Petition for Writ of Certiorari — Dennis James Gaede, Petitioner v. North Dakota
Supreme Court briefFeb 27, 2024
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No.
IN THE
SUPREME COURT OF THE UNITED STATES
DENNIS J. GAEDE — PETITIONER
VS.
THE STATE OF NORTH DAKOTA — RESONDENT
ON PETITION FOR A WRIT OF CERTIORARI TO
THE SUPREME COURT OF NORTH DAKOTA
APPENDICES
Dennis James Gaede - Pro Se
P.O. Box 5521
Bismarck, ND 58506-5521
FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 28, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 242
Petitioner and Appellant
Dennis James Gaede,
v.
Respondent and Appellee
State of North Dakota,
No. 20230269
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Steven E. McCullough, Judge.
AFFIRMED.
Per Curiam.
Dennis J. Gaede, self-represented, Bismarck, N.D., petitioner and appellant;
submitted on brief.
Nicholas S. Samuelson, Assistant State’s Attorney, Fargo, N.D., for respondent
and appellee; submitted on brief.
APP-T>
Gaede v. State
No. 20230269
Per Curiam.
1] Dennis James Gaede appeals from an order and judgment dismissing his
petition for postconviction relief. The district court concluded Gaede’s claims
were brought outside the statute of limitations provided in N.D.C.C. § 29-32.101(3)(b) and he had raised no genuine issue of material fact there was new
evidence to avoid the statute of limitations. After reviewing the record we
conclude Gaede’s claim is outside the statute of limitations and he has raised
no genuine issue of fact on newly discovered evidence. We summarily affirm
under N.D.R.App.P. 35.1(a)(6). See also Gaede v. State, 2022 ND 71, f 1, 973
N.W.2d 5 (affirming district court’s' finding “Gaede’s PTSD diagnosis is not
newly discovered evidence, and this clairtiwas brought outside the statute of
limitations”); Gaede v. State, 2015 ND 160, 870 N.W.2d 26 (summarily
affirming district court’s finding s on claims of newly discovered evidence);
Gaede v. State, 2013 ND 41,1, 832 N.W.2A334 (res judicata precludes claims
that were raised or could have been raised m prior proceedings).
HI2] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte.......
Douglas A. Bahr
1
APP-D
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
JUDGMENT
Supreme Court No. 20230269
Cass County Case No. 2023-CV-01044
Appeal from the district court for Cass County.
Petitioner and Appellant
Dennis James Gaede,
v.
State of North Dakota,
Respondent and Appellee
flfl] This appeal was considered by the Court at the December 2023 Term and an opinion
was filed. The Court considered the matter, and
[f 2] IT IS ORDERED AND ADJUDGED that the order of the district court is AFFIRMED
under N.D.R.App.P. 35.1(a)(6).
[Tf3] This judgment, together with the opinion of the Court filed this date, constitutes the
mandate of the Supreme Court on the date it is issued to the district court under
N.D.R.App.P. 41.
Dated: December 28, 2023
By the Court:
^ffsyj!<
tmmki
m
ATTEST:
Petra H. Mandigo Hulm
Clerk
s?
I
Jon J. Jensen
Chief Justice
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ORDER ON PETITION FOR REHEARING
Supreme Court No. 20230269
Cass Co. No. 2023-CV-01044
Dennis James Gaede,
v.
State of North Dakota,
Petitioner and Appellant
Respondent and Appellee
fflljThis appeal was considered by the Court at the December 2023 term and an
opinion was filed on December 28, 2023. A petition for rehearing was filed by January
2, 2024, for the Appellant. The Court considered the matter, and
[^[2] ORDERED AND ADJUDGED, that the petition be and is hereby DENIED.
[f3] AND IT IS FURTHER ORDERED, that this cause be and it is hereby remanded
to the District Court for further proceedings according to law, and the judgment of
this Court.
Dated: January 18, 2024
[lf4] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
*•>.
...............T.'j.V-
f)PP-G
-4»
-4
IN DISTRICT COURT, CASS COUNTY, NORTH DAKOTA
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Dennis James Gaede,
Petitioner,
vs.
State of North Dakota,
Respondent.
AFFIDAVIT OF SERVICE BY MAIL
Court # 09-2023-CV-01044
SA# CV-23-00044
STATE OF NORTH DAKOTA
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)SS.
COUNTY OF BURLEIGH
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VERIFICATION
Dennis James Gaede, being duly sworn, deposes and states that he is of legal age and that
on this date he deposited in the United States Mail at Bismarck, North Dakota, a true and correct
copy of the following documents in the above-entitled action:
Objection to State’s Motion for Summary Judgment
Brief in Support of Objection to State’s Motion for Summary Judgment
The copies of the foregoing were securely enclosed in an envelope with postage duly
prepaid and addressed as follows:
Nicholas S. Samuelson
Assistant Cass County State’s Attorney
Cass County Courthouse
P.O. Box 2806
Fargo, ND 58108
Dated this (5~ day of
2023.
i^jP/yuuX
/- yjcxzJ'
Dennis J. Gagde
Subscribed and sworn to before me this ^ day of__
ERIC HASBY
Notary Public
State of North Dakota
My Commission Expires August 8,2026
, 2023
Y-Y
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ftPP- A
Notary Public
-+■
IN DISTRICT COURT, CASS COUNTY, NORTH DAKOTA
Dennis Janies Gaede,
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Petitioner,
vs.
State of North Dakota,
Respondent.
STATE OF NORTH DAKOTA
COUNTY OF BURLEIGH
AFFIDAVIT OF SERVICE BY MAIL
Court # 09-2023-CV-01044
SA# CV-23-00044
)
)SS.
VERIFICATION
)
Dennis James Gaede, being duly sworn, deposes and states that he is of legal age and that
on this date he deposited in the United States Mail at Bismarck, North Dakota, a true and correct
copy of the following documents in the above-entitled action:
Objection to State’s Motion for Summary Judgment
Brief in Support of Objection to State’s Motion for Summary Judgment
The copies of the foregoing were securely enclosed in an envelope with postage duly
prepaid and addressed as follows:
Clerk of Court
Cass County Courthouse
P.O. Box 2806
Fargo, ND 58108
2023.
Dated this /5"day of
-0
a. f3a*/c
Dennis J. Gaed
Subscribed and sworn to before me this
day of
ERIC HASBY
ttotary Public
. SWe of North Dakota
My Commission Expires August 8,2026
F\PP~ ft
fY\Cl\j
, 2023
Notary Public
IN DISTRICT COURT, CASS COUNTY, NORTH DAKOTA
Dermis James Gaede,
Petitioner,
vs.
State of North Dakota,
Respondent.
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Court# 09-2023-CV-01044
SA #CV-23-00044
REPLY AND OBJECTION TO MOTION FOR SUMMARY
JUDGMENT
OBJECTIONS
[Tfl]
Petitioner disagrees with the state and that he is entitled to post-conviction
relief because newly discovered evidence does exist requiring vacation of the
conviction and sentence.
[^2]
That the state did not address all of the grounds raised in the post
conviction petition, mainly the Grand Jury challenge as an apparent attempt to
sidestep the issue. This alone would infers that the state concedes to the
petitioner’s argument and gives the court cause to deny their Motion for
Summary Judgment.
WAIVER
fl|3]
The Petitioner hereby waives any evidentiary hearing and or oral
arguments, again in the interest of judicial economy. He feels that all evidence
for needed for this petition is contained within the record and is ipso facto.
1
APP-A
PRAYER FOR RELIEF
fl|4]
WHEREFORE, the Petitioner respectfully requests that this Court
DENY State’s motion for Summary Judgment and Grant his Petition for PostConviction Relief.
Dated this 8th day of May, 2023
Q)jbnAM
^OsJc-
Dennis J. Gaede
P.O. Box 5521
Bismarck, ND 58506-5521
2
IN DISTRICT COURT, CASS COUNTY, NORTH DAKOTA
Dennis James Gaede,
Petitioner,
vs.
State of North Dakota,
Respondent.
flfl]
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BRIEF IN SUPPORT OF OBJECTION
TO STATE’S MOTION FOR SUMMARY
JUDGEMENT
Court# 09-2023-CV-01044
SA #CV-23-00044
COMES NOW, Dennis J. Gaede, Petitioner, and moves this Court to deny the
State’s Motion for Summary Judgement as his claims are not barred by res judicata,
misuse of process, or the statute of limitations.
LAW AND ARGUMENT
fl|2]
Gaede’s Application for Post-Conviction Relief states four grounds for his
petition:
fl|3]
New Evidence. The new evidence raised from the November 19, 2021
evidentiary hearing is Dr. Madeline Free’s statement [TR: 17, lines 6-7] as to the nature
and cause of the petitioner’s medical condition, which was never before in the record and
is raised within the two year statute of limitations. Further, the petitioner was blocked out
from most of the hearing on November 21, 2021[TR: 18, lines 7-8] so the new evidence
was only discovered upon reading the transcript of said hearing.
1
APP-fl
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ffl4]
A statement by Dr. Free that contradicts physical evidence is found at (TR: 13,
line 5-6) where she states, “The diagnosis ofPTSD has no bearing on his crime of his
competency. ” So compare this excerpt from the 2014 post-conviction petition:
fl|5]
“All of these conditions are the precepts for the condition of Post-Traumatic
Stress Disorder that Gaede demonstrates symptoms of now and at the time of the murder.
CT6]
Additionally, the medical text, “Mental Health Nursing-The Nurse-Patient
Journey, ” lists the following as characteristics of the four levels of anxiety:
Characteristics of the Four Levels of Anxiety i
Level
Physiological
Emotional
Cognitive
Subjective
Mild
Increase in pulse,
B/P, and heart
rate due to
sympathetic
arousal
Muscle tension;
diaphoresis;
pupils dilated;
increased pulse,
B/P, and
breathing rate;
peripheral
vasoconstriction
“Fight or flight”
responses;
generalized
sympathetic
nervous system
response; dry
mouth;
numbness of
extremities
Affect Posture
Alert; aware;
able to problem
solve
Attentive
Tension, fear
Attention
focused on issue
of concern; able
to shut out
irrelevant data
Sense of
helplessness;
apprehensive
expectation;
sweating palms;
vigilance and
irritability
Distress,
trembling
Sensory
perception
greatly reduced;
person can focus
only on small
details; learning
cannot occur
Dyspnea,
dizziness; fear of
going crazy;
visual
disturbances;
motor tension
with
hyperactivity
Moderate
Severe
2
y
Panic
[|7]
Continued
arousal
Emotionally
overwhelmed;
may regress to
primitive coping
behaviors
Responds only
to internal
distress
Feelings of
impending doom
or death; chest
pain or
discomfort
The text further states that: “Severe anxiety and panic are infrequently observed
outside the emergency department or psychiatric unit. In this state, patients are unable to
think clearly because attention and concentration are markedly reduced. Sympathetic
nervous system stimulation has caused increased blood pressure, pulse, and respirations.
Subjective reports might include a felt inability to sit down, nausea, agitation, shortness
of breath, and panicky statements such as ‘lam going to pass out’ or ‘lam going to die ’
or 7 am going crazy. ’ Clearly, such patients require immediate nursing intervention.
Severe anxiety has caused decompensation of ego functions so that the patient is
overwhelmed with feeling and has a significant lessening of the capacity to think and
problem solve. ”
nf8]
“This extreme reaction might be observed in persons involved in a major
automobile accident, in a patient who has just been told about a terminal illness, or in
one who is reacting to bad news about a significant other. Such a patient requires the
immediate psychological and sometimes physical support of the nurse. The patient should
not be left alone. His or her deficits in focused thinking, affect modulation, and problem
solving require the capacities of the nurse as an ‘alter-ego ’ whose functions have not
been impaired by anxiety. Such patients need specific instructions if task completion is
required. In some cases anxiolytic medication may be appropriate. »ii
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[f9]
In light of the previously quoted medical text, Gaede offers as evidence of his
mens rea at the alleged time of the crime the following excerpts taken from a statement
that Diane Fruge gave to Special Agent John A. Dalziel and Lieutenant Richard Majerus
on February 23 rd 2004 at the Hales Comers Police Department:
[f 10] Fruge: “And about 8 o ’clock, um, I took my son to bed and closed the door and
went to sleep. And I, ah, woke up to Dennis frantically waking me up. Diane, Diane, wake
up, come down stairs. ” pg. 1826
[|11] Fruge: “And I said to Dennis, I said you must have really partied this guy out, you
know, and he said, no, I shot him. And I said, what do you mean, you shot him? I said
he’s snoring. He said, I’ve never seen anything like this in my life. And then I went into
the living room and said Oh my God, I can’t believe you shot him. And then I walked
back in to see what he was doing and he was putting the plastic bag over his head and
that’s when I saw the first blood and I went and started vomiting. ” pg. 1826-1827
[Tfl2] Fruge: “He started running around the house freaking out, ‘What am I going to
do now. What are we going to do? What are we going to do now? What are we going to
do, what are you going to do? ’ I was, I, what I do. Do I call the police? No like he might
kill me before they get there because how am I going to explain having two Timothy
Wicks in the same house. ” pg. 1827
fl[13] S.A. Dalziel: “Okay, snoring. (Pause) And then... (pause) you go out into the
living room. You come back into the kitchen, and Dennis... (pause) was doing what?
[H14] Fruge: “Panicking” pg. 1880”
fl|15] First, there is no way that Dr. Free could possibly have known how the petitioner
would react to such a situation, but the evidence here corroborates the fact that the he
suffered from PTSD or more commonly called CPTSD (Childhood Posttraumatic Stress
Disorder) since long before the murder happened. And Diana Fruge’s statement gives a
clear picture of a panic attack while it was happening. And notice that this stage is well
beyond the normal fight or flight psychological response for PTSD. And these are the
State’s witnesses own words, not the Petitioner’s. And the only reason that the Petitioner
4
stayed at the house after the murder with Diana was out of moral necessity. The petitioner
is a father and there was a child to protect and he was not about to leave him behind with
an unstable murderess.
[f 16] Therefore, res judicata and misuse of process and all the other State’s arguments
fall short in all aspects because the transcript is ipso facto. In addition, because of the
foreign nature of the hearing held during a pandemic and no one being present in the
courtroom, there may have been an honest oversight on the part of the court just as this
evidence wasn’t apparent to the petitioner and other parties until after reading the actual
transcript. That way with this issue being raised here it is an opportunity for the court to
correct that error without harm or foul. Without this petition being heard by the court it
will only be up to a higher court to make this correction. This is an olive branch being
offered in good faith by the petitioner and nothing else.
flfl7] New Evidence. The area that the state purposely ignored is the denial of a Grand
Jury issue. The petitioner knew nothing about this until being notified by a watchdog
group monitoring the state’s legal tactics and high profile cases. Further, after being
assigned a plethora of lawyers over the years who never mentioned this, how could the
petitioner have been expected to know about it? And it’s ironic that the state would raise
N.D.C.C. §29.32.1-01(2) as an affirmative defense when the petitioner just happens to be
challenging that very statute in this post-conviction as an ex post facto law and
constitutional violation. However, seeing that the state failed to address this issue it
would then appear that Assistant State’s Attorney Nicholas S. Samuelson concedes to the
5
petitioner’s challenge thereby admitting to a constitutional violation. That alone should
suffice as grounds to deny the State’s Motion to Summarily Dismiss this petition.
[f 18] The United States Constitution’s Fifth Amendment Grand Jury Clause reads, “No
person shall be held to answer for a capital or otherwise infamous crime, unless on
presentment or indictment ofa grandjury, except in cases arising in the land or naval
forces, or in the militia, when in actual service time ofwar or public danger. ”
[1119J This issue is highly relevant because Gaede believes that if a State Grand Jury
would have been convened he would have been charged correctly as well as the state’s
number one witness against him, the confessed murderess Diana Fruge. Therefore by this
process being taken out of the hands of true ministers of justice the petitioner’s rights
were violated from the onset. This would undoubtedly have changed the outcome of the
trial.
[f20] This also shows that the state deliberately avoided the grand jury to shield their
“Star” witness, Diana Fruge from prosecution so they could use her to testify against the
petitioner thus creating a hedged advantage, especially with the perjured testimony she
introduced into the trial. This is also a Fourteenth Amendment Due Process violation.
[If21 ] “The requirement ofdue process in safeguarding the liberty ofthe citizen against
deprivation through the action of the state embodies the fundamental conceptions of
justice, which lie at the base of American civil and political institutions. It is a
requirement that cannot be deemed to be satisfied by mere notice and hearing if a state
has contrived a conviction through the pretense ofa trial which in truth is but used as a
means ofdepriving a defendant of liberty through deception of court andjury by the
presentation of testimony known to be perjured. Such a contrivance by a state to procure
the conviction and imprisonment ofa defendant is as inconsistent with the rudimentary
demands ofjustice as is the obtaining ofa like result by intimidation. Upon the state
courts, equally with the courts of the union, rests the obligation to guard and enforce
6
T
every right secured by the Constitution, ” Moony v. Holohan. 294 U.S. 103, 55 S. Ct. 340,
79 L. Ed. 791 (1935).
[^{22] Because the right to a Grand Jury falls under the United States Constitution it
cannot be avoided. The “Federal Constitution is the Supreme Law of the United States,
Butler V. Alabama Judicial Inquiry Commission. 245 F. 3d 1257, (2001 WL 292996)
United States Court of Appeals, 11th Cir. March 27, 2001.” (USCA Art. VI)
[f23] And it cannot be altered:
[Tf24] Clause 2, Supreme Law of the Land (USCA Const. Art. VI Cl. 2)
[^25] “The Constitution, and the Laws of the United States which shall be made in
pursuance thereof; and all treaties made, or which shall be made, under the Authority of
the United States, shall be the supreme Law of the land; and the judges in every state
shall be bound thereby, anything in the Constitution or Laws ofany State to the contrary
notwithstanding. ”
[Tf26] As far as the State’s assertion that the Petitioner previously raised the issue of the
ex post facto law, this is false. It was never raised as a ground in a post-conviction
petition. It was merely stated at the beginning of the petition that the law is
unconstitutional. This petition is the first challenge because this is the first time there is a
ground raised that is affected by it. So the misuse of process argument falls flat there too.
