The attorney for Markus Kaarma wants the Montana Supreme Court to rehear his appeal after it upheld Kaarma’s conviction earlier this month.
In a petition filed Tuesday, Nate Holloway asked the court to take another look at whether evidence it already ruled should not have been allowed at trial played a significant role in the jury finding Kaarma guilty.
A jury convicted Kaarma in December 2014 of deliberate homicide for killing 17-year-old German exchange student Diren Dede, who was shot after entering Kaarma’s Grant Creek garage that April, apparently looking to steal alcohol.
Kaarma, who was sentenced to 70 years in prison and won’t be eligible for parole until he has served 20 years, appealed the conviction at the end of 2015, citing a handful of factors that came up before and during the trial.
In an opinion issued earlier this month, the Montana Supreme Court upheld Kaarma’s conviction, and dismissed most of his complaints, including that the trial should have been moved because of intensive media coverage and that the judge should have excused a potential juror because of her relationship to police.
The high court did agree, however, that Missoula police detective Guy Baker, who testified about blood spattering in the garage, should have been deemed an expert witness, which would have given Kaarma’s defense team the ability to either challenge his credentials or find an expert of their own to counter his statements.
But Chief Justice Mike McGrath wrote in his opinion that even though the testimony shouldn’t have been allowed, the court found it was similar to other testimony, and likely didn’t contribute to Kaarma’s conviction.
In his filing, Holloway said while the Supreme Court correctly indicated that Baker’s testimony lined up with Kaarma's position at the time of the shooting, it “overlooked” what the detective said about Dede’s.
“The jury was allowed to believe that Dede had retreated to a crouched position behind the vehicle, injured and bleeding, before he was shot. This alone warrants reversal,” Holloway wrote in his brief.
Holloway told the Missoulian on Wednesday that after reviewing the record, he found no other witness who testified to the same version of what Dede was doing at the time he was shot and killed. The inadmissible testimony prejudiced the jury against Kaarma, and indicated that Dede didn’t possess a threat to him at the time, he said.
“To our end, that is powerful testimony that could contribute to a conviction,” he said.
In his opinion, McGrath wrote that the blood spatter, and Kaarma's location, were not central points to the trial and "not germane to the specific elements of the crime of deliberate homicide."
Holloway’s petition also asked the court to re-examine a claim from the appeal that the jury was not instructed on considering burglary a forcible felony, which could have affected the standard for justifiable use of force Kaarma had to reach.
Holloway said Wednesday it’s uncommon for the state Supreme Court to rehear appeals, but that Kaarma’s appeal originally contained more issues than many other cases.
“They are difficult to win and difficult to get consideration for, but we also presented a lot of issues to the court,” he said.
Prosecutors have two weeks to respond to Kaarma’s petition. If the Montana Supreme Court declines to rehear the appeal, Kaarma’s next available option is to ask the U.S. Supreme Court to review his case.