Witness For The Prosecution: Policeman At The Scene: Officer Hamm

MINNESOTA YMCA YOUTH IN GOVERNMENT

TRIAL COURT

TRIAL PACKET

Minnesota v. Kelmar

2012

Case 3

TABLE OF CONTENTS

INTRODUCTION 1

BACKGROUND 2

CHARGES AND STIPULATIONS 4

JUDGE’S INSTRUCTION TO THE JURY 7

WITNESSES AND TESTIMONY 10

Prosecution Witness: OFFICER LEE KIM 10

Prosecution Witness: KENDALL LYNCH 12

Prosecution Witness: DR. CARMEN NICHOLS 14

Prosecution Witness: DR. MERRILL ROTH, CORONER 16

Defense Witness: DEVON KELMAR, DEFENDANT 18

Defense Witness: JAMIE FERGUSSON 21

Defense Witness: DR. DENALI MOORAD 23

Defense Witness: LINDEN MURPHY 26

EXHIBITS 28

CREDITS 31

Minnesota v. Kelmar

Trial Court Case

2012

INTRODUCTION

On Friday, February 25, 2003, Kendall Lynch had a party. Cory, Devon, and Jamie all attended the party. Cory and Devon saw each other and briefly spoke. They left the gym together. Jamie went to the locker area and Devon went to the parking lot. Devon and Cory met in the parking lot near Devon’s car. Shortly thereafter, several shots were fired, Cory sustained three gun shot wounds – one through the left forearm, one to the upper left chest, and a third through the middle of the head. Devon ran from the scene. Jamie heard shots fired. Kendall and Principal Murphy saw the incident.

BACKGROUND

New Prague is a town of 40,000 people just outside the larger city of St. Cloud. New Prague is a close‑knit community where everybody knows each other’s business and truth and fiction spread rapidly. Many families have lived in the New Prague region for generations.

Devon Kelmar’s family moved from St. Cloud to New Prague in 2001, just before Devon’s junior year at New Prague High School. Devon was active in school, and began playing in a local band with a neighbor friend, Jamie Fergusson. During Devon’s senior year, Devon experienced trouble in school. Early September 2002, Devon’s father died. Devon’s mother sought advice from a close friend and family therapist, Dr. Carmen Nichols. Devon went to see Dr. Nichols twice. In January 2003, Devon turned 18 years old and was looking forward to graduation from New Prague High. Kendall Lynch and Cory Jackson were also seniors at New Prague High.

On Friday, February 25, 2003, Kendall Lynch had a party. Cory, Devon, and Jamie all attended the party. Cory and Devon saw each other and briefly spoke. February 26 was the championship basketball game at New Prague High School. Devon went to the game early and parked in a lot across the street from the school. Jamie arrived later and sat with Devon during the game. Cory and Kendall were at the game, as well as Principal Lynden Murphy. After the game, Devon and Jamie stayed to congratulate their friends on the team’s victory. They left the gym together. Jamie went to the locker area and Devon went to the parking lot. Devon and Cory met in the parking lot near Devon’s car. Shortly thereafter, several shots were fired, Cory sustained three gun shot wounds – one through the left forearm, one to the upper left chest, and a third through the middle of the head. Devon ran from the scene. Jamie heard shots fired. Kendall and Principal Murphy saw the incident.

Jamie called 911 and several police officers arrived on the scene. Officer Lee Kim checked the body for vital signs and found none. Officer Kim recovered two shell casings but no bullets from the scene. After interviewing the witnesses, Officer Kim and partner Lynn Estrada patrolled the area. Approximately 1/4 mile from New Prague High, they saw a person they thought to be the suspect, Devon Kelmar. The officers stopped Devon who said, “I had to do it. Cory threatened me with a knife.” Officer Kim asked Devon some routine questions and then arrested and Mirandized Devon. In a search incident to the arrest, Officer Kim searched Devon’s backpack and recovered a .25 caliber, 6‑shot, semiautomatic handgun.

The coroner, Dr. Merrill Roth, determined that Cory had suffered massive hemorrhaging from three gunshot wounds. Dr. Roth measured the path angles of the bullets and the probable distance Cory was from the weapon which fired the shots. Dr. Roth found a small folding pocket knife similar to a swiss army knife in Cory’s left rear pantpocket.

During the investigation, Officer Kim spoke with Dr. Nichols. Dr. Nichols gave information about therapy sessions with Devon believing it to be a therapist’s duty under the law and the dangerous patient exception to the psychotherapist‑patient privilege.

NOTE: The background information is only a summary of the witness testimony. Witness testimony may contradict the background information.

