State v. Aguero

20090241 State of North Dakota, Plaintiff and Appellee
v.
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
Counsel:
Appellant: Benjamin C. Pulkrabek
Appellee: Mark Jason McCarthy , Asst. State's Attorney
Term: 06/2010   Argument: 06/25/2010  2:45pm
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?


APPELLANT'S SUPPLEMENTAL BRIEF ISSUES
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?


REPLY BRIEF ISSUES
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
3203/26/2010 APPELLANT APPENDIX
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
5005/07/2010 SUPPLEMEMTAL APPELLANT'S BRIEF & ADDENDUM
5105/07/2010 DISK-SUPPLEMENTAL ATB (E-MAILED)
5205/07/2010 REPLY BRIEF (Aguero)
5305/07/2010 DISK-RYB (Aguero) e-mailed
5405/18/2010 NOTICE OF ORAL ARGUMENT SENT
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
6006/25/2010 ORAL ARGUMENT WEBCAST
6111/09/2010 DISPOSITION: AFFIRMED
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)
7211/30/2010 E-FILED PETITION FOR REHEARING
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
7701/20/2011 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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