Daniel Breijo

The defendant in a 2023 shooting case has filed a motion to dismiss the Class AA felony murder count levied by the State.

The motion filed by Daniel Breijo’s attorney Jesse Walstad called for the dismissal of the murder charge on the grounds that the alternative means of committing the offense as charged by the State violates Breijo’s right to due process.

Breijo was charged with Class AA felony murder and Class A felony attempted murder following a Christmas Eve shooting which resulted in the death of Master Sgt. Nicholas Van Pelt, 41, Minot, and which left an unnamed female victim in critical condition.

Walstad’s motion cited U.S. Supreme Court precedent from Schad v. Arizona, which found that a defendant’s due process rights have been violated if the jury instructions did not require agreement on whether they were guilty of premeditated murder or depraved heart murder. Walstad argues that common law classified such alleged conduct as separate offenses, with premeditated murder in the first degree and “indifference to human life” as second degree.

The North Dakota Century Code holds that a person is guilty of Class AA felony murder if the person intentionally or knowingly causes the death of another human being; causes the death of another human being under circumstances manifesting extreme indifference to the value of human life; or acting either alone or with one or more other persons, commits murder in course of another crime. The Century Code does not require a jury to unanimously agree on which of the three categories a defendant is guilty of for an individual to be convicted of murder.

“This novel issue must be answered in the first instance by this Court. And, as dictated by Schad, the answer is that the State’s election to charge premeditated murder and depraved heart murder as alternative means violates Mr. Breijo’s right to due process.” Walstad said in his motion.

Walstad conceded the State is likely to defend its charging decision under a 2023 North Dakota Supreme Court ruling dismissing the appeal of Arthur Kollie, who was convicted in 2022 for the murder of Fargo teenager Jupiter Paulsen. Kollie had claimed in his appeal that he didn’t remember the attack as he was suffering from a psychotic breakdown, and the jury instructions provided by the district court erred in depriving him of a unanimous verdict.

The state Supreme Court dismissed Kollie’s appeal as the Century Code doesn’t treat the two standards of murder as separate offenses, but rather as alternative means of committing murder; deferring to the legislative intent behind the statute.

That said, Walstad argued the “Kollie” decision did not address the issue raised by Breijo, being the contradiction created by the U.S. Supreme Court’s decision in the Arizona case and the North Dakota Century Code allowing first-degree and second-degree murder as alternative means of committing a single offense without unanimous agreement by a jury.

Walstad requested a resolution from the Court on the issue before Breijo’s preliminary hearing scheduled for Thursday, June 20. Stark County State’s Attorney Amanda Engelstad has not yet filed a response to the motion to dismiss, according to court records. A hearing was held on Friday regarding a previous motion filed by Breijo to close the preliminary hearing to the public, and a decision by District Court Judge Daniel El-Dweek is expected sometime after a Monday, June 3, filing deadline for written arguments.