Articles Posted in North Dakota Supreme Court

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Bismarck Police received a call from a shipping store employee about a suspicious package defendant Mitchell Biwer dropped off to be shipped to Denver, Colorado. The employee told police "[Biwer] was explaining too much and talking too much about why the package was being sent out. And then when questioned what was in the package, he said it was an owner's manual, and the cost for shipping this owner's manual was $47 for overnight shipping." Upon inspection, police observed a cardboard mailer bulging in a way consistent with cash rather than an owner's manual. Biwer had a 2013 conviction for marijuana possession, and the package recipient had a 2010 conviction for marijuana possession with intent to deliver. Police applied for a warrant, testifying to these facts, his drug interdiction training, and his belief Colorado was a major source for marijuana in North Dakota. The magistrate granted the first search warrant for the package. Inside the package was $4,700.00 in four separate envelopes marked with initials. Between observing the package and applying for the search warrant, police conducted a trash pull at what they believed was Biwer's address, which lead to a second and third search warrant. Biwer entered a conditional guilty plea to six felonies and three misdemeanors relating to drug possession and distribution. Biwer appealed, arguing probable cause did not exist for the first and a third search warrant; he did not contest the validity of the second warrant. The North Dakota Supreme Court determined the evidence showed Biwer may have been sending cash rather than an owner's manual, but nothing more than a hunch showed he was sending illicit proceeds from the sale of drugs. Accordingly, the Court reversed judgment as to suppression of evidence relating to the contents of the package (first warrant). The Court affirmed as to the search warrant to search the residence. The case was remanded to allow Biwer to withdraw his guilty plea and for further proceedings. View "North Dakota v. Biwer" on Justia Law

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Sean Kovalevich appealed district court orders summarily dismissing in part and denying the balance of his application for post-conviction relief. In 2013, a jury found Kovalevich guilty of two counts of gross sexual imposition and one count of corruption of a minor. Kovalevich engaged in sexual acts with a minor female at Canad Inns, a hotel in Grand Forks, North Dakota in February and August of 2012. Kovalevich appealed, and the North Dakota Supreme Court affirmed the criminal judgment. Kovalevich applied for post-conviction relief and moved for a new trial. These were denied by the district court, and the Supreme Court affirmed the district court. In April 2017, he again applied for post-conviction relief. At the evidentiary hearing, the district court summarily disposed of three of the issues, and proceeded only on the claim of newly discovered evidence. Kovalevich argued that a new receipt, which he received from Canad Inns after writing them several letters in April 2017, showed he stayed at Canad Inns in July 2012 ("July receipt") and qualified as newly discovered evidence. The district court disagreed that the evidence was newly discovered and denied Kovalevich post-conviction relief. The Supreme Court determined the July receipt was not inconsistent with the other evidence that the February trip, not the July trip, was when the first instances of sexual assault (the two AA felonies) occurred. Thus, even if the district court admitted the July receipt into evidence, an acquittal would not be likely. "Because we cannot say the weight and quality of this evidence would likely result in acquittal, the district court did not err in denying Kovalevich's application for post-conviction relief on the basis of newly discovered evidence." View "Kovalevich v. North Dakota" on Justia Law

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Omar Kalmio appealed the district court's judgment denying his application for post-conviction relief. In 2013, Kalmio was convicted of four counts of class AA felony murder. The North Dakota Supreme Court affirmed in part, reversed in part, and remanded the district court's judgment, concluding: (1) the district court did not abuse its discretion in denying Kalmio's fifth and sixth motions to amend his application; (2) the district court did not err by denying Kalmio's claims related to ineffective assistance of trial counsel; and (3) the district court erred by finding Kalmio did not meet the first prong of the Strickland test relating to the representation of his appellate counsel during the direct appeal in his criminal proceedings. View "Kalmio v. North Dakota" on Justia Law

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In 2004, Raymond Voisine was incarcerated after he pled guilty to gross sexual imposition for acts involving a six-year-old victim. Voisine appealed an order denying his petition for discharge from treatment as a sexually dangerous individual. The North Dakota Supreme Court concluded clear and convincing evidence supported the district court's findings and order, and the court did not misapply the doctrine of res judicata. View "Interest of Voisine" on Justia Law

