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Man convicted in shootout wants a new trial

By Dave Thompson

Bismarck, ND – The attorney for a West Fargo man involved in a standoff with Bismarck police in August, 2003 says the judge made a mistake -- by not giving the jury a choice of lesser, included offenses.

And Wayne Goter says his client -- Brandon Keller -- deserves a new trial.

Keller was convicted of three crimes -- attempted murder, conspiracy to commit murder, and reckless endangerment in connection with the shootout. Keller's alleged co-conspirator, Michael Sherman, was killed in that standoff -- and a Bismarck police officer was shot.

Goter is asking for a new trial -- and that the judge's instructions to a jury should carry the lesser, included offense of criminal facilitation for the conspiracy charge, and reckless endangerment for the attempted murder charge. Goter told the state Supreme Court that Keller was not intending to kill any police officer, but was only trying to prevent arrest.

"Sherman had a subsequent plan not share by Keller," argued Goter. "Sherman says, rather than going back to prison -- and he told a witness - - "I'm looking at a long sentence. I'm going to go out in a blaze of glory. I'm going to kill police on my way.' Keller never expresses that sentiment. His actions don't show the same intent."

Assistant Burleigh County States Attorney Cynthia Feland argued that Sherman and Keller both shot at the door, knowing full well that police were there -- and could be hit by the bullets. Feland also says both men acted instinctively, as if they had everything planned.

"When you look at that, and when you look at the multitude of shots fired, and you look at where the bullets went, it's clar that when you have people that aren't talking, and who are acting as if on instinct, clearly this is something that, while they may not have talked about it with the general public, they clearly had talked about it enough between themselves that when the time came, they knew exactly what to do," Feland told the court.

The high court has taken the case under advisement.