However, the law is clear how ex post facto applies in this case:
ffl27] See State v. Norman. 660 N.W. 2d 549 (ND 2013). Where the court held, “A law
which imposes a collateral consequence of a conviction may be applied retroactively if
the purpose is to protect some other legitimate interest, rather than to punish the
offender. ”
fl[28] This ex post facto clause results in excessive sentences and punishment in
violation of the Eighth Amendment if challenges cannot be brought to light if they are
discovered outside of the two year limitation as in this evidence.
7
[f29] The court in Norman further noted that, “We have stated the Legislature may
apply statutes retroactively unless doing so would result in ex post facto application. ”
[|30] As shown, in this case there is clearly an ex post facto application.
[f31] However, the reason that Assistant State’s Attorney Nicholas S. Samuelson has
stepped in as the substitution counsel for Mr. Burdick is quite apparent. The old adage
applies here that a guilty conscious needs no accuser. When a prosecutor denies a
defendant a Constitutional right like a grand jury for nefarious reasons it starts to shine a
bright light on the entire judicial process and the prosecutor. And evil cannot no longer
hide in the dark.
fl|32] After all, “the prosecutor’s duty in a criminal prosecution is to seekjustice, ”
Berger v. U.S. 295 U.S. 78, 88 (1935). As such, “the prosecutor should prosecute with
earnestness and vigor, ” but may not use “improper methods calculated to produce a
wrongful conviction. ” Ifthe use ofsuch methods “so [infects] the trial with unfairness as
to make the resulting conviction a denial of due process, ” it may justify a mistrial or
reversal of conviction, Darden v. Wainwright, All U.S. 168, 181 (1986) (quoting
Donnelly v. DeChristoforo. 416 U.S. 637, 643 (1974)).
Hf33] This is precisely what happened in this case. With the denial of the grand jury the
entire judicial process was tainted from the onset. And now because of one prosecutor’s
illegal actions, the entire state’s justice system is in jeopardy of coming under attack.
[^J34] The only answer here is to do the right thing and correct the wrongs that have
been done. The Court should grant this petition for post-conviction relief and Assistant
State’s Attorney Nicholas S. Samuelson should look very close at the profound ruling in
Houston v, Estelle. 509 F. 2d 372 (5th Cir. 1978):
[ft35] “A public prosecutor wields the sword of justice. It is his duty to recall that this
sword, though forged in the flame-heat of zeal is alloyed with iron of restraint. The
prosecutor in this case forgot this fundamental truth. The trial judge did not adequately
remind him of it. As a result, [the defendant] was not afforded that fundamentally fair
8
♦
I
trial to which he was entitled by the due process clause of the Fourteenth Amendment.
We therefore, reverse...”
fl[36] The Houston v. Estelle case is prime example why prosecutors should not play
with fire in trying to elicit a wrongful prosecution or in this case defend one. In the end
the meek always inherits the Earth.
CONCLUSION
m
WHEREFORE the Petitioner respectfully requests that this Court deny the State’s
Motion for Summary Dismissal.
Dennis J. Gaede
P.O. Box 5521
Bismarck, ND 58506-5521
1 Carson, V.B., Ph.D., R.N., CS-P, and Arnold, E.N., Ph.D., R.N., CS-P, Mental Health Nursing: The Nurse-Patient
Journey. Philadelphia: W.B. Saunders Company, a Division of Harcourt Brace & Company, 1996. pg. 695
" Ibid. pp. 695-696
9
STATE OF NORTH DAKOTA
IN DISTRICT COURT
COUNTY OF CASS
EAST CENTRAL JUDICIAL DISTRICT
Dennis James Gaede
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Petitioner,
vs.
State of North Dakota,
Respondent.
NOTICE OF ENTRY
OF JUDGMENT
Court No. 09-2023-CV-01044
SA #CV-23-00044
TO: PETITIONER DENNIS JAMES GAEDE
[11] PLEASE TAKE NOTICE that a Judgment dated June 13, 2023, in the above-entitled
action was entered in the Office of the Clerk of District Court in and for Cass, County, North
Dakota, a copy of which is herewith served upon you.
Dated this 15 day of June, 2023
Nicholases. Samuelson^08841
Assistant State's Attorney
Cass County Courthouse
P.O. Box 2806
Fargo, ND 58108
(701)241-5850
sa-defense-notices@casscountynd.gov
flPP-8
STATE OF NORTH DAKOTA
IN DISTRICT COURT
COUNTY OF CASS
EAST CENTRAL JUDICIAL DISTRICT
Dennis James Gaede,
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Plaintiff,
vs.
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. State of North Dakota,
Defendant(s).
STATE OF NORTH DAKOTA
AFFIDAVIT OF SERVICE BY MAIL
Court# 09-2023-CV-01044
SA# CV-23-00044
)
)SS.
COUNTY OF CASS
)
[1fl] Trina A. Hiemer being first duly sworn on oath, deposes and states that she is of legal
age and that on this date she deposited in the United States Mail at Fargo, North Dakota, a true and
correct copy of the following documents in the above-entitled action:
Notice of Entry of Judgment
[Tf2] The copies of the foregoing were securely enclosed in an envelope with postage duly
prepaid and addressed as follows:
Dennis James Gaede
Inmate #23184
ND State Penitentiary
PO Box 5521
Bismarck, ND 58506
Dated this 15th day of June, 2023.
Trina A. Hiemer
Subscribed and sworn to before me this 15th day of June, 2023.
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HANNAH ANDERSEN
Notary Public
State of North Dakota
Commission Expires Nov. 90 2023
otary Public
rtPP-B
IN DISTRICT COURT, CASS COUNTY, NORTH DAKOTA
Dennis James Gaede,
Petitioner,
vs.
State of North Dakota,
Respondent.
[11]
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MOTION FOR JUDGMENT
ON THE PLEADINGS
Court# 09-2023 -CV-01044
SA #CV-23-00044
Comes Now, Dennis James Gaede, the above-named Petitioner, pro se,
respectfully and for shown good cause, moves the Court pursuant to N.D.R.Civ.P.
Rule 8(a)(l),(2) and 12(c) of the North Dakota Rules of Civil Procedure for an Order
Granting the Petitioner’s petition for post-conviction relief, and thereby shows to the
Court the following:
[12]
That the Petitioner, Dennis James Gaede, through his pleadings, has provided the
Court with materia! facts proving that through duplicity his civil rights have been
violated requiring a reversal of the conviction;
[13]
That this is now a matter of substantive law requiring the Court to act;
[14]
That the Petitioner, in compliance with N.D.R.Civ.P. Rule 8(e) has offered as a
remedy a guilty plea to N.D.C.C. 12.1-16-01(2) with credit for time served from
2006, written as a Rule 11 (a)(2) plea agreement.
[15]
That this will account for a total of twenty-four years of incarceration served upon
release and is within the interest of justice;
6/29/2023 4:30:53 PM
i
/W-B
Denied.
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SI
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!
[1)6]
WHEREFORE, the Petitioner has demonstrated that good cause exists to grant
this motion and petition for post-conviction relief and has met the requirements of
N.D.R.Civ.P. Rule 8(a)(1),(2) and 12(c) of the North Dakota Rules of Civil
Procedure. He therefore begs the Court to rule in his favor.
Respectfully submitted this 9lh day of June, 2023.
Respectfully,
Qpavkxa J —fypjldt.
Dennis James ^Gaede
Petitioner, pro se
2
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STATE OF NORTH DAKOTA
IN DISTRICT COURT
COUNTY OF CASS
EAST CENTRAL JUDICIAL DISTRICT
Dennis James Gaede
File No. 09-2023-CV-01044
Petitioner,
vs.
MEMORANDUM OPINION AND ORDER
SUMMARILY DISMISSING
PETITIONER’S APPLICATION FOR
POST-CONVICTION RELIEF AND
DENYING PETITIONER’S MOTION FOR
APPOINTMENT OF COUNSEL
State of North Dakota
Respondent.
HI1]
Petitioner Dennis James Gaede (hereinafter “Gaede”) was convicted on June 23,
2006, for murder and sentenced to life imprisonment without the possibility of parole.
(Case No. 09-05-K-02878). Gaede timely appealed his conviction to the North Dakota
Supreme Court. See State v. Gaede. 2007 ND 125, 736 N.W.2d 418. The Supreme
Court affirmed the criminal judgment on July 25, 2007. Id. at U 31.
[1J2]
After Gaede’s direct appeal, he filed an application for post-conviction relief. (Case
No. 09-08-C-04458, Docket No. 1). The Court denied the application on July 26, 2010.
The Supreme Court affirmed the order denying the application on August 18, 2011.
Gaede v. State. 2011 ND 162, 801 N.W.2d 707. Gaede filed a second application on
January 30, 2012. (Case No. 09-2012-CV-00345, Docket No. 1). The Court entered an
order denying the application on June 21, 2012, and the Supreme Court summarily
affirmed the order on April 4,2013. Gaede v. State. 2013 ND 41,832 N.W.2d 334. Gaede
filed a third application on April 14, 2014, and the Court denied the application on
November 15, 2014. (Case No. 09-2014-CV-01350, Docket No. 1). The Supreme Court
summarily affirmed the order denying the application on July 1,2015. Gaede v. State.
1
P PP-C
2015 ND 160, 870 N.W.2d 26. Gaede’s fourth application was filed on May 18, 2021.
(Case No. 09-2021 -CV-01619, Docket No. 1). The Court issued an order denying the
application, and the Supreme Court summarily affirmed the order on April 14, 2022.
Gaede v. State. 2022 ND 71,973 N.W.2d 5.
[113]
Besides Gaede’s applications for post-conviction relief, Gaede petitioned for
habeas corpus with the United States District Court, North Dakota Southwestern Division.
See Gaede v. Schmalenberqer. No. 1:10-CV-068 (D.N.D. 2013).
The federal court
denied the petition and later dismissed it upon Gaede’s request for reconsideration.
Gaede appealed the dismissal to the Eighth Circuit, and a per curiam opinion affirming
the dismissal was issued on March 8, 2013. See Gaede v. Podrebarac. 499 Fed. Appx.
637 (8th Cir. 2013).
ffl4]
Gaede filed his newest Application for Post-CoNvicnoN Relief on April 3, 2023.
The application includes a Verification with Gaede’s notarized signature. The State filed
an Answer along with a Motion for Summary Disposition of Post-Conviction Relief
Application on April 20, 2023. Gaede responded on May 20, 2023. Prior to filing his
response, Gaede filed a Motion for Appointment of Counsel on April 24,2023. Neither
party has requested a hearing on either motion. Both the State’s motion, pursuant to Rule
56(c) of the North Dakota Rules of Civil Procedure, and Gaede’s motion, pursuant to Rule
3.2 of the North Dakota Rules of Court, are now ripe for review. Accordingly, the Court,
having received and reviewed all of the materials submitted for the motions, now issues
this Memorandum Opinion And Order on both motions.
[U5]
North Dakota law provides that a person convicted of and sentenced for a crime
may institute a proceeding under Chapter 29-32.1 of the North Dakota Century Code
2
(Uniform Post-Conviction Procedure Act) by filing an application for post-conviction relief.
N.D.C.C. § 29-32.1-01(1).
The applicant bears the burden of establishing they are
entitled to relief. Bridges v. State. 2022 ND 147, 1f 5, 977 N.W.2d 718 (citing Abdi v.
State, 2021 ND 110, 1f 8, 961 N.W.2d 303). A district court may summarily dispose of an
application by way of motion if there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Jd. at ^ 6 (citing Everett v. State. 2016
ND 78, If 15, 877 N.W.2d 796). The party opposing the motion is entitled to all reasonable
inferences at the preliminary stages of a post-conviction proceeding and is entitled to an
evidentiary hearing if a reasonable inference raises a genuine issue of material
fact. Berlin v. State, 2005 ND 110, U 6, 698 N.W.2d 266 (citing Whiteman v. State. 2002
ND 77, If 7, 643 N.W.2d 704). A petitioner needs only to provide evidentiary support for
his application once he has been notified that he is being put on his proof. jd. (quoting
Ude v. State, 2009 ND 71, If 8, 764 N.W.2d 419). At that point, the petitioner may not
merely rely on the pleadings or unsupported, conclusory allegations but must present
competent admissible evidence by affidavit or comparable means, which raises an issue
of material fact. jd. If the petitioner presents competent evidence, he is entitled to an
evidentiary hearing to present that evidence fully, jd.
[116]
Gaede’s instant application raises four claims for relief:
1. Newly discovered evidence;
2. Illegal/Excessive Sentence;
3. Petitioner was denied his Fifth Amendment Right to a Grand Jury.
3
4. Gaede’s Fourteenth Amendment Right to Due Process is violated by N.D.C.C.
§ 29.321-01 (3)(a)(1) and (2) is unconstitutional because it is an ex post facto
law.
The prayer for relief section of his application states the following:
Wherefore, Gaede prays that the Court grant him relief to which he may be
entitled in this proceeding, including the following:
1. An evidentiary hearing where testimony and evidence can be given to
support the grounds in this petition;
2. A reversal of the judgment of conviction;
3. A new trial, or;
4. Allow the petitioner to plead guilty to N.D.C.C. 12.1-16-01(2) under a
Rule 11(a)(2) plea agreement.
The State argues that the statute of limitations, res judicata, and misuse of process bar
these claims. The State maintains that Gaede’s application is untimely because it was
filed more than two years after Gaede’s judgment of conviction became final and no
exceptions to the statute of limitations under N.D.C.C. § 29-32.1-01(3) are applicable.
The State also asserts that the claims are barred by res judicata and misuse of process
because Gaede has previously raised these claims or should have either on direct appeal
or in a previous post-conviction relief application.
OR]
Generally, an application for post-conviction relief must be filed within two years of
the date the conviction becomes final. N.D.C.C. § 29-32.1-01(2). A conviction becomes
final if an appeal is taken to the North Dakota Supreme Court and the time for petitioning
the United States supreme court for review expires. Kremer v. State. 2021 ND 195,
965 N.W.2d 866 (quoting Moe v. State. 2015 ND 93,
application may still be considered in three instances:
4
9, 862 N.W.2d 510).
4,
The
(1)The petition alleges the existence of newly discovered evidence,
including DNA evidence, which if proved and reviewed in light of the
evidence as a whole, would establish that the petitioner did not
engage in the criminal conduct for which the petitioner was
convicted;
(2) The petitioner establishes that the petitioner suffered from a physical
disability or mental disease that precluded timely assertion of the
application for relief; or
(3) The petitioner asserts a new interpretation of federal or state
constitutional or statutory law by either the United States supreme
court or a North Dakota appellate court and the petitioner establishes
that the interpretation is retroactively applicable to the petitioner’s
case.
N.D.C.C. § 29-32.1-01 (3)(a). The application must still be filed “within two years of the
date the petitioner discovers or reasonably should have discovered the existence of the
new evidence, the disability or disease ceases, or the effective date of the retroactive
application of law.” N.D.C.C. § 29-32.1-01 (3)(b).
[U8]
Gaede appealed his criminal conviction to the North Dakota Supreme Court. The
Supreme Court affirmed the conviction and issued a mandate on August 16, 2007. State
v. Gaede, 2007 ND 125, 736 N.W.2d 418. Gaede had 90 days to petition the United
States Supreme Court for certiorari. Sup.Ct.R. 13. He did not. Gaede’s conviction,
became thus final, for purposes of the post-conviction relief act, on November 14, 2007
(90 days after August 16, 2007). Any petition for post-conviction relief needed to be filed
within two years of that date, which was November 14, 2009. That date passed more
than 13 years ago. Thus, Gaede’s application may be summarily dismissed unless he
shows that his claims are based on one of the three limited instances outlined above.
flI9]
The first claim in Gaede’s application attempts to allege the existence of newly
discovered evidence that qualifies as a defense of lack of criminal responsibility and
5
duress. Gaede asserts that the State Psychiatrist Dr. Madeline Free’s testimony at the
hearing on his fourth application establishes that he has post-traumatic stress disorder
and suffered from the disorder on the alleged date of the murder and at the time of his
murder trial.
[IP 0] Gaede has repeatedly raised claims in his applications relating to or touching upon
his psychiatric or psychological condition in some way. Gaede first submitted a claim
explicitly relating to his post-traumatic stress disorder in his second post-conviction relief
application, which read as follows:
1. On or about January 26, 2011, Gaede was officially diagnosed with
posttraumatic-Stress-Disorder, after being examined by several
psychiatrists and psychologists. Evidence shows that this condition was
present on the alleged date of the crime and at time of Gaede’s trial for
murder and qualifies as a defense of lack of criminal responsibility under
N.D.C.C. § 12.1-04.1-01(1).
(09-2012-CV-00345, Docket No. 1, p. 2 (Application for Post-Conviction Relief (0905-K-027878)).
ffl11] The claim was denied on account of the fact that Gaede had not actually been
diagnosed with post-traumatic stress disorder. (09-2012-CV-00345, Docket No. 57, pp.47 (Memorandum Opinion and Order on Application for Post-Conviction Relief). He
was eventually diagnosed with the disorder in 2018, and the claim was raised again in
Gaede’s fourth application. It read as follows:
On or about July 18, 2019, (Sic) Gaede was diagnosed with a PostTraumatic Stress Disorder by state psychiatrist Dr. Madeline Free. Evidence
in this petition shows that this condition is and was present on the alleged
day of the crime and at time of Gaede’s trial for murder and qualifies as a
defense of lack of criminal responsibility under N.D.C.C. § 12.1-04.1-01(1)
and any other further alleged actions committed by Gaede under the
condition of duress noted in N.D.C.C. § 12.1-05-10(1).
6
(09-2021 -CV-01619, Docket No. 1, p. 3, (Application for Post-Conviction Relief); and
Docket No. 51, pp. 144-45 (Medical Records, pp. 136-37)).
[1112] Doctor Free testified at Gaede’s fourth post-conviction hearing.
