State v. Gaede

• Decision Date: 25 July 2007
• Docket Number: No. 20060188.,20060188.
• Citation: 736 N.W.2d 418,2007 ND 125
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Dennis James GAEDE, Defendant and Appellant.
• Court: North Dakota Supreme Court

736 N.W.2d 418

2007 ND 125

STATE of North Dakota, Plaintiff and Appellee, v. Dennis James GAEDE, Defendant and Appellant.

No. 20060188.

Supreme Court of North Dakota.

July 25, 2007.

Mark Rainer Boening, Assistant State's Attorney, Fargo, N.D., for plaintiff and appellee.

William Kirschner, Fargo, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Dennis James Gaede appeals from a criminal judgment entered after a jury found him guilty of murder. We affirm, concluding there was sufficient corroborating evidence to support the verdict, the district court did not err in admitting testimony about Gaede's post-arrest statements, the court did not abuse its discretion in admitting evidence about Gaede's convictions, and the court did not have a duty to inquire whether Gaede knowingly and voluntarily waived his right to testify.

I

[¶ 2] The State charged Gaede with intentionally or knowingly killing Timothy Wicks on December 28, 2001, at Gaede's residence in Gardner, North Dakota. The State's theory of the case was that Gaede moved to North Dakota from Milwaukee, Wisconsin, in the summer of 2001 to avoid going to prison in Wisconsin, and he assumed the identity of Wicks, a person for whom Gaede had prepared taxes in Wisconsin. The State asserted Gaede made plans for Wicks to travel from Wisconsin to North Dakota under the pretext of playing a "music gig" in Canada, and Gaede subsequently shot Wicks in the kitchen of Gaede's home in Gardner. The State claimed Gaede and his wife, Diana Fruge, cleaned the kitchen and eventually transported Wicks' body to Michigan in a U-Haul truck, where Gaede dismembered the body and separately disposed of the torso, head, and hands. The State presented evidence that Gaede and Fruge then returned to the Fargo area and shortly thereafter went to the Milwaukee area where Gaede withdrew money from Wicks' bank accounts and purchased an RV that he and Fruge used to travel around the country until they were arrested in Nebraska in March 2002.

[¶ 3] At trial, Fruge testified she had married Gaede in May 2001, and in July 2001, Gaede was convicted of "some felonies" in Wisconsin. Fruge testified Gaede told her that he did not want to go to prison for those felonies and if they moved to another state, he could assume another identity and start a new life. Gaede and Fruge moved from Wisconsin to North Dakota, where Gaede assumed Wicks' identity and began working in Fargo as a bookkeeper and bought a house in Gardner using Wicks' identity. Gaede also got a North Dakota drivers' license in Wicks' name. There was evidence Gaede had met Wicks in Milwaukee, where Gaede had prepared Wicks' taxes. Sometime in late December 2001, Gaede's employer discovered that Gaede, who was known to the employer as Wicks, had stolen money from the business. Fruge testified Gaede called Wicks sometime in December 2001, after which Gaede told her that Wicks had found out someone was using one of his credit cards. She also testified Gaede had told her that he wanted to take Wicks to Canada to play a "music gig" and he might have to kill Wicks.

[¶ 4] On December 24, 2001, Wicks told his brother-in-law that he and Gaede were going to Canada "to get a job doing his jazz drumming" and Gaede wanted it to be a "big secret." On December 25, 2001, Wicks told his landlord that he and a friend were going to Canada to play a "band gig," and Wicks left a card with the landlord which said "Dennis & Tim Wicks" with a telephone number. Fruge testified that she and Gaede visited Milwaukee in late December 2001, and they returned to North Dakota in their vehicle. She also testified Wicks followed them to North Dakota in his vehicle and stayed at Gaede's house in Gardner.

