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New witness likely to delay murder trial in Fargo dentist case

Possible testimony from an unidentified witness in a murder trial scheduled to begin Tuesday for a man accused of killing a Fargo dentist is likely to delay the trial's start unless a judge decides not to let her testify.

Michael Nakvinda
Michael Nakvinda

Possible testimony from an unidentified witness in a murder trial scheduled to begin Tuesday for a man accused of killing a Fargo dentist is likely to delay the trial's start unless a judge decides not to let her testify.

Prosecutors didn't locate the witness until late last week but have described her testimony as crucially important and weighty enough that they're now seeking to convict Michael Nakvinda of intentional homicide in the bloody hammer beating that killed Philip Gattuso.

Attorneys wrestled with how to deal with the new twist in a hearing on Thursday in Cass County District Court.

"It does change the nature of the case," said Mark Boening, an assistant Cass County state's attorney.

Nakvinda's attorney said the new development could force an overhaul of their defense and asked for the trial to be delayed or the testimony disallowed.

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If the woman does take the stand and the trial gets under way as scheduled, "I don't see any way we can get a fair trial in August," said Steven Mottinger, attorney for Nakvinda. "It puts us in the position where we may well have to change our entire defense strategy."

At a hearing scheduled for Monday, the day before jury selection is set to begin, Judge Frank Racek will decide whether to allow the testimony and the updated charge. That'll allow Mottinger to depose the witness next Saturday.

If Racek doesn't allow the testimony, the trial likely will start Tuesday. If he OKs the witness' testimony, Racek said his two options are to delay the trial for a week or delay it indefinitely.

Police believe Nakvinda beat Gattuso to death with a hammer, and Gene Kirkpatrick has been accused of paying Nakvinda $3,000 to carry out the attack. Kirkpatrick is the father of Gattuso's late wife, and police think he wanted the dentist gone so he could retain custody of Gattuso's daughter.

Nakvinda faces charges of murder, robbery, theft and burglary. Kirkpatrick is charged with conspiracy to commit both murder and robbery and is scheduled to go on trial in October. Both Nakvinda, 42, of Oklahoma City, and Kirkpatrick, 63, of Jones, Okla., have pleaded not guilty.

Amending the charge to intentional homicide from a homicide done during a felony doesn't change the level of the charge - a Class AA felony - or increase the potential sentence length, said Cass County State's Attorney Birch Burdick.

Racek has indicated he's strongly against delaying Nakvinda's trial. When he set the trial date on March 10, he explicitly asked the attorneys for assurances they could prepare their respective cases in time.

One of the concerns is the jury pool, which has been prepared with the mailing of an 85-question survey to gauge the potential jurors' impartiality. Racek said if the trial is only delayed one week, that panel of jurors might be salvaged.

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Jury notices were sent to 150 Cass County residents, and 78 of them have confirmed they are available to sit on the jury, said Shirley Carlson, who supervises jury duty for the county's clerk of district court.

Based on a tape of an interview with the witness, which prosecutors said in court records was conducted by state police investigators in Oklahoma, Racek said it's clear the new development requires some follow-up.

"I've listened to this tape. There's obviously a lot of unanswered questions," the judge said.

Boening said he agreed a delay might be in order and apologized to Racek for the eleventh-hour twist. He said it was unavoidable because prosecutors didn't know the identity of the woman until last week, though she is referred to in other discovery documents.

"It's a little bit like if a tornado touches down," Boening said.

Who the woman is and what she could testify to is unclear, but Boening said the prosecution thinks it strengthens their case. Without the witness, the state's evidence was mostly circumstantial, he said.

Boening said the woman could testify to admissions Nakvinda made, though he later clarified he meant admissions in a legal sense - statements made out of court that can be offered as evidence in trial.

Mottinger said he didn't agree the testimony would reveal an admission of the crime. "That's going to have to sort itself out in the course of the trial," he said.

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The defense attorney said he's seen no forensic evidence or witness accounts in the "thousands" of pages of police reports that link Nakvinda to the scene of the Oct. 26 killing at Gattuso's south Fargo home.

In court records, police allege surveillance videos from area businesses on the day of the slaying show Nakvinda arriving near Gattuso's home in a truck and a trailer and leaving a few hours later hauling the Porsche convertible stolen from the dentist's garage.

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