CHARGES AND STIPULATIONS

A. Charges. The defendant has been charged with the following crimes. Remember, the defendant is presumed innocent (not guilty). Unless you find that the prosecution proved each element of a charge, then you must acquit the defendant of that charge.

1. Count 1 – Murder in the First Degree. The elements of the crime are:

a. First, the death of Cory Jackson must be proven.

b. Second, defendant caused the death of Cory Jackson.

c. Third, defendant acted with premeditation and with the intent to kill Cory Jackson. Premeditation means that defendant considered, planned, prepared for or determined to commit the act before defendant committed it. Premeditation, being a process of the mind, is wholly subjective and hence not always susceptible to proof by direct evidence. It may be inferred from all the circumstances surrounding the event. It is not necessary that premeditation exist for any specific length of time. A premeditated decision to kill may be reached in a short period of time. However, an unconsidered or rash impulse, even though it includes an intent to kill is not premeditated.

In order to have had an intent to kill, defendant must have acted with the purpose of causing death or defendant must have believed that the act would have that result.

d. Fourth, defendant’s act took place on or about February 26, 2003, in New Prague, Minnesota.

e. If you find that each of these four elements has been proven beyond a reasonable doubt, defendant is guilty of murder in the first degree.

If you have a reasonable doubt that there was premeditation, but you find that all the other elements have been so proven, then the defendant is guilty of murder in the second degree. The crime of murder in the second degree differs from murder in the first degree only in that the killing was done with intent to kill another person but not with premeditation. If you find that any other element other than premeditation has not been proven beyond a reasonable doubt, defendant is not guilty of murder in the second degree.

2. Excuse --Self Defense.

a. No crime (neither murder in the first degree nor murder in the second degree) is committed when a person takes the life of another person, even intentionally if the defendant’s action was take in resisting or preventing an offense which defendant reasonably believed exposed defendant (or another) to death or great bodily harm.

b. In order for a killing to be excused for this reason, three conditions must be met:

i. First, the killing must have been done in the belief that it was necessary to avert death or great bodily harm.

ii. Second, the judgement of defendant as to the gravity of the peril to which (he) (she) was exposed must have been reasonable under the circumstances.

iii. Third, defendant’s election to defend must have been such as a reasonable person would have made in light of the danger perceived and the existence of any alternative way of avoiding the peril.

c. All three of these conditions must be met, but the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.

d. The legal excuse of self-defense is available only to those who act honestly and in good faith. This includes the duty to retreat or avoid the danger if reasonably possible.

B. Stipulations. Each party to the case agrees (or “stipulates”) that the following statements or events are true and correct:

1. Devon Kelmar, the defendant, and Cory Jackson, the victim, are the same gender.

2. Devon Kelmar was properly Mirandized and no Fifth Amendment argument will be heard regarding any statements made by the defendant at the time of the arrest.

3. Devon Kelmar’s backpack was properly searched in accordance with the warrant exception of a search incident to an arrest. No Fourth Amendment argument will be heard regarding this search.

4. Officer Lee Kim is a fingerprint expert and is qualified to give opinion testimony.

5. Dr. Carmen Nichols and Dr. Denali Moorad are psychotherapists and are medical expert witnesses who are qualified to provide opinion testimony.

6. Dr. Merrill Roth, the coroner, is a medical expert witness qualified to provide opinion testimony.

7. Any issues over the liability of Dr. Carmen Nichols for violation of the psychotherapist‑patient privilege were adjudicated in and settled upon in separate proceedings.

JUDGE’S INSTRUCTION TO THE JURY

A. Before Trial Begins.

1. Ladies and gentlemen: You now are the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some instructions. At the end of the trial I will give you more detailed instructions. Those instructions will control your deliberations.

2. This is a criminal case. A complaint has been filed with this court which alleges: that defendant, Devon Kelly murdered Cory Jackson.

3. To these charges, the defendant has plead not guilty. This plea denies the charges made against the defendant and places upon the State of Minnesota the burden of proving defendant’s guilt beyond a reasonable doubt. The charges are not evidence and creates no inference or presumption of guilt.

4. The defendant is presumed innocent of the charges and in order to find the defendant guilty of such charges, the State must prove guilt. The defendant does not have to prove innocence. The presumption of innocence remains with the defendant unless and until the defendant has been proven guilty beyond a reasonable doubt by evidence admitted in this trial.

5. In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.

B. Instructions After Parties Rest.

1. Members of the jury, now that you have heard all the evidence and the arguments of attorneys, it is my duty to instruct you on the law which applies to this case.

2. It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it -- that means that you must decide the case solely on the evidence before you. You will recall that you took an oath promising to do so at the beginning of the case.

3. You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict, whether guilty or not guilty on each count, must be unanimous.