Trial Transcripts

Prosecution Witness #6: Allan Kulesa
Testimony 2

THE COURT: The State may proceed.
MR. BOENING: Thank you, Your Honor.
DIRECT EXAMINATION BY MR. BOENING:

Q	Please state your full name.
A	Allan Kulesa.
Q	How do you spell your first name?
A	A-l-l-a-n.
Q	How do you spell your last name?
A	K-u-l-e-s-a.
Q	Who do you work for?
A	The Cass County Sheriff’s Department here in Fargo.
Q	What do you do for the Sheriff’s Department?
A	I’m a criminal investigator.
Q	How long have you been working for the Cass County Sheriff’s Department.
A	It’ll be approximately twenty-one years in February.
Q	Have you received any specialized training, do you have any formal education as it relates to your duties?
A	My formal education is, I hold a Bachelor of Arts Degree in Criminal – with a Major in Criminal Justice from Minnesota State University in Moorhead. In addition to that I have approximately thirteen hundred hours of continuing law enforcement education and training provided to me by various local, state, and federal law enforcement agencies, including the FBI’s National Academy in Quantico, Virginia. The vast majority of those hours directly relate to criminal investigation.
Q	How did you become involved in investigating this case?
A	This investigation was referred to me by my supervisor. I believe I received it on or about June 26th of 2006, a couple of days after our officers at the fairgrounds took the initial reports.
Q	Can you summarize the manner in which you conducted your investigation?
A	As I mentioned, it was referred to me by my supervisor. I reviewed the initial reports prepared by our patrol officers who were on duty at the fairgrounds on the 24th of June. I reviewed the information that they had supplied in those reports, I reviewed any items of evidence that had been recovered at the scene. Shortly thereafter, on the 26th, the – some of the victims came to my office. And one of the victims, I believe was Juan Arpero, had not had an opportunity to have his injuries photographed, because he was rushed to the hospital that evening. So at that time I took the opportunity to speak to Juan Arpero and to photograph his injuries, and to speak to his brothers to try to obtain some more information – additional information about what had happened to them.

MR. BOENING: Your Honor, may I approach the witness?
THE COURT: You may.

Q	(BY MR. BOENING) Officer, you’ve referred to photographs taken of Juan Arpero. I’m showing you State’s Exhibit #2, do you recognize State’s Exhibit #2?
A	Yes, State’s Exhibit #2 is two of the photographs I took of victim, Juan Arpero.
Q	And did  that -- do those photographs fairly and accurately depict his condition when you interviewed him on or about the 26th of June?
A	Yes, these photographs do depict his injuries that were present when he came to my office that day.

MR. BOENING:  Your Honor, may I again approach the witness?
THE COURT: You may.