(09-2021-CV-
01619, Docket No. 65, pp. 5-18 (Post Conviction TrANSCRiPT Hearing Transcript)).
She confirmed that Gaede had in fact been diagnosed with post-traumatic stress disorder
in 2018. (Id. at p. 61.10). Doctor Freeman maintained that the diagnosis had no bearing
on Gaede’s crime or his competency. (Id. at p.13 I. 1-10). In fact, she did not have any
opinion on whether Gaede lacked the requisite intent to commit the crime of murder or
that Gaede was incompetent to stand trial. (Jd. at p. 10 1.10-23).
[IP 3] At the conclusion of the hearing, the Court agreed that the diagnosis was new
information. Unfortunately for Gaede, however, it disagreed that it was new evidence as
Gaede had been claiming the existence of the disorder since his second petition in 2012
and it had been longer than two years since the diagnosis. Qd. at p. 28 1.13-18). As a
l
result, the Court concluded that there was no new or additional evidence to support
Gaede’s claim for relief. (]d. at p. 28 1.19-20).
[1f14] Gaede s instant claim is substantively and for all purposes, the same one he
brought in his fourth application and must be denied for the same reason. As the Court
previously iterated, Gaede’s post-traumatic stress disorder diagnosis is anything but new
evidence. The diagnosis was made more than two years before Gaede submitted his
fourth application, and the present application is even further from the date of the
diagnosis. The Court has also already considered Doctor Free’s testimony and it does
not support a finding that Gaede’s post-traumatic stress disorder prevented his ability to
form the requisite intent to commit the crime of murder or that he was incompetent to
7
stand trial. Gaede’s argument that Doctor Free’s opinion that Gaede’s disorder had no
bearing on his competency is somehow contradictory to the evidence at trial still fails to
provide context for how the Court could view the diagnosis or consider Doctor Free's
testimony as new evidence. Therefore, there are no factual issues raising a material
issue of fact. Gaede therefore, failed to meet his burden of providing new evidence to
support his application and raise a material issue of fact. Accordingly, the claim is
untimely and barred by the statute of limitations.
[1115]
Aside from the claim being barred by the statute of limitations, it is also barred by
res judicata and misuse of process. "An application for post-conviction relief may be
denied on the ground that the same claim or claims were fully and finally determined in a
previous proceeding.” N.D.C.C. § 29-32.1-12(1). An application may also be denied on
the ground of misuse of process. N.D.C.C. § 29-32.1-12(1). Process is misused when
the applicant either ”[p]resents a claim for relief which the applicant inexcusably failed to
raise either in a proceeding leading to judgment of conviction and sentence or in a
previous post-conviction proceeding” or “[fjiles multiple applications containing a claim so
lacking in factual support or legal basis as to be frivolous.” jd. The North Dakota Supreme
Court has held that misuse of process occurs in these instances:
(1) if the defendant has inexcusably failed to raise an issue in a proceeding
leading to judgment of conviction and now seeks review in a first application
for post-conviction relief;
(2) if the defendant inexcusably fails to pursue an issue on appeal which
was raised and litigated in the original trial court proceedings; and
(3) if a defendant inexcusably fails to raise an issue in an initial post
conviction application.
8
Bell v. State, 2001 ND 188, H 7, 636 N.W.2d 438 (quoting Clark v. State. 1999 ND 78, U
23, 593 N.W.2d 329).
[1116] As previously noted, Gaede's claim, as it is, is the same claim in his fourth petition,
and it relies on Doctor Free’s diagnosis and previous testimony. The claim has therefore
already been litigated and is barred by res judiciata. And because the claim relies on
Doctor Free's diagnosis and previous testimony, any claim or theory for relief Gaede is
asserting now should have been raised in his fourth application. But because Gaede has
failed to provide sufficient evidentiary support for the claim or provide a justification for
not previously raising the present claim, it is a misuse of process for him to attempt to
raise it now. There is thus, no material issue of fact, and the claim must be dismissed.
Accordingly, Gaede’s instant claim remains untimely, just as it was in his fourth
application, by the statute of limitations, and is similarly barred by res judicata, and misuse
of process.
[H17] Gaede’s remaining three claims assert no other exceptions to the statute of
limitations under N.D.C.C. § 29-32.1-01 (3)(a). The second claim asserts that he received
an “illegal/excessive sentence” in violation of the Eighth Amendment. The third claim
asserts a violation of his fifth amendment right to a grand jury. And the fourth claim
asserts that Gaede’s fourteenth amendment right to due process was violated by
N.D.C.C. § 29.321 -01 (3)(a)(1) and that N.D.C.C. § 29.321-01 (3)(a)(2) is unconstitutional
because it is an ex post facto law. Gaede does not argue or provide any evidence to
suggest there is newly discovered evidence to support these claims, he had a physical
disability or mental disease that precluded him from timely asserting these claims, or that
a retroactively applicable interpretation of law applies warranting consideration. These
9
claims are therefore untimely and barred by the statute of limitations. Furthermore, the
claims have been previously raised or are variations of previous ones or should have
been submitted previously.
[1118] Gaede argues for a third time that N.D.C.C. § 29-32.1-01 (3)(a)(2) is
unconstitutional ex post facto law. According to Gaede Gaede however, this is the first
time he has properly raised the issue. But see (09-2014-CV-01350, Docket No. 1, p. 1,
(Application for Post-Conviction Relief); (09-2021-CV-0169, Docket No. 1, p. 1,
(Application for Post-Conviction Relief).
Be that as it may, the argument that
N.D.C.C. § 29-32.1 -01 (3)(a)(2) is an ex post facto law that was presented in Gaede’s third
application was specifically rejected.
(09-2014-CV-01350, Docket No. 1, p. 6, U 12,
(Order for Evidentiary Hearing). The law has not changed. An application for post
conviction relief must comply with newly enacted statute of limitations.
Lehman v.
State.2014 ND 103, H 11,847 N.W.2d 119. The claim is therefore still without merit and
barred by res judicata.
0119] Furthermore, this is not the first time Gaede has asserted an eighth amendment
violation. He did so in his first application, which was also summarily denied. Even if
Gaede’s argument now is more than a mere variation of the one raised previously, it
should have been raised then.
[1120] Finally, the only claim that is not completely redundant is the suggestion that a
grand jury needed to indict Gaede for him to be properly charged with the crime of murder.
Grand jury indictments were addressed by the North Dakota Supreme Court in Bell v.
State, 2001 ND 188, 636 N.W.2d 438. The Supreme Court explained that [sjection 2909-02, N.D.C.C., and N.D.R.Civ.P. 7 authorize criminal prosecutions by information, and
10
Bell’s argument that a prosecution must be by an indictment is meritless. Id. at 1J11.
Therefore, even if the claim was properly raised, it is still without merit.
[1121] All in all, all three claims are the type of issues that are appropriate for review at
the time of trial or on direct appeal. Gaede did not raise these issues during his trial, at
the time of sentencing, nor at the time of his direct appeal to the North Dakota Supreme
Court. To that end it was necessary that Gaede provide a justification for not previously
bringing any one of them. None was provided. These claims are therefore barred by res
judicata and misuse of process. Accordingly, the entire application fails to raise a material
issue of fact, lacks merit, and can be summarily dismissed.
[1122]
Gaede requested that counsel be appointed to assist him.
“If an applicant
requests counsel and the court is satisfied that the applicant is indigent, counsel shall be
provided at public expense to represent the applicant.” N.D.C.C. § 29-32.1-05. “A court
may properly deny a request for appointment of counsel if the applicant for post-conviction
relief is able to file an application without assistance, and the application, read most
favorably toward the applicant, does not raise the possibility of a substantial issue of fact
or law.” St. Claire v. State, 2002 ND 10, U 16, 638 N.W.2d 39 (citations omitted). “It is
not an abuse of discretion for the trial court to refuse to appoint counsel when the
application for relief is completely without merit.” ]d. (quoting Crumlev v. State. 2000 ND
110, If 11, 611 N.W.2d 165. Gaede is indigent.
He was, however, able to file the
application without assistance. The application, read most favorably toward Gaede, does
not raise the possibility of a substantial issue of fact or law and, most importantly, it is
without merit. Accordingly, based upon the above and the foregoing, it is hereby,
11
[H23] ORDERED, ADJUDGED, AND DECREED that the State of North Dakota’s Motion
for Summary Disposition of Post-Conviction Relief Application be, and the same hereby
is, GRANTED.
Accordingly, Petitioner Dennis James Gaede’s Application for Post-
Conviction Relief and Motion for Appointment of Counsel are hereby DENIED.
ffl24]
The State shall prepare and serve a judgment in accordance herewith.
[1125] LET JUDGMENT BE ENTERED ACCORDINGLY
Dated this 7th day of June, 2023.
BY THE COURT:
Hon. Steven E. McCullough
Judge of the District Court
12
STATE OF NORTH DAKOTA
IN DISTRICT COURT
COUNTY OF CASS
EAST CENTRAL JUDICIAL DISTRICT
Dennis James Gaede,
Petitioner,
)
JUDGMENT
)
)
vs.
State of North Dakota,
Respondent.
flfl]
)
)
File No. 09-2023-CV-01044
)
)
The above-entitled matter came before this Court on Petitioner Dennis James Gaede’s
(“Petitioner”) Application for Post-Conviction Relief, filed April 3, 2023.
W]
The Court having reviewed the documents filed by Petitioner and Respondent and being
fully advised in the premises, and having issued its Memorandum Opinion and Order Summarily
Dismissing Petitioner’s Application for Post-Conviction Relief and Denying Petitioner’s Motion
for Appointment of Counsel, dated June 7,2023:
ffl3]
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as follows:
Respondent’s Motion for Summary Disposition is GRANTED and Petitioner’s Application for
Post-Conviction Relief is DENIED.
fl[4]
Witness the Honorable Steven E. McCullough, Judge of the District Court,
and my hand
and seal of this Court, in Fargo, Cass County, North Dakota.
Dated this
day of
, 2023.
CLERK OF THE DISTRICT COURT
6/13/2023 2:08:28 PM
By:
Deputy Clerk
APP-C
I,
IN THE SUPREME COURT OF NORTH DAKOTA
DENNIS JAMES GAEDE,
Appellant/Petitioner,
vs.
STATE OF NORTH DAKOTA,
Appellee/Respondent.
)
)
)
)
)
)
)
)
)
Supreme Court No. 20230269
Cass County No. 09-2023-CV-01044
APPEAL FROM THE JUDGMENT DENYING APPLICATION FOR POST
CONVICTION RELIEF ENTERED IN THE DISTRICT COURT OF THE EAST
CENTRAL JUDICIAL DISTRICT, THE HONORABLE STEVEN E.
McCullough, presiding on june 13,2023
PETITION FOR REHEARING
Dennis J. Gaede
' Petitioner-Appellant
P.O. Box 5521
Bismarck, ND 58506-5521
1
APP~F
TABLE OF CONTENTS
TABLE OF CASES AND AUTHORITIES
11
JURISDICTION AND VENUE
12
STATEMENT OF CASE
14
STATEMENT OF FACTS
19
I. THE NORTH DAKOTA SUPREME COURT ERRED IN DENYING GAEDE’S
APPEAL BECAUSE ITS DECISION WAS BASED ON A REPEALED
UNCONSTITUTIONAL STATUTE.
118
118
ARGUMENT
II.
THE NORTH DAKOTA SUPREME COURT ERRED BY NOT RULING ON
ALL THE ISSUES APPEALED.
123
ARGUMENT
123
CONCLUSION
129
2
Ill]
TABLE OF CASES AND AUTHORITIES
Cases
Chery J v. Saul, 18 -CV-1292, (8th Cir. September 25, 2019)................
Ill
Ex Parte McCardle, 74 U.S. 506, 514, 7 Wall. 506,19 L.Ed. 264 (1868)
117
Gaede v. State, 832 N.W. 2d 334, (2013).............................................
15
Gaede v. State, 870 N.W. 2d 26, (2015)........ ;.....................................
15
Gaede v. State, 973 N.W. 2d 5, (2022).................................................
15
State v. Gaede, 736 N.W.2d 418 (2007)...............................................................
12
Yakima Valley Memorial Hosp. v. Washington State Dept, of Health, 654 F 3d 919
(2011) at 1(25.
117
Statutes
28 USCA §2244
15
28 USCA §2254
15,110
N.D.C.C. §29-32
112
N.D.C.C. §29-32.1-01
112,119
N.D.C.C. §29-32.1 -01 (3)(a)
Rules
N.D.R.App.P. Rule 40.......
11,113
Constitutional Provisions
14th Amendment...................
119
5th Amendment
120
115
3
[f2] JURISDICTION AND VENUE
[13]
This Petition for Rehearing is brought and invoked pursuant to this Court’s
jurisdiction under N.D.R.App.P. Rule 40. This action arises through the violation
of the Constitution and laws of North Dakota and the United States of America.
[f4] STATEMENT OF CASE
[15]
In 2005, Dennis James Gaede was charged for the 2001 murder of Timothy
Walker Wicks. Attorney Steven Mottinger was appointed to represent Gaede in
defense of the charge. In 2006, a jury convicted Gaede of the murder of Wicks.
Gaede was subsequently sentenced to serve a term of imprisonment for life
without the possibility of parole. Gaede timely appealed his conviction to the
North Dakota Supreme Court. See: State v. Gaede. 736 N.W.2d 418 (2007). On
his direct appeal, Gaede was represented by attorney William Kirschner. On July
25, 2007, the North Dakota Supreme Court affirmed Gaede’s conviction. Id. at
131.
[16]
On October 13, 2008, Gaede served and filed an Application for Post-Conviction
Relief with the East Central District Court in Cass County. Attorney Mark Blumer
was assigned to represent Gaede in the matter on October 13,2008.
[17]
Gaede filed a petition for post-conviction relief which was denied on July 23,
2010; Gaede appealed the denial of the post-conviction to the North Dakota
Supreme Court which was affirmed on August 24, 2011; On August 24, 2011,
Gaede filed a petition for habeas corpus with United States District Court for the
4
District of North Dakota Southwestern Division. On October 24, 2012, Gaede
filed an Amended petition for habeas corpus with the federal district court. On
June 14, 2013, the federal district court denied Gaede’s petition for habeas
corpus. On August 12, 2013 Gaede filed an objection to the dismissal of his
petition for habeas. On September 3, 2013, the district court entered a final Order
dismissing the petition for habeas corpus. On October 1, 2013, Gaede filed a
Notice of Appeal to the Eighth Circuit Court of Appeals. The Eighth Circuit
Court of Appeals affirmed the lower Courts decision.
[TJ8]
Gaede has since filed four more post-convictions. The first in 2012, which was
summarily affirmed on appeal rGaede v. State. 832 N.W. 2d 334, (2013)]; the
second which was summarily affirmed \Gaede v. State. 870 N.W. 2d 26, (2015)];
the third which was summarily affirmed fGaede v. State. 973 N.W. 2d 5, (2022)]
and the fourth which is the case at bar. The appellant also is filing a 28 USCA
§2244 motion with the Eighth Circuit Court of Appeals to petition to have his 28
USCA §2254 Habeas Corpus petition reset because of the perjured affidavit of
Christine Aman that was provided to the federal district court by the North Dakota
Attorney General’s office during the habeas process back in 2013.The appellant is
also preparing a writ of certiorari for the United States Supreme Court.
[f9]
STATEMENT OF FACTS
ffllO] In 2005 Gaede was charged with Murder. Attorney Steven Mottinger was
appointed to represent Gaede at trial.
5
[1(11] On October 16, 2008 Gaede filed a lengthy Application for Post-Conviction
Relief. There were twenty-three (23) allegations and/or issues in Gaede’s PostConviction petition based mainly on ineffective assistance of counsel. Of those
twenty-three issues one main issue stands out for purposes of this appeal: the
ineffective assistance of trial counsel for not having the appellant examined by a
psychiatrist/psychologist prior to trial.
[Tfl2] Attorney Mark Blumer was assigned to represent Gaede in this matter on October
31, 2008. The issues were heard at evidentiary hearings on May 27, 2009, and
February 18-19, 2010; Gaede, Mottinger, and William Kirschner testified. At the
hearing Mottinger admitted that he had been ineffective at trial, but the court still
summarily dismissed the petition for post-conviction relief. This court agreed with
the lower court focusing on a biblical argument rather than the defense lawyer’s
admissions.
[Tfl3] Gaede then file a lengthy petition for post-conviction relief on March 13, 2012
indicating that he suffered from PTSD after he had been told by treatment
department staff that he did in fact have the disorder. This was when the Cass
County State’s Attorney colluded with the treatment staff member Christine Aman
to generate a false affidavit swearing that the Appellant did not nor ever did suffer
from PTSD. Her deception was proven after Dr. Madeline Free testified that she
has been treating me since 2012 [Docket #16: page 6, lines 18-21]. The petition
for post-conviction relief was dismissed based on this perjured information.
6
[1J14] Gaede then filed a 28 USCA §2254 Habeas Corpus petition which was also
dismissed after the North Dakota Attorney General’s office also provided the
federal district court with the same perjured affidavit.
fl|15] Gaede tried again in 2014 by filing another petition for post-conviction relief
challenging a mental health condition at the time of the crime and that now he was
being treated for posttraumatic stress disorder with the drug Paxil. See “Cherv J v.
Saul. 18 -CV-1292, (8th Cir. September 25, 2019). The district court again
dismissed the petition for post-conviction relief based that this was not new
evidence. This court upheld the decision.
HI 6] Gaede filed the third post-conviction petition in 2021 after being "officially ”
diagnosed with PTSD by Dr. Madeline Free. However the district court claimed
the petition was not timely because it was filed just outside of the two year time
limitation allowed by N.D.C.C. §29-32.1-01 and was also dismissed. This court
also agreed with the lower court which brings us to the case at bar challenging the
constitutionality of this ex post facto law. With N.D.C.C. §29-32 now repealed
and deemed unconstitutional it automatically makes the lower court’s ruling
irrelevant and unconstitutional as well. This court must honor the law and reverse
the lower court’s decision.
