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N.D. Supreme Court orders new trial for man convicted of 2014 murder

BISMARCK--A man serving a life sentence for the murder of a Grand Forks man will get a new trial after a court did not properly instruct the jury on considering information about his part in an alleged burglary, North Dakota's highest court ruled...

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Delvin Lamont Shaw reacts to his sentencing in the courtroom for the murder of Jose Lopez on Friday, July 31, 2015, in Grand Forks, N.D. (Logan Werlinger/Grand Forks Herald)

BISMARCK-A man serving a life sentence for the murder of a Grand Forks man will get a new trial after a court did not properly instruct the jury on considering information about his part in an alleged burglary, North Dakota's highest court ruled Wednesday.

In a 4-1 decision, the North Dakota Supreme Court ruled the Grand Forks District Court "misapplied the law and abused its discretion in admitting evidence against 32-year-old Delvin Lamont Shaw, who was found guilty by a jury last year for the June 24, 2014, murder of Jose Luis "Joe" Lopez.

"After reviewing the entire record, we cannot conclude the admission of the evidence of the earlier burglary without the required analysis and without a cautionary instruction was harmless error," the ruling stated.

Investigators said Shaw, who defended himself in court, broke into Lopez's Grand Forks apartment, where the victim, his fiancee and their 2-year-old daughter were sleeping, and shot him to death. Shaw, who is from Winston-Salem, N.C., received the maximum penalty for the Class AA felony-life in prison without parole. The jury also found him guilty of burglary, a Class B felony.

Prosecutors relied on testimony regarding Shaw's alleged involvement in an earlier burglary during the trial. Grand Forks Police developed the theory that Shaw took part in a burglary four days before the murder in an apartment above Lopez's and that he broke into the wrong unit when he later returned after receiving a threat related to the burglary.

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Shaw was never charged in the earlier burglary, though the state argued testimony and evidence should be considered in the murder trial to show his plan, motive and intent to return to the apartment to respond to the threat.

But Shaw argued the District Court did not apply a three-step analysis to allow the testimony and evidence into court.

"Basically, it is hearsay, your honor," Shaw said during a hearing three months before the trial.

During that hearing, Judge Jon Jensen said he would allow evidence and testimony from the alleged burglary.

The court found purpose to use the evidence, but it did not determine whether the information allowed in Shaw's trial to be "substantially reliable or clear and convincing," the Supreme Court ruled.

The ruling also stated Jensen did not give the jury instructions to limit its consideration of the evidence and testimony of the alleged burglary, sometimes used to fulfill the third step of analyzing information regarding other crimes for judicial consideration.

"The court recognized the evidence was for a limited purpose and stated it may instruct the jury as part of the closing instructions," the ruling stated. "However, the record does not indicate the closing instructions included a cautionary instruction nor does the record reflect the reason the instruction was not given. The court should have given a cautionary instruction during trial and in its closing instructions or explained why the instruction was not given."

Justice Dale Sandstrom, who dissented from ruling, said if Shaw believed the evidence should have been excluded, he should have said so before the jury received instruction.

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"The majority does not contend the result of the trial would have been any different had this unrequested verbalization taken place," Sandstrom wrote in his opinion. "It is as if we have traveled back more than a hundred years, before the time when it became the rule that an error had to make a difference if a new trial was to be ordered."

Shaw also argued the District Court did not admonish the jury before it took 10 of the 17 breaks during the trial, stating that affected his rights and showed prejudice against him. The Supreme Court said Shaw did not object to the failure during the trial, so the judges declined to rule on whether Shaw's rights were violated.

"On remand, however, the court and parties must be aware of the Legislature's directive under (North Dakota Century Code) requiring the court to admonish the jury before each adjournment," the ruling stated.

The judges also declined to rule on two witnesses who violated a sequestration order. Jensen allowed the state's witness who violated the order to testify but banned Shaw's witness from taking the stand after doing the same.

The District Court has 14 days from the opinion's release to decide whether to challenge the ruling in the U.S. Supreme Court, Grand Forks County State's Attorney David Jones said.

"That's a very rare event," he said of his office challenging the ruling, adding Shaw will likely get a new trial.

Related Topics: CRIME
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