Q	(BY MR. BOENING) Officer, you’ve referred to photographs taken of Juan Arpero. I’m showing you State’s Exhibit #2, do you recognize State’s Exhibit #2?
A	Yes, State’s Exhibit #2 is two of the photographs I took of victim, Juan Arpero.
Q	And did  that -- do those photographs fairly and accurately depict his condition when you interviewed him on or about the 26th of June?
A	Yes, these photographs do depict his injuries that were present when he came to my office that day.
Q	(BY MR. BOENING) Officer, let me show you what’s been marked for identification, State’s Exhibit #1. I’ll ask you to take a look at that. What is depicted in State’s Exhibit #1?
A	These are copies of four Polaroid photographs taken of injuries sustained by victims, Jose , Lionardo an J., Jr. Arpero.
Q	Was State’s Exhibit #1, those photographs – Polaroid photographs of the injuries, among the materials that you initially reviewed in investigating this case?
A	Yes, they were reviewed by me, they were presented to me in the reports that were forwarded to me. These Polaroid photographs were taken by our officers on duty at the fairgrounds on the evening of June 24th.
Q	I note that the photographs appear to be generally fairly dark in the background. Do you know why that it?
A	I can only – again, I wasn’t there, I can only assume because it was a Polaroid camera. In some of these the person they’re photographing is a little farther away than I would have them stand. The flash isn’t the greatest thing on these Polaroid cameras, so the victims probably were standing a little too far away. That’s the reason for the darkness.
Q	In addition to taking photographs of Juan Arpero’s injuries on the 26th of June, did you talk with Juan, Jose and Lionardo about trying to identify the suspects, the persons who might have been responsible for what happened in this case?
A	Yes I did, because a couple days had passed since they had provided initial information to our officers. I wanted know if anything had been brought forward to their attention over the course of the rest of the weekend. To see if they had learned anymore information, see if there was a possibility that they now after taking a couple of days could better possibly identify whose responsible for doing this to them. So I had discussions with them about those issues. They were very solemn and subdued, and didn’t seem to be able to tell me or want to exactly tell me, you know, who could have done this to them. They were very, very reserved, they basically told me that they didn’t feel that they could recognize the people who did this to them.
Q	Okay, so at this point in your investigation, you’re early on, you’ve talked now with Juan, Jose and Lionardo. They’re not gonna really be able to help you too much in identifying the suspects, what did you do?
A	Develop sources of information, start talking to people who were present at the scene. Wait for people to contact you, who want to do the right thing and make you aware of what happened at the fairgrounds that night. You basically develop a lot of information, you develop sources of information. I was able to do that and cultivate some of those sources of information, and ultimately come up with a list of suspects.
Q	Once you came up with a list of suspects, now you had a series of names, what did you do with the names?
A	Basically with the names, I looked better – identify them, who they were, where they resided, obtained personal identifying information about them. Who they associate with, what’s their ethnic background, things of that nature. To see if they are still local, to see if I eventually could put them at the fairgrounds on the evening of June 24th, which I was able to do.
Q	And as part of your investigation in this case, did you in fact prepare a photo lineup consisting of eleven different photographs of suspects in this case?
A	Yes, I did.

MR. BOENING: Your Honor, may I again approach the witness?
THE COURT: You may.

Q	(BY MR. BOENING)  Let me show you what’s been marked for identification, State’s Exhibit #3 and 4, have you ever seen those two exhibits before?
A	Yes, these photographs are the photo lineup that I produced.
Q	Okay. After you put together the photo lineup, did you in fact show the photo lineup to Joanna Kjono, Tecola Sparks, Brandee Haas and Cassandra Belgarde?
A	Yes I did. I began showing the photo lineup, I believe it was approximately four days later on June 30th of 2006, approximately four days after I had received the investigation for the follow-up.
Q	And let’s start with Tecola Sparks in this case. Where did your interview with her take place?
A	At her residence in West Fargo.
Q	And when you handed her the photo lineup, what did you ask her to do with the lineup?
A	Basically I just handed her the photo lineup, and I asked her to look at it and let me know if there was anyone in the photo lineup that she recognized.
Q	Okay, and what was she able to do in response to that?
A	She did tell me that there were some individuals in the photo lineup that she did recognize. I asked her where she recognized them from, and what they were doing.
Q	When you showed Sparks, Kjono, Haas and Belgarde the photos, where they able to see the names of the persons on the photographs?
A	No they weren’t, I concealed by folding the bottom of each page, concealing the personal identifying information of each individual.
Q	Okay, and again talking about Ms. Sparks, was she in fact able to identify a – State’s Exhibit #3, photograph number seven in this case?
A	Yes she was.
Q	And what did she say about that person and his involvement in what happened?
A	She said she recognized this individual from the Red River Valley Fairgrounds, in that he was actively participating in a physical altercation on the fairgrounds. And she told me that she did, as part of this physical altercation put him in possession of an aluminum baseball bat.
Q	Do you remember her telling you anything about what he was doing with the bat? Was he using the bat to hit people or not?
A	I believe so, to make sure I would have to refresh myself, by reviewing my report if that would be alright?
