State v. Kalmio

• Decision Date: 28 May 2014
• Docket Number: No. 20130074.,20130074.
• Citation: 2014 ND 101,846 N.W.2d 752
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Omar Mohamed KALMIO, Defendant and Appellant.
• Court: North Dakota Supreme Court

846 N.W.2d 752

2014 ND 101

STATE of North Dakota, Plaintiff and Appellee

v.Omar Mohamed KALMIO, Defendant and Appellant.

No. 20130074.

Supreme Court of North Dakota.

May 28, 2014.

Kelly Ann Dillon, Assistant State's Attorney, Minot, ND, for plaintiff and appellee.

Russell John Myhre, Valley City, ND, for defendant and appellant.

CROTHERS, Justice.

[¶ 1] Omar Mohamed Kalmio appeals after a jury found him guilty of four counts of class AA felony murder after a jury trial. Kalmio argues the judgments should be reversed because the district court abused its discretion by allowing hearsay testimony and testimony regarding his prior bad acts, denying his request for an alibi jury instruction and denying his motion for mistrial on the grounds of prosecutorial misconduct. Kalmio also argues the evidence is insufficient to sustain the guilty verdict. We affirm.

I

[¶ 2] Kalmio was charged with murdering Sabrina Zephier, Jolene Zephier, Dylan Zephier and Jeremy Longie on January 28, 2011. Sabrina Zephier's roommate found her body in their Minot apartment on January 28, 2011. She was shot in the head at close range. Sabrina Zephier and Kalmio's five-month-old daughter was found unharmed at the scene of Sabrina's murder. Approximately one hour later, Sabrina Zephier's mother, Jolene Zephier; brother, Dillon Zephier; and Jolene Zephier's boyfriend, Jeremy Longie, were found dead in their Minot home. Jolene Zephier, Dillon Zephier and Longie were killed by gunshot wounds to the head. A dog also was shot at the second crime scene. The same firearm killed all four people and was never located.

[¶ 3] An arrest warrant was issued for Kalmio on August 3, 2011. Kalmio was charged with murdering Sabrina Zephier. Kalmio's trial was scheduled for June 4, 2012. On May 18, 2012, the State moved to amend information and calendar a new preliminary hearing to include charges for the murders of Jolene Zephier, Dylan Zephier and Jeremy Longie.

[¶ 4] On December 4 and 5, 2012, a hearing was held on the State's motion in limine to allow hearsay testimony of various witnesses and to allow testimony concerning Kalmio's prior bad acts. On December 20, 2012, the district court issued an order on the State's notice of intent to introduce prior bad acts and motion in limine. The December 20 order discussed each witness's testimony and made preliminary rulings on admissibility, subject to change depending on the presentation at trial. On January 29, 2013, the district court issued a corrected order on the State's notice of intent to introduce prior bad acts and motion in limine. Leading up to the second order, the State offered testimony of Sabrina Zephier's roommate, Elizabeth Lambert, and the district court heard arguments from both sides about the admissibility of her testimony. The district court preliminarily ruled Lambert could testify, subject to the possibility of a limiting instruction based on her actual testimony.

[¶ 5] A nine-day trial occurred between January 23 and February 4, 2013. Testimony established Kalmio worked in the Williston area and was staying at an oil rig site when the murders occurred. The State presented testimony from an individual claiming to have seen Kalmio and his brother leave the rig site in one of the company's white trucks during the time frame of the murders. The State presented testimony that a white pickup was seen near Sabrina Zephier's apartment the night of the murders. Testimony also established Kalmio and Sabrina Zephier had a tumultuous relationship and disagreed over the care and custody of their minor child. Evidence demonstrated that Jolene Zephier claimed Kalmio and Sabrina Zephier's child on her income tax return to obtain a refund. Evidence also established the same murder weapon was used in all four murders and Kalmio had inquired about where he could obtain a gun.

[¶ 6] Kalmio asserts the testimony and evidence are circumstantial and nothing directly links him to the murders. Kalmio argues none of the witnesses directly witnessed any violence between Sabrina Zephier and himself. He also asserts that none of the white trucks he had access to were positively identified in surveillance footage of the main route between Williston and Minot. Further, he argues that although a weapon linked the murders, no murder weapon was found and no evidence established he possessed or purchased a gun or ammunition.

