Stephen J. Lee, Forum News Service, Published October 22 2013
Conviction overturned in 2011 shootingGRAND FORKS - The North Dakota Supreme Court has overturned the 2012 conviction of Travis Samshal, a Grand Forks man sentenced to nearly three years in prison for shooting a rifle at his roommate in their apartment.
In an opinion released Tuesday, the court said state District Judge Debbie Kleven improperly excluded threatening statements allegedly made by the victim, Leo Franco, that were part of Samshal’s defense that he feared for his safety when he fired his hunting gun toward Franco Dec. 14, 2011.
A jury a year ago acquitted Samshal of attempted murder but found him guilty of reckless endangerment. Kleven sentenced him to five years in prison with 28 months suspended and he began serving it last Dec. 28. Samshal was given credit for 35 days already served.
After several months at the state prison, Samshal, 28, now is at Centre, a Fargo half-way house where he has a job, said his attorney Blake Hankey.
If prosecutors don’t file for a rehearing of the high court’s decision within two weeks, Samshal will be a free man, no longer a convicted felon, Hankey said.
Prosecutors still could decide on a new trial, Hankey said.
“We are hopeful he won’t be retried, since he’s already served about a year,” Hankey said. Franco apparently has left the area, so his return for a new trial could be problematic, Hankey said.
Jason McCarthy and Meredith Larson, assistant state’s attorneys for Grand Forks County, tried the case. Larson argued against the appeal before the Supreme Court.
McCarthy said late Tuesday he was in court most of the day and hadn’t read the entire Supreme Court opinion yet. No decisions have been made on whether to seek a rehearing of the opinion or to retry Samshal, he said.
“We have to speak with the victims as well,” said McCarthy, adding he believes Franco still lives in the area.
Hankey said his colleague, Kelsey Gentzkow, argued the successful appeal before the Supreme Court.
Judge Kleven had ruled last year that Samshal’s account of Franco threatening him was hearsay and not admissible at trial.
But the Supreme Court agreed with Samshal that his account fell into an exception to the exclusion of hearsay evidence because he was not alleging the truthfulness of Franco’s alleged threats but only using them to show his own state of mind, that he feared for his life when he shot toward Franco.
The state’s high court also ruled Kleven erred, when instructing the jury, by not including details about state law that deadly force is justified in cases of “lawful self-defense.”
Kleven ruled the force was not deadly, so the instructions about the lawful use of deadly force were not relevant. Instead, she told the jury, “A person is not justified in using more force than is necessary and appropriate under the circumstances.”
The Supreme Court ruled that because Samshal admitted firing the rifle in an apartment building where other people lived, it was deadly force and the full definition in state law of deadly force, including when it’s justified, should be given to the jury as instruction.
At trial, Samshal said after a night of heavy drinking together, he and Franco argued and Franco began pushing his way into Samshal’s bedroom, making threats.
The two both testified they had previously fought over Thanksgiving 2011, each getting black eyes and blaming the other.
They often hunted together and each had weapons in their apartment.
The two men roomed together for about seven months and Samshal said they got along much of the time, but that Franco became controlling, making “weird” advances, including hugs and kisses that “creeped me out.”
Franco, who immigrated from Cuba in 2002, said Samshal misunderstood cultural differences. Franco said the night of the shooting he was trying to console Samshal who he said was depressed about being “a loser.”
The trial included denials from both men on the stand that they were homosexual.
Samshal said his small stature had made him the target of bullying his whole life, including from Franco, who was larger and muscular.
Samshal testified he fired his 7 mm Ruger rifle toward Franco from a few feet away, deliberately missing his head by a few inches, as a last resort to stop Franco’s bullying and threatening behavior.
Franco said it wasn’t until police arrived and showed him the bullet hole in the wall that he realized how close it came to his head.
Prosecutors charged Samshal with attempted murder, which could have put him in prison for 20 years, but the jury found him guilty only of the lesser charge of reckless endangerment, which carries a maximum sentence of five years.