State v. Torkelsen

20070140 State of North Dakota, Plaintiff and Appellee
v.
Steven Arthur Torkelsen, Defendant and Appellant

Appeal from: District Court, Northeast Judicial District, Towner County
Judge Lee A. Christofferson
Nature of Action: Homicide
Counsel:
Appellee: Lisa Beckstrom Gibbens , State's Attorney
Appellee: Lonnie Olson , State's Attorney
Appellant: Benjamin C. Pulkrabek
Term: 01/2008   Argument: 01/04/2008  1:30pm
ND cite: 2008 ND 141
NW cite: 752 N.W.2d 640

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I. Whether the court erred by denying Torkelsen's request to act as his own counsel.
II. The trial court erred by admitting evidence that had been obtained in violation of Torkelsen's Fourth Amendment Rights.
a. Statements made by Steve Torkelsen, and evidence discovered as a result of the statements made by Steve Torkelsen should be suppressed.
b. Steve Torkelsen's consent to be interviewed, and consent to search his camper does not sufficiently purge the taint of the initial illegal search.
c. Evidence discovered during the nighttime search of Art and Leona Torkelsen's home should be suppressed.
d. The court erred in applying the inevitable discovery doctrine in this case.
i. The first prong of the inevitable discovery test was not met.
ii. The Second prong of the inevitable discovery test was not met.
e. The trial courts decision to admit evidence that was obtained in violation of Torkelsen's Fourth Amendment Rights was not harmless error.

Reply Brief Issues

I. The Appellant's request to represent himself at trial was not untimely.
II. The district Court did not make the necessary findings of fact to deny a Faretta request.

Appellee's Statement of the Issues:
1. Whether Defendant made a timely and unequivocal request to represent himself.
District Court held: in the negative.
2. Whether the evidence obtained with Defendant's consent was admissible because the Defendant's repeated voluntary consents, after being given a Miranda warning, after being told he was not under arrest, and after being expressly advised of his right to refuse consent, rendered the evidence sufficiently distinct from the illegal stop.
District Court held: in the affirmative.
3. Whether the evidence seized pursuant to the nighttime search warrant for Arthur and Leona Torkelsen's home was admissible--
a. Because there was probable cause for the nighttime search warrant.
District Court held: in the negative.
b. Because the warrant was admissible under Leon exception.
District Court held: in the negative.
c. Because the evidence would inevitably have been discovered.
District Court held: in the affirmative.
4. Whether admitting the Defendant's boot, if it were error, would be harmless beyond a reasonable doubt.
District Court did not rule.

