State v. Aguero

20090241 State of North Dakota, Plaintiff and Appellee
Billy Joe Valdez Aguero, Defendant and Appellant

Appeal from: District Court, Northeast Central Judicial District, Grand Forks County
Judge Lawrence E. Jahnke
Nature of Action: Homicide
Appellant: Benjamin C. Pulkrabek
Appellee: Mark Jason McCarthy , Asst. State's Attorney
Term: 06/2010   Argument: 06/25/2010
ND cite: 2010 ND 210
NW cite: 791 N.W.2d 001

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I. Did the trial court err when it required Defendant/Appellant Aguero during the guilt phase of the trial to be shackled?
II. Did the trial court err, when it allowed over Defendant/Appellant Aguero's objection, Investigator Hoffman to comment on Mr. Aguero's right to remain silent?
III. When a co-defendant's attorney, over Defendant/Appellant Aguero's objection, calls a witness during trial and asks questions that open the door to having his client named as a participant in two murders, does that questioning also open the door to having Mr. Aguero named a participant in the murders?
IV. Did the trial court fail to properly admonish the jury during the trial?

I.Should the record be amended to reflect that jurors saw Defendant/Appellant, Billy Joe Valdez Aguero in shackles in the courtroom and/or the courthouse during the trial?

ISSUE I:Did the trial court err when it required Defendant/Appellant Aguero during the guilt phase of the trial to be shackled?
ISSUE II:The use of non-visible restraints was permissible as raised by Defendant-Moncada and Defendant-Aguero.

Appellee's Statement of the Issues:
I. Whether the District Court erred when permitting a witness to testify to non-testimonial hearsay statements of a decedent when the statement qualifies as under Rule 803(1) and/or 803(3) of the North Dakota Rules of Evidence as an exception to the hearsay rule or a proper non-hearsay purpose as raised by Defendant-Moncada?
II. Whether the District Court erred or violated Moncada and Aguero's right to a fair trial when the Court ordered the Defendant be subject to non-visible leg restraints during the trial as raised by Defendant-Moncada and Defendant-Aguero?
III. Whether the District Court abused its discretion when finding good cause to extend the detainer action as raised by Defendant-Moncada?
IV. Whether the District Court erred in permitting testimony from Investigator Hoffman as alleged by Defendant-Aguero?
V. Whether the District Court abused its discretion in permitting testimony with respect to a prior consistent statement as raised by Defendant-Aguero?
VI. Whether a failure to admonish the jurors is reversible error, as alleged by Defendant-Aguero, when there was a failure to object at trial and no prejudice alleged or demonstrated?

