State v. Hernandez
State of North Dakota, Plaintiff and Appellee
Luis Ignacio Hernandez, Sr., Defendant and Appellant
East Central Judicial District,
Judge Georgia Dawson
|Nature of Action:||Sexual Offense|
|Term:||09/2005  Argument: 09/29/2005|
|ND cite:||2005 ND 214|
707 N.W.2d 449
Listen to recording of oral argument in MP3 format
Appellant's Statement of the Issues:|
I. Trial errors involving alleged uncharged misconduct so infected the trial of the case that the accused was subjected to defending against ambiguous, unspecific allegations of prior sexual abuse of the alleged victim for seven years.
II. Fatal prejudice occurred when extraneous, unredacted material containing references to uncharged conduct contaminated jury deliberations.
III. The trial court erred by permitting a junk science expert to testify without properly exercising any gate keeping functions as required by Daubert and Kumho Tire decisions of the U.S. Supreme Court, which resulted in giving the prosecution an unfair and highly prejudicial advantage and denied the accused a fair trial.
IV. The trial court erred prejudicially when she permitted the state to present evidence that could not be tested or challenged because the evidence sample was destroyed before it could be analyzed by the defense as potentially exculpatory evidence.
V. Execution of the search warrant for bodily fluid and tissue samples from Hernandez was fatally defective.
Appellee's Statement of the Issues:
I. Whether Trial Court erred in its discretion in allowing limited prior sexual history of victim in response to Hernandez questions.
II. Whether it was error to allow the jury to see an unredacted version of a translated letter alleged to be written by Hernandez and describing events of the charged incident.
III. Whether admission of expert testimony of handwriting analysis violates the test in North Dakota .
IV. Whether destruction of evidence done by medical professionals without bad faith violates Hernandez's constitutional rights.
V. Whether a court order requiring a hospital to comply with a search warrant replaces the original warrant.
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|1||02/08/2005 NOTICE OF APPEAL: 02/04/2005|
|2||02/08/2005 ORDER FOR TRANSCRIPT: 02/04/2005|
|3||03/02/2005 RETENTION OF RECORD ON APPEAL: 03/26/2005|
|4||03/08/2005 MOTION FOR Financial Assistance to obtain trial transcript & attachments|
|5||03/10/2005 Affidavit of Service by Mail of Motion on State's Attorney|
|6||03/14/2005 Letter from Sandie Ehrmantraut dated 3-11-05 RE: Suspension of Transcript|
|7||03/16/2005 ACTION BY SUPREME COURT (Supervised--Mot. Financial Assistance returned to trial court. Granted|
|8||03/16/2005 for determination)|
|9||04/25/2005 RECORD ON APPEAL (3 Volumes) including separate No. 15 (Victim Impact Statement) and|
|10||04/25/2005 Transcripts dated Septamber 7, 2004 and November 5, 2004. Not forwarded w/the record were|
|11||04/25/2005 Nos. 17, 22, 26, 31, 114, 166, 229, 247 & 251 (Tapes) and 198, 199, 200 & 201 (State's Ex. 22-25|
|12||04/25/2005 Large Pictures of Hotel Room)|
|13||04/25/2005 Trial Court Order declaring defendant indigent (Clerk's Certificate of appeal #275) for purposes of|
|14||04/25/2005 preparation of the transcript at state expense.|
|15||04/26/2005 MOT. EXT/TIME TRANSCRIPT (Sua Sponte)|
|16||04/26/2005 ACTION BY CLERK (MTR - Sua Sponte) (50 days from 4-18-05, the date declared indigent). Granted: 06/07/2005|
|17||04/29/2005 TRANSCRIPT commencing November 2, 2004 (5 volumes--jury trial)|
|18||04/29/2005 DISK -- transcript (5 volumes) emailed|
|19||05/03/2005 Certificate of Service of copies of the record|
|20||06/06/2005 MOT. EXT/TIME APPELLANT BRIEF (faxed)|
|21||06/06/2005 E-FILED MOTION (MAT)|
|22||06/06/2005 ACTION BY CLERK. Granted: 06/22/2005|
|23||06/07/2005 State has no objection to Motion for Extension of Time to File the Appellant's Brief|
|24||06/07/2005 E-FILED Response to Motion|
|25||06/22/2005 APPELLANT BRIEF|
|26||06/22/2005 APPELLANT APPENDIX|
|27||06/23/2005 DISK - ATB (CD)|
|28||07/20/2005 MOT. EXT/TIME APPELLEE BRIEF|
|29||07/20/2005 ACTION BY CLERK. Granted: 08/04/2005|
|30||07/20/2005 E-FILED MOTION (MAE/by fax)|
|31||07/21/2005 Supplement to MAE with correction of an error|
|32||07/21/2005 E-FILED supplement to MAE (by fax)|
|33||08/04/2005 APPELLEE BRIEF (e-filed)|
|34||08/04/2005 E-FILED BRIEF (AEB)|
|35||08/10/2005 Payment of $25 surcharge for electronic filing of AEB (Receipt #16250)|
|36||08/10/2005 Copies of AEB made|
|37||09/29/2005 APPEARANCES: Dennis D. Fisher; Birch P. Burdick, and Charles B. Neff, Jr., third-year law student|
|38||09/29/2005 ARGUED: Fisher; Burdick|
|39||12/20/2005 DISPOSITION: AFFIRMED|
|40||12/20/2005 SPLIT OPINION: Sandstrom, Dale V.|
|41||12/20/2005 (CONCUR Specially): Crothers, Daniel John: CONCUR|
|42||12/21/2005 Judgment Mailed to Parties|
|44||01/25/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|
|45||09/10/2012 EXPUNGED - Nonpermanent record items destroyed|