North Dakota Supreme Court Questions Conspiracy to Commit Murder - - Bismarck/Minot/Williston/Dickinson-KXNEWS,ND

North Dakota Supreme Court Questions Conspiracy to Commit Murder Charge

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It will be one year in June since two men were found guilty of a fatal shooting in Beulah.

Michael Padilla was shot and killed in his apartment building in January 2012.

A jury in Burleigh County found Richard Whitman and Cody Borner both guilty of conspiracy to commit murder, but the details of the case are being hashed out once again--this time by the North Dakota Supreme Court.

In September, Whitman was sentenced to life in prison and Cody Borner was sentenced to 30 years, with ten suspended.

Now, an attorney is appealing Borner's sentence.

Michael Hoffman is making his case to the Supreme Court justices that Borner should and could have been charged with something other than conspiracy to commit murder, and that the state never proved that he committed the crime he was charged with.

"If you reverse under, my first intention is you have to enter an acquittal in conspiracy to commit murder, because it's page 18 in the state's brief, the second or third lines, the evidence did not reflect that the defendants agreed to kill." says Michael Hoffman, Bismarck attorney.

Justices questioned why prosecutors did not charge Whitman and Borner with something else.

One justice says they were "strangely charged" with conspiracy to commit murder.

"Whitman killed Michael Padilla under circumstances that clearly could have been charged as a murder under B, no question about it is there? But you didn't charge it that way, you charged it as a conspiracy to commit murder, that's the struggle." says Justice Carol Kapsner.

"When reviewing everything what was paramount was the circumstances that they created, their intent was secondary to that circumstance, the idea of walking into someone's house armed, with a mask, and an AR rifle, that circumstance was shocking to the conscience, and as I mentioned in ... v. Arizona, the supreme court held that in some circumstances of non-intentional murder can be just as shocking as a specific intent to kill under A." says Jessica Binder Stanton, Mercer County State's Attorney.

Questions remain about what a reversal in the conviction could mean if it was granted.

A re-trial with new charges or if double jeopardy would apply.

It could take the Supreme Court 60 to 90 days to enter an opinion on the matter.

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