State v. Hernandez

20050047

State of North Dakota, Plaintiff and Appellee
v.
Luis Ignacio Hernandez, Sr., Defendant and Appellant

Appeal from:

District Court, East Central Judicial District, Cass County
Judge Georgia Dawson

Nature of Action:

Counsel:

Appellee:		Birch Peterson Burdick , State's Attorney
Appellant:		Stefanson, Plambeck & Foss

Term:

09/2005 Argument: 09/29/2005 09:05am

ND cite:

2005 ND 214

NW cite:

707 N.W.2d 449

Issues:

Appellant's Statement of the Issues:
I. Trial errors involving alleged uncharged misconduct so infected the trial of the case that the accused was subjected to defending against ambiguous, unspecific allegations of prior sexual abuse of the alleged victim for seven years.
II. Fatal prejudice occurred when extraneous, unredacted material containing references to uncharged conduct contaminated jury deliberations.
III. The trial court erred by permitting a junk science expert to testify without properly exercising any gate keeping functions as required by Daubert and Kumho Tire decisions of the U.S. Supreme Court, which resulted in giving the prosecution an unfair and highly prejudicial advantage and denied the accused a fair trial.
IV. The trial court erred prejudicially when she permitted the state to present evidence that could not be tested or challenged because the evidence sample was destroyed before it could be analyzed by the defense as potentially exculpatory evidence.
V. Execution of the search warrant for bodily fluid and tissue samples from Hernandez was fatally defective.

Appellee's Statement of the Issues:
I. Whether Trial Court erred in its discretion in allowing limited prior sexual history of victim in response to Hernandez questions.
II. Whether it was error to allow the jury to see an unredacted version of a translated letter alleged to be written by Hernandez and describing events of the charged incident.
III. Whether admission of expert testimony of handwriting analysis violates the test in North Dakota .
IV. Whether destruction of evidence done by medical professionals without bad faith violates Hernandez's constitutional rights.
V. Whether a court order requiring a hospital to comply with a search warrant replaces the original warrant.

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Docket entries:

1	02/08/2005	NOTICE OF APPEAL: 02/04/2005
2	02/08/2005	ORDER FOR TRANSCRIPT: 02/04/2005
3	03/02/2005	RETENTION OF RECORD ON APPEAL: 03/26/2005
4	03/08/2005	MOTION FOR Financial Assistance to obtain trial transcript & attachments
5	03/10/2005	Affidavit of Service by Mail of Motion on State's Attorney
6	03/14/2005	Letter from Sandie Ehrmantraut dated 3-11-05 RE: Suspension of Transcript
7	03/16/2005	ACTION BY SUPREME COURT (Supervised--Mot. Financial Assistance returned to trial court. Granted
8	03/16/2005	for determination)
9	04/25/2005	RECORD ON APPEAL (3 Volumes) including separate No. 15 (Victim Impact Statement) and
10	04/25/2005	Transcripts dated Septamber 7, 2004 and November 5, 2004. Not forwarded w/the record were
11	04/25/2005	Nos. 17, 22, 26, 31, 114, 166, 229, 247 & 251 (Tapes) and 198, 199, 200 & 201 (State's Ex. 22-25
12	04/25/2005	Large Pictures of Hotel Room)
13	04/25/2005	Trial Court Order declaring defendant indigent (Clerk's Certificate of appeal #275) for purposes of
14	04/25/2005	preparation of the transcript at state expense.
15	04/26/2005	MOT. EXT/TIME TRANSCRIPT (Sua Sponte)
16	04/26/2005	ACTION BY CLERK (MTR - Sua Sponte) (50 days from 4-18-05, the date declared indigent). Granted: 06/07/2005
17	04/29/2005	TRANSCRIPT commencing November 2, 2004 (5 volumes--jury trial)
18	04/29/2005	DISK -- transcript (5 volumes) emailed
19	05/03/2005	Certificate of Service of copies of the record
20	06/06/2005	MOT. EXT/TIME APPELLANT BRIEF (faxed)
21	06/06/2005	E-FILED MOTION (MAT)
22	06/06/2005	ACTION BY CLERK. Granted: 06/22/2005
23	06/07/2005	State has no objection to Motion for Extension of Time to File the Appellant's Brief
24	06/07/2005	E-FILED Response to Motion
25	06/22/2005	APPELLANT BRIEF
26	06/22/2005	APPELLANT APPENDIX
27	06/23/2005	DISK - ATB (CD)
28	07/20/2005	MOT. EXT/TIME APPELLEE BRIEF
29	07/20/2005	ACTION BY CLERK. Granted: 08/04/2005
30	07/20/2005	E-FILED MOTION (MAE/by fax)
31	07/21/2005	Supplement to MAE with correction of an error
32	07/21/2005	E-FILED supplement to MAE (by fax)
33	08/04/2005	APPELLEE BRIEF (e-filed)
34	08/04/2005	E-FILED BRIEF (AEB)
35	08/10/2005	Payment of $25 surcharge for electronic filing of AEB (Receipt #16250)
36	08/10/2005	Copies of AEB made
37	09/29/2005	APPEARANCES: Dennis D. Fisher; Birch P. Burdick, and Charles B. Neff, Jr., third-year law student
38	09/29/2005	ARGUED: Fisher; Burdick
39	12/20/2005	DISPOSITION: AFFIRMED
40	12/20/2005	SPLIT OPINION: Sandstrom, Dale V.
41	12/20/2005	(CONCUR Specially): Crothers, Daniel John: CONCUR
42	12/21/2005	Judgment Mailed to Parties
43	01/19/2006	MANDATE
44	01/25/2006	RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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