Man convicted in murder-for-hire wants new trialThe attorney for an Oklahoma man convicted of hiring a hit man to kill his son-in-law told the North Dakota Supreme Court on Tuesday that jurors may have found him guilty of a lesser charge if they’d been allowed to consider his extreme emotional distress.
By: By Mike Nowatzki , Forum Communications , The Jamestown Sun
BISMARCK — The attorney for an Oklahoma man convicted of hiring a hit man to kill his son-in-law told the North Dakota Supreme Court on Tuesday that jurors may have found him guilty of a lesser charge if they’d been allowed to consider his extreme emotional distress.
The high court heard arguments in the appeal of Gene Kirkpatrick, 66, who is serving a life prison term without parole for the killing of Fargo dentist Philip Gattuso.
Gattuso was found beaten to death with a hammer in his home on Oct. 26, 2009.
Kirkpatrick wants a new trial. A Cass County jury convicted him in July 2011 of conspiracy to commit murder and conspiracy to commit burglary.
Prosecutors alleged that Kirkpatrick hired his former handyman, Michael Nakvinda, to carry out the murder because he didn’t want Gattuso raising his 3-year-old granddaughter after Kirkpatrick’s daughter, Valerie Gattuso, died in March 2009.
In his appeal, Kirkpatrick argues that his recorded statement to police six days after Gattuso’s death was involuntary and shouldn’t have been used against him at trial. He was tired, having traveled more than 14 hours from Fargo to Oklahoma, and he hadn’t eaten since prior to leaving on the trip, the appeal states.
Kirkpatrick admitted to police that he had paid Nakvinda $3,000 and promised him another $10,000 to kill Gattuso. He told police he was unsettled by Gattuso’s parenting skills and upset by how he became distant from Valerie Gattuso during her 19-month decline toward death.
At trial, Kirkpatrick claimed his conversations with Nakvinda about killing Gattuso weren’t to be taken seriously and that Nakvinda mistook his intentions and decided on his own to kill Gattuso.
Kirkpatrick’s appeal also claims a lack of evidence for the burglary conviction, as well as errors made by Judge Steven Marquart in his jury instructions — including his denial of Kirkpatrick’s request to allow the jury to consider his extreme emotional distress at the time of the alleged conspiracies.
“The jury certainly could disbelieve it. I’m not saying this is a win or lose for him,” but it’s something jurors should have been able to consider, said Daniel Gast, Kirkpatrick’s attorney in the appeal.
Had jurors considered the stress, they may have convicted Kirkpatrick of a lesser murder charge with a maximum sentence of 20 years, Gast said.
The high court will issue its opinion at a later date.
Nakvinda’s appeal was rejected by the Supreme Court last November. He also is serving a life prison term without parole.
Meanwhile, a jury trial is slated to begin Oct. 30 in the wrongful death lawsuit filed against Kirkpatrick last year by Gattuso’s brother, Roy Gattuso, who has custody of Philip Gattuso’s orphaned daughter. The girl, Kennedy Gattuso, also is a plaintiff in the civil lawsuit.
Mike Nowatzki is a reporter at The Forum of Fargo-Moorhead, which is owned by Forum Communications Co.