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Twice convicted for murder, Delvin Shaw seeks new Supreme Court appeal

BISMARCK -- The North Dakota Supreme Court will review for the second time whether the Northeast Central District Court erred in procedural rulings in a 2014 Grand Forks murder case.

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Delvin Lamont Shaw waits to give his closing arguments in Grand Forks on Tuesday, February 28, 2017. (Joshua Komer / Grand Forks Herald)

BISMARCK -- The North Dakota Supreme Court will review for the second time whether the Northeast Central District Court erred in procedural rulings in a 2014 Grand Forks murder case.

Delvin Lamont Shaw, who was convicted of the June 2014 murder of Jose Luis Lopez for the second time in February , is appealing on the grounds the court failed to establish the unavailability of key witness Dametrian Marcel Welch, who testified at the first trial but refused to speak when put on the stand in February . The appeal also contends the court did not properly comply with mandated analysis when making an order suppressing evidence based on prior bad acts.

Shaw was convicted of the murder and sentenced to life in prison in 2015 , but the Supreme Court overturned the ruling and required a retrial on the grounds Judge Jon Jensen allowed prosecutors to use evidence from a burglary preceding the shooting within the same apartment building. Grand Forks Police developed the theory that Shaw took part in a burglary four days before the murder in an apartment above Lopez's and that he broke into the wrong unit when he later returned after receiving a threat related to the burglary.

Jensen, who also presided in Shaw’s February trial, has since been appointed to the state Supreme Court and will recuse himself from the appeal hearing Oct. 30, according Supreme Court Clerk Penny Miller.

Shaw, via his attorney Benjamin Pulkrabek, argues Jensen moved too fast in declaring Welch unavailable to testify in the 2017 trial. Welch told Jensen at the time he didn’t want to testify because he was “done wrong” by prosecutors he struck a deal with in the 2015 trial.

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Welch was sentenced to eight years in prison in 2015 after pleading guilty to burglary, a Class B felony, and facilitation of a murder, a Class C felony, for his role in the break-in that led to Lopez’s death.

The appeal argues Jensen should have held a contempt of court hearing for Welch to determine if he was unavailable to testify and encouraged prosecutors to motivate Welch by either removing time from his sentence or add further charges for not cooperating.

Jensen allowed prosecutors to play recordings of Welch’s 2015 testimony in the 2017 trial.

Welch filed a motion calling for his sentence to be reduced in June, court records show, but was denied.

The appeal also argues Jensen did not apply all required reasoning to his order denying a motion to suppress evidence related to the burglary at an upstairs apartment before the murder.

Shaw contends Jensen did not include a “balancing test” on whether the value of evidence of prior actions outweighed the danger that such evidence would prejudice the jury against him.

Should the high court side with Shaw, the case would have to be tried for a third time in Northeast Central District Court.

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