State v. Schmidkunz
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| 20050141 |
State of North Dakota, Plaintiff and Appellee
v.
Zachary Schmidkunz, Defendant and Appellant
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| Appeal from: |
District Court,
Northwest Judicial District,
Ward County
Judge Gerald H. Rustad |
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Nature of Action: |
Homicide
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| Counsel: |
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| Term: |
06/2006 Argument: 06/08/2006 09:30am
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| ND cite: |
2006 ND 192
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| NW cite: |
721 N.W.2d 387
Listen to recording of oral argument
using RealPlayer Basic,© a free download.
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| 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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| 1 | | 04/20/2005 | |
NOTICE OF APPEAL: 04/18/2005 |
| 2 | | 05/23/2005 | |
RECORD ON APPEAL (4 volumes & separates); not rec'd 192(shotgun), 195(computer) |
| 3 | | 05/25/2005 | |
ORDER FOR TRANSCRIPT: 05/25/2005 |
| 4 | | 05/26/2005 | |
MOTION FOR RETURN OF ROA (e-mail from Michael Levitt dated 5-26-05) |
| 5 | | 05/26/2005 | |
ACTION BY CLERK (Return of ROA). Granted |
| 6 | | 05/26/2005 | |
RETURN OF ROA TO DIST. CT. |
| 7 | | 05/27/2005 | |
RETENTION OF RECORD ON APPEAL: 09/30/2005 |
| 8 | | 07/27/2005 | |
MOT. EXT/TIME TRANSCRIPT (Michael Levitt) |
| 9 | | 07/27/2005 | |
ACTION BY TRIAL COURT. Granted: 08/23/2005 |
| 10 | | 08/24/2005 | |
MOT. EXT/TIME TRANSCRIPT (Michael D. Levitt) |
| 11 | | 08/24/2005 | |
ACTION BY SUPREME COURT. Granted: 09/30/2005 |
| 12 | | 09/30/2005 | |
TRANSCRIPTS COMMENCING 11-29-04 (marked Vols. I-IV) |
| 13 | | 10/10/2005 | |
Letter dated October 6, 2005, explaining why an electronic copy of the transcript is not available |
| 14 | | 10/10/2005 | |
Notice of Appearance -- Chad R. McCabe replacing Richard Thomas (see MAT) |
| 15 | | 10/10/2005 | |
MOT. EXT/TIME APPELLANT BRIEF |
| 16 | | 10/10/2005 | |
ACTION BY Chief Deputy Clerk. Granted: 12/09/2005 |
| 17 | | 10/10/2005 | |
E-FILED MOTION & Notice of Appearance (by facsimile) |
| 18 | | 10/10/2005 | |
REFILED RECORD ON APPEAL AFTER RETURN (4 Volumes & Separates); not sent with the ROA were |
| 19 | | 10/10/2005 | |
No. 192 (Shotgun) 195 (Computer P.C.) |
| 20 | | 11/02/2005 | |
DISK - TRA (cd rom in pdf format) |
| 21 | | 11/22/2005 | |
MOT. EXT/TIME APPELLANT BRIEF with order for addition transcripts attached |
| 22 | | 11/22/2005 | |
ACTION BY CHIEF JUSTICE. Granted: 03/09/2006 |
| 23 | | 11/22/2005 | |
Comments to the Court in Opposition to Appellant's Motion for Extension of Time to File Brief and |
| 24 | | 11/22/2005 | |
Order for Transcript by Mike Levitt, Court Reporter |
| 25 | | 11/25/2005 | |
Copy of Order for Transcript from Chad McCabe filed in trial court on 11-23-05 |
| 26 | | 02/10/2006 | |
Transcript commencing 11-29-04 - opening & closing statements |
| 27 | | 02/17/2006 | |
DISK of tra commencing 11-29-04 opening & closing statements |
| 28 | | 03/06/2006 | |
MOT. EXT/TIME APPELLANT BRIEF |
| 29 | | 03/06/2006 | |
E-FILED MOTION (MAT by facsimile transmission) |
| 30 | | 03/06/2006 | |
ACTION BY CHIEF JUSTICE. Granted: 04/10/2006 |
| 31 | | 04/10/2006 | |
APPELLANT BRIEF |
| 32 | | 04/10/2006 | |
E-FILED BRIEF (ATB) |
| 33 | | 04/10/2006 | |
APPELLANT APPENDIX (PDF) |
| 34 | | 04/10/2006 | |
E-FILED APPENDIX (ATA) |
| 35 | | 04/11/2006 | |
Received $25 surcharge for ATB (Receipt #16822) |
| 36 | | 04/17/2006 | |
Copies of ATB received from Central Duplicating |
| 37 | | 04/17/2006 | |
Copies of ATA received from Central Duplicating |
| 38 | | 05/10/2006 | |
APPELLEE BRIEF |
| 39 | | 05/11/2006 | |
DISK - AEB |
| 40 | | 05/26/2006 | |
MOT. EXT/TIME REPLY BRIEF |
| 41 | | 05/26/2006 | |
ACTION BY Chief Deputy Clerk. Granted: 06/02/2006 |
| 42 | | 05/26/2006 | |
E-FILED MOTION (by facsimile transmission) |
| 43 | | 05/26/2006 | |
Request for Radio/TV Coverage - AP (e-mail dated May 26, 2006, from Dale Wetzel) (approved) |
| 44 | | 06/02/2006 | |
REPLY BRIEF |
| 45 | | 06/02/2006 | |
E-FILED BRIEF (RYB) |
| 46 | | 06/07/2006 | |
Request for Radio/TV Coverage KXMC-TV (approved) |
| 47 | | 06/08/2006 | |
APPEARANCES: Chad R. McCabe; John P. Van Grinsven III |
| 48 | | 06/08/2006 | |
ARGUED: McCabe; Van Grinsven |
| 49 | | 06/08/2006 | |
ORAL ARGUMENT WEBCAST |
| 50 | | 09/13/2006 | |
DISPOSITION: AFFIRMED |
| 51 | | 09/13/2006 | |
UNANIMOUS OPINION: Kapsner, Carol Ronning |
| 52 | | 09/14/2006 | |
Judgment Mailed to Parties |
| 53 | | 10/05/2006 | |
MANDATE |
| 54 | | 10/18/2006 | |
RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE |