State v. Kalmio
846 N.W.2d 752
| N.D. | 2014Background
- Omar Mohamed Kalmio was tried by jury and convicted of four counts of class AA felony murder for the January 28, 2011 killings of Sabrina Zephier, Jolene Zephier, Dylan Zephier, and Jeremy Longie; all victims were shot with the same firearm, which was not recovered.
- Evidence at trial included testimony about a volatile relationship between Kalmio and Sabrina, disputes over custody/tax claims for their child, sightings of a white truck like one Kalmio had access to near a crime scene, and witnesses reporting threats and prior abuse.
- The State sought to admit (1) out-of-court statements by the victims through third‑party witnesses under the then-existing state-of-mind hearsay exception (N.D.R.Ev. 803(3)) and (2) limited prior-bad-act evidence; the district court held pretrial hearings and made preliminary admissibility rulings.
- Kalmio did not serve a Rule 12.1 alibi notice but requested an alibi jury instruction at trial; the court denied the instruction.
- During closing argument the prosecutor used a PowerPoint slide with images (a gun and red circles); the court ordered those images removed and denied a mistrial.
- Kalmio challenged admissibility of hearsay/state-of-mind testimony, denial of the alibi instruction, denial of mistrial for alleged prosecutorial misconduct, and sufficiency of the evidence on appeal; the majority affirmed the convictions, with a dissent arguing prejudicial hearsay error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of hearsay (state-of-mind statements) | State: victim statements showing fear were admissible under Rule 803(3) to show motive/intent and why victims acted as they did | Kalmio: statements were inadmissible hearsay or exceeded the scope of the state-of-mind exception and were prejudicial | Court: admission was within district court's broad discretion; statements were minimally relevant to motive/intent and properly limited; no abuse of discretion |
| Prior bad acts evidence | State: limited prior-act testimony relevant to motive, intent, plan | Kalmio: prior-acts evidence unduly prejudicial/waived specific objections | Court: district court ruled on admissibility pretrial; on appeal Kalmio waived some prior-act objections by not briefing them; no abuse of discretion as to those preserved |
| Alibi instruction (Rule 12.1) | State: defendant failed to comply with Rule 12.1 notice requirement and had ample opportunity to provide alibi details | Kalmio: alibi raised by evidence (work at Williston rigs) so instruction should be given despite lack of formal notice | Court: refusal proper—Kalmio failed to file required notice and presented no sufficient evidence to raise reasonable doubt on alibi; no abuse of discretion |
| Prosecutorial misconduct / mistrial (PowerPoint images) | State: images were part of argument; court cured any error by excising images and instructing jury to disregard | Kalmio: images (gun, red circles) improperly inflamed jury and warranted mistrial | Held: even assuming improper, removal and jury admonition cured prejudice; presumption that jury follows instruction; no due-process violation |
| Sufficiency of evidence | State: circumstantial evidence (motive, access to trucks/keys, witnesses, same weapon used) supports conviction | Kalmio: evidence purely circumstantial, no direct link (no weapon, no eyewitness placing him at scenes) | Court: viewing evidence in light most favorable to verdict, competent circumstantial evidence supported convictions |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (Confrontation Clause bars admission of testimonial hearsay unless witness unavailable and defendant had prior opportunity to cross-examine)
- Davis v. Washington, 547 U.S. 813 (distinguishes testimonial from nontestimonial statements for Crawford rule)
- Schumacker v. Schumacker, 796 N.W.2d 636 (N.D. 2011) (clarifies Rule 803(3) state-of-mind exception requirements: contemporaneousness, lack of motive to misrepresent, and relevance to an issue)
- Tokars v. United States, 95 F.3d 1520 (11th Cir.) (victim’s state of mind admissible to show defendant’s motive where defendant knew of that state of mind)
- State v. Chisholm, 818 N.W.2d 707 (N.D. 2012) (district court’s evidentiary rulings reviewed for abuse of discretion)
- State v. Pena Garcia, 812 N.W.2d 328 (N.D. 2012) (standards for prosecutorial misconduct and prejudice review)
- State v. Zottnick, 796 N.W.2d 666 (N.D. 2011) (standard for appellate review of sufficiency of the evidence)