Supreme Court denies Kalmio appeal

The North Dakota Supreme Court has denied Omar Mohamed Kalmio’s appeal of his Feb. 4, 2013, conviction in the murder of four people in Minot.

He was convicted of murdering his girlfriend Sabrina Zephier, 19; Sabrina’s brother, Dylan Zephier, 13; their mother, Jolene Zephier, 38; and Jolene’s boyfriend, Jeremy Longie, 22, on Jan. 28, 2011.

Kalmio’s case was brought to trial on Jan. 23, 2013, and ended Feb. 4, 2013.

In his appeal, filed by by attorney Russell John Myhre who practices in Valley City, Kalmio argued that the conviction should be reversed because of prejudicial prosecutorial conduct including the admission of hearsay testimony, testimony regarding previous bad acts, denying his request for an alibi jury instruction and denying his motion for mistrial on the grounds of prosecutorial misconduct.

The district court’s conviction was affirmed in the court’s opinion, written by Justice Daniel John Crothers, joined by Justice Dale V. Sandstrom and Chief Justice Gerald W. VandeWalle. Justice Carol Ronning Kapsner dissented and Justice Mary Muehlen Maring joined in the dissent.

“We conclude the district court did not abuse its discretion in allowing hearsay testimony at trial, in denying his request for an alibi jury instruction and in denying Kalmio’s motion for a mistrial on the grounds of prosecutorial misconduct,” Crothers wrote in his judgment. “Sufficient evidence exists to support the guilty verdicts. We affirm the district court judgments entered after a jury found him guilty of four counts of Class AA felony murder.”

Kapsner wrote that she dissented from the majority opinion “[b]ecause I believe the district court committed prejudicial error in the admission of hearsay evidence under the state-of-mind exception to the hearsay rule, I would reverse the judgments of convictions and remand this case to the district court for a new trial. I note that, on remand, nothing would prohibit the district court from analyzing or admitting the statements at issue, and even their underlying facts, under a different exception to the hearsay rule or as nonhearsay, if applicable.”