State v. Hernandez

20050047 State of North Dakota, Plaintiff and Appellee
v.
Luis Ignacio Hernandez, Sr., Defendant and Appellant

Appeal from: District Court, East Central Judicial District, Cass County
Judge Georgia Dawson
Nature of Action: Sexual Offense
Counsel:
Appellee: Birch Peterson Burdick , State's Attorney
Appellant: Stefanson, Plambeck & Foss
Term: 09/2005   Argument: 09/29/2005  9:05am
ND cite: 2005 ND 214
NW cite: 707 N.W.2d 449

Listen to recording of oral argument in MP3 format

Issues: 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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Docket entries:
102/08/2005 NOTICE OF APPEAL: 02/04/2005
202/08/2005 ORDER FOR TRANSCRIPT: 02/04/2005
303/02/2005 RETENTION OF RECORD ON APPEAL: 03/26/2005
403/08/2005 MOTION FOR Financial Assistance to obtain trial transcript & attachments
503/10/2005 Affidavit of Service by Mail of Motion on State's Attorney
603/14/2005 Letter from Sandie Ehrmantraut dated 3-11-05 RE: Suspension of Transcript
703/16/2005 ACTION BY SUPREME COURT (Supervised--Mot. Financial Assistance returned to trial court. Granted
803/16/2005 for determination)
904/25/2005 RECORD ON APPEAL (3 Volumes) including separate No. 15 (Victim Impact Statement) and
1004/25/2005 Transcripts dated Septamber 7, 2004 and November 5, 2004. Not forwarded w/the record were
1104/25/2005 Nos. 17, 22, 26, 31, 114, 166, 229, 247 & 251 (Tapes) and 198, 199, 200 & 201 (State's Ex. 22-25
1204/25/2005 Large Pictures of Hotel Room)
1304/25/2005 Trial Court Order declaring defendant indigent (Clerk's Certificate of appeal #275) for purposes of
1404/25/2005 preparation of the transcript at state expense.
1504/26/2005 MOT. EXT/TIME TRANSCRIPT (Sua Sponte)
1604/26/2005 ACTION BY CLERK (MTR - Sua Sponte) (50 days from 4-18-05, the date declared indigent). Granted: 06/07/2005
1704/29/2005 TRANSCRIPT commencing November 2, 2004 (5 volumes--jury trial)
1804/29/2005 DISK -- transcript (5 volumes) emailed
1905/03/2005 Certificate of Service of copies of the record
2006/06/2005 MOT. EXT/TIME APPELLANT BRIEF (faxed)
2106/06/2005 E-FILED MOTION (MAT)
2206/06/2005 ACTION BY CLERK. Granted: 06/22/2005
2306/07/2005 State has no objection to Motion for Extension of Time to File the Appellant's Brief
2406/07/2005 E-FILED Response to Motion
2506/22/2005 APPELLANT BRIEF
2606/22/2005 APPELLANT APPENDIX
2706/23/2005 DISK - ATB (CD)
2807/20/2005 MOT. EXT/TIME APPELLEE BRIEF
2907/20/2005 ACTION BY CLERK. Granted: 08/04/2005
3007/20/2005 E-FILED MOTION (MAE/by fax)
3107/21/2005 Supplement to MAE with correction of an error
3207/21/2005 E-FILED supplement to MAE (by fax)
3308/04/2005 APPELLEE BRIEF (e-filed)
3408/04/2005 E-FILED BRIEF (AEB)
3508/10/2005 Payment of $25 surcharge for electronic filing of AEB (Receipt #16250)
3608/10/2005 Copies of AEB made
3709/29/2005 APPEARANCES: Dennis D. Fisher; Birch P. Burdick, and Charles B. Neff, Jr., third-year law student
3809/29/2005 ARGUED: Fisher; Burdick
3912/20/2005 DISPOSITION: AFFIRMED
4012/20/2005 SPLIT OPINION: Sandstrom, Dale V.
4112/20/2005 (CONCUR Specially): Crothers, Daniel John: CONCUR
4212/21/2005 Judgment Mailed to Parties
4301/19/2006 MANDATE
4401/25/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
4509/10/2012 EXPUNGED - Nonpermanent record items destroyed

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