Daniel Breijo

The Stark County State’s Attorney is opposing two motions filed by the defendant in a Christmas Eve shooting who seeks to have the preliminary hearing in his case closed to the public and to have the Class AA felony murder charge against him dismissed.

The responses from special prosecutor Amanda Engelstad came following a hearing at the Ward County Courthouse regarding the motion filed by the attorney for Daniel Breijo, 39, Surrey. Breijo is charged with the murder of Master Sgt. Nicholas Van Pelt, 41, and the attempted murder of an unnamed female victim who has asserted her right to privacy under Marsy’s law.

Though Engelstad had previously filed a response before the hearing on May 24, Judge Daniel El-Dweek set a deadline of June 3 for the parties to file written briefs. Engelstad said at the hearing she wouldn’t be taking a position on the motion and limited her comments to a request that El-Dweek determine that all legal factors be met before closing the hearing and the Marsy’s Rights of the victims and their families be taken into account to allow them to be present.

However, Engelstad’s response filed on Monday showed a hard face from the prosecutor, with her calling on the court to deny the motion “in its entirety” as any closure “would be too broad.”

Engelstad argued she would follow the best practice for establishing “a minimum burden of proof,” which she noted was the same standard of probable cause required for a valid arrest. Though she conceded some hearsay statements would be elicited at the preliminary hearing, Engelstad said the state intends to stay as close to the facts to establish an offense has been committed by the defendant “as reasonably possible.”

Engelstad also argued the evidence the defense is seeking to suppress or challenge will eventually be made public anyway and cautioned the court the possibility of creating an appealable issue was high, given prior court precedent.

“The procedure to challenge this evidence will likely be a motion to suppress, a briefing of the evidence, issues and relevant law, followed by an evidentiary hearing. The documents will be open to the public and the hearings will also be open to the public. If, in fact, the defendant does challenge some of the evidence, he will essentially be ringing the bell he hopes to keep unrung by closing the preliminary hearing to the public, thus making this motion moot,” Engelstad argued.

Engelstad also observed a number of recent “media-fueled” cases in North Dakota that ultimately didn’t require a change of venue in Bowman County and Morton County, both of which are substantially smaller in population compared to Ward County. Engelstad asked the court to pursue alternatives available, including the denial of expanded media coverage and the circulation of jury questionnaires to establish if the potential jury pool has been prejudiced against the defendant.

Amendments to murder charge

Engelstad also filed a response to Breijo’s motion to dismiss the Class AA felony murder charge on the grounds the alternative means of committing the offense as filed by the state violated his due process rights. Engelstad asked the court to deny the motion to dismiss, saying the state would not be briefing the court unless directed due to an accompanying motion to amend the criminal information in the case that would render Breijo’s motion moot.

Engelstad’s motion said a thorough review of the discovery in the case made it appropriate to amend the criminal information in the case, specifically refining the murder charge to allege “only extreme indifference murder.” The original charge allowed a potential jury to find Breijo guilty of murder even without unanimous agreement on the category of murder. The motion also seeks to amend the attempted murder charge to three new counts: aggravated assault, reckless endangerment and terrorizing.

Breijo’s attorney Jesse Walstad has not yet responded to the state’s motion to amend the charges, and a hearing on the issue has not been scheduled. A ruling from El-Dweek on the question of closing the preliminary hearing also has not yet been filed yet based on court records.