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Docket entries:
108/20/2009 NOTICE OF APPEAL: 08/19/2009
208/20/2009 ORDER FOR TRANSCRIPT: 08/19/2009
308/24/2009 Acknowledgment of Order for Transcript & RETENTION OF RECORD ON APPEAL: 10/08/2009
410/08/2009 MOT. EXT/TIME TRANSCRIPT (court reporter)
510/08/2009 ACTION BY TRIAL COURT. Granted: 11/17/2009
611/09/2009 Transcripts dated 1-27-09, 2-27-09, 6-12-09, 6-15-09 (Final Pretrial Conference), 6-15-09 through
711/09/2009 6-25-09 (Vols. 1-9), & 8-7-09 & C.O.S.
811/09/2009 DISK of tras dated 1-27-09, 2-27-09, 6-12-09, 6-15-09, & 8-7-09
911/12/2009 DISK-tra (Jury trial dated 6/15/09 - 6/19/09, 6/22/09, 6/24/09, and 6/25/09) (vols. 1-6, 8 & 9)
1011/16/2009 MOT. EXT/TIME APPELLANT BRIEF (sua sponte)
1111/16/2009 ACTION BY CHIEF DEPUTY CLERK. Granted: 12/28/2009
1211/18/2009 DISK-tra (Jury trial dated 6/23/09 - Vol. 7)
1311/18/2009 RECORD ON APPEAL (Not Rec'd: #11,18,23,30,40,66,100,101,& 102 -- Steno Notes & Digital Recordings)
1412/18/2009 MOTION FOR Remand to Modify
1512/18/2009 E-FILED MOTION
1612/18/2009 MOT. EXT/TIME APPELLANT BRIEF (included in Motion for Remand to Modify)
1712/22/2009 Transcript dated March 19, 2009, (see Sup. Ct. 20090254) - per letter from Pulkrabek dated 12/22/09
1812/22/2009 ACTION BY CHIEF JUSTICE (Motion to Remand). Granted
1912/22/2009 ORDER OF REMAND
2012/22/2009 Order of Remand sent to Parties
2112/22/2009 ACTION BY CHIEF JUSTICE. Granted: 02/26/2010
2201/19/2010 MOT. EXT/TIME APPELLANT BRIEF & Attachments
2301/19/2010 ACTION BY CHIEF JUSTICE. Granted: 03/26/2010
2403/17/2010 MOT. EXT/TIME APPELLANT BRIEF & Attachments
2503/17/2010 ACTION BY CHIEF JUSTICE. Denied
2603/18/2010 TRANSCRIPT DATED FEBRUARY 24, 2010, & C.O.S.
2703/18/2010 DISK-TRA (2/24/10) E-MAILED
2803/23/2010 Clerk's Supplemental Certificate of Record dated March 22, 2010. (Entry Nos. 235 & 236)(NOTE: This
2903/23/2010 Supplemental was returned to clerk's office to be renumbered. It is now a part of the
3003/23/2010 Supplemental dated 3-30-10 & filed in our office 4-9-10)
3103/26/2010 APPELLANT BRIEF
3303/26/2010 DISK - ATB (e-mailed)
3403/30/2010 Copies of Criminal Judgments (4) for ATA
3504/01/2010 Returning Clerk's Supplemental Cert. of Record dated 3/22/10 to fix numbering errors.
3604/07/2010 Consolidated with 20090254. Attny Pulkrabek will get 20 minutes; Attny Martin will get 25 minutes
3704/09/2010 Supplemental Clerk's Cert. dated 3-30-10 (Entry Nos. 224-240; not rec'd #230-steno notes)
3804/09/2010 Amended Notice of Appeal filed in Grand Forks Co. on 3-30-10
3904/22/2010 MOTION FOR extension of word limit for AEB
4004/22/2010 ACTION BY CHIEF JUSTICE (Extension of word limit of AEB to 12,500 words). Granted
4104/26/2010 APPELLEE BRIEF (e-filed)
4204/26/2010 E-FILED BRIEF (AEB)
4304/26/2010 APPELLEE APPENDIX (e-filed)
4404/26/2010 E-FILED APPENDIX (AEA)
4504/28/2010 Received $25 surcharge for AEB (Receipt #19469)
4604/28/2010 MOTION to file a Supplemental Brief
4704/30/2010 ACTION BY Acting Chief Justice (Sandstrom). Granted
4805/04/2010 Received 7 copies of AEB from CSD
4905/04/2010 Received 6 copies of AEA from CSD
5205/07/2010 REPLY BRIEF (Aguero)
5305/07/2010 DISK-RYB (Aguero) e-mailed
5506/03/2010 MOTION to Postpone Oral Argument
5606/04/2010 ACTION BY SUPREME COURT (argument rescheduled to later in June). Granted
5706/22/2010 Request for Radio/TV Coverage (Associated Press) approved
5806/25/2010 APPEARANCES: Robert Martin/Benjamin Pulkrabek/M. Jason McCarthy
5906/25/2010 ARGUED: Martin/Pulkrabek/McCarthy
6211/09/2010 SPLIT OPINION: Sandstrom, Dale V.
6311/09/2010 (CONCURRING IN THE RESULT): Maring, Mary Muehlen: CON/RES
6411/09/2010 (CONCURRING SPECIALLY): VandeWalle, Gerald W.: CONCUR
6511/09/2010 (CONCURRING IN THE RESULT): Kapsner, Carol Ronning: CON/RES
6611/09/2010 (JOIN CONCURRING IN THE RESULT): Crothers, Daniel John: JN/CON
6711/10/2010 Judgment E-Mailed to Parties
6811/16/2010 Corrected Opinion Pages 17 & 18
6911/18/2010 Mot. Ext/Time Petition for Rehearing (faxed)
7011/18/2010 ACTION BY CLERK (MPR). Granted: 12/10/2010
7111/30/2010 PETITION FOR REHEARING (e-filed)
7312/02/2010 Received $25 e-filing surcharge for PER (Receipt #20081).
7412/06/2010 Received 7 copies of PER from Central Duplicating.
7512/21/2010 ACTION BY SUPREME COURT (PER). Denied
7601/05/2011 MANDATE

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