[1fl7] Comes Now, Dennis James Gaede, Appellant herein, and petitions this court for a
rehearing of this appeal pursuant to N.D.R.App.P. Rule 40; the decision in which
was rendered on December 28, 2023. The grounds for the Petition are:
7
I.
THE NORTH DAKOTA SUPREME COURT ERRED IN
DENYING GAEDE’S APPEAL BECAUSE ITS DECISION
WAS BASED ON A REPEALED UNCONSTITUTIONAL
STATUTE.
[f!8] ARGUMENT
[f19] The court omitted to accord proper weight to the trend of national decisions, in the
absence of statutory and judicial precedent in this state, in deciding the primary
issues in this appellant’s brief.
[f20] It is also clear that this case is what the repeal of N.D.C.C. §29-32.1-0l(3)(a) is
based on. This concludes that this court’s decision on affirming this appeal was
based on an unconstitutional and repealed statute. It also means that the statute
was unconstitutional when the lower court rendered its decision on the post
conviction petition being appealed. It is therefore void. This also proves that the
appellant’s rights were violated. And it further serves as proof that the statute was
unconstitutional in 2013 when it was enacted and therefore the two-year statute of
limitations imposed by the statute is and was null and void from the very
beginning. Therefore it does not and cannot be used by this court or the lower
court in deciding this case.
fl|21] See the following federal and U. S. Supreme Court precedents on this subject:
[f22] “For more than a century, ‘the general rule... [has been] that when an act of
legislation is repealed, it must be considered... as if it never existed.
Ex Parte
McCardle. 74 U.S. 506, 514, 7 Wall. 506, 19 L.Ed. 264 (1868). Even in a pending
8
action, ‘no judgment could be rendered... after the repeal of the act under which it
was brought and prosecuted. ’ Id. A statute that Congress snuffed out ofexistence
by repeal leaves no residual clear statement ofauthorization.
Yakima Valiev
Memorial Hosp. v. Washington State Dept, of Health. 654 F.3d 919 (9th Cir. 2011)
at Tf25.
II.
THE NORTH DAKOTA SUPREME COURT ERRED BY
NOT RULING ON ALL THE ISSUES APPEALED.
fl[23] ARGUMENT
fl[24] This court overlooked or misapprehended issues of great importance in this appeal
that must be ruled on:
[^[25]
Whether N.D.C.C. §29-32.1-01 violated Gaede’s 14th Amendment Right to
Due Process by being an ex post facto statute and ultimately an
unconstitutional law?
[f26] Whether Gaede’s 5th Amendment Right to a Grand, Jury was violated when
the prosecution purposely avoided it to shield a murder suspect?
fl[27] The 5th Amendment Right to a Grand jury issue also is raised as newly discovered
evidence because it was just recently discovered through a national civil rights
group that North Dakota has been denying all defendants grand juries. This is a
paramount constitutional issue that the U.S Supreme Court needs to rule on for
precedent case law.
9
[f28] That the appellant asks the court to rule on each of these Constitutional issues
because if need be he is filing a Writ of Certiorari with the United States Supreme
Court; each of these will be raised as grounds for review along with the illegal
application of the unconstitutional statute to dismiss the post-conviction and this
appeal.
[f29] CONCLUSION
[1130] WHEREFORE, Gaede prays that the Court grants this appeal and relief to which
he may be entitled to including the following:
1. That this court reverse its decision and the order denying Gaede’s
application for post-conviction relief.
[1}31] Dated this 3rd day of January, 2024.
/S/Penm^ 7~. Ga&de/
Dennis J. Gaede
Appellant, pro se
P.O.Box 5521
Bismarck, ND 58506-5521
[f32] This Petition for Rehearing is in compliance with the North Dakota Rules of
Appellate Procedure and contains ten (10) pages total.
10
/
IN THE SUPREME COURT OF NORTH DAKOTA
Dennis Janies Gaede,
)
)
)
)
)
)
)
)
)
)
Appellant,
vs.
State of North Dakota,
Appellee.
NOTICE OF MOTION
Supreme Court No. 20230269
Cass Co. No. 2023-CV-01044
PLEASE TAKE NOTICE that the attached motion is in accordance with N.D.R.
Ct. Rule 3.2. You have fourteen (14) days after service of this motion upon you, within
which to serve and file an answer. Failure to file an answer may be deemed an admission
that this motion is meritorious.
Dated this 22nd day of January, 2024.
Respectfully submitted,
J. Go&dAs
Dennis J. Gaede, Petitioner
P.O. Box 5521
Bismarck, ND 58506-5521
ft ?P- H
V:
IN THE SUPREME COURT OF NORTH DAKOTA
Dennis Janies Gaede,
Appellant,
vs.
State of North Dakota,
Appellee.
)
)
)
)
)
)
)
MOTION FOR STAY OF MANDATE
Supreme Court No. 20230269
Cass Co. No. 2023-CV-01044
)
)
Comes Now, Dennis James Gaede, appellant, pro se in the above titled action and
with good cause moves this court pursuant to N.D.R.App.P. Rule 41 (d) (2) for a Stay of
Mandate pending his filing of a Writ of Certiorari with the United States Supreme Court.
Gaede asks this court to grand him thirty (30) days to prepare and file the petition
with the United States Supreme Court and a copy thereto with this court.
Dated this 22nd day of January, 2024.
Respectfully submitted,
/S/Pe^u-u^J. GoaAjs
Dennis J. Gaede, Appellant
Pro se
P.O. Box 5521
Bismarck, ND 58506-5521
/W-H
r
Hulm, Petra
From:
Sent:
To:
Subject:
Attachments:
Hulm, Petra
Monday, January 29, 2024 8:39 AM
'sa-defense-notices@casscountynd.gov'
Gaede v. State, Supreme Court No. 20230269
ai_stay_mandate.pdf
SVFFEME COl)(R?OT FCOFCFH(DjlXPFjl
OFFICE OF EKE CLEFT:C
600 E (Boulevardflvenue
(Bismarck FT® 58505-0530
(701) 328-2221 (voice) (701) 328-4480 (fax)
1-800-366-6888 (FEY)
supcCerkofcourt@ndcourts.gov
VIA E-MAIL ONLY
January 29, 2024
Dennis J. Gaede (printed directly to NDSP)
#23184
North Dakota State Penitentiary
P.O. Box 5521
Bismarck, ND 58506-5521
RE:
Gaede v. State
Supreme Court No. 20230269
Cass Co. No. 2023-CV-01044
On January 23, 2024,1 requested a service document for your motion to stay. This is in error as
we do not require a service document from inmates participating in our pilot project for printing
directly to NDSP and e-filing by scan. My apologies for the confusion. A copy of that motion is
attached here for Mr. Samuelson.
The motion is granted.
Sincerely,
Petra H. Mandigo Hulm
Clerk
North Dakota Supreme Court
cc:
Nicholas Steven Samuelson (w/o attachment)
l
flPP-H
*
1
1
The following investigation was conducted by Special
Agent John A. Dalziel, Federal Bureau of Investigation,
Minneapolis Division, Fargo, North Dakota Resident Agency on
03/11/2002
SA Pat Crouch, FBI, Omaha Division, Lincoln, NE
Resident Agency faxed the attached Lancaster County Corrections
Investigative Report to the writer. The report stated that Diana
Gaede made a statement during the booking in process that
implicated her in the murder of Timothy Wicks.
See attached report.
APP-J1418
s
»
Mft'r?—11-2002
P.02
FBI LINCOLN Rfl
08=55
PAGE: -1
LANCASTER COUNTY CORRECTIONS
INVESTIGATIVE REPORT
03/07/2002
REPORT # : R200200911
DATE
REPORT : 03/06/2002
INCIDENT : 03/06/2002
TIME
TYPE
23:18:42 IR
19:30:00 OT
OFFICER ; 5215 COTTER, SHERRI
LOCATION : BKG/H6
STAFF INVOLVEMENT
5092
5215
CAULFIELD; DAVID
COTTER, SHERRI -
INMATES INVOLVED
CFN
BOOKING#
POD
CELL
IAEDE, DIANA
721389
2002001793
B2
HABOSB
fARRATIVE:
On Wednesday, 3/6/02, at approximately 1930 hours, I CSI Sherri Cocter
was in the Booking Area meeting with inmate Diana Gaede who was on
Behavior Observation, in Holding room number six. At the begining of our
discussion I informed Gaede that it was not in her best interest to
discuss any particulars or details of her case with me and that any
thing she wanted to say about her case should be directed to her
attorney. Gaede stated that she understood. During the course of our
discussion, I allowed Gaede to read an article printed in the 3/6/02
r ■'’coin Journal Star pertaining to her arrest and implicating her
oand as a murder suspect. After reading the article, Gaede became
tearful and stated that she would never be able to face her family
again. When asked why she would feel this way Gaede stated, "Because I
iid it, he didn’t". I again advised Gaede that it was not in her best
interest to discuss details of her case with me and that she should
iiscuss them with her attorney, However, Gaede also made statements
regarding her and her husband "Dennis" being forced to take on other
.dentities based upon false allegations/charges that her husband was
racing in Wisconsin and that had they not-been, forced to do-so this
>ould not have happened. Gaede also talked about needing to order
.hings to write with from commissary as she needed to "write a
;tatement". Gaede then stated; that she probably didn't need to write
>ne as she had already written one and that the FBI probably already had
.t as it was in their trailer in which they were arrested. When asked
.f her husband was aware that she had written a statement, she replied
hat he was aware she had done eo.
notified Lt. Dave Caulfield of the above information, Lt. Caulfield
nstrucced me to contact LPD regarding this information. I- contacted
PD Captain Soukop.and he requested that a copy of this report be. sent
o LPD Capt. Gary Engel.
1419 ■
I
'
.NRR—5.1-2002
FBI LINCOLN Rfl
08-’55
P.03
LANCASTER COUNTY CORRECTIONS
INVESTIGATIVE REPORT
IGE: 2
03/07/2002
REPORT # : R200200911
DATE
REPORT : 03/06/2002
INCIDENT : 03/0.6/2002
TIME
TYPE
23:18:42 IR
19:30:00 OT
OFFICER : 5215 COTTER, SHERRI
LOCATION ; B1CG/H6
END OF REPORT
O,
ifU
R, SHERRI
Approved by: HEINBIGNER, BARRY
03/07/2002
ft fP-J.
1420
*.
A
%
May 5, 2021
Dennis J. Gaede #23184
P.O. Box 5521
Bismarck, ND 58506-5521
Birch P. Burdick
Cass County States Attorney
P.O. Box 2806
211 Ninth Street, South
Fargo, ND 58108
Dear Mr. Burdick,
Thank you for answering the letter I sent to Rick Majerus and also for letting
me know about Diana’s death. I actually began this on August 6, 2019 right
after I heard from you, but more and more information was opened up to me so
it took much longer than I thought to put it together with the discovery
documents. But I did my best.
First though, I did not know about Diana’s untimely death in 2012. That was
and still is a shock to me. All I ever wanted was for her to accept responsibility
for her true actions in Tim Wicks’ death. That being said, I now want to tell you
the truth about what really happened and why I believe it did. But, before I get
started, there is something that I would ask that you view.
In your letter you made mention that I could have raised pertinent issues
during trial, but didn’t. The.reason for much of this is because several
important pieces of information were not discovered until well after the trial.
One piece information is a movie called “Devil in the Flesh” staring Rose
McGowen, which was released in 1997, just four years before the murder. But,
1
Pipp-j
%'■
\
ir
I didn’t view this movie until just recently and then started putting the
connection together with Diana.
In this movie Rose McGowen portrays a serial killer who murders men after
they allegedly rape her. However, the most interesting part of this movie is that
Rose Mcgowen’s character name is “Debra Strand” the very same name that
Diana was using as an alias when we were arrested in Lincoln, Nebraska.
Diana started using this alias sometime prior to that when she began to change
her appearance and adopt her new identity. Evidence of the name Debra
Strand and the hair dye was found at the KOA Campground in Liberty, Iowa.
See Discovery documents 1416 and 1417, and also 1120-23. This is highly
pertinent, so please watch it because it will connect all the dots, especially with
information in the book, “Female Serial Killers: How and Why Women Become
Monsters” that I’ve sent you. This book I just came across and purchased in
March 2021 as you can see by date I received them in the front cover. It was
inside that I discovered Diana’s “other” little secret about why she referred to
her and I as “Bonnie and Clyde. ”
But it’s the storyline of the movie “Devil in the Flesh, ” coupled with Diana’s
original claim that Tim Wicks raped her and that she shot and killed him that
makes for a very plausible motive for her committing the murder. I would also
challenge that when she attempted to cut off Brando’s fingers/hands, as she
testified too at trial that that was a test run for what actually happened with
Tim Wicks.
I should also point out that Diana was infatuated with Rose McGowen and that
that was the reason that she originally started coloring her hair red or auburn.
More on this later, but I ask that you view this movie and compare it to the
documents I referenced. This, I believe was Diana’s final blueprint for murder.
2
Please watch this because this movie gave Diana a role to play. She adopted
this character along with a preexisting serial killers’ ideology. Now, Ill tell you
why. And as I promised, I want to recap the events of what actually happened.
But before we begin you should ask yourself, why would Diana want to be
present for everything? The real estate deal; working at Compressed Air
Technologies; making all Compressed Air Technologies bank deposits; and
collecting all the company’s outstanding debts? Notice that she manipulated
her way into every penny of the company’s money and had control of it through
me. Why? What was her higher agenda? And in the end, who got hung for it?
Me. So was she the puppet master behind the scenes pulling the marionette’s
strings from the beginning? Think about all of this and keep it in mind.
First, Tim did come up to Gardner, and he was not lured or inveigled in any
way. He really was going to travel up to Winnipeg to check it out and visit with
some of my friends in the music scene. This is true. But the part that I tried to
tell the investigators was that Tim knew all along about the house in Gardner
and that I was temporarily using his identity. He gave me the birth certificate
and a Social Security card to use so I could find work. Take a look at the birth
certificate, date of issue, and most importantly, the address that it was sent to.
It was issued right before I came up to North Dakota and it was sent to Tim’s
home address. He also had a Social Security card sent there for me and he
gave me his driver’s license number (Discovery Pgs. 1481-85). This shows that I
didn’t steal his identity at all. Everyone was upset at what happened in Monroe
County Wisconsin with my court case and stepped up to help me escape what
they were trying to do to me. Tim included.
Tim and I were close friends for a long time and we had plans of having a good
business together. Diana even admitted to the investigators that I was talking
with Tim about setting up an accounting office (Discovery page 1872). And
using his identity was only temporary just to get some quick work. Why else
3
would I have purchased identity changing books November 19, 2001, right
after I arrived in Fargo if had intended on using Tim’s identity permanently?
(Discovery Pg. 488). I would also like to point out that Diana lied to
investigators about this (Discovery Pg. 1850). She said that I bought those
books after Tim was killed, making it look like I was running from the murder
and needed a new identity. She also said that this was part of my plan. But
again, physical evidence shows that she lied only to divert the investigation
away from herself.
Just look at the phone records as to how much time I would spend talking with
him (Discovery pgs. 201-02, 211-12, 616). Also, why would Tim be
contemplating putting in a permanent change of address if he wasn’t planning
on moving up here? (See Discovery Pg. 558) I was updating him on everything
that was going on, including the deal I found on the HUD house in Gardner.
That was the reason he brought up all his painting equipment from Milwaukee.
It was to do some minor repairs so we could get the house reappraised and
take a second mortgage out for working capital. In fact, I believe that Tim had
some appraiser from Fargo come up to Gardner and give it a tentative look
while I was at work one day. Tim came to Compressed Air Technologies and he
told me about it over lunch. And also why would I risk having him come to
Compressed Air Technologies if he didn’t know what was going on? Especially
when everyone was calling me Tim.
And further, who in their right mind would risk buying a house under some
else’s name without him knowing about it, then stay in constant contact with
that person? Then, make plans to have that person drive 800 miles up to that
house to work on it fixing it up for resale? Especially when his name was all
over the house on paperwork and documents! And then stay at the house for
several days on top of it? Does any of this make any sense at all?
4
Sure, Tim was going to travel up to Winnipeg to check out the music scene for
a bit, but he was planning on living in the house in Gardner. Like me, Tim was
self-employed so he could go anywhere to find or create work. And both of us
together was a magic combination. The only personal problems we had were
that we both were dependent on drugs: Tim, marijuana; me, cocaine: both to
self-medicate PTSD symptoms. Check our histories and you will see. We both
have and had skeletons in the closets (Discovery page 800(B)). Tim actually had
a criminal record for violence when drinking: that’s why he smoked marijuana
more often. He told me all about what happened when he beat up his brotherin-law outside a restaurant after he’d been drinking.
Not many knew that Tim was bi-sexual and that he was lighting these feelings
inside himself. He actually asked me to help him find a wife when he was in
Fargo. I laughed and said that maybe we should start with a girlfriend first.
Then we both laughed. That’s how close our friendship was; we knew each
other’s deep secrets. This is also why Tim wanted to move up to North Dakota
to be close to me.
Diana also lied to investigators and first said that we were going to drive
straight through to Canada with Tim, but then said that he was doing some
painting at the house in Gardner. Again, Tim knew that he was going to be
doing the painting which was why he brought up all his painting equipment,
but Diana tried to twist the story into something else.
Another major thing to look at is that Diana lied to investigators about when
Tim came up to North Dakota. She insisted on riding in the car with him,
giving the reason that she would be there just in case we got separated on the
road; so that Tim wouldn’t get lost. Again, what was Diana’s true interest in
getting Tim up here? But looking at another possibility, she might also have
5
been looking for sinister intent from Tim.1 And this is probably true because
she lied to investigators and said that she rode in the car with me and that I
gave Tim a cell phone to keep in contact with us. This is completely false
because the only person with me was Josh (Discovery Page 1822). And my car
was also full of drum equipment.
Notice too that I contacted Tonya Tonsfeldt in October right after arriving in
North Dakota about looking at real estate (Discovery Pg. 1183). I started
working on our plan as soon as I could to get our business in motion. There’s
one more thing to consider here. How many people who steal identities
purchase real estate with fixed assets? None. Why? Because they’re not liquid.
