State v. Schmidkunz

20050141 State of North Dakota, Plaintiff and Appellee
v.
Zachary Schmidkunz, Defendant and Appellant

Appeal from: District Court, Northwest Judicial District, Ward County
Judge Gerald H. Rustad
Nature of Action: Homicide
Counsel:
Appellant: Chad Rory McCabe
Appellee: John P. Van Grinsven III , State's Attorney
Term: 06/2006   Argument: 06/08/2006  9:30am
ND cite: 2006 ND 192
NW cite: 721 N.W.2d 387

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I: The prosecutor's improper comments regarding facts not in evidence during the closing argument to the jury constituted obvious error affecting Schmidkunz's right to have the jury determine his guilt or innocence on the basis of the evidence presented at trial.
II: The State's expert, Dr. Belanger, wrongfully invaded the duty and province of the jury to determine Schmidkunz's guilt or innocence when he testified and read to the jury the essential elements of murder and the definitions of intentionally and knowingly, and that Schmidkunz's conduct was insufficient to meet the [mental disease and defect] standard because he "just read what it means to be knowingly."
III: The verdict was forced when, just prior to deliberation, the Court informed the jury that, "it is my intention that you will deliberate until you come up with a verdict. I advise you this so that you might know that deliberations, if it takes that long, is not going to stop at five o'clock tomorrow night, and you can consequently notify your families of that potential," and that the jury then came back with a verdict in less than three hours after a one week murder trial with volumes of evidence.
IV: The Court erred when it failed to exclude Dr. Belanger and his reports after the State failed to comply with Schmidkunz's statutory right to have his examination video recorded.

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Docket entries:
104/20/2005 NOTICE OF APPEAL: 04/18/2005
205/23/2005 RECORD ON APPEAL (4 volumes & separates); not rec'd 192(shotgun), 195(computer)
305/25/2005 ORDER FOR TRANSCRIPT: 05/25/2005
405/26/2005 MOTION FOR RETURN OF ROA (e-mail from Michael Levitt dated 5-26-05)
505/26/2005 ACTION BY CLERK (Return of ROA). Granted
605/26/2005 RETURN OF ROA TO DIST. CT.
705/27/2005 RETENTION OF RECORD ON APPEAL: 09/30/2005
807/27/2005 MOT. EXT/TIME TRANSCRIPT (Michael Levitt)
907/27/2005 ACTION BY TRIAL COURT. Granted: 08/23/2005
1008/24/2005 MOT. EXT/TIME TRANSCRIPT (Michael D. Levitt)
1108/24/2005 ACTION BY SUPREME COURT. Granted: 09/30/2005
1209/30/2005 TRANSCRIPTS COMMENCING 11-29-04 (marked Vols. I-IV)
1310/10/2005 Letter dated October 6, 2005, explaining why an electronic copy of the transcript is not available
1410/10/2005 Notice of Appearance -- Chad R. McCabe replacing Richard Thomas (see MAT)
1510/10/2005 MOT. EXT/TIME APPELLANT BRIEF
1610/10/2005 ACTION BY Chief Deputy Clerk. Granted: 12/09/2005
1710/10/2005 E-FILED MOTION & Notice of Appearance (by facsimile)
1810/10/2005 REFILED RECORD ON APPEAL AFTER RETURN (4 Volumes & Separates); not sent with the ROA were
1910/10/2005 No. 192 (Shotgun) 195 (Computer P.C.)
2011/02/2005 DISK - TRA (cd rom in pdf format)
2111/22/2005 MOT. EXT/TIME APPELLANT BRIEF with order for addition transcripts attached
2211/22/2005 ACTION BY CHIEF JUSTICE. Granted: 03/09/2006
2311/22/2005 Comments to the Court in Opposition to Appellant's Motion for Extension of Time to File Brief and
2411/22/2005 Order for Transcript by Mike Levitt, Court Reporter
2511/25/2005 Copy of Order for Transcript from Chad McCabe filed in trial court on 11-23-05
2602/10/2006 Transcript commencing 11-29-04 - opening & closing statements
2702/17/2006 DISK of tra commencing 11-29-04 opening & closing statements
2803/06/2006 MOT. EXT/TIME APPELLANT BRIEF
2903/06/2006 E-FILED MOTION (MAT by facsimile transmission)
3003/06/2006 ACTION BY CHIEF JUSTICE. Granted: 04/10/2006
3104/10/2006 APPELLANT BRIEF
3204/10/2006 E-FILED BRIEF (ATB)
3304/10/2006 APPELLANT APPENDIX (PDF)
3404/10/2006 E-FILED APPENDIX (ATA)
3504/11/2006 Received $25 surcharge for ATB (Receipt #16822)
3604/17/2006 Copies of ATB received from Central Duplicating
3704/17/2006 Copies of ATA received from Central Duplicating
3805/10/2006 APPELLEE BRIEF
3905/11/2006 DISK - AEB
4005/26/2006 MOT. EXT/TIME REPLY BRIEF
4105/26/2006 ACTION BY Chief Deputy Clerk. Granted: 06/02/2006
4205/26/2006 E-FILED MOTION (by facsimile transmission)
4305/26/2006 Request for Radio/TV Coverage - AP (e-mail dated May 26, 2006, from Dale Wetzel) (approved)
4406/02/2006 REPLY BRIEF
4506/02/2006 E-FILED BRIEF (RYB)
4606/07/2006 Request for Radio/TV Coverage KXMC-TV (approved)
4706/08/2006 APPEARANCES: Chad R. McCabe; John P. Van Grinsven III
4806/08/2006 ARGUED: McCabe; Van Grinsven
4906/08/2006 ORAL ARGUMENT WEBCAST
5009/13/2006 DISPOSITION: AFFIRMED
5109/13/2006 UNANIMOUS OPINION: Kapsner, Carol Ronning
5209/14/2006 Judgment Mailed to Parties
5310/05/2006 MANDATE
5410/18/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
5510/02/2014 EXPUNGED - Nonpermanent record items destroyed

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