What was set to be a three-day trial in the Adams County Courthouse at Hettinger ended shortly after 3 p.m. Wednesday, when Kevin Gardner of Dickinson and State’s Attorney Aaron Roseland reached a plea agreement following the lunch recess.Posted June 27, 2013
By JAMIE SPAINHOWER
What was set to be a three-day trial in the Adams County Courthouse at Hettinger ended shortly after 3 p.m. Wednesday, when Kevin Gardner of Dickinson and State’s Attorney Aaron Roseland reached a plea agreement following the lunch recess.
Gardner, 50, was accused of putting a gun to a Hettinger woman’s head at her home on Nov. 16, 2012, and pulling the trigger. The female victim allegedly heard a click, but the gun did not go off.
The jury was seated and charges against Gardner were read and court dismissed for the lunch recess.
Upon returning at the appointed time, Roseland informed Judge William A. Herauf that the victim was refusing to come to court and testify against Gardner, stating she was afraid. A deposition had been taken in February, which Roseland wanted to enter into evidence in lieu of her physically being in court, but Gardner was not present during the taking of the deposition, due to lack of available security that would have allowed him to attend.
The trial was originally slated for May, but Gardner fired Kevin McCabe, his public attorney in April and, invoking his sixth amendment right, chose to act in his own defense. He asked McCabe to serve as his backup.
After the Judge did some research it was his determination the deposition could not be used as testimony by the witness, because it was not a “trial deposition” but one for discovery purposes, and Gardner did not have the chance to either attend the meeting or ask questions, even though his attorney, McCabe, was still his attorney of record at that time.
“He also would not have the right to face his accuser,” without her in the courtroom, said the Judge, or have a chance to ask questions or cross-examine her.
Another recess was called, and further efforts to bring the witness to court failed, as she “refused to leave her home, even after being reassured she would be safe and there would be a police presence in the courtroom at all times,” Roseland told the Judge.
“The judge did not enter a contempt warrant and I do not believe he has plans to do so,” said Roseland after it became clear the witness was not going to testify, even though she was under subpoena. “The State is not requesting one. Prior to trial, I had spoken with the victim and she had indicated that she was ready and willing to testify. On the date of the trial, however, it was clear that the victim was unable and/or unwilling to come to court to testify.”
The State then made a plea agreement offer to Gardner. He was facing five counts – four felonies and two misdemeanors: Attempted Murder, Class A Felony; Aggravated Assault Domestic, a C Felony; Reckless Endangerment, Terrorizing, both also C Felonies, and Menacing, a Class A misdemeanor.
“As a result of the plea, Mr. Gardner pleaded guilty to Aggravated Assault (Domestic) and Menacing. He was sentenced to 2 years, to run consecutively, with all but 215 days suspended,” Roseland said.
Charges stem from an incident on Nov. 16, 2012, when Gardner became physically violent with the victim.
The attempted murder charge, reckless endangerment and terrorizing charges were dismissed in the agreement where Gardner pleaded guilty to menacing, and the aggravated assault charge was reduced to an A misdemeanor.
Sentence was imposed of one year in jail per count, with 215 days time served, with the remainder of the sentence being under unsupervised probation. He was also fined $2,000, all suspended. He will be required to pay $350 in court fees. He may have no contact whatsoever with the victim.
Roseland said, “I believe strongly in the strength of the State’s case. Without the testimony of the State’s primary witness, it would have proven very difficult, if not impossible, to get in the evidence needed to secure convictions on them. Given the situation, I believe that Justice was served in that Gardner was held to account for his actions.
Since the jury had been seated, double jeopardy was attached, said the Judge.
The jury was told a resolution had been reached and thanked for their service and dismissed from duty.