The whole purpose of identity theft is to get quick money, not sit on
investments like real estate, especially properties that needed repairs. Plus,
you’re completely exposed, not operating in the shadows where most identity
thieves work. This just wasn’t the case with me.
But anyway, the problem came in when I told Diana that I was giving the house
over to Tim and that I was looking at different places like the townhouse in
Enderlin, and the three bedroom ranch out in Southheart, on the other side of
Dickenson. Diana said flat out that Tim was not going to get the house in
Gardner and that that was her house. This was her motive to kill Tim. She was
furious.
At this point I found out that when Diana was married to Ray Fruge, they had
purchased Diana’s grandparents’ home in South Milwaukee, but that the
house ended up being repossessed. She hated Ray for letting that happen,
which is why she started sleeping around with other men, including Brando
and some other military officer, just to punish Ray. She told me all about this
when she said that Tim was not going to get the house in Gardner. I realize
1 Ibid Page 175.
6
now that she was giving me some kind of warning. Diana then said that the
house in Gardner was her house. I think this all happened between December
26 and 27, 2001. Ray Fruge can verify all of that about the real estate
repossession and the other men she started sleeping with. Just call him down
in Sulphur, Louisiana and talk with him.
So when I came home from work on the evening of December 27th, I found
Diana severely angered and that’s when she told me that she wanted Tim out of
the house! She said that Tim had raped her. I didn’t respond, so she then said
that Tim had molested Josh. Again, I didn’t react, so she then said, “You kill
him or I will. ” I then told her she was drunk and to relax and that no one was
killing anybody and that Tim was planning to go up to Winnipeg the following
morning. She then stormed upstairs and I didn’t see her until the next day.
This was the first time that she started acting like serial killer Aileen Wuornos,
accusing a man of raping her and wanting to kill him.2
Here I should also add that Diana knew that I had been repeatedly molested as
a child and adolescent and she saw how quickly I responded when Josh really
was molested by Brando’s niece Lorriane back in Milwaukee. I immediately
notified law enforcement and took Josh to the rape trauma center to get him
examined. The molestation was confirmed by Josh at some point and Brando’s
niece was arrested. So, now if I had actually believed Diana, I probably would
have reacted differently, I admit that, but I had seen Tim earlier during the day
and we both were elated on how well things were going. And I knew that Diana
had other motives for what she was telling me. That’s why I just blew her off.
2 Female Serial Killers: How and Why Women Become Monsters, By Peter Vronsky; Berkley Books Publishing
Group, New York 2007 (pg. 147).
7
So that night I ate a late supper, talked with Tim and went to bed. Diana was
upstairs sleeping with Josh, and I slept alone on my king-size bed.
The next morning, on December 28th 2001,1 got up, showered, dressed and left
for work about 5am. As usual, I stopped at Hardees and got breakfast for
everyone at Compressed Air Technologies. Then at 10:51am I got a call from
Diana. She was hysterical and crying so I tried to calm her down, but I couldn’t
understand what was happening. She definitely sounded drunk because of her
slurred speech. We talked for 13 minutes and I finally ended up calling her
back on my cell phone and talked for an additional 70 minutes. See discovery
pages 211 and 214.
I would also like to point out that just prior to her calling me at work in Fargo,
Diana called Brando (Baranco) in Milwaukee at his salon (414-407-2121) at
9:52am and then again on his home phone (414-384-8770) at 10:24am. Then
immediately after she had an incoming call at 10:27am, apparently from
Brando, where she talked to him for 17 minutes and lied to him stating that I
had beat her up and I had left her (See Discovery Pg. 214, lines 116-118 and
Pg. 1877). Brando corroborated this by stating that Diana was hysterical when
she called him (Discovery Pgs. 1877-79). I find this interesting seeing that the
reason that Diana claimed to have moved up to North Dakota was to flee
Brando’s abuse, yet he had her phone number to call her back and talk for 17
minutes? The question is why did she call him first?
(Compare this with Diana’s statement to reporter Colleen Henry where Diana
tells her that I am her “knight in shining armor” and that I “rescued her from a
very abusive relationship with her former husband.” See Discovery Pg. 778.)
So I believe that she murdered Tim Wicks in the morning hours between 8-10
a.m. on December 28, 2001 and immediately called Brando for some kind of
8
assistance or help. When he refused or maybe came up with some kind of a
plan, she then called me.
Now look at this: Diana admitted that she called Brando after Tim was dead
(Discovery Pg. 1878). She also admits the trigger that set her off which, I will
address later, was Toni Klein. Then SA John Dalziel puts words in her mouth
that Tim is alive at the house (Discovery Pg. 1879). However, she’s already
admitted twice that she called Brando after Tim was dead! So why spoon-feed
her different facts? Especially when the physical evidence and supporting facts
such as Josh coming down to eat breakfast and the cereal bowl in the
photograph, phone records and her own confessions to numerous individuals
including two attorneys and law enforcement proves her admission.
Now, check the autopsy (Discovery Pg. 841(G) and look at Tim’s stomach
contents which contained, “720 cc of extensively digested tan liquid material,
which appears to consist of small pieces of pale tan meat and tan liquid.” Diana
corroborates this in her statement (Discovery Pgs. 1825 & 1876). The tan liquid
is also explained by the beer that she said we were drinking. So the last meal
he had was the chicken dinner we ate on the evening of December 27th 2001.
This would also explain the extensive digestion by the early morning hours on
December 28th. So there’s no way that the food in his stomach would have been
digested that far along in just a couple of hours as Diana explained in her
version of the events if he had been killed at 10:00 p.m. on December 28th.
Plus, according to the physical evidence, and based on Diana’s timeline, Tim
then didn’t eat all day Friday. If he had, there would have been more food stuffs
identifiable in his stomach when the autopsy was performed. The physical
evidence just doesn’t fit.
The forensic evidence shows that Tim Wicks was murdered much earlier on the
morning of December 28, 2001 while I was at work at Compressed Air
Technologies, probably while he was getting ready to leave for Winnipeg.
9
The next piece of circumstantial evidence to look at is based on Diana’s
timeline. Why Josh is eating breakfast at 10:30 P.M., just a few hours after
eating dinner, the time that Diana said Tim was killed? She told that to Sherry
Starner (Discovery Pg. 1932, Paragraph 4) and is corroborated again by the
crime scene photo of the cereal bowl on the dining room table. This proves that
Diana’s whole statement was a lie as to the time when the murder actually took
place and her involvement in it.
So after that I didn’t’ talk with her until 3:52pm on the 28th when she called me
at work and then called my cell phone at 3:53pm and talked with me for 3
minutes. Then I believe that Toni Klein called me on my cell phone at 5:00pm
and we made plans to meet that evening. Because of the earlier conversations
with Diana I was truly avoiding going home. We had been arguing over Toni
and her drinking because she had started up again after she was released from
rehab. So I forced myself to stop and buy some alcohol and then went to see if I
could locate Toni Klein to talk with her. I was upset. I also should note that I
met with Toni on other occasions at the restaurant/bar in West Acres Mall
after and during her shift at Zale’s Jewelers. She too was having marital
problems with her husband and there was an immediate connection between
us so we began to see each other more often. This was still a purely platonic
relationship though. We became good friends and enjoyed each other’s
company and conversation. And being new to Fargo I didn’t know very many
people outside of work that I could talk with.
So after I left Fargo, I arrived in Gardner about 10:20pm or so, and pulled into
my drive way. All the lights were off in the house except for the light over the
sink in the kitchen. I could see this as I passed the post office on the corner. So
when I pulled into the drive way I noticed that Tim’s black 2002 Chevrolet
Cavalier was still at the house. I thought this was odd because he was
supposed to leave for Winnipeg earlier that morning. I parked my Buick and
10
got out of the car. I went up to the back door, opened it and ascended the
stairs to the laundry area. That’s when I saw Tim’s lifeless body lying on the
kitchen floor with a small pool of blood (approx. 4-6 inches) under his head. To
me, it looked as though he had fallen backward and possibly cracked his head
open.
I kneeled down and shook him and listened for any breathing sounds and then
checked for a carotid pulse. (Keep in mind that I am a trained EMT) When I
found neither, I touched his cheek with the back of my hand and noticed that
his skin temperature was cool to the touch. I also noted that the blood on the
floor was clotted and dried, as was the blood on Tim’s hair and glasses on the
left side of his head. I also performed a quick cursory exam on Tim’s head to
feel where the blood was coming from and found and indentation on the lower
back-left side of his skull.
But it was apparent by the lack of vitals, body temperature and the dried blood
evidence that Tim’s body had been there for an extended period of time and
that he was in fact deceased. But I don’t remember there being any rigor mortis
present. I should also note that the kitchen floor was particularly cold because
of the broken and separated basement wall right below it, which may have
aided in the cooling of Tim’s body temperature.
I then began to panic and went to find Diana. As I entered the dining room I
turned on the lights and saw my small antique .32 caliber revolver lying on the
dining room table along with a cereal bowl and an ashtray with cigarette butts
in it. I didn’t touch anything, but just ran up the stairs and found Diana in bed
with Josh. I shook her awake and asked her what she did and why Tim was
lying dead on the kitchen floor. I didn’t say anything about him being shot. She
got up and came down stairs. This was when she said that she was trying to
tell me on the phone earlier that she killed him, but I then realized that I
couldn’t understand her because she has hysterical. She went and sat on the
ll
sofa and I stood just stared at Tim’s body through the doorway into the
kitchen.
I then started pacing back and forth and I kept asking her what she did, and
she calmly said “Don’t freak out on me now, there’s a dead guy on my kitchen
floor. ” Diana admitted in her statement here that I was having a panic attack
(Discover Pg. 1880). She, however, was completely calm about the whole
situation.3 I then asked her what she was going to do. She then said that we
had to get the body out of the kitchen before Josh came down stairs again.
That didn’t even register with me at the time that Josh had witnessed that
scene earlier. It was only later when Josh talked with me that I realized what
he had actually witnessed.
So at the time, my shoulder was still partially handicapped and immobilized
from the surgery I had done a few weeks earlier so I couldn’t do very much with
the use of only one arm. (See Discovery Pg. 745) There was, however, a blue
painting tarp out in the laundry area that Tim had used while he was painting.
Diana came into the kitchen with the tarp and opened it up. I thought she was
going to cover Tim up with it, but instead she started to spread it out on the
floor next to him. She then told me to help her roll his body up and get him
onto the tarp. I told her that I could only use one arm and she yelled, “Then use
it and help me!” So I did. After Tim was rolled over onto the tarp, Diana wiped
up the small circle of blood on the floor with a wet rag. We both then pulled the
tarp down the back steps out the back door and out to the barn. I then
carefully wrapped Tim up with the rest of the tarp and I went back into the
house and began drinking heavily.
At this point I want it to be known and that it has been confirmed by the
medical staff at the North Dakota State Penitentiary that I do in fact suffer from
3 Ibid Page 175.
12
Post-Traumatic Stress Disorder and am currently under treatment for it. I feel
that this is important because at my 2014 October post-conviction hearing
NDSP employee Christine Aman provided a sworn statement to the court
denying that claim. However, psychiatric staff have since confirmed that I do
have the disorder and am currently being prescribed medication and treatment
for it. This disorder played a big part in my actions in this crime and because of
my treatment, I can now be as honest as possible with everything that I am
telling you about it.
That being said, my actions, from the time I found Tim Wicks dead at or about
10:20pm on December 28, 2001 until I was arrested in Lincoln, Nebraska on or
about March 3, 2002, were guided mainly by a “fight or flight” response
system.
From that point forward we didn’t stay at the house or eat there, so everything
remained as it was. My flight response and paranoia was triggering and I had
to get away from there. That’s when I started staying at hotels and motels, but
Diana made sure she and Josh were with me everywhere I went.
I remember thinking that our whole plan was screwed up now that she killed
Tim. Tim and I were just starting out as business partners and were fixing that
house up. But I know that I had planned on repairing the basement wall that
caved in, so we were going to excavate the earth out from the north side of the
house. So I had paid someone to operate a backhoe for me because I didn’t
then and still don’t know how to operate any kind of heavy equipment. And we
brought a machine to the house to try to break ground, but the ground was
frozen too deep for that size of the machine. Again, I clearly didn’t know what
to order. But I remember that after he tested it, the operator said I needed a
much larger unit to break through the frost line or I would have to wait until
spring. But at this time I don’t know where the backhoe came from because
13
much of that information is just a blur. I just remember it coming to and being
there at the house. I don’t even remember it leaving.
You also have to understand that I was in complete denial as to what was going
on with Diana. So I’m not even sure where she was during this time. But I
remember calling Tonya Tonsfeldt from Century 21 Realty and telling her to
put the house up for sale. Tonya then verified that the child’s room appeared to
be freshly painted (Discovery Pg. 1184). Again, I know that was an odd thing to
do, but I wasn’t thinking clearly. I was just trying to remove myself from that
situation that Diana was pulling me into. The backhoe was a bizarre thing at
the time, but it was not to try to bury Tim’s body as Diana claimed.
So at this point I don’t know if I went to work or if I didn’t. My first response
was to get away from Diana, but I didn’t want to leave Josh with her for fear
that she would also harm him. But Diana said that she wanted to get rid of
Tim’s body. I said “no.” Diana corroborated this in her statement where she
said, “Most people are out partying and I’m out trying to find a place to get rid of
a dead body...” (Discovery Pg. 1890-91). She then said that she wanted to pull
all of his teeth out with a plyer. I was so sickened by the idea and again said
“no.” I then said that I wanted to take him back to Wisconsin; to take him
home for a proper funeral. Diana said no way, and that we were going to get rid
of his body. I said no we weren’t. This was the biggest conflict we were having.
Of course, at the time I hadn’t thought things through of how I was going to
explain this when I got Tim back to Milwaukee, but I didn’t commit the murder
so that wasn’t really my concern. Further, the PTSD was what was driving me
towards what I felt was a safe zone. It’s very difficult to explain how this works
when you’re not thinking rationally, but it’s like autopilot.
So I can’t remember if we had the boxes at the house from when we moved or if
I went and bought them afterward, but I used two moving boxes to fashion a
coffin. It was the closest respectful, non-sacrilegious thing that I could come up
14
with to transport him in. Again, because of the heightened PTSD response, I
can’t remember how or where I got the Ryder or U-Haul truck. I know Diana
said that it was in Fargo by the porno shop, but I don’t know where that is?
(Discovery Pg. 1832). This is confusing because I know I rented a Ryder truck
in Milwaukee to move to Fargo with. But I can only remember helping Diana
put Tim Wick’s body into a truck, into the makeshift coffin. It was at night and
cold and Josh was there.
Here I must state for the record that I am taking the medication Prazosin HCL,
which has been shown to reduce flashbacks and is clearly helping to block out
traumatic memories of these events. But again, I only had use of one arm and
one thing I do remember is being surprised at how strong Diana was when it
came to lifting Tim’s body in and out of the truck. That scared me as I too had
worked with the mentally ill in the past and this was known as crazy-strength;
when mentally ill patients feel no pain, but have super-strength like she had.
As far as transporting Tim’s body and all the other details, I think I already told
you about that in court in Fargo. The only things left that I can tell the
investigators are about the two places where I believe Diane dismembered Tim
during the night while Josh and I slept in the motels. One was in Minnesota
and the other one for sure was in Iron Mountain, Michigan. Diana made sure
he wasn’t going back to Milwaukee. And that, I knew nothing about it until we
arrived in Michigan at my house and I went into the back of the truck and saw
what she had done. That was when I tried to load up some of my personal
items. This is where another of Diana’s lies is proven because she told
investigators that she knew that the body was dismembered, but said that she
never saw it again after it was put in the truck (Discovery page 1836). So how
then did she know it was dismembered?
While investigators questioned Diana about the dismemberment they asked her
if Tim’s feet were cut off. She gave a definite answer of “No” twice. (Discover
15
page 1836) Again, if she never saw the body after it put into the truck, how
would she have known that? Especially, when she pulled his body out of the
truck torso first.
And once I saw that Tim had been partially dismembered I started to panic and
hyperventilate. Diana quickly, but calmly said, “Let’s just get rid of his body
somewhereSo I don’t even remember how we got to where his body was left,
all I know is that my phobia of bridges took over when I came up to a bridge.
Thinking back now, I can’t believe that she even let me drive by the way I was
panicking. And at one point I just stopped and Diana said, “Get out of the
truck. ” I remember thinking that we were switching drivers like we usually did
(See Discovery Pgs. 1778), but she opened the back of the truck instead and
started pulling Tim’s body out. She had the upper torso end and told me to
grab his legs, again because I could only use one arm. She hurried over to the
guard rail and tossed his body over it. I just let go when she did. I hugged Josh
and he me because I could see that Diana was full of blood. The Michigan State
Police identified a child’s footprints at the crime scene where Tim’s body was
found, yet Diana lied to the investigators and said that at no time did Josh ever
get out of the truck (Discovery page 1837 8s 1919-20). This is something else to
be noted. Josh saw everything.
We all got back into the truck and I think I probably closed my eyes as we
crossed the bridge. I believe that we drove for several hours and the next thing
I remember is that we were in Milwaukee. I just remember Josh hugging me
because Diana was full of blood. He was afraid of her.
It’s very hazy about what exactly happened in Milwaukee, only that the money
that was taken from Tim Wicks’ bank account for Diana to retain an attorney.
She changed her mind and took most of the money and bought an RV saying
that if she went to jail, Josh would have to go back to Brando and end up being
molested again. After that I was driving aimlessly and have no idea how we got
16
to where we were. I only have some vivid memories of certain places that I will
reiterate here.
I know that I kept telling Diana that she needed a lawyer and that was how we
came to taking that money out of Tim’s account. There was no plan to do that
before this because everything that Tim and I were planning on doing depended
on that money being there. I will explain later. But I gave her ten thousand
dollars, I believe, to use as a retainer fee, but instead she bought the RV with it
and said we were leaving. I was so mentally troubled after disposing of Tim’s
body that I just went along with whatever she said.
