The North Dakota Supreme Court will hear an appeal from Omar Mohamed Kalmio, 29, for his convictions on four counts of murder at the Ward County Courthouse in Minot on Feb. 4.
Opening arguments in the appeal are scheduled for 1:15 p.m. Tuesday at a special term of court to be held at the University of North Dakota School of Law in front of law students.
He was given four life sentences without the possibility of parole for the four Class AA felony convictions by Northwest District Judge Douglas Mattson on April 30. He is currently serving those sentences at the North Dakota State Penitentiary and was last visited by his new attorney, Russell J. Myhre of Valley City, on Monday.
Kalmio will not be present at the appeal hearings, according to Myhre.
"There is no right for a criminal defendant to be in court for an appeal hearing," Myhre said.
In his appeal, Myhre wants to address three major points that came up during the jury trial in Minot in late January and early February.
"The first issue is the admissibility of hearsay evidence," Myhre said. "We are going to be arguing that the trial court should have used a different legal test for hearsay evidence."
"The Sixth Amendment right to confront and cross-examine witnesses is endangered when testimony is admitted at a trial which may be hearsay," Myhre wrote in his appeal brief.
Essentially, argued Myhre by phone and through his writing, the trial court in Ward County had erred in their use of using rules outlined in the 2011 North Dakota case Schumacher v. Schumacher, which was a civil proceeding for a divorce, rather than the case suggested by Kalmio's then-counsel as the basis for allowing hearsay evidence, the 2004 Minnesota criminal case Bernhardt v. State.
"Essentially there's a difference between civil and criminal cases because there's a higher burdon of proof," Myhre said by phone.
Several witness testimonies during the criminal trial of Kalmio cited things that they had heard others say, rather than conversations or actions that they directly witnessed. Some of that material involved earlier alleged assaults on Kalmio's former girlfriend, Sabrina Zephier, who was one of the four murder victims.
"Kalmio objected to all of the statements on the grounds that all of the statements were hearsay; he was never formally charged with assaulting the victim; and the individuals testifying did not witness the victim's alleged assault and therefore did not have any firsthand knowledge," the brief asserts.
Prosecuting attorney Kelly Dillon, the Deputy State's Attorney for Ward County, declined to comment by phone on her strategies for challenging the questions raised in Kalmio's appeal.
She did, however, make her counter arguments known in her own brief. For the hearsay she said the court used the Schumacker case because some of the hearsay testimony had largely to due with domestic violence situations between Zephier and Kalmio, in order to show evidence "of the victims' states of mind through testimony of individuals who had spoken with the victims in the days prior to the murders, and of Kalmio's prior bad act of removing his child from his mother's home."
The second point challenged by Kalmio is what Myhre described as "denial of alibi."
In short, this argument challenges procedural duties involving an alibi, or argument that a defendant could not have been at the location of a crime or was physically incapable of committing an alleged crime.
In a rule refered to by the shorthand "Rule 12.1," "a defendant who intends to offer an alibi defense must serve written notice on the prosecuting attorney of any intended alibi defense and file the notice within the time provided for the making of pretrial motions or afterward as the court directs."
Myhre explained this challenge in that, without Kalmio filing an alibi defense, prosecutors still tried him in a circumstantial manner alleging he could not have been at an oil rig work site in Williston at the time of the event as though his defense was legally based upon the prospect of his being at the site.
"Here, the State's entire circumstantial case is based upon a fairly tight timeline in which it asserted Kalmio could have traveled from outside of Williston to Minot; killed four people in two different locations; and returned unnoticed by others to where he was staying at his work site outside of Williston," the brief asserts.
Myhre argues that the North Dakota case, 2006's Stave v. Sevigny, that was used to uphold this line of questioning was grossly different in circumstances. That case involved the defendant being denied the ability to argue an alibi for one of his two charges of gross sexual imposition against a minor child by saying he had not been in town on that date because his defense had not submitted a filing for an alibi defense.
"This instant case can easily be distinguished from Sevigny because, unlike that case, time was an element of this murder case, the time of the homicides could be specified within a certain range of time, and this case was literally an all-or-nothing venture, in that if the State could not prove Kalmio was present in Minot on January 28, 2011, its entire case would fall," Myhre wrote in his brief.
Myhre does state, though, that there was no argument that Kalmio's initial defense did not submit an alibi defense filing.
Dillon agrees that the defense did not file an alibi defense pursuant to Rule 12.1.
"Refusal to give an alibi instruction is harmless error where the defendant raised his claimed alibi in closing; the government did not mention the claimed alibi in rebuttal, but instead relied on other compelling evidence; the court gave several instructions regarding the government's burden of proof as to each and every element of the offense; and other evidence of the defendant's guilt was substantially stronger than the relatively weak evidence of the defendant's claimed alibi," Dillon wrote in her brief.
The final argument has to do with a Microsoft PowerPoint presentation used by Dillon in her closing argument in Kalmio's trial. The presentation was used to summarize the facts of the case for the jurors. Such presentations, while common in court proceedings, are not construed as evidence but simply tools.
Still, her slides initially did contain cartoon depictions of blood drops and a silhouette of a man holding a pistol. Kalmio defense attorney Thomas Glass, of Bismarck, had motioned for a mistrial due to the slides and what he had refered to as "borderline prosecutorial misconduct."
In his brief, Myhre argues that the cartoon pictures were "intended to inflame the jury and prejudice the defendant."
At trial, Mattson had denied the motion for mistrial but used "curative instruction" in an attempt to fix the matter. He ordered Dillon to remove the offending content from the slides before continuing her argument. "Curative instruction" is a legal term for any instruction used to remove alleged prejudice from tainted evidence or other smaller procedural grievances and is a move generally believed to be preferable to mistrial.
"Motions for mistrial are left to the discretion of the trial court and will not be reversed 'absent a clear abuse of discretion or a manifest injustice," Dillon wrote in response in her brief. "'Granting a mistrial is an extreme remedy which should be resorted to only when there is a fundamental defect or occurance in the proceedings that makes it evident that further proceedings would be productive of manifest injustice.'"