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Published January 27, 2011, 01:50 PM

ND judge allows alleged confession in murder case

FARGO, N.D. (AP) — A North Dakota judge refused Thursday to throw out an alleged confession by an Oklahoma man accused of hiring his handyman to kill his former son-in-law.

Gene Kirkpatrick of Jones, Okla., has pleaded not guilty of conspiring to murder Fargo dentist Philip Gattuso in October 2009. Kirkpatrick's lawyer, Mack Martin, argued that statements his client made to police after the killing were psychologically coerced and should not be admitted.

Kirkpatrick was "tired, hungry, distraught" when he was interrogated by investigators five days after Gattuso was killed, Martin said.

Judge Steven Marquart denied the motion from the bench. He said Kirkpatrick never said he was too tired or hungry to continue and did most of the talking in the more than 2 1/2-hour interview.

There's "nothing to suggest" that Kirkpatrick's statements were involuntary, the judge said.

Kirkpatrick's daughter was married to Gattuso until she died in March 2009 after an extended illness. Authorities believe Kirkpatrick was unhappy that Gattuso was raising his granddaughter and paid Michael Nakvinda to kill Gattuso. Nakvinda is scheduled to be sentenced Friday on a murder conviction.

Martin said the interview took place shortly after Kirkpatrick arrived in Oklahoma after a 14-hour drive from Fargo. Martin highlighted Kirkpatrick's comment that the only thing he had to eat was a breakfast sandwich before he left Fargo.

Fargo Police Detective Paul Lies testified Thursday that Kirkpatrick wasn't falling asleep and never said he was hungry.

"I didn't hear his stomach growl at any point during the interview," Lies said.

Martin said investigators took advantage of Kirkpatrick's emotional distress from the illness and death of his daughter, which he talked about at the start of the interview. The tone of the interrogation went "from empathy and sympathy to one of confrontation" when officers lied to Kirkpatrick by telling him Nakvinda had implicated him, Martin said.

The setting — in a small room with officers who had badges and guns — added to the psychological pressure, Martin said.

Kirkpatrick said during the interview, which was played for jurors at Nakvinda's trial, that he and Nakvinda talked several times about what would take to get rid of Gattuso, but said he never gave the green light. Kirkpatrick told investigators he paid Nakvinda $3,000 for travel expenses.

Authorities said Nakvinda beat Gattuso to death with a hammer and stole his Porsche. The Porsche eventually was found in an Oklahoma City storage unit rented by Nakvinda. A hammer with Gattuso's blood and hair on it was found inside the car.

Martin declined to comment after the hearing.

Another motion by Kirkpatrick to move the trial from Fargo was set to be argued Thursday, but postponed after an earlier ruling to change the start date from Feb. 28 to July 19.

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