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Dennis James Gaede v. State of North Dakota

August 18, 2011

DENNIS JAMES GAEDE,
PETITIONER AND APPELLANT
v.
STATE OF NORTH DAKOTA, RESPONDENT AND APPELLEE



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.

The opinion of the court was delivered by: Kapsner, Justice.

N.D. Supreme CourtGaede v. State,

2011 ND 162

This opinion is subject to petition for rehearing. [Go to Documents]

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AFFIRMED.

Opinion of the Court by Kapsner, Justice.

Kapsner, Justice.

[¶1] Dennis James Gaede appeals from an order denying his application for post-conviction relief. We affirm, concluding the district court did not err in rejecting his claims of ineffective assistance of trial and appellate counsel, newly discovered evidence, prosecutorial misconduct, and other alleged defects in his jury trial.

I

[¶2] In 2006 a jury convicted Gaede of murdering Timothy Wicks in Gardner, and the district court sentenced him to life imprisonment without the possibility of parole. The State's theory of the case was that Gaede lured Wicks to North Dakota to murder him, and Gaede and his wife, Diana Fruge, who testified against Gaede at trial, disposed of Wicks's dismembered body in Michigan. We affirmed Gaede's conviction in State v. Gaede, 2007 ND 125, ¶ 1, 736 N.W.2d 418.

[¶3] In October 2008, Gaede filed an application for post-conviction relief under N.D.C.C. ch. 29-32.1 raising 23 issues, and an attorney was appointed to represent him. On the State's motion, the district court summarily dismissed five of the issues on the basis of misuse of process and res judicata, and ordered an evidentiary hearing to consider the remaining issues. The court subsequently granted Gaede's motion to supplement his application to allege ineffective assistance of appellate counsel for failing to raise meritorious issues on direct appeal. Following an evidentiary hearing, the court rejected Gaede's remaining allegations and denied his application for post-conviction relief.

II

[ΒΆ4] We need address at length only one issue raised by Gaede in his appeal. Gaede contends his trial attorney and the prosecutor improperly used biblical references primarily during closing arguments to the jury. Gaede's contention is three-fold. Gaede asserts he was denied effective assistance of counsel because his trial attorney used biblical references, he was denied effective assistance of counsel because his trial attorney failed to object to the prosecutor's use of biblical references, and he was denied effective assistance of counsel because his appellate attorney on direct ...


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