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Walter Grant, Jr. appealed his convictions after pleading guilty to gross sexual imposition, burglary, aggravated assault, and terrorizing. He argued the district court committed obvious error by failing to determine whether he was competent to proceed; he did not argue that the court erred by failing to hold a competency hearing or that he was incompetent when he pled guilty. Grant argued N.D.C.C. ch. 12.1-04 required the district court make a determination about competency if doubt existed about a defendant's fitness. Because the court ordered an examination and ordered he be detained at the state hospital for up to thirty days to complete the examination, Grant contended there was doubt about his fitness to proceed, no presumption he was competent, and the court was required to find by a preponderance of the evidence that he was competent and fit to proceed. To the extent Grant argued his constitutional due process rights were violated because the court failed to determine whether he was competent, the North Dakota Supreme Court concluded his argument failed: Grant claimed the district court implicitly found reasonable doubt about his competency because it ordered his examination and detention at the state hospital. "Although N.D.C.C. 12.1-04-06 authorizes a court to order a defendant's detention for purposes of an examination whenever there is reason to doubt the defendant's fitness to proceed ... a trial court's decision to grant a motion for a psychological examination alone was not sufficient to raise the required reasonable doubt about the defendant's competence for purposes of a due process violation, regardless of the effect granting the motion may have under state law." In this case, an examiner filed a report containing findings that Grant was competent to proceed and that there was no reason to believe Grant lacked the capacity to understand the proceedings against him or to assist in his defense. Grant did not object to the report or otherwise contest the examiner's findings. No clear statutory provisions or case law required the district court to make a determination about Grant's competency under these circumstances. The Court determined Grant did not show the trial court's failure to make a finding about his competency after the psychological evaluation report was filed was a clear deviation from statutory or case law. The district court did not commit obvious error by failing to fully adjudicate Grant's competency before accepting his guilty pleas. View "North Dakota v. Grant" on Justia Law

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Dale Yost appealed an order denying his motion to withdraw guilty pleas and amended criminal judgments. In October 2012, the State of North Dakota charged Yost with eleven counts of gross sexual imposition involving five minors. Yost argues the district court abused its discretion in denying withdrawal of his guilty pleas, did not advise him of his rights before his pleas, and erred in amending the amended judgments because the district court lacked jurisdiction. After review, the North Dakota Supreme Court affirmed the district court's denial of Yost's motion, vacated the district court's second amended judgment, and remanded for correction of the first amended judgment. View "North Dakota v. Yost" on Justia Law

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Kenneth Ndumbe Ngale appealed after he conditionally pled guilty to actual physical control of a motor vehicle. He argued the district court erred in denying his motion to suppress because he was seized and arrested by a person who was not a licensed law enforcement officer and did not have authority to investigate and arrest. In rejecting Ngale's argument, the North Dakota Supreme Court found a reserve deputy, who provides services on a non-salaried basis and has full arrest authority, and is not required to be licensed to perform peace officer law enforcement duties. View "North Dakota v. Ngale" on Justia Law

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Brian Vanberkom appealed after the district court found him guilty of reckless driving. Vanberkom argued that jeopardy attached when he was convicted of Care Required in violation of N.D.C.C. 39-09-01.1 and that the subsequent charge for reckless driving for the same conduct violated his constitutional rights. Because there was sufficient evidence of reckless driving and double jeopardy did not bar prosecution, the North Dakota Supreme Court affirmed. View "North Dakota v. Vanberkom" on Justia Law

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Ashley Hunter appealed after a jury found him guilty of two counts of murder and one count of arson. On the afternoon of June 22, 2015, Fargo police officers responded to a call about a death at a north Fargo location and found the body of Clarence Flowers. Flowers had been stabbed numerous times. Later that day, firefighters responded to a call about a fire at another north Fargo location and found the body of Samuel Traut. Traut had been killed by blunt force trauma to the head. The next morning Fargo police officers were dispatched to an address near the Traut murder scene in response to a call about a suspicious male. When officers arrived at the address, Hunter approached them and was arrested. Hunter was considered a person of interest in the Traut death, but the officers arrested him on a bench warrant for unrelated charges. Hunter was taken to the police station, where he was questioned by Fargo police. Hunter made several incriminating statements related to the Flowers and Traut murders. After the interview was complete, Hunter attempted suicide and was taken to the hospital. Hunter was charged with two counts of murder and one count of arson. Hunter argued on appeal: (1) the district court erred by denying his motion to suppress; (2) the court erred in allowing testimony about his statements to a medical professional; and (3) the judge should have recused himself. Finding no reversible error, the North Dakota Supreme Court affirmed. View "North Dakota v. Hunter" on Justia Law

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James Jorgenson apealed a district court's order approving pretrial diversion and order of restitution. The State charged Jorgenson with two counts of theft of property for depriving Jackie Blikre of proceeds from the sale of calves. The district court approved a pretrial diversion agreement entered into by the parties ("Diversion Order"), suspending prosecution for sixty months after which the charges would be dismissed if Jorgenson met certain conditions. One such condition was that Jorgenson "shall pay restitution to be determined by the Court at a contested Restitution Hearing . . . ." After a restitution hearing, the district court ordered Jorgenson to pay restitution in the amount of $50,000. Although these orders were not appealable under N.D.C.C. 29-28-06, the North Dakota Supreme Court exercised its supervisory jurisdiction to review them. Because these orders did not comply with N.D.R.Crim.P. 32.2, they were vacated. View "North Dakota v. Jorgenson" on Justia Law