defendant's desire to tell his side in public, may be of overriding importance to him, whether or not it improves his chance of acquittal.
[106] The Court then noted that the decision on whether or not to testify belongs to the client and not the lawyer, and that it is the client, not the lawyer who makes the decision whether he is going to testify. The Court notes that when the defendant wishes to speak, denial of that right makes any conviction obtained therefrom, "fundamentally wrong."
[107] Most importantly of all, the defendant must be given the opportunity to place himself and his viewpoint before the finder of fact, in order to legitimate the outcome of the trial. "If criminal trials are to be perceived as fair by the community, it is important that the public know that persons accused of crimes have not been silenced at trial by undue influence, mistaken impressions, or ignorance." Id. at 514.
[108] Based upon these factors, the Colorado Supreme Court came to the conclusion that requiring a colloquy wherein the defendant is appropriately advised of his rights, whether by the Court or by counsel, and whereby the Court and the public can know that the choice is that of the defendant, and not the lawyer was the process which needed to be followed. Id.
[109] These reasons, including the need for a clear record that the defendant has, in fact, waived his/her right to testify has caused other State Appellate Courts to direct the lower Courts in their States to conduct the necessary colloquy if the defense rests and indicates that a defendant is not going to testify.
[110] In noting it's agreement with the decision in Curtis, the West Virginia Supreme Court in State v. Neuman, 179 W.Va 580, 584, 371 S. E. 2d 77, 81 (1988) noted that the decision whether to testify in one's own behalf, "is like the right to determine what plea to enter, the right to a jury trial, the right to counsel and the right to be present for trial, is so fundamental that procedural safeguards must be employed on the record to insure that the defendant's waiver of the right to testify is made voluntarily, knowingly and intelligently."
[111] The Supreme Court of Hawaii considered the three different approaches to dealing with the issue of whether the Court should conduct a colloquy with the defendant during his trial, if he should decide not to testify in Tachibana v. State, 79 Hawai'i 226, 900 P. 2d 1293 (1995). It found that the requirement that the defendant "demand" to testify and therefore that he would have to show that he was denied the right to testify ignored the basic realities faced by the defendant and the courts. Id. at 233-4, 1300-01. The Court noted that "[m]any defendants are unaware that they have a constitutional right to testify, which no one, not even their lawyer, may take away from them." Id. The Court further noted that "the demand rule requires the defendant to ignore the admonishments of counsel, interrupt the trial proceedings and interject herself, uninvited, into the fray. Such a rule ignores the courtroom reality that defendants who speak out of turn at their own trials are quickly reprimanded and sometimes banned from the courtroom by the court."Id. "In sum, the demand rule requires a defendant to assert a right of which the defendant may not be aware by objecting in a manner the defendant has been told is inappropriate." Id.
[112] Placing such a burden on the exercise of a fundamental constitutional right is unduly burdensome and is designed to create the situation which is repeated over and over in our system, where former defendants indicate repeatedly that they have been denied the right to testify by their attorneys. Not only does this place an inordinate burden on the client, but it inevitably places the attorney and the client at odds again and again. It contributes mightily to the system we have, whereby clients notorious distrust their public defenders, who are the only people available to assist them.
[113] Even some of those Court which have refused to impose the colloquy as a matter of right, have advised their lower Courts that the best policy is to have this colloquy. See State v. Walen, 563 N.W.2d 742, 751-1 (Minn. 1997); State v. Gulbrandson, 184 Ariz. 46, 906 P.2d 579, 598 (1995); Barron v. State, 264 Ga. 865, 452 S.E.2d 504, 505 n. 2 (1995); Phillips v. State, 105 Nev. 631, 782 P.2d 381, 382 (1989); Commonwealth v. Siciliano, 19 Mass.App.Ct. 918, 471 N.E.2d 1359, 1362 n. 1 (1984). Certainly, that is the least that this Court should do now.
CONCLUSION
[114] Dennis submits that because of these errors which were committed at his trial, as well as others too numerous to include, he was denied a fair trial and this Court should reverse his conviction and grant him a new trial.
[115] Respectfully submitted this 26th day of March, 2007.
| William Steven Kirschner | |||||
| Attorney for Defendant/Appellant | |||||
| Kirschner Law Office | |||||
| Suite 104, 1352 Page Drive So. | |||||
| Fargo, North Dakota 58103 | |||||
| (701) 293-5297 | |||||
| ND Bar ID # 03713 | |||||