The next place I recall we were in the mountains in Kentucky and Josh told me
that he loved me. We were fishing alone by a mountain lake. I asked why he
loved me so much and he answered that I protected him. I asked from who?
And he said, momma. I knew right then that he saw what had happened.
I felt like I was dead or dying mentally at that point and Josh could sense it. I
didn’t talk to anybody. That’s why I never left the RV. I isolated myself from the
world and Josh wanted to stay with me. That’s also why he would go fishing
with me. It was just us two. Father and son.
Now, judging from Diana’s letters we traveled from Wisconsin, to Illinois,
Indiana, Kentucky, Tennessee, Missouri, Iowa, and Kansas and back to
Nebraska. I can only recall but bits and pieces of this. I remembered the
mountain lake because Josh loved to go fishing with me there.
You also know that by the police reports I was using mv real name in Nashville
and thereafter. I didn’t murder Tim, so I wasn’t running from that. Going back
to Wisconsin was what I was afraid of. But what would you do if you had to go
to prison where a good number of the prisoners sentenced there were put there
by you? It was also in Nashville that Diana admitted covering Josh’s mouth as
17
not to alert the authorities to us (Discovery 1883). That was why we left
Nashville in a hurry. I hadn’t planned on leaving, in fact I had rent paid up for
the entire month (Discovery Pg. 770). It was Diana that said we were leaving
right then because of what happened with the people from North Dakota. So
again, it was Diana that was running from the law and not me. Yet she lies in
her statement at (Discovery Pg. 1853) and says that “she can’t take it
anymore.”
However, I was telling Diana all along that I wanted to turn myself in to the FBI
and that’s when I called my attorney Bridget Boyle in Milwaukee. I also tried
getting an attorney for Diana at that time and she corroborates that in her
statement (Discovery Pg. 1853). In that statement she lies about turning herself
in because it was me that was talking to Bridgette Boyle about it and she can
verify it. I told Bridgette to set it up with the FBI in Milwaukee. That’s when I
remember checking with Greyhound Bus for the cost of a ticket which was
$69.00, I think, from Des Moines, Iowa to Milwaukee. And that’s when Diana
said that if I tried to leave that she would kill me. We were in a K-Mart parking
lot in Des Moines where I used the payphone to call Grey Hound Bus. She even
admitted that I said we should turn ourselves in in her statement (Discovery
Pg. 1853). She also admitted that she told Bridgette Boyle that she killed Tim
Wicks (Discovery Pg. 1854). The question I have is can’t Bridgette Boyle now
talk about this conversation seeing that Diana is dead? I will waive
attorney/client for my end of the conversation to prove what I said.
Also in that K-Mart parking lot was an unmarked police car watching the traffic
go by on the thoroughfare. When I looked over at him and then looked back at
Diana, she was staring straight at me and said, “Don’t even think about it; I’ll
kill you right now. ” And given the circumstances I believed her.
She said to get into the RV and directed me to drive. We headed out on some
back road and it seemed like we were driving in circles because I didn’t know
18
where we were anymore. I asked her where we were going and she said
Colorado. I asked why? And all she would say is that we were going to
Colorado. She lied in her statement and said that we were going to Canada or
Mexico, but her plan all along was to go to Colorado. My original plan though
was to go to Mexico to get away from her.
However, it was when she sold Tim’s drum set out in Kansas that I knew that
she was planning on killing me. I remember telling her in Nashville that I could
find a job playing somewhere and make some money with it. She just kind of
nodded in agreement. She also admitted that I had planned on working as a
musician to make money, but lied to investigators and said that I was going to
use an alias name when it was clear that in Nashville I was not hiding from the
law, only she was (Discovery Pg. 1851 and 1883).
Then the closer we got to Colorado things started to change. And after the
incident with the police in Des Moines in was clear that she was in control. So
she said we had to sell the drum set because it was evidence. And I knew she
was going to kill of me next. It should also be noted that she lied to the
investigators as to where she sold the drum set. (Discovery Pg. 1851-52). The
question is why? Notice that she knew exactly how much she sold them for,
but not where?
But as I said, it seemed like we were driving in circles and somehow we ended
up in Lincoln, Nebraska. That was where I had my one and only chance to
notify law enforcement without Diane knowing about it. I walked into a
Walmart store that used facial recognition and purchased something and
scanned a credit card that I knew was hot. I had cash and that I could have
paid for the purchase with, but I used that card specifically to alert law
enforcement. Proof of this is that you can check how much money I had on my
person when we were booked into the Lancaster County jail. I didn’t have to
use that credit card. I did it to save mine and Josh’s lives. And I knew the
19
credit cards were being watched by the FBI because of the telegrams I sent '
with it. John Dalziel can verify that. He even made a comment to me that he
liked the way I did that testing the card.
Within minutes the local police and FBI came into the-campground and
surrounded the RV. Diane looked at me and asked, “Do you think we can take
them?” My response was, “You’re on your own. I’m giving up and going out there
so they don’t shoot in here and someone ends ups getting killed” and I opened
the RV door and stepped out with my hands raised in the air. I then told the
police not to shoot into the RV because there was a child in there (Discovery
Pg. 1856). Diana refused to come out and finally the police dragged her out
through the door and took her down. She then refused to give consent to
search the RV after I told the FBI to search it.
Now, I am willing to submit to a polygraph test to anything that I have told you
here. In fact, I will go one step further. I will submit to a sodium pentothal
interview and will answer questions about this. I’m not sure how Ill react with
having PTSD, but it will be the truth regardless. But that’s how honest I am
being here with this. All of this is the truth.
Next, the closest truthful statement that Diana ever made was to
witness/inmate Sherry Annette Starner in the Lancaster County Jail (Discovery
pages 1931-34). She had the weapon wrong, but almost everything else was
spot on. For instance, in paragraph 4 she mentioned Diana pouring Josh a
bowl of cereal when he came down stairs. Look at the crime scene photos of the
dining room. There is a picture of the table with a partially eaten bowl of cereal
on it.
When I came into the house that night and saw Tim dead on the floor, the first
two things I looked at were the gun and the bowl of cereal on the table. I was
sickened then and still am now to think that Josh, at four years old, sat there
20
eating breakfast while looking at a dead body in a pool of blood on the kitchen
floor through the doorway. And Diana let him. She told Sherry Starner this and
there is physical evidence to support. The thing to keep in mind here is that the
bowl just sat there all day long from the morning until after ten o’clock at
night. That goes to show Diana’s state of mind at the time. She was a clean
freak. But after killing Tim, she was like a completely different person; one in a
state of confused shock.
That statement about the rape is exactly what Diana originally told me. And
like I said, she also said that Tim molested Josh too, but I know that was to get
me to react. Of course, that would have completed her plan.
The next statement where you can tell Diana was clearly bragging about her
gruesome deeds was when she spoke with Cheryl Bauer, another inmate in the
Milwaukee County Jail (Discovery Pgs. 812-15). At this point Diana twisted
many truths pointing the blame at me, but other than that, a lot of the
information is correct right down to Diana calling us modern day Bonnie and
Clyde’s.
Cheryl was absolutely correct that Diana did do all the planning and decision
making and that I refused to listen to her.
Next, look at the Michigan State Police Laboratory report (Discovery page
1007). This of course shows the rare spermatozoa that found on Tim’s penis.
But look higher up the page to item #L-7 “A small piece of toilet paper tissue
(folded and tucked together) recovered from victim’s penis.” This is important!
Now look back at Sherry Starner’s statement on Discovery page 780(b)
paragraph 3 where she quotes Diana saying that after Tim raped her, he went
upstairs to take a shower. And we also have to consider that maybe it was sex
made to look like rape, but something didn’t go right.
21
(Personally, I think Tim was going to come to Fargo and tell me what was going
on and Diana stopped him.)
So, hypothetically let’s say that Tim and Diana did have sexual intercourse of
some sort. Afterward Tim gets dressed and then decides to take a shower. Any
adult male would know that after ejaculation there’s going to be seminal fluid
in the urethra that through gravity assist is going to leak out. That would
probably explain why Tim had a folded piece of toilet tissue by the head of his
penis. I know because I witnessed it there. This also explains the spermatozoa
found on him by investigators. The shower also explains the absence of Diana’s
DNA on Tim, but it may have been on the clothes that she so adamantly
wanted to get rid of.
The only other option here is that Tim masturbated at some point, but then the
questions are what got him sexually excited and when? But either way,
something did happen that caused Tim to ejaculate and there is physical
evidence to prove it. But what happened? Oral sex, maybe?
I also believe that this was the reason that Diana wanted to get rid of the
clothes Tim was wearing right away. Not the other clothes that he brought with
him up to Gardner, just the one’s he was wearing. I believe this was because
there was some type of trace evidence on them that she wanted destroyed.
Diana also twice mentioned the washing machine and getting rid of evidence to
Sherry Starner (Discovery Pg. 1848 and 1932-33). But taken together they
could tell a different story. She may have washed away whatever evidence there
was, especially if there was some type of sexual encounter. I found it strange
though that she told investigators that I washed a comforter that Tim slept on
(Discovery Pg. 1848) when I never once even used the washer and dryer after I
bought them. Diana did all the laundry. Because of wearing suits to work every
22
day I became accustomed to having a laundry service do all my whites,
starching and dry-cleaning. So for me to use a washing machine would be an
absolute rarity in any case. And don’t forget, my family operated a laundromat,
so any other clothes I normally would need to do I would have had washed
there. I only bought the washer and dryer for Diana and the kids. I did cook
fairly often though because I’m a way better chef than she was, but I never did
any of the wash. So again, something probably happened on that comforter on
the couch where Tim was sleeping, which is why she washed it right away.
There was also truth in paragraph 9 of Sherry Starner’s statement where Diana
told her that she was raped as a child. This was corroborated by Ray Fruge’s
statement to the FBI (Discovery Pg. 1592-95) and clearly goes to motive for the
murder.
Another important piece of Sherry Starner’s statement is found in paragraph
12 where she said that Diana saw an unmarked police car go by and thought
her time was up. That didn’t happen at the campground in Lincoln, Nebraska,
but in Des Moines, Iowa at the K-Mart where I explained that she threatened to
kill me. That was where an unmarked police car was close to us and I was
going to alert him.
So you see, Diana lied to everyone she talked to and just twisted the truth in
various forms to fit whatever narrative she was telling. And this is obvious in
every single statement she made. It’s just amazing how Sherry knew all these
details and just how accurate they were.
After Diana killed Tim, she said that she wanted to pull all of his teeth out with
a pair of pliers and then get rid of the body. I about puked at the thought.
Again I said, “No!” and that I was taking him back home to Milwaukee and not
disposing of his body. But isn’t ironic that Diana was thinking like a 60’s
mobster to remove his teeth and fingerprints so the body couldn’t be readily
23
identified, and the way he was identified was through dental records? Compare
this to serial killer Richard Cottingham from the late 1970’s where the women
“he mutilated, he did so not for pleasure, but to destroy their identities—severing
their heads and hands not as souvenirs, but to impede the investigators.”4
My thoughts were that with 200 lbs. of DNA who cares about fingerprints and
dental records, especially when Tim had a half-dozen relatives alive in
Milwaukee and Jim Uline, a second cousin, right in Fargo who’s DNA could be
readily matched. Yet, she says in her statement, “[T]he only way they would
identify the body was if they found his fingerprints or his dental records”
Discovery Pg. 1833.) And then she told Cheryl Bauer that you can’t get
fingerprints off a frozen body? (Discovery Pg. 813). This is what she was
thinking, not me. This is an amateur criminal at work; someone unschooled in
any of the sciences.
Now there is yet another piece of evidence that slipped by the investigators.
Diana stated to them, “If you shoot someone in the head, you’d expect them not
to be breathing. I mean, that was just always my thought” (Discovery Pg. 1880).
First, why would she be always thinking about that, and then secondly, how
did she know that he was shot in the back of the head? I didn’t. I thought he
just fell backwards and cracked his head open by the fall according to the
small amount of blood that was present. I didn’t see a bullet hole. I felt it when
I did a cursory examination on his head when I first was checking for injuries.
There’s no way Diana could have known that unless she was the one who shot
him. And look at the angle and trajectory of the bullet path in the crime scene
photos. The bullet travelled on an upward path, indicating that the shooter was
shorter than Tim. I am just shy of 6’3, and Tim was shorter than me. So if I
were the shooter the bullet would have been on a downward trajectory path.
4 Ibid Page 34.
24
Further, the weapon that he was killed with was tiny and way too small for my
hands. I never could nor would chance shooting an antique like that. It was
unsafe to use. And given the chance, I will prove to investigators that this gun
was so unsafe that I would never have shot it by taking them to where Diana
disposed of it. I know where the gun is right now and will assist law
enforcement in recovering it.
This gun is of evidentiary value and can prove that it should have been nothing
more than a wall hanger. Only someone who didn’t know anything about gun
safety and manufacturing would have discharged it. I was taught by my father
from the time that I was a child to never, ever try to shoot that gun because it
would probably blow up in my hands. My Dad bought that .32 when he was
young so he knew it well. And it was so worn that it was unsafe to shoot. That
gun was also made for a woman or someone with very small hands like my dad
had.
Even my Smith and Wesson 9mm. service weapon had to have special grips
put on it because my hands are so large. I couldn’t shoot it properly on the
firing range with standard grips. My former detective sergeant at the Monroe
County Sheriff’s Department is who set that gun up for me and could verify
this.
Also note that Diana claimed, “I’ve never really been like...really m—...into
guns,” (Discovery page 1866) yet she correctly identified the murder weapon as
a revolver (Discover page 1825). And she also knew the difference between
ammunition, correctly identifying shotgun shells in an ammo box (Discovery
page 1874).
Note too that when the R.V was searched in Lincoln, Nebraska that thirteen
rounds of .22 ammunition were found in it (Discovery page 661). This is just
25
the correct number for a clip refill for a small semi-auto handgun, exactly the
right amount for the gun that I told investigators that Diana had with her when
we were traveling. The same gun that she pulled on me when she said that if I
tried to leave that she would kill me, and I mistakenly thought was a .25
caliber. This was the first time I saw the pistol. Notice that Diana quickly tried
to say that those rounds of ammo were mine when I didn’t even have a firearm
anywhere near that R.V.
And now I’ll show you her serial killer mentor who she no doubt emulated in
her homicidal endeavor. One that Diana very likely studied or followed while
she lived in Florida in the 1990’S (Discovery Pg. 1785B).
SERIAL KILLER AILEEN WUORNOS
The Florida Highway Killer
First, keep in mind Aileen Wuonos’ famous last words before her
execution on October 9, 2002: “I’d just like to say I’m sailing with the Rock and
I’ll be back like Independence Day with Jesus, June 6, like the movie, big
mothership and all. I’ll be back. ”5
But the most important piece of evidence here comes from the same book
where the author states, “Both Ed and Jay Watts recall that Aileen also had a
fantasy about being like Bonnie and Clyde, admiring the bandits’ violent
migratory careers. She was fascinated with outlaws and bikers and the violent
subculture that enveloped them. ”6
The next most important thing I would like to point out is Diana’s fascination
with serial killers. First, the obvious Debra Strand at the campgrounds, but
look at how many times she compared her and I to “Bonnie and Clyde. ” She
5 Ibid. Pg. 178.
6 Ibid Page 147.
26
told this to numerous inmates in jail and in several letters to me (Discovery
Pgs. 780c or 1933 and 1641). So you have to ask yourself, “Who fantasizes
about being a serial killer?” Then recently, during my investigation I discovered
that Serial Killer Aileen Wuornos did. In fact, her fantasy was to be “like Bonnie
and Clyde, admiring the bandits’ violent migratory careers.”7 So it’s clear that
Diana compared herself to two different women, one actual and one fiction.
And like Bonnie Parker, a serial killer who was on the run from the law, I
contend that Diana was a true sociopath with a psychopathic yearning for
serial murder of men. It’s also important to note that the movie “Devil in the
Flesh” was released in 1997, right after Aileen Wuornos’s killing spree ended
and she too used the same defense in court that when men had attempted to
rape her, she shot and killed them. This is also where Diana got the idea for
that defense, not from me. It is very interesting that in one of Diana’s letters to
me she muses about a “movie like good vs. evil or something” and says that the
girl she’s referencing is a “Miracle in the Flesh” (Discovery Pg. 1734).
Coincidence? I don’t think so. Especially when just a few sentences prior to
this she’s referencing “Satan’s workers.”
But it was Aileen Wuornos that came up with the idea of self-defense after
being raped.8 But Diana talked about it with her lawyer in Nebraska and then
abandoned the idea. And it was that same lawyer in Nebraska who told her
that her timeline was no good and that she could end up getting the death
penalty (Discovery Pg. 1652-53). So you can see that I didn’t coach her in any
way. I only attempted to help her after the fact and referred her to Bridgette
Boyle for legal counsel (Discovery Pg. 1642). Again, this was what the money
was for.
Ibid Page 159.
27
WHAT TRIGGERED DIANA ON THE DAY OF THE KILLING?
As I stated earlier, Diana hated Tim and saw him as a threat back in
Milwaukee and now he was at our home in Gardner. I still say that the reason
she rode up to North Dakota with him in his car was that she needed to
convince herself that he was going to rape her and thus deserved to die. Just
like serial killer Aileen Wuornos, it is unlikely that she made up the motive as
an afterthought—she was probably deluding herself as she went along—looking
hopefully for some sign that Tim, or her victim harbored some sinister intent
and therefore deserved to die. But the trigger that set her off that day was Toni
Klein.
To begin though, and I don’t know why, but I seemed to be Diana’s first
significant relationship that appeared be functional on some normal level. But
it might have also been the elixir that set this whole murder into motion.
Because we know that “fantasies, facilitators, and triggers are the three pillars
of serial murder,”9 there is probably little doubt that Diana fantasized about
revenge against the males who sexually abused her throughout her life. And
truthfully, one does not need a psychology degree to figure out what kind of
fantasies she or any victim might have who was sexually abused from age nine
the way Diana was.
