Stephen J. Lee, Forum News Service, Published December 04 2013
Former Grand Forks police officer acquitted of terrorizing charge
The jury of eight men and four women deliberated about 90 minutes after hearing several prosecution witnesses Tuesday and Wednesday.
Because the incident involved a firearm, Prelip faced a mandatory two years in prison if he had been convicted of the terrorizing charge and possibly up to five years.
Now living near the Twin Cities, Prelip, 28, did not testify. Days after the incident last year, when Police Chief John Packett launched an internal investigation, Prelip quit after nearly three years on the force.
Cash Aaland, the Fargo attorney who defended Prelip, won a key victory before the jury began deliberating: State District Judge Sonja Clapp granted his request Wednesday to include a “lesser included charge” of disorderly conduct for the jury to consider if it first found Prelip not guilty of the felony count of terrorizing.
Paul Emerson, the assistant attorney general for the state who prosecuted the case, opposed Aaland’s move, saying the misdemeanor disorderly conduct charge didn’t fit the test under state law and practice for being included as a lesser charge to terrorizing.
The issue led to a sharp exchange between the attorneys, as Aaland told Clapp he wanted it on the record he had not “ambushed” Emerson on Wednesday with the lesser charge request because he had informed him in writing of his plans six weeks before.
Swearing, Emerson cut Aaland off, saying that history was irrelevant now that Clapp was considering it.
Prelip, who had maintained a stoic demeanor during the trial, then betrayed a slight smile and shook Aaland’s hand and said, “That was fair.”
“This case was overcharged from the start. The jury did the right thing,” Aaland said after the verdict was read.
Joke or threat?
In his closing, Emerson said there was no dispute from witnesses or Prelip himself that the then-cop held a gun to Linn’s head after hours of drinking by several law enforcement officers, and Linn and made some comment such as “Freeze, mister … on your knees.”
At the time, Linn did not know if Prelip’s .45-caliber Glock semiautomatic was loaded, Emerson said, citing varying accounts Linn gave to investigators and while on the stand.
Despite Linn’s own testimony that he took it at first as a joke, Emerson said that didn’t matter.
“Threats can be made in speech, deeds or action,” he said. “I submit to you a gun held to your head by someone you just met who is a police officer is a threat.”
Aaland told the jury that Prelip’s “stupid” act wasn’t a crime.
“The issue in this case is not whether it’s stupid to clown with a gun. It’s dumb, it’s really dumb, for a police officer to clown with a gun. But that’s not the question before you,” he said, turning to point to Emerson. “The only question before you is whether or not the prosecution’s case is so good it took away all of your reasonable doubt whether or not Mr. Prelip’s conduct amounted to felony terrorizing.”
Earlier Wednesday, Linn testified that he feared retaliation from police officers as he decided to report the incident.
He wanted to talk with a police officer in his own home, rather than go down to the police station, Linn testified, because if one of the officers at the party saw him there, “they would know why I was there.”
No one denied Prelip held a gun to Linn’s head about 3 a.m. Aug. 29, 2012, after hours of drinking by both as well as others with them.
The question was whether it was a joke or a real threat.
Night of drinking
Linn was 21 and a University of North Dakota student at the time when he partied with several law enforcement officers he met through UND Police Officer Cheryl Sevigny at the Tavern in Canad Inns on Aug. 28, 2012.
He had “18 to 20” drinks between about 9:30 p.m. and when the bar closed about 2 a.m., Linn testified.
He rode with Sevigny over to Prelip’s house, where they drank and socialized for another two hours with Prelip, city Police Officer Wesley Vert and Luke Olson, who at the time was a Grand Forks County sheriff’s deputy.
After about 20 minutes at Prelip’s house, Prelip held a gun to Linn’s head.
Linn said Prelip held the gun to his head for about 10 seconds. He said Vert was wrong in his testimony Tuesday that it was “one or two seconds.”
Aaland asked Linn if he had told Prelip during the incident, “Go ahead and shoot me.”
He did, Linn said.
“Did you want him to shoot you?”
“Of course not,” Linn replied.
“But you asked him to shoot you,” Aaland pressed him.
“Yes, in a joking manner,” Linn said.
Linn told police investigators last year he never felt threatened by Prelip that night.
Aaland asked Linn whether the drinking affected his memory of the events. Linn said it didn’t.
Aaland elicited testimony from Linn that his version of the incident varied from Vert’s, including what side of his head Prelip placed his gun against, and whether Linn was standing or sitting at the time.
Linn’s testimony was unclear on whether he knew the gun Prelip used in the incident was unloaded at the time. He said he saw Prelip holding its magazine in his other hand while holding the gun against Linn’s head, and Prelip worked the slide afterward showing there had not been a round in the chamber.
After Aaland’s cross-examination of Linn, prosecutor Emerson had a short “re-direct” questioning of Linn:
“Following the incident with the gun to your head, did the defendant make any statement to you about that conduct later that night.”
Linn replied: “He said, ‘I shouldn’t have done that.’ ”
Aaland had one re-cross question for Linn: “And you said, ‘Don’t worry about it, I knew you were joking.’ ”
“At the time,” Linn said.