Dave Roepke, Published December 15 2010
Nakvinda unlikely to provide testimony in Kirkpatrick's trial
That’s often the upshot of the first conviction in cases involving conspiracy allegations. A defendant found guilty typically has a built-in incentive – a break on sentencing – to testify in the still-pending cases.
Local criminal-law lawyers who’ve practiced from both sides of the aisle say that’s unlikely to happen in the second case linked to the murder of Fargo dentist Philip Gattuso because of the unusual circumstances.
Michael Nakvinda, the first man to stand trial for murdering Gattuso, was found guilty by a Cass County jury on Friday. The man accused of hiring him to kill the dentist, Gattuso’s former father-in-law, Gene Kirkpatrick, is slated for a March trial for conspiracy to commit murder.
Bruce Quick, a Fargo defense attorney and former Cass County prosecutor, said because of the defense mounted by Nakvinda – he claimed he’d been framed by Kirkpatrick – the state probably won’t want him to testify against Kirkpatrick.
That’s true even if Nakvinda, who had worked as Kirkpatrick’s handyman, changed his story and said he had been hired, he said.
“Who’s going to believe him now?” said Quick, who added Nakvinda will likely get at least a lifetime term in prison – probably without a chance for parole.
Robert Hoy, a West Fargo defense attorney who was Cass County State’s Attorney in the 1980s, agreed there is little Nakvinda’s testimony could do for the state’s case against Kirkpatrick.
“He’s already sort of damaged goods,” Hoy said.
Cass County State’s Attorney Birch Burdick has declined to talk about the effect the outcome of Nakvinda’s trial might have on the second case, other than to say the testimony that Kirkpatrick gave in the trial will be closely studied.
Mack Martin, an Oklahoma City attorney representing Kirkpatrick, didn’t return a message seeking comment. Martin observed three days of the trial last week, including testimony by his client and Nakvinda.
Kirkpatrick testifying for the state against Nakvinda was unusual for a conspiracy case, Quick and Hoy both said, and likely was a preview of Kirkpatrick’s defense in his own case.
In essence, Kirkpatrick said he’d talked to Nakvinda about killing the father of his granddaughter – who he wanted his family to raise due to concerns about the dentist’s parenting ability – but insisted they had never reached an agreement.
Kirkpatrick taking the stand to speak to that indicates he’s unlikely to agree to a plea deal and is probably heading to trial as scheduled, Hoy said.
“There doesn’t look like there’s much room here for a (negotiation),” he said.
On a conspiracy charge, the state must prove there was an agreement between two or more people to carry out a criminal act and that one of them committed an “overt act” to further that goal, Quick and Hoy said.
While the conviction of Nakvinda could amount to proof of the overt act, it’s not clear if the conviction will be admissible at the second trial, Hoy said.
As a general rule, prosecutors in conspiracy cases try the strongest case first, Hoy said.
The agreement in a conspiracy case doesn’t need to be explicit, Quick said. It could be argued that actions by Kirkpatrick show there was an implicit deal – including a tape he admits he made of Gattuso’s home for Nakvinda and $3,000 he gave his handyman.
Kirkpatrick testified last week that the $3,000, which he once told police was for “expenses” in the killing, was actually for building projects.
If Kirkpatrick’s case does come to a jury, it’s possible it could be moved due to the publicity generated by Nakvinda’s trial. It’s more of a possibility now than it was with Nakvinda’s trial, and it could even happen before jury selection is attempted, Quick said.
But Hoy said he still anticipates the attorneys will try to seat a jury in Fargo.
“The test is not if they’ve heard about,” he said. “It’s if they’ve heard about it enough that they’ve made up their mind.”
Readers can reach Forum reporter Dave Roepke at (701) 241-5535