These facilitators are the "lubricants”—pornography, drugs alcohol—which
enhance the fantasy and lower the inhibitions to realize the fantasy.”10 First,
notice in Diana’s statement to the investigators that she immediately identified
a location in Fargo not being far from a porn shop (Discovery Page 1832-33). To
9 Ibid Page 176.
10 Ibid Page 176.
28
know this information off-hand and given the cumulative history, is evidence to
her psychopathy.
Next, Diana was drinking when she killed Tim (although Diana was almost
always drinking when she did anything). But the trigger is usually a series or
combination of pressures in daily life that law enforcement call “stressors, ”
which at some point drive the predisposed individual to crack and act upon their
fantasy.n This is where my relationship with Diana could easily have served as
the stressor for the murder.
When we were in Milwaukee I saved her from an abusive relationship with
Brando who beat her regularly. That’s why she told Colleen Henry from
Channel 12 News in Milwaukee that I was her “Knight in Shining Armor”
(Discovery page 778).
Then Tim Wicks, who she apparently identified as a homosexual, comes into
my business to get his taxes done and he and I end up going out to music
clubs together. We spent time drinking alcohol and doing cocaine together,
listening to live music and reminiscing about old times. Tim and I also were
talking about what I saw up in Fargo when I spent an eight-hour layover there.
We also talked about Canada and the music scene up there. Diana saw this as
a real threat and she said it to me. She did not want me hanging around with
Tim or going out to bars and drinking with him. But there it probably is. Why
Diana committed murder shortly thereafter and not before. This falls under
what’s termed, “homosexual overkill,” which fits with Diana’s admitted
bisexuality and apparent hatred toward other homosexual individuals,
particularly men. In this case when he threatened her marriage and security.
11 Ibid Page 176.
29
Even before we were married, Diana saw me as her husband and she was the
wife who craved security. But it was Diana who took on miserable little jobs
like working at the laundry service in Fargo to guarantee a minimum flow of
income while she relentlessly nagged me about my free-spirited lifestyle. This
was odd to me, especially when she was such an accomplished hairdresser.
But all this did was threaten the only long-term intimate relationship that she
had ever known and managed to form in her entire life; the only loving family
she felt she had. It just didn’t make any sense to me.
This story parallels like a Greek tragedy of epic proportion: After taking a life of
abuse and rejection, it was only when Diana finally found true love that she
became a killing monster. Diana killed in rage for love and in the end that
same love would betray and kill her. And ironically, Diana died on October 13th
at age 46 (Ex. 1), while her mentor Aileen Wuornos died on October 9th at age
4612. (Just another bit of numerology. Diana died on October 13th, 2012,
almost exactly six years and six months to the day since she testified against
me in 2006. That calculates to “666” or the mark of the beast. And if you recall,
I did say in court at sentencing that she was a “Lamia,” or female demon and
that she would burn in hell for all the lies she voiced against me. So maybe the
Devil did come and claim his prize after all? Just a thought.) And even more
ironically just three months after she got off probation.
But, back in Milwaukee the problem came up in Monroe County, Wisconsin
when trouble from the past caught up with me. Tim and I already had plans on
going into business together and he did not want to see me going to prison. So
we devised a plan to just leave and start over somewhere else. And Fargo
sounded good. As I said, Tim and I were both self-employed so we could find
work wherever we went. I just needed an identity to use for a brief time until I
could establish a new one. This was so I could work in accounting and have a
12 Ibid Page 178.
30
place to live and something to eat. Tim said, “No problem” and stepped up and
offered to help his friend of many years who was in trouble.
This is why we stayed in constant contact as evidenced by the phone records. It
is also why I purchased the identity changing books from Paladin Press on
November 19th, 2001 (Discovery page 488). So anyone can see that Diana’s
story about Tim finding out about some fraudulent credit card charge was
another fabrication in her plan to kill Tim and set me up (Discovery Pgs. 1802
& 1810). The only credit card account that was active was Zales Jewelers, and
if there was any fraud detected, how would I have been able to keep using it?
And if that were the case don’t you think that they would have alerted Tim as
to where it was being used, like say in Fargo, North Dakota? The whole credit
card story concocted by Diana was a lie from the beginning and now the other
evidence shows us why she did it.
But take note how Diana evaded the whole subject of Tim knowing about the
house when she was questioned by SA John Dalziel:
Dalziel: “What, what what is your conversation about what Timothy’s gonna do?
Didn’t you ask him (Gaede) what’s Tim gonna do when he gets here and realize
that everything is in, in his name?
Fruge: “I really tried not to ask too many questions at that time. I was too scared
of what, what was gonna happen.
Scared? Yet if this were true, she had ample time in overl400 miles of travel to
leave or escape if she felt threatened, but she didn’t. She could have alerted
Tim at any time if this were true, but she didn’t. She could have notified law
enforcement at any time, but she didn’t. Why? Because she was the one with
the plan to murder Tim Wicks.
31
Now sure, Tim was going to travel up to Winnipeg to check out the music
scene, but he was ultimately planning on moving up to North Dakota if
everything looked good and was in motion. Why do you think he told his postal
carrier that he was “taking off for 1-2 weeks or longer” and wasn’t sure if he
should place his mail on hold or make a change of address (Discovery page
558)? And that change of address was going to be to Gardner to his new house.
The problem was at the time neither of us knew what the actual address was in
Gardner yet to even have any mail sent there.
But when Diana heard about the change of address Tim was going to put in,
that was the final “straw” or trigger that set her off. I had made plans with Tim
and she wasn’t having it. She said that the house in Gardner was her home
and that Tim was not going to get it. That’s why I was looking at the other
houses in Southheart and Enderlin. This is also why I bought her the heartshaped diamond ring and the Tanzanite necklace at Zales Jewelers. It was to
keep her happy. But apparently it didn’t work.
PSYCHOLOGICAL PROFILE
Psychopathology is defined as manifestations of mental disorders.
Distinguishing psychopathology from normality is usually easy, although on
occasion it can be difficult.13
While for many serial killers, death is only a conclusion to their fantasy or a
function of it, females kill to kill. One frequent reason given by male serial killers
as to why they did not kill a particular victim is because they learned something
about them. This triggers a personalization of the victim in the offender’s
13 Essential Psychopathology & Its Treatments; Jerrod S. Maxmen, Nicholas G. Ward, and Marck Kingus: W.W.
Norton & Company ©2009.
32
perception and misdirects their killing desire. This phenomenon reflects the
proclivity of male serial killer to target strangers whom they objectify, imposing
their own lethal fantasy upon them. Yet if they come to somehow see the victim
for who they really are, the fantasy can be interrupted.14
So as anyone can see that based on this theory alone I would have had
absolutely no reason to want to kill Tim. He was my close friend and if I did,
why bring him up to North Dakota to do it? Why not do in Wisconsin in my
own backyard, my comfort zone, where I grew up and was overly familiar with
every place in the entire state? Further, then risk taking him all the way back
there? If this isn’t evidence that I didn’t plan this, than what is? This also
removes the element of premeditation. Who in the world would plan to bring
someone across three states, murder them, and then take them back across
the same three states? Especially in a truck that I knew would be subject to
D.O.T. inspections and scale crossings. If I was guilty, would I expose myself
like that? This just ludicrous.
But now, look at the typical female serial killer. First, it is probable that the
female killer is already intimately familiar with her victim just as Diana was
with Tim. She is working, living, or sleeping with him; she already knows who
he really is—there is no victim fantasy. It’s the wolf stalking its prey, looking for
the right time to attack.
Next, Tim, like the sheep, didn’t even realize that he was in danger as Diana
used the cover of the established killer victim relationship, (a wolf in sheep’s
clothing) within which to kill him. Thus, the attack occurred in an accepted
social relationship while the means was surreptitious; a blitz attack. Inside of
our home the murder was invisible and look how she got away with it: In a
town of seventy-five residents, on a cold winter morning, no one heard the
14 Female Serial Killers: How and Why Women Become Monsters, by Peter Vronsky, Page 35
33
sound of a small caliber gunshot, only the crackling of the burning logs in their
fireplaces. And a serial killer was born.
And just like a typical female serial killer, Diana did not bother with torture or
rituals, but went straight for the kill, therefore there was no time for
unsuspecting Tim to respond, even if he had realized that he was in danger.
Now, I want to list the following categories that I feel that Diana qualifies for
and I will give evidence to support it:
Hedonist-comfort Killer - is one who murders simply to profit materially from
the victim’s death. The hedonist-comfort killer is, of course, the category with
which we have most frequently in the past associated female serial killers. The
stereotypical female serial killer remains one that uses her feminine charm to
get close to her male victim, gain control of his property, and then murder him
moving on to the next victim—Black Widow.
Anger-Retaliatory Killer - is one who has a need to avenge, or get even with
or retaliate against a female, or her substitute, who somehow offended the
killer in her perception.
Explosive Avenger Killer - is one who is driven to murder a particular type of
victim reminding them of past abusers in their life.
Cult Disciple Killer - is one who is led by a charismatic leader just as Diana
clearly followed Aileen Wournos.
Covertly Hostile Killer - is one who suppresses rage and expresses it secretly,
often targeting their own children or other vulnerable victims in a killing rage.
34
Amoral offenders commit premeditated murders with no remorse for personal
or material gain. They could be described as psychopaths or sociopaths—a
personality disorder rather than a mental illness. They are aware of the acts
they commit but do not care. Most serial killers, female or male, can be
diagnosed as sociopaths, or as suffering from Antisocial Personality Disorder.
Beta Females - are ones who are provoked to kill by emotions such as jealousy
and hatred or who provoke to some degree their own victimization, resulting in
an impulsive murder.
All these different categories can exclude or overlap each other. There is no
single one-size-fits-all definition for a serial killer, nor is there a single
universal system of categorizing serial killers, male or female. And now as I will
demonstrate, every one of these categories applies to Diana.
But first, we have to look at what triggered her to commit the murder. Aside
from Tim threatening to take the house from her, an even greater threat was
Toni Klein.
Just look at the numerous times she mentioned Toni in her letters to me,
venting her jealous anger that I was even remotely interested in another female.
Then look at where investigators questioned Diana about our relationship
(Discovery pgs. 1805-06). Diana was so enraged that she couldn’t even
remember Toni Klein’s name just saying, “then he had another situation with a
woman who just thought he was God’s, you know, gift to women and she was
real, real, real on to him even though she was married also. ”
This is what triggered Diana to murder Tim Wicks. However, there is one piece
of information that isn’t in the police reports, but I do believe that I told it to
Justin Yagow at work at Compressed Air Technologies. And that is that Diana
was so furious over Toni that she told me that she was going to go to West
35
Acres Mall and wait for her to appear in the parking lot and run her down and
kill her. Diana also said that she was going to find a way to kill Toni’s kids.
(And you can ask me about any of this under a polygraph exam! This is the
absolute truth!)
That was when I realized that I had made a mistake bringing her up here or
even getting involved with her. I mean, I’ve had jealous girlfriends before, but
none that would murder the other girl or especially her children. This was why
I was trying to get away from Diana. This was also why I was buying her the
jewelry gifts to try to appease or make her happy. And Tim knew about all of
this. But it was just by chance that I met Toni in the process at the bar in West
Acres one day when I went there for lunch. Then I found out that she was the
manager at Zales. I didn’t meet her at Zales first, but we hit it off. But after
what Diana said about killing her and I then when found out that she had went
to West Acres to confront Toni (Discovery page 30), I started spending more
time around her to make sure nothing was going to happen to Toni or her kids.
Like I said though, I believe that I talked about this with Justin at work. I
vaguely remember telling him that Diana was crazy and threatened Toni.
In this case with Toni Klein, Diana demonstrated traits of the both the Beta
and Anger-Retaliatory killer. With the willingness to kill Toni’s children and
probably Josh too as not to let Brando get custody of him shows traits of the
Covertly Hostile Killer.
With the murder of Tim Wicks she demonstrated traits of the Hedonisticcomfort the Explosive Avenger Killers. Here Diana obviously used her
vampire-like feminine charm to get close to him and probably lured Tim into
sex while focusing on cashing in on his death. As I mentioned earlier, she kept
the rare Tanzanite necklace as a trophy. This qualifies her as the Amoral
Killer.
36
It too was apparent that Hales Corners Police Department detective Kent
Schoonover fell prey to her seductress charms at some point also. Look at how
guarded he was in his report dated November, 6th 2003:
(She sat on the couch on the south side of the living room I sat on the
padded chair type thing on the west side of the living room about 6 feet away
from her. We had no physical contact as shaking hands or sitting on the same
piece offurniture at all” (Discovery pgs. 805-07).”
But this is what “Lamia” or “Succubus” do. They are demonic vampires who
through their dark powers murder all who fall into their mesmerizing gaze. This
was Diana for sure. Compare this to the letter she wrote to her girlfriend Trina
Thomas (Discovery 1606-08). She used her beauty and charm to attract her
prey and then to profit from them. And it infuriated her that she thought that I
had that same magical power over women, especially with Toni Klein. “Then he
had another situation with a woman who just thought he was God’s, you know,
gift to women and she was real, real, real on to him even though she was
married also.” Trigger? Oh yes, this was the trigger that started her murdering
and Tim just happened to be in the path of her storm.
So, as her (first?) victim she exacts her revenge on a “faggot”; one, that in her
eyes is no different than the “hairdressing faggot” (Discovery Pg. 1725) that for
the past few years beat her repeatedly. One who she tried to kill once with a
butcher’s knife, but failed. But this one poses an even greater threat than the
prior: he’s coming in between her and her new husband to take “her” new
home away. Hmm, no problem. This budding serial killer can use this murder
as a trial run to get things rolling until she can get at the blonde bitch that she
really wants: The one who’s trying to steal away her new husband! This was
the motive and the fuel stoking the fire.
37
% .
Lastly, she exhibited traits of the Cult Disciple Killer. This was evident with
her following the traits of many different serial killers, but especially Aileen
Wuornos. Diana copying Aileen’s Number One fantasy of being just like “Bonnie
and Clyde” is just one major point. Second, she originally carbon copied
Aileen’s defense of claiming she was raped and saying that that was the reason
she committed the murder. Diana identified with Aileen because they both
came from broken homes; both hated their fathers; both were molested and
raped at young ages; they both sold their bodies for cigarettes and drugs; and
with both of them their major drug of choice was beer.
The gun that Aileen committed all of her murders with was a .22 caliber
handgun, the same caliber that Diana obtained from some unknown source
and had on her person, which the extra rounds in the RV were for (Discovery
page 661). Both Diana and Aileen were bisexual. Both women had sex with
hundreds of men and women. And Diana and Aileen were both extremely
jealous and possessive of their spouses. Diana also lived in Florida during the
time of Aileen Wuornos’ murder trial (Discovery page 1785B) and apparently
fell in love as a cult follower.
It’s clear that Diana identified with Aileen and then when she saw the movie
“Devil in the Flesh” she adopted the alternate identity or personality of “Debra
Strand” (Discovery pgs. 1120-23, 1416-17). There she fell into the character
role of a fictitious serial killer who again, like Aileen Wuornos, kills her victims
after claiming that they raped her. Same—Same. And all of this is highly
plausible because she has already admitted to taking on the identity of “Bonnie
Parker” in the “Bonnie and Clyde” duo. So it’s not a far stretch to connect her
from a migratory violent bank robbing bandit to a murderer on the run who
exacted revenge on those who in your life you envision as tormenters and
abusers. Especially when you have a Hollywood script to follow as a blueprint
when it’s laid out for you.
38
Another possible motive for Diana murdering Tim was that this was a hate
crime. A few things that she said jump out of her statements, like calling one
gentleman “another hairdressing faggot” [Discovery Pg. 1725). But that’s just
icing on the cake.
Then she jumped on me for something I apparently said in a letter about
homosexuality. And then you can see her hatred toward pedophiles in the
same letter (Discovery Pgs. 1729-29B).
But the letter that really speaks her true feelings was when Diana said that if
any of the guys in here were in prison for sexual assault on their own kids, she
wouldn’t have a lot of mercy for them. She also confirms that she was raped as
a child and says that there is nothing that she can do about it (Discovery
Pgs.l756B-57). Now put that together with the letter where she said that staff
at the jail asked her if she was sure she wasn’t going to hurt herself? Diana
answered, “No, I just think about hurting other people that hurt me” (Discovery
Pg. 1644B). As you can see, Diana decided as a defense mechanism to hurt
others long before they hurt her. And that is exactly what Aileen Wuornos did!
Then Diana talked about being picked on in the jail and inmates teasing her
with jokes about dismembering a body (Discovery Pg. 1646). And she was quick
to say that those girls were lucky that she had a sense of humor.
Now, look at Diana’s visit with the Catholic priest (Discovery Pgs. 1668B-69).
She said, “Iconfessed my sins, yes, the big one!” ...”I will tell you that it was
extremely difficult to confess that to a human being, even if he is of the cloth...”
So what could she have possibly been confessing that was so shocking to the
priest? We see murder every day on T.V. so I doubt that it would have been
that. But now confessing the dismemberment, or the defiling of the Lord’s
39
Temple would be shocking to even the most hardened criminals, let alone a
priest.
So what’s the common denominator here? Violence is.
She was socialized to modulate her own emotions through detachment and to
control her environment through aggression and violence. In spite of the abuse
she endured, [Diana] learned to identify with the aggressor. The world was
made of two kinds ofpeople: victims and offenders. She chose the latter
category. Her rigid internal working model of herself and the world she inhabited
did not allow for anything in between. She no longer would be the victim.15
One other thing that Diana did to cover her tracks was her attempt to use
Detective Kent Schoonover to accomplish it. She made a point of telling him
that she was going to return the heart-shaped diamond ring that I bought for
hereto Zales Jewelers. However, she made no such offer to return the rare
Tanzanite necklace that I had custom made for her. But isn’t it just like a serial
killer to keep a trophy or memento from their victim(s)? And technically it was
Tim that bought it for her, wasn’t it? (Discover Pages 659-60).
