State v. Vickerman
| Decision Date | 10 November 2022 |
| Docket Number | 20220085 |
| Citation | 981 N.W.2d 881 |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. Christopher Alan VICKERMAN, Defendant and Appellant |
| Court | North Dakota Supreme Court |
Rozanna C. Larson, State's Attorney, Minot, ND, for plaintiff and appellee.
Robert W. Martin, Minot, ND, for defendant and appellant.
[¶1] Christopher Vickerman appeals from a judgment entered following his conviction by a jury of a class AA felony murder. Vickerman asserts there was insufficient evidence to warrant a conviction, the district court abused its discretion in admitting hearsay statements of the victim, he was denied his right to confront a witness, the trial judge demonstrated impermissible bias during sentencing, and the court imposed an improper sentence of a term of years exceeding his life expectancy when the maximum sentence of life without parole requires the calculation of his life expectancy. We affirm the conviction and remand for resentencing.
[¶2] On May 10, 2019, the victim, Vickerman's father, was found deceased in his home, with four gunshot wounds. Video surveillance footage from the home's security system captured video of the victim falling to the ground after opening the door. The video also showed an individual matching the description of Vickerman and his clothing enter the home, set a gun down, pick up items off the floor, and perform CPR on the victim. Vickerman was charged with a class AA felony murder.
[¶3] Prior to trial the State sought an evidentiary ruling on the admissibility of testimony from witnesses regarding Vickerman's relationship with the victim, including statements made by the victim before his death. The testimony was intended to prove there were issues between Vickerman and the victim relating to a house and the custody of Vickerman's children. Vickerman objected to the anticipated testimony arguing the victim's statements were hearsay and a violation of Vickerman's right to confront the declarant. The State argued the statements were an exception under N.D.R.Ev. 803(3) and were non-testimonial in nature. The district court found the statements were admissible under N.D.R.Ev. 803(3) and were non-testimonial.
[¶4] At trial, Scott Redding, Mike Nason, Stephen Burton, and Mark Hunt provided testimony regarding the issues between Vickerman and the victim relating to a house and the custody of Vickerman's children. These witnesses further testified as to the fear the victim had that Vickerman may hurt him. Vickerman raised the same objections at trial that he raised in the hearing prior to trial.
[¶5] During trial the State offered testimony by a ballistics expert, who determined that he could neither include nor exclude the bullets from Vickerman's gun as ones being fired from the murder weapon. The medical examiner also testified the victim received four gunshot wounds to his head and chest and died as a result of those wounds.
[¶6] The maximum sentence for a class AA felony murder is life without parole. Vickerman was sentenced to 100 years, 20 years suspended, along with a four year minimum mandatory under N.D.C.C. § 12.1-32-02.1. His sentence also included a term of probation following Vickerman's release from custody. As required under N.D.C.C. § 12.1-32-09.1, Vickerman must serve at least 85% of the sentence as a violent offender.
[¶7] During sentencing, the district court considered the statutory factors under N.D.C.C. § 12.1-32-04. The court also expressed frustration with the Department of Corrections’ perceived shortening of sentences since the oil boom and described Vickerman's conduct as "despicable, less than honorable." Vickerman now raises the issues identified above on appeal.
[¶8] Vickerman challenges the admission into evidence of statements made to Redding, Nason, Hunt, and Burton by the victim as hearsay. "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. Kalmio , 2014 ND 101, ¶ 10, 846 N.W.2d 752 (quoting 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." Kalmio , at ¶ 10 (quoting Chisholm , at ¶ 10 ).
[¶9] 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)-(c)(2). As a general rule, hearsay evidence is inadmissible. N.D.R.Ev. 802. The statements at issue in this case were properly considered hearsay.
[¶10] An exception to the general rule excluding hearsay allows for admittance of "[a] statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will." N.D.R.Ev. 803(3). The exception requires that "[1] the declarant's statement must be contemporaneous with the mental or emotional state sought to be proven, [2] there must be no circumstances suggesting a motive for the declarant to misrepresent his or her state of mind, and [3] the declarant's state of mind must be relevant to an issue in the case." Schumacker v. Schumacker , 2011 ND 75, ¶ 15, 796 N.W.2d 636 (citation omitted).
