Breijo, Daniel

The presiding judge in the case of the Surrey man charged in the Christmas Eve 2023 shooting of Nicholas Van Pelt has ordered a review of unaired interview footage with the surviving victim from a North Dakota broadcaster.

This order from district court Judge Daniel El-Dweek advances one of several pending and disputed motions in the case of Daniel Breijo, who is scheduled for a jury trial beginning on March 16. The footage in question stemmed from a documentary series produced by BEK Communications, which included portions of five interviews with the surviving victim, who is identified as J.B. in court records.

BEK Communications motioned to quash the state’s subpoena for the footage and other related documents and information, arguing it violated press shield statues in the North Dakota Century Code. According to court documents, BEK withheld portions of the interviews with J.B. at her request to keep them confidential.

Special Ward County prosecutor Amanda Engelstad argued the shield law didn’t apply if the failure to provide the requested information violated Breijo’s constitutional rights.

According to documents filed with the court on Jan. 26, El-Dweek found BEK Communication’s interviews with J.B. did qualify for protections from North Dakota’s journalist shield statute.

However, El-Dweek determined it wasn’t as clear whether the failure to disclose the subpoenaed footage and information would result in a miscarriage of justice. El-Dweek ordered BEK Communications to provide the court with the entire footage of the interview between J.B. and all BEK reporters within 10 days for an “in camera review,” which occurs in chambers and not in open court.

“It is necessary for the Court to review this material, as the subpoena directs statements and materials made by or about J.B., the sole eyewitness to the circumstances of the death of N.V.P. and of her own substantial injuries in this matter. The central role that J.B. plays in this case leaves the court with no other option than to review this material,” El-Dweek wrote.

While El-Dweek speculated the balance of the requested items from the state were unlikely to have relevant material that would lead to a miscarriage of justice, he opened the door for both parties to renew and refine their request if any newly disclosed material suggests additional in camera reviews are required.

Other pending motions before the court yet to be resolved primarily involve the inclusion or exclusion of various potential evidence from the trial, particularly the state’s request to exclude any evidence related to Breijo’s level of intoxication at the time of the shooting.

According to court documents, Breijo’s blood alcohol content (BAC) was determined to be 0.279 about five hours after the shooting. The reports of three experts were previously cited by both parties in a plea agreement, which was ultimately rejected by El-Dweek. The experts found Breijo’s BAC was approximately between 0.325 and 0.465. Such levels of intoxication could result in severe alcohol poisoning, loss of consciousness and potentially be fatal, according to medical experts.

Engelstad argued in her motion that since Breijo was charged with a general intent crime, he cannot assert intoxication as a defense. Additionally, Engelstad argued Breijo should be barred from eliciting any expert testimony regarding intoxication, taking issue with many of the statements made by the experts based on self-reporting from Breijo himself, which she argued is hearsay.

No hearings regarding the pending motions have been scheduled yet, based on court records.