Dave Roepke, Published January 28 2011
Philip Gattuso murder trial: Judge allows key part of caseAn alleged confession by Gene Kirkpatrick, the man accused of hiring a hitman to kill his former son-in-law, was voluntary and is admissible at trial, a judge ruled Thursday.
Judge Steven Marquart said neither Kirkpatrick’s mindset during the nearly three-hour interview with police nor the manner of questioning conducted deprived Kirkpatrick of his free will to choose to talk.
The ruling approves the key piece of the state’s case against Kirkpatrick, who is slated to stand trial starting July 19 in Cass County District Court on a charge of conspiracy to commit murder.
He’s accused of paying his handyman, Michael Nakvinda, $3,000 for expenses with the promise of $10,000 more to kill Philip Gattuso, a Fargo dentist.
Nakvinda was convicted of murder, robbery, theft and burglary in a December jury trial.
Five days after Gattuso was beaten to death with a hammer on Oct. 26, 2009, a Fargo police detective and an Oklahoma state crime investigator interviewed Kirkpatrick in Jones, Okla.
In that interview, which jurors heard in Nakvinda’s trial, Kirkpatrick said he considered the life of his granddaughter – Gattuso’s 3-year-old daughter – more valuable than Gattuso’s.
Since her mother died earlier in 2009, the Kirkpatrick family wanted custody of the toddler, he told police. Though he maintained he didn’t give Nakvinda a “green light” to go ahead with the murder-for-hire, Kirkpatrick admitted he had paid Nakvinda and videotaped Gattuso’s home at Nakvinda’s request.
Kirkpatrick argued that his statements were involuntary because of the combined effect of a variety of reasons – including a lack of sleep and food, his scant experience with police, his grief over his daughter’s death eight months prior and the “psychological pressure” applied by police.
Police told Kirkpatrick he had been implicated by Nakvinda, which was false.
Marquart didn’t rule on a second motion made by Kirkpatrick asking that the trial be moved out of Fargo. That motion will be considered closer to the date of the trial, which had been scheduled until this week to start on Feb. 28.
The motion to change the trial venue is based on the assumption that the Cass County jury pool has been biased by media coverage of the case, and that could change between now and July, Marquart said.
Sentencing for Nakvinda is scheduled to be ordered in a hearing today in front of Judge Frank Racek. The maximum sentence would be a lifetime prison term with no chance for parole.
In a letter sent to Racek and filed with the court on Jan. 14, Nakvinda said he’s planning to appeal the jury verdicts against him.
Nakvinda wrote in the letter that he hasn’t had access to most of the evidence against him, and he claimed a prosecutor told him police thought one of the state’s witnesses was not telling the truth.
The witness, Debbie Baker, was a former client who testified Nakvinda told her weeks before Gattuso was killed that he’d use a hammer if he murdered him.
Finding Baker in late July delayed Nakvinda’s trial from August to December, giving the defense time to investigate her allegation – which Nakvinda denied.
Mark Boening, the assistant Cass County state’s attorney referenced in the letter, said Thursday that while he did tell Nakvinda and his attorney that some in law enforcement didn’t believe Baker’s story, prosecutors found no reason to discredit her statements.
“We did not put on any perjured testimony, to the best of my knowledge,” he said.
Readers can reach Forum reporter Dave Roepke at (701) 241-5535