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Docket entries:
105/18/2007 NOTICE OF APPEAL: 05/17/2007
205/18/2007 ORDER FOR TRANSCRIPT: 05/17/2007
305/29/2007 Ross W. Brandborg is substitute counsel for Appellant in this case replacing Merrick & Sandberg
406/15/2007 RECORD ON APPEAL (2 Volumes) including separate exhibits, transcripts and video tapes.
506/15/2007 Not sent w/the record were Nos. 372 - 378, 391, 416 - 423, 441 - 447, 449, 451, 459 - 464,
606/15/2007 471 - 473, 514, 515, 523 - 537 (Exhibits)
706/27/2007 TRANSCRIPTS DATED 4/30/07, 5/1/07. 5/2/07, 5/3/07, 5/4/07, 5/7/07, 5/8/07, & 5/16/07 (8 vols.)
806/28/2007 DISK - tra (e-mailed) (4/30/07, 5/1/07, 5/2/07, 5/3/07, 5/4/07, 5/7/07, 5/8/07, & 5/16/07)
907/02/2007 Received Proof of Service of Transcripts (8 Vol.)
1007/24/2007 MOT. EXT/TIME APPELLANT BRIEF (Faxed)
1107/24/2007 E-FILED MOTION (MAT) (Faxed)
1207/24/2007 ACTION BY CHIEF DEPUTY CLERK (MAT). Granted: 09/05/2007
1308/31/2007 MOT. EXT/TIME APPELLANT BRIEF & BRIEF/SUPPORT (e-filed)
1408/31/2007 E-FILED MOTION (Mot/Ext/ATB)
1508/31/2007 ACTION BY CHIEF JUSTICE (Mot/Ext/ATB). Granted: 09/20/2007
1609/20/2007 APPELLANT BRIEF (e-filed brief)
1709/02/2007 E-FILED BRIEF (ATB)
1809/20/2007 APPELLANT APPENDIX (e-filed)
1909/20/2007 E-FILED APPENDIX (ATA)
2010/05/2007 Received $25.00 surcharge for ATB
2110/10/2007 Received 7 copies of ATB from Central Duplicating
2210/10/2007 Received copies of ATA from Central Duplicating
2310/16/2007 MOT. EXT/TIME APPELLEE BRIEF (faxed)
2410/17/2007 ACTION BY CLERK (MAE). Granted: 11/19/2007
2510/16/2007 E-FILED MOTION (MAE) (Faxed)
2611/19/2007 Received $25 surcharge for AEB (Receipt 17924)
2711/19/2007 APPELLEE BRIEF
2811/19/2007 E-FILED BRIEF
2911/21/2007 Received copy of Appellee Brief in WordPerfect
3011/28/2007 Received 7 copies of AEB from Central Duplicating
3112/03/2007 REPLY BRIEF
3212/03/2007 E-FILED BRIEF - ryb
3312/12/2007 Received 7 copies of RYB from Central Duplicating
3412/19/2007 MOTION TO WITHDRAW REPLY BRIEF (LETTER DATED 12/18/07)
3512/19/2007 ACTION BY CHIEF JUSTICE. Denied
3612/28/2007 Request for Radio/TV Coverage (Prairie Public Radio approved)
3701/04/2008 APPEARANCES: Daniel E. Gast; Lonnie Olson, Lisa Beckstrom Gibbens
3801/04/2008 ARGUED: Gast; Olson
3901/04/2008 ORAL ARGUMENT WEBCAST
4007/21/2008 DISPOSITION: AFFIRMED
4107/21/2008 SPLIT OPINION: Crothers, Daniel John
4207/21/2008 (CONCUR): Sandstrom, Dale V.: CONCUR
4307/21/2008 Judgment E-Mailed to Parties
4408/08/2008 Mot. Ext/Time Petition for Rehearing (letter dated August 8)
4508/08/2008 MOTION FOR authorization to talk to Commission on Counsel for Indigent Defense (see 8/08/08 letter)
4608/11/2008 ACTION BY CHIEF JUSTICE (ext. for petition for rehearing). Granted: 09/08/2008
4708/11/2008 NO ACTION TAKEN on request regarding counsel. There's been no withdrawal of counsel
4808/14/2008 MOTION to withdraw as counsel by Ross Brandborg
4908/14/2008 E-FILED MOTION to withdraw as counsel
5008/15/2008 ACTION BY CHIEF JUSTICE (Motion to Withdraw as Counsel). Granted
5109/04/2008 PETITION FOR REHEARING
5209/04/2008 DISK - per (e-mailed)
5309/09/2008 MOTION TO WITHDRAW PETITION FOR REHEARING (Letter from Steven Torkelson)
5409/10/2008 NO ACTION TAKEN (Motion to Withdraw Petition)
5509/22/2008 Supplement to Petition for Rehearing (handwritten letter from Steven Torkelsen)
5610/21/2008 Letter of October 17, from Torkelson
5710/22/2008 MOTION FOR STAY OF MANDATE
5810/24/2008 ACTION BY SUPREME COURT (Pet/Rehearing). Denied
5910/24/2008 ACTION BY CLERK (Mot/Stay/Mandate). Granted: 11/23/2008
6011/19/2008 MOTION FOR Enlargement/Extension of Time on Stay of Mandate
6111/19/2008 ACTION BY CHIEF JUSTICE (Mot/Ext/Stay of Mandate). Granted: 01/22/2009
6201/28/2009 MANDATE
6302/09/2009 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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