This is conclusive evidence that Diana saw herself as a serial killer when she
murdered Tim Wicks and when she was planning to kill Toni Klein. And if this
doesn’t qualify as newly discovered evidence, I don’t know what does?
Recently, after I viewed the movie “Devil in the Flesh” I began investigating
female serial killers. Then just a couple of months ago in March of 2021,1
came across the information about Aileen Wuornos and found out about the
“Bonnie and Clyde” connection. Then it all made sense. Diana was following
Aileen’s lead in avenging her abuse and when “Devil in the Flesh” came out, she
had a script and character role to follow. This was murder made to order. And
15 Ibid Page 165. Emphasis added.
40
I
. it was when she met me that she thought she found her partner in crime to
complete the duo.
Then when I was very honest and open with her about my past, as you
probably well know, and having spent time in prison and had affiliations with
outlaw motorcycle clubs, I was the perfect candidate as a husband. She just
needed to mold me into the partner she needed. And she almost did, except
that I’m not a murderer, nor will I ever be one. I may enjoy the game of cat and
mouse from time to time, I will admit that, but the mouse has to survive to play
again tomorrow and not become the entree for today’s dinner. Diana, on the
other hand, goes straight for the kill. As I said, she would no longer be the
victim with me standing behind her. I protected her and the kids so she could
become Debra Strand, serial killer. And I saw that confidence in her eyes when
she stood up to Brando and he was afraid to put his hands on her because of
me. Right there she knew she won against the “Hairdressing Faggot." The game
now had a whole new set of rules. The only problem was that Diana was the
only one who knew them. But it was her game and we were all forced to play.
So here it is. The evidence, the real story and how we all fit into it. As I said, I
will take a polygraph as to anything I’ve told you here. This is the absolute
truth. Like I said, I will take the investigators to any and all places referenced
here and show them exactly what I’m talking about. With help, I will also turn
over the weapon that Tim was murdered with which will prove that (1) I
couldn’t have shot him, and (2) wouldn’t have shot him with it.
There’s probably a thousand other questions that you and the investigators will
have for me, so fire away. I’ve given you everything. This is the truth and the
truth doesn’t waiver.
You also said that Diana is dead so that she couldn’t defend anything that I’m
saying here. But these are her own words I am using against her. Everything I
41
*
I
%
said here is based on her own statements and writings. That way she doesn’t
have to defend it because she already has—she initiated it when she spoke all
these lies against me. There just wasn’t any compelling evidence available at
the time to expose what Diana’s true agenda really was. Now there is. And not
finding it before this was not for a lack of due diligence because this was like
looking for a needle in a haystack when you didn’t know the needle or the
haystack existed. It was all by chance that I came across it and connected the
dots.
So I filed a new post-conviction based on the PTSD diagnosis and this serial
killer information. However, I am asking that you hold off on any type of
response to the petition until after the investigator(s) look into what I’ve sent
you. But please have the investigators contact me if there are any questions
that I can help answer.
I’ve also sent you two copies of “Female Serial Killers: How and Why Women
Become Monsters/’ by Peter Vronsky. One copy is for you and one is for the
investigators at the Sheriff’s Department. These are my gifts to you because the
information inside is invaluable to a prosecutor and to law enforcement. I feel
that with the way that society is changing, we are going to see way more
women murderers coming forth and that book is a goldmine of information.
Especially the psychological profile sections. I hope it finds a place on your
bookshelf. DJG.
STATE OF NORTH DAKOTA
)
42
»
i
VERIFICATION
)SS.
COUNTY OF BURLEIGH
)
Dennis James Gaede, being duly sworn, deposes and says that he is the defendant in the
foregoing statement; that he has read the foregoing statement and knows the contents thereof and that
the same is true of his own knowledge, except as to those matters stated therein upon information and
belief and, as to such matters, he believes to be true.
Dennis J. Gaede
Subscribed and sworn to before me this
,2021.
day of
Notary Public
My Commission Expires:
Cc: Cass County District Court
43
4
t-
STATE OF NORTH DAKOTA
WITNESS INDEX
Page
FOR PLAINTIFF:
DR. MADELINE FREE
Direct Examination by Mr. Craig
Cross-Examination by Mr. Burdick
IN DISTRICT COURT
COUNTY OF CASS
EAST CENTRAL JUDICIAL DISTRICT
STATE OF NORTH DAKOTA,
5
1111
Plaintiff,
vs.
DENNIS JAMES GAEDE,
EXHIBIT INDEX
FOR DEFENDANT:
1- Psychiatric Documents
OFFER
REC
14
Defendant.
)
>
)
)
)
)
Hearing
Case No. 09-2021-CV-01619
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE STEVEN E MCCULLOUGH, DISTRICT JUDGE
Cass County Courthouse
South Fargo, North Dakota
November 19, 2021
APPEARANCES
FOR PLAINTIFF:
Birch Peterson Burdick, ESQUIRE
Attorney at Law
Cass County Courthouse
Fargo, ND S8108
«■*
FOR DEFENDANT:
Kyle R. Craig, ESQUIRE
Attorney at Law
Craig Law Firm, P.L.L.C.
1600 2nd Avenue, SW
Suite #30
Minot, ND 58701
RECORDED/TRANSCRIBED BY:
Deanna Hinchy
Electronic Court Recorder
Page 2
1
as well.
2
1
As indicated, this is the time set for the
3
evidentiary hearing in this matter,
4
the underlying criminal offense in file 0905K2678.
5
before the Court, the Honorable Steven E McCullough, district
3
judge, presiding, commencing at 8:59 a.m. on November 19, 2021,
4
in the Cass County Courthouse in South Fargo, North Dakota.
initial application for post-conviction relief in file
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Present were 3irch P. Burdick of Fargo, North Dakota,
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0908C4458.
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representing the plaintiff, State of North Dakota; and Kyle
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relief in 09-2012-CV-345.
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Craig of Minot, North Dakota, representing the defendant,
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conviction relief in 09-2014-CV-1350.
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Dennis James Gaede.)
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Mr. Gaede was convicted in
(The before-entitled matter came on fox hearing
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He filed an
He filed a second petition for post-conviction
He filed a third petition for post-
This, then, would be his fourth petition for post-
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conviction relief, not counting federal matters.
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THE COURT:
Go ahead and call court to order, then.
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This is the East Central. Judicial District Court for the State
for the motion in this case is newly discovered -- or the
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of North Dakota, County of Cass, Steven McCullough presiding.
Petitioner in this case is newly discovered evidence.
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particularly a diagnosis of post-traumatic stress disorder of
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Gaede v. the State of North Dakota, 09-2021-CV-161S.
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Dr. Madeline Free on 6/18 of 2019.
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the time set for an evidentiary hearing, in a post-conviction
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And the basis
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Mr. Craig, you're the Plaintiff in this matter, so
you may proceed first.
MR. CRAIG:
I am so sorry, Your Honor, I was having
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some audio issues there for the past minute or two.
And I
The case we have on this morning is Dennis James
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relief proceeding.
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request of the parties, via Zoom.
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state.
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Mr. Gaede has now signed on; we'll admit him.
someone on the line who's name shows up as M. Free.
The hearing is being conducted pursuant to
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could see the recording picking .up and I missed the last maybe
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50 seconds of what you said, .1 apologise, I was having some
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MR. 3URDICK:
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technical issues.
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THE COURT:
THE COURT:
Mr. Burdick appears for the
Mr. Craig appears for the Plaintiff, Mr. Gaede.
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This is
I see
There's also
May I explain that. Your Honor?
You may.
I was just going through the procedural
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history, noting the underlying case and the prior existence --
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psychologist who has evaluated Dennis Gaede for the last six,
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I didn't go into the details, but the existence of the prior
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seven years.
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petitions for post-conviction relief.
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And then outlined that
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P PP- K
MR. BURDICK:
THE COURT:
M. Free is Dr. Madeline Free, the
All right.
Mr. Ga.ede is now cn the line
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I
l
And before I jvunp into the, I guess, nuts and bolts
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this is the fourth application for post-conviction relief, not
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of your testimony, do you require any kind of order from the
Q
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counting any federal cases.
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Court to disclose any protected medical information regarding
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that of newly discovered evidence, specifically, a diagnoses of
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Mr. Gaede?
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post-traumatic stress disorder by Dr. Madeline Free, cn or
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A
No.
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Q
Okay.
Not at this point.
And that the basis asserted is
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about June 13th, 2019.
I just
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hearing, or you’re the Plaintiff, I should say.
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received yesterday, a whole stack of records from your contacts
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proceed first.
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with Mr. Gaede.
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for a post-traumatic stress disorder appear — I think it was
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January 2018, does that sound correct?
So we'll just jump right into it then.
And a question I have is, I see this diagnosis
And so Mr. Craig, it's your evidentiary
So you may
Do you wish to call any witnesses?
MR. CRAIG:
Thank you, Your Honor.
I apologize for
those -- oh sorry.
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THE COURT:
Do you wish to call, any witnesses?
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A
That ball park, yes.
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MR. CRArG:
Yes, Your Honor.
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Q
Okay.
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So my question for you first is how did this
the line.
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diagnosis come about, because — well. I’ll take a step back.
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You’ve been evaluating Mr. Gaede for a number of years, is that
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hand and be sworn.
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right?
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(ph.).
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A
Correct.
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Q
And when did that start?
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A
I don't know exactly.
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It could have been 2012 or
THE COURT:
Dr., I'll need you to raise your right
Thank you.
I'll just do the oath, Alex
DR. MADELINE FREE
having been duly sworn, testified as follows:
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MS. FREE:
Yes.
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THE COURT:
Thank you.
employee for the Department of Corrections for four or five
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Mr. Craig, you may proceed.
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years.
So back in
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time, I saw him regularly.
Just when I was employed there.
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And I don't remember the start date.
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something like that.
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I don't really recall..
I.was a full-time
And then I switched to be a consultant.
Q
Sure.
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But back in, I think 2012, 2013, whatever it
was, you didn't at that point diagnose Mr. Gaede with pert-
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I have Dr. Free here on
So I would call her as a witness.
DIRECT EXAMINATION
BY MR. CRAIG:
Q
Dr. Free, could we please have you state and spell
your name -- full name for the record?
A
Madeline M-A-D-E-L-I-N-E, Free F-R-E-E.
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Page 5
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was that included this post-traumatic stress disorder
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diagnosis?
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A
That is correct.
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A
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Q
What explains how you diagnosed him in 2018 with that
Well, I think it was the fact that he brought up the
traumatic stress disorder, correct?
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stuff that had happened in Boy Scout camp and how it
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precipitated events then when he went to school, because the
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A
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same boys were at school and he was afraid that they were going
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times.
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to sexual molest him again.
And so, yeah, there's some sense
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one, and give his narcissistic nature, he's always entitled and
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of a traumatic reaction to difficult experiences in his life.
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wanting to make his dialogue make him look good.
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when I've you know, looked at him and thought you knew, are you
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delusional about things?
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Q
And that would have stemmed from some sort of
childhood trauma, then?
disorder, versus like 2012 when you didn't?
He presents with different personas at different
And he will — he's very skilled in dialogue to engage
There's times
li
A
Yeah.
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He presents wirh a lot of anxiety issues and then you
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Q
Which is —
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know, over the time of knowing him, he'll periodically come up
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A
That was the sexual'abuse i'n 'Boy Scout camp.
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with events from his past that he would proport cause him
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Q
Which is well before the conviction that we're
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difficulties now.
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Scout camp or whatever.
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inability to handle situations, or whatever.
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talking about here, correct?
Q
Ye3.
Yes.
Yes.
A
So can you explain to the Court why that diagnosis
wasn't made sooner, like why did that only come about in 2018?
Q
Because whoever, myself included — who was
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interviewing him, those issues never surfaced.
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have been asked and then a part of it is his own entitlement
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Questions might
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You know, sexual abuse as a chile at a Boy
And he'll say that impacted me and my
And given the fact that he tends to ruminate on a lot
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of things is why I eventually started topiramate, his
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medication, to help that.
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Q
So
there some kind of different testing that took
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place in early 2018 that you conducted or how did you come to
and sophistication where he will relijure and then propose that
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that diagnosis?
yes, I'm having flashbacks; yes, I’m having this problem; yes,
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A
I'm having that problem.
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You know.
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Q
And so you know, mental disorders are kind of on a
Page 3
No.
It was just the routine psychiatric interviews.
Do you recall what specifically the new revelation
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t
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spectrum of things.
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this point, the diagnosis of the post-traumatic stress
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on that spectrum of anxiety issues.
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disorder, is that right?
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guess, on his periodic reports of the abuse in the past and
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that he felt that it was triggering things in the here and now.
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Q
A
But despite that concern, you've stood by at least at
Yes, because I was providing medications to treat
ruminating thoughts and anxiety issues.
Q
Okay.
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And that — he’s currently receiving those
medications, as well? •
A
Yes.
And he claims he has flashbacks, and so he is
Q
Okay.
Obviously, this is an issue — he’s raised an
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issue about competency.
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evaluations for the State of North Dakota, do you?
You don’t perform competency
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A
I do not.
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Q
To determine if criminal defendant —• oh, sorry.
I
FTSD is
you know, 1 honed in, I
And you know, I look at symptoms more than I look at
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diagnosis.
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medications, I try to treat symptoms.
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ruminating thoughts.
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on medication to help with that, too.
He*s always had anxiety issues.
Q
A diagnosis is a label.
When I write for
So I was treating his
I was treating his anxiety issues.
And I think he has had a variety of different
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anxiety-'based disorders as well, based on your treatment of
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him, is that correct?
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A
Correct.
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Q
And those have dated back probably over a decade or
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more at this point, is that right?
IS
know we were kind of talking over each other.- But to finish my
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A
Yes.
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question, you don’t perform competency evaluations to determine
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Q
Is there a concern about — just kind of reading
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if a defendant is criminally responsible for their conduct, is
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between the lines a little bit in your last answer, is there
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that right?
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some concern that he’s malingering or fabricating symptoms?
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A
That is correct.-
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get a —
Q
The only thing you can really explain to this Court
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I do not. •
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A
At least to 2012.
I have one — I have wondered from time to time.
To
You
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is that Mr. Gaede has this PTSD diagnosis that you've
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know, he presents — because he’s good in his dialogue and
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identified?
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storytelling and he-engages one easily, it’s — he can easily
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A
Correct.
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suck people in.
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Q
Okay.
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And yes, 1 think he embellishes symptoms in order to look good.
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this witness.
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Which is part of his narcissism.
I think that's all I have. Your Honor, for
And I think that’s happened a lot in the past.
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personality disorder, anxiety disorder, NOS,’ or PTSD, you're
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listening to what the. patient is telling you and then trying to
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treat the symptoms that patient is explaining, is that correct?
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A
Yeah.
That’s accurate.
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Q
Okay.
.So you can't actually add the two plus two and
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get PTSD, so to speak?
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A
Mr. 3urdick?
MR. 3DRDICK;
Thank you. Your Honor.
CROSS-EXAMINATION
BT MR. BURDICK:
Q
Dr. Free, just a couple of additional questions.
I understood you right, clarify if I didn't.
If
The diagnosis of
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A
Correct.
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PTSD more recently, in 2018/'19 now, is — I think what you
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Q
Okay.
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described as a label; essentially, does that mean that you use
So as. Counsel just explained a moment ago.
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earlier in time, in fact up and through.2018, he was not
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it to — through which you are able to treat the symptoms that
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diagnosed with PTSD.
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you're seeing?
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symptoms?
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A
Correct.
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mental health, give labels and diagnosis to justify the
Q
Okay.
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Now he has been so you can treat the
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A
Yes, I would say, sometimes we — unfortunately, in
Mr. Gaede hasn't spoken yet this morning.
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medications that we are using.
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Based on the pleadings he has made, which you may not have
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medications that are used for off-label purpose.
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seen, it appears that he’s trying to say that this discovery of
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topiramate, we use for a mood stabilizer, for ruminating
Especially if they are
And
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PTSD is something that prior to that, made it -- made him
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thoughts and such.
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unable to fuLly determine where he was at and what things were
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so when I'm using if for off-label purposes, for many insurance
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going on so that he now should be able to bring this late-
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purposes, you have to have a diagnosis that matches your
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arising claim to the Court.
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medications.
He argues that he did not commit the crime for which
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Q
Thank you.
Are you at least aware
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A
It's very sad, but that's the way it’s written, so.
Q
Okay.
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he is convicted but that his wife did.
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of that background?
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It's designed as an anti-convulsant.
And
So it's different than a mathematical equation
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A
To a degree, yes.
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where you can add two plus two and know that you've get an
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Q
Okay.
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answer, which is four?
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A
Yes.
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when you are, in fact, diagnosing whether it's anti-social
Page 12
What I interpret you to be saying is
Page 11
I
1
pages 142 and 143 --
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THE COURT:
3
1
Before you do that Mr. Burdick, are you
offering the exhibit that was pre-filed?
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MR. BURDICK:
Your Honor, I would like to offer that
So does his PTSD diagnosis now somehow relieve his
Q
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conviction back in 2006 for the behavior in 2001?
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answer for that, does it explain why he did it, is it something
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the Court should determine that he was incompetent at the time?
Is it an
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now.
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accompanying document, that these are the records provided to
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us by the penitentiary that are Mr. Gaede’s psychiatric history
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with them.
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understand what was going on during a trial, as best you can
tell?
I would explain to the Court, as I did in the
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6
A
The diagnosis of PTSD has no bearing on his crime or
his competency.
Would it have had any bearing on his ability to
Q
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THE COURT:
Any object, Mr. Craig?
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MR. CRAIG:
No, Your Honor, I believe that's actually
1.0
A
I do not beli.eve so, no.
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Q
Are there any other observations that you have about
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what he wanted to introduce, so we have no problem with that.
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THE COURT:
Then the exhibits that were filed on
11/18 of 2001 will be received as Exhibit Number One.
I mean, a late-arising PTSD diagnosis?
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Mr. Gaede that you've not had an opportunity to express this
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morning, that you think the Court should know?
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(Whereupon, Defendant's Exhibit No. 1
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was admitt
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