[¶ 7] Kalmio did not submit a notice of alibi as required by Rule 12.1, N.D.R.Crim.P., yet he requested an alibi jury instruction at the conclusion of testimony. The district court denied Kalmio's requested alibi instruction. The State used a PowerPoint in its closing argument. Kalmio objected when the PowerPoint displayed slides with images of a gun and red circles, which he argued resembled blood. Kalmio moved for a mistrial, which the district court denied. The district court instead directed images of the gun and red circles be removed and instructed the jury to disregard the removed images. The record on appeal did not include the PowerPoint presentation, but included verbal descriptions of the excluded images.

[¶ 8] The jury found Kalmio guilty of four counts of murder. The district court sentenced Kalmio to four consecutive life sentences without the possibility for parole. Kalmio appeals.

II

[¶ 9] Kalmio argues the district court abused its discretion by allowing hearsay testimony and testimony regarding Kalmio's prior bad acts.

[¶ 10] “The district court exercises broad discretion in determining whether to admit or exclude evidence, and its determination will be reversed on appeal only for an abuse of discretion.” State v. Chisholm, 2012 ND 147, ¶ 10, 818 N.W.2d 707. “A district court abuses its discretion in evidentiary rulings when it acts arbitrarily, capriciously, or unreasonably, or it misinterprets or misapplies the law.” Id.

[¶ 11] The State filed a notice of intent to introduce prior bad acts pursuant to N.D.R.Ev. 404(b) and motion in limine on September 14, 2012. A two-day hearing on the motion was held, and the court heard testimony from the State's witnesses. The district court issued an order, making admissibility determinations for each witness's testimony. The district court later issued an order addressing the admissibility of Elizabeth Lambert's testimony because she was not available for the first hearing. The admissibility of each witness's testimony was determined under either a hearsay analysis or a prior bad acts analysis. During the motion in limine hearing, Kalmio made a standing objection to the hearsay presented by the witnesses, which the district court granted. At trial, Kalmio again asserted this standing objection to hearsay offered by the motion in limine witnesses, which the court granted him. Although Kalmio was granted the standing objection, he reasserted the standing objection on several occasions, after which the district court made a ruling on the specific piece of evidence Kalmio objected to.

[¶ 12] “One of the touchstones for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court so it could intelligently rule on it.” State v. Cain, 2011 ND 213, ¶ 29, 806 N.W.2d 597 (quoting State v. Anderson, 2003 ND 30, ¶ 6, 657 N.W.2d 245). The standing objection was granted in the motion in limine hearing, and Kalmio again asserted his standing hearsay objection for the motion in limine witnesses in the district court. North Dakota consistently has recognized the validity of standing objections granted in the district court. See State v. Aabrekke, 2011 ND 131, ¶ 3, 800 N.W.2d 284;O'Connell v. Hjelle, 143 N.W.2d 251, 254 (N.D.1966). Further, several federal court of appeals decisions recognize the use of standing objections to preserve issues for appeal. Muhammad v. Sec'y, Florida Dep't of Corrs., 733 F.3d 1065, 1072 (11th Cir.2013) (“Florida Law consistently recognizes that a standing objection preserves an issue for appeal.”) (quoting the district court); Reed v. Thalacker, 198 F.3d 1058, 1063 (8th Cir.1999) (recognizing the possibility that defense counsel's continuous objections to similar hearsay testimony may have constituted a standing objection, in which case the issue would have been preserved for appeal); United States v. Ruiz, 987 F.2d 243, 246 (5th Cir.1993) (rejecting the argument Ruiz failed to identify specific statements that were erroneously admitted because the issues were preserved by Ruiz making a standing objection to all hearsay statements made by his alleged co-conspirators). However, this Court has limited the use of standing objections when the objection was too indefinite. Hultberg v. Hjelle, 286 N.W.2d 448, 458 (N.D.1979). Kalmio specifically objected to the hearsay testimony offered by the motion in limine witnesses, a sufficiently definite objection. Kalmio preserved the hearsay issues for appeal, allowing us to reach the merits and review the admissibility of the evidence offered at trial, even when Kalmio did not make an explicit objection to the testimony offered at trial.

[¶ 13] Although Kalmio argued in the district court that the evidence was inadmissible hearsay and prior bad act evidence, he limits his argument on appeal to hearsay grounds. See Vann v. Vann, 2009 ND 118, ¶ 41, 767 N.W.2d 855 (“[A] party waives an issue by not providing supporting argument or citations to relevant authorities.”). We therefore examine whether the district court abused its discretion in allowing hearsay testimony and in performing its relevancy analysis.

[¶ 14] “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.D.R.Ev. 801(c). An exception to the hearsay rule allows statements for then existing state of mind:

“A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling,...