State v. Poitra

20090339 State of North Dakota, Plaintiff and Appellee
v.
Joshua John Poitra, Defendant and Appellant

Appeal from: District Court, East Central Judicial District, Cass County
Judge Georgia Dawson
Nature of Action: Sexual Offense
Counsel:
Appellee: Kimberlee Jo Hegvik , Asst. State's Attorney
Appellant: Kent M. Morrow
Appellee: Leah Jo Viste , Asst. State's Attorney
Term: 04/2010   Argument: 04/08/2010  1:30pm
ND cite: 2010 ND 137
NW cite: 785 N.W.2d 225

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
Was the failure of the Fargo Police Department to provide notice to JP of his right to counsel or the presence of counsel prior to obtaining his DNA a violation of his constitutional rights?
Were the police reckless in their affidavit for the search warrant in failing to include JP's date of birth and juvenile status or the conflicting evidence as to the victim's identification of JP?
Did the trial court err when it refused to suppress the collection of JP's DNA sample due to the police's failure to permit consultation with his mother or counsel prior to collection?
Did the court err when it refused to suppress the use of JP's photograph in a line-up due to non-compliance with Section 27-20-53(6)?
Did the trial court err when it failed to make any findings as to whether imposition of the mandatory minimum sentence would impose a manifest injustice, thereby negating the mandatory component of the sentence imposed?
Appellee's Statement of the Issues:
I. The district court properly denied the Defendant's motion to suppress DNA evidence.
II. The victim's identification of the Defendant was reliable under the totality of the circumstances and attributed to a source independent of the photo lineup.
III. The plain language of the statute supports the district court's imposition of the mandatory minimum sentence without further findings.
IV. The district court properly granted the State's motion to preclude the victim's sexual behavior or alleged sexual predisposition.

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Docket entries:
111/05/2009 NOTICE OF APPEAL: 11/04/2009
211/05/2009 ORDER FOR TRANSCRIPT: 11/04/2009
312/01/2009 TRANSCRIPT DATED 7/15/08; 7/16/08; 8/14/08; 11/5/08; 1/28/09; 2/25/09; 7/6/09; 7/7/09;
412/01/2009 7/8/09; 7/9/09; 7/10/09; and 10/26/09 & C.O.S.
512/01/2009 DISK (e-mailed) - Transcripts dated 7/15/08; 7/16/08; 8/14/08; 11/5/08; 1/28/09; 2/25/09; 7/6/09;
612/01/2009 7/7/09; 7/8/09; 7/9/09; 7/10/09; and 10/26/09
712/10/2009 RECORD ON APPEAL and Separates No. 36 - 38. Not sent - Nos. 5, 10, 21, 26, 29, 35, 105, 107, 111,
812/10/2009 (Steno notes and Tapes), Nos. 117 (Exh 4 Cap), 118 (Exh 5 Evidence Kit)
901/05/2010 MOT. EXT/TIME APPELLANT BRIEF (e-filed)
1001/05/2010 E-FILED MOTION (mat)
1101/05/2010 ACTION BY CLERK (mat). Granted: 01/20/2010
1201/18/2010 MOT. EXT/TIME APPELLANT BRIEF (letter form)
1301/18/2010 E-FILED MOTION - MAT
1401/19/2010 ACTION BY CLERK - MAT. Granted: 02/10/2010
1501/22/2010 APPELLANT BRIEF (E-filed)
1601/22/2010 E-FILED BRIEF (atb)
1701/22/2010 APPELLANT APPENDIX (E-FILED)
1801/22/2010 E-FILED APPENDIX - ATA
1901/26/2010 Received $25 surcharge for ATB (Receipt #19321)
2002/02/2010 Received copies of ATB from CSD
2102/02/2010 Received copies of ATA from CSD
2202/17/2010 MOT. EXT/TIME APPELLEE BRIEF
2302/17/2010 E-FILED MOTION - MAE
2402/17/2010 ACTION BY CLERK - MAE. Granted: 03/12/2010
2503/12/2010 APPELLEE BRIEF (e-filed)
2603/12/2010 E-FILED BRIEF (AEB)
2703/19/2010 Received $25 e-filing surcharge for AEB (Receipt #19404).
2803/22/2010 NOTICE OF ORAL ARGUMENT SENT
2903/23/2010 Received 7 copies of AEB from CSD
3004/08/2010 APPEARANCES: Kent M. Morrow; Kimberlee J. Hegvik, Asst.State's Atty.
3104/08/2010 ARGUED: Morrow; Hegvik
3204/08/2010 ORAL ARGUMENT WEBCAST
3307/13/2010 DISPOSITION: AFFIRMED
3407/13/2010 UNANIMOUS OPINION: Crothers, Daniel John
3507/15/2010 Judgment E-Mailed to Parties
3608/13/2010 MANDATE
3708/16/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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