[¶11] A hearsay declarant's state of mind may be relevant to a criminal act when it shows a defendant's motive to engage in that act. Kalmio , 2014 ND 101, ¶ 20, 846 N.W.2d 752 (citing 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 803.05[2][a] n. 7 (2nd ed. 2013)). This may be true even when the declarant is a victim. Kalmio , at ¶ 20. "[E]vidence of victim's state of mind is admissible under Fed.R.Evid. 803(3), at least when relevant to defendant's motive to kill[.]" Id. (quoting Weinstein & Berger, supra (citing United States v. Tokars , 95 F.3d 1520, 1535 (11th Cir. 1996) )). This ruling was illustrated in Kalmio when this Court affirmed a district court's ruling that a homicide victim's statements to others about her fear of the defendant were admissible under N.D.R.Ev. 803(3) to show the defendant had a motivation to kill her. Kalmio , at ¶ 22.
[¶12] Hunt testified that the victim informed him the relationship between Vickerman and the victim had "deteriorated." Hunt testified there were times when the victim called Hunt and asked him to come over when Vickerman was expected at the victim's house. When asked why, Hunt testified that "[the victim] was concerned of what [Vickerman] might do." After considering the Schumacker factors, the district court found these statements admissible to illustrate the victim's concerns for safety against Vickerman. The victim's statements were contemporaneous with his mental or emotional state sought to be proven, there were no circumstances suggesting a motive for the declarant to misrepresent his state of mind, and the victim's state of mind was relevant to an issue in the case. The court's admission of the statements was not arbitrary, capricious, or unreasonable, and did not misinterpret or misapply the law. We conclude the district court did not abuse its discretion in admitting the statements.
[¶13] Redding testified about the relationship troubles between the victim and Vickerman and that the victim was applying for custody of Vickerman's children. Redding also testified that the victim said he was afraid of Vickerman and that if anything ever happened to him, it was Vickerman that did it. After considering the Schumacker factors, the district court found that the victim's "statement to Redding as to his concern for his life to be contemporaneous with [his] state of mind," the victim did not have reason to "misrepresent his concern," and the victim The court's admission of the statements was not arbitrary, capricious, or unreasonable, and did not misinterpret or misapply the law. We conclude the district court did not abuse its discretion in admitting the statements.
[¶14] Nason testified he had a professional relationship with the victim who serviced weapons at the store where Nason worked. Nason testified the victim asked to speak with him in April 2019 and informed Nason that "if anything should happen to him, any harm should come to him, that they should look at his son [Vickerman]." After considering the Schumacker factors, the district court found the victim's "fear [was] relevant to demonstrate why he undertook certain actions relevant to the case" and was relevant "toward motive and intent in regard to Vickerman." The victim's statements were contemporaneous with his mental or emotional state sought to be proven, there were no circumstances suggesting a motive for the declarant to misrepresent his state of mind, and the victim's state of mind was relevant to an issue in the case. The court's admission of the statements was not arbitrary, capricious, or unreasonable, and did not misinterpret or misapply the law. We conclude the district court did not abuse its discretion in admitting the statements.
[¶15] Burton testified as to the issues between the victim and Vickerman and answered affirmatively that the victim was afraid of Vickerman. Burton testified that the victim told him to call the victim if Vickerman was ever found in the neighborhood. The district court found the victim's "concern for his life [was] relevant to demonstrate why he voiced he was afraid of being killed, and such concerns [were]...
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State v. Brame
...was biased in sentencing him. "A judge is presumed by law to be unbiased and not prejudiced." State v. Vickerman, 2022 ND 184, ¶ 23, 981 N.W.2d 881 (quoting State v. Jacobson, 2008 ND 73, 6, 747 N.W.2d 481). Brame provides no legal argument or factual support as to how the court was biased ......