[¶ 5] According to Fruge, on the night of December 28, Gaede and Wicks had been drinking beer and smoking marijuana in the basement of Gaede's house in Gardner when she went upstairs to put her son to sleep and she also fell asleep. Fruge testified she was sleeping in an upstairs bedroom when Gaede woke her and told her to come downstairs. According to Fruge, she went downstairs and found Wicks laying on the floor between a foyer and the kitchen. Fruge testified Gaede told her that he had shot Wicks. According to Fruge, Gaede and Fruge subsequently moved Wicks' body to a barn and cleaned the kitchen. Fruge testified that on December 29, 2001, Gaede used Wicks' credit card and rented some equipment to dig a hole next to the Gardner house to try to bury Wicks' body, but the ground was too frozen to bury the body. Gaede's employer testified that on December 29, Gaede called him at home and asked to use one of the company's service pickups to haul a trailer because Gaede wanted to rent a Bobcat. Gaede's employer did not authorize him to use a pickup, and the State presented evidence that Gaede rented a backhoe to try to bury Wicks' body near the house in Gardner, but the ground was too frozen to bury the body. On December 30, Gaede used Wicks' credit card to purchase several items at Fleet Farm in Fargo. On December 30, Gaede also used Wicks' credit card to rent a U-Haul truck in Fargo, which was driven 1,786 miles and returned to Fargo on January 4, 2002. Fruge testified she helped Gaede put Wicks' body in the back of the U-Haul in wardrobe boxes, they left Fargo on December 31, looking for a place to dispose of Wicks' body, and they drove to Iron Mountain, Michigan, where they purchased diesel for the truck using Wicks' credit card. Fruge testified that Gaede dismembered Wicks' body near Powers, Michigan, and she helped Gaede throw the torso in a ditch on January 1, 2002.

[¶ 6] On January 2, 2002, after Gaede had failed to appear at work in Fargo for several days, his employer called the Cass County Sheriff to go to Gaede's house for a "welfare check." A deputy sheriff observed Wicks' car at the residence and left a note about the "welfare check" in the house. On January 2, 2002, Wicks' torso was found in Michigan near a bridge over the Menominee River. The head and the hands had been severed from Wicks' body. According to Fruge, Gaede and Fruge returned the U-Haul to Fargo on January 4, 2002, and a few days later, after discovering the note from a Cass County deputy sheriff in the house in Gardner, they went to Milwaukee, where Gaede withdrew money from Wicks' bank accounts. Fruge testified that on the trip to Milwaukee, Gaede disassembled the handgun used to kill Wicks and had Fruge throw it into Lake Michigan. According to Fruge, they used Wicks' money to purchase an RV and traveled around the country. On January 16, 2002, Wicks' head was discovered in the Menominee River about 12 miles from where the torso was found.

[¶ 7] Gaede and Fruge were arrested in Nebraska in March 2002. Fruge initially made statements to several different individuals that indicated she had shot Wicks, but Fruge testified she made those statements because she and Gaede had concocted a plan whereby she would say she killed Wicks after he had raped her. Gaede did not testify at trial, but claimed Fruge shot Wicks and his only involvement was to help cover up the killing. A jury found Gaede guilty of murder, and he was sentenced to life imprisonment without parole.

[¶ 8] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.

II

[¶ 9] Gaede argues there was insufficient evidence to support his conviction because Fruge's testimony was not corroborated. Gaede claims Fruge was an accomplice and her testimony was not corroborated under N.D.C.C. § 29-21-14, which provides:

A conviction cannot be had upon the testimony of an accomplice unless the accomplice is corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.

[¶ 10] Gaede asserts the independent evidence after Wicks' death is equally as capable of proving Gaede was merely helping to cover up Fruge's crime as it is of proving he shot Wicks. Gaede claims that because Fruge was shown to be a dishonest person and a liar and because she confessed to the shooting, the evidence is insufficient to convict him of murder. The district court decided not to give an instruction requiring corroboration of the testimony of an accomplice, and Gaede did not object to the court's decision. The State thus claims Gaede failed to raise this issue in the district court and cannot now argue that corroboration of Fruge's testimony was necessary. The State also argues Fruge's testimony was corroborated in many important regards and there was sufficient evidence to support the conviction.

[¶ 11] "The purpose of corroborative evidence is to show that a testifying accomplice is a reliable witness and worthy of credit." State v. Zimmerman, 524 N.W.2d 111, 114 (N.D.1994); State v. Hogie, 454 N.W.2d 501, 503 (N.D.1990); State v. Haugen, 448 N.W.2d 191, 194 (N.D. 1989). In State v. Pacheco, 506 N.W.2d 408, 409 (N.D.1993), this Court said N.D.C.C. § 29-21-14 requires corroboration when a witness could be criminally responsible as an accomplice under N.D.C.C. § 12.1-03-01(1), which defines an accomplice as:

A person may be convicted of an offense based upon the conduct of another person when:

a. Acting with the kind of culpability required for the offense, he causes the other to engage in such conduct;

b. With intent that an offense be committed, he commands, induces, procures, or aids the other to commit it, or, having a statutory duty to prevent its commission, he fails to make proper effort to do so; or

c. He is a coconspirator and his association with the offense meets the requirements of either of the other subdivisions of this subsection.

A person is not liable under this subsection for the...