Dave Roepke, Published December 01 2010
Defense claims Nakvinda was never in Fargo
Michael Allen Nakvinda, a carpenter police accuse of killing Philip Gattuso in his south Fargo home with multiple hammer blows to the head, plans to testify in his own trial that Gene Carl Kirkpatrick has set him up to take the fall.
“In the end, he got framed. He got framed for a murder he didn’t commit,” said Nakvinda’s defense attorney, Steve Mottinger.
Kirkpatrick, who faces a murder conspiracy charge for allegedly paying Nakvinda to off his former son-in-law, will also take the stand in Nakvinda’s trial, and he’ll insist he didn’t pay his handyman to kill Gattuso and orphan his 4-year-old granddaughter.
The voluntary testimony from the grandfather will be for the state, though the same state’s attorneys have not given him any deal, will not drop the charges he faces and still plan to prosecute him this spring.
“Those offenses are not going away,” said Mark Boening, an assistant Cass County state’s attorney.
Police think Kirkpatrick paid $3,000 for Nakvinda to kill Gattuso because the 64-year-old didn’t want him raising Kennedy Gattuso, the daughter of Philip and Valerie Gattuso. He didn’t like how Gattuso’s adult sons from a prior marriage were raised, police believe.
Valerie Gattuso died from a heart illness seven months before her husband was killed. Before and after her death in March 2009, her family vied for custody of the couple’s only child.
“This case is, in a lot of ways, all about Kennedy,” Boening said, later adding: “The problem with Philip Gattuso was he had Kennedy.”
The contrasting theories of the sprawling case were outlined in opening statements Tuesday in the first day of Nakvinda’s trial in Cass County District Court for murder, theft, robbery and burglary. The trial is expected to last from six to nine days.
Mottinger sketched an alternative explanation for the evidence appearing to implicate Nakvinda: It was there because Kirkpatrick had a “carefully planned scheme to exact revenge.”
In addition to wanting to have custody of Kennedy, Kirkpatrick and his family were enraged that Gattuso wouldn’t sign off on an out-of-country stem-cell treatment for Valerie, he said.
Mottinger also said he’ll introduce as evidence of the family’s intentions an e-mail sent by Regan Williams, Gene Kirkpatrick’s other daughter, to her own attorney – a message she later showed her father. In that e-mail, Williams asks what would happen if they had Gattuso killed, he said.
Williams added in the e-mail, “Ha, ha, just kidding,” Mottinger said.
Before Valerie Gattuso’s death, the Kirkpatrick clan also hired a North Dakota investigator to try to dig up dirt on the dentist to use in an eventual custody case, Mottinger said.
After Philip Gattuso was killed, there was a custody battle over Kennedy waged by Williams and Philip’s brother, Roy Gattuso. Prior to the case going to trial, Williams withdrew, and the girl is with the Gattusos.
Mottinger said precisely how Nakvinda was framed will be impossible to show.
“Only Gene Kirkpatrick knows what happened,” he said.
However, Nakvinda will tell the jury what he knows happened, his lawyer said. He will claim Kirkpatrick had asked him to pick up a car up north and told him to go to a rest stop along Interstate 29 by Wahpeton, N.D., to await instructions on a citizens band radio.
He then got a CB radio message to come to a home in Wahpeton to spend the night, and the next day he woke up to find the trailer had a vehicle on it. So he drove back to Oklahoma as planned. He tried to drop the car at the Kirkpatricks’ house, but there was a sign out front that said they’d gone to North Dakota for a family emergency.
Nakvinda had never been in Fargo and was “flabbergasted” when he was arrested, Mottinger said.
Mottinger also noted that neither the DNA nor the fingerprints of Nakvinda were found at the crime scene, though there was an extensive investigation.
Minutes before, in the state’s opening statement, Boening had addressed the newly seated jury about the lack of physical evidence. He said there was enough other proof to make forensics unnecessary.
“That would be useful, but we can’t fabricate evidence,” he said.
In addition to detailing the string of circumstantial evidence that gave police cause to arrest Nakvinda, including witness accounts and video surveillance, the prosecution in its opening statement revealed several previously unpublicized pieces of the state’s case.
A hammer discovered in the stolen Porsche found in an Oklahoma City storage unit rented by Nakvinda had Gattuso’s blood and hair on it, Boening said.
Mottinger said while it’s impossible to discount that the stolen convertible was found in a space rented by Nakvinda, as well as the bloody hammer and stolen electronics inside the car, that’s not enough to warrant a conviction.
“It’s not the hammer that’s on trial. They need to prove it was Mike behind the hammer,” he said.
The state also identified the secret witness whose discovery delayed the trial from its initial start date in August: Debbie Baker.
Baker was a friend of both Kirkpatrick and Nakvinda and had also hired the handyman to do work for her, Boening said. In early October 2009, weeks before Gattuso was killed, Baker claims Nakvinda told her he’d use a hammer to handle Kirkpatrick’s problem with Gattuso.
Boening said the scene of the beating was so bloody it was hard to tell what had happened, and some investigators at first thought Gattuso had been shot. The dentist most likely took hours to die, he said.
Wearing a blue polo shirt and khaki pants, Nakvinda showed no outward signs of emotion Tuesday. The day started with 3½ hours of questioning potential jury members before seating a panel of nine women, three men and two alternates by midafternoon.
Some of the questions the attorneys used in narrowing the jury pool down from 36 to 14 foreshadowed the elements of their cases.
The defense was interested in what people already knew about the case and how open they could be to changing their minds.
Prosecutors zeroed in on whether a lack of forensic evidence would be seen as a problem in light of TV shows such as “CSI,” how different types of evidence would be weighed and views on co-defendants.
Readers can reach Forum reporter Dave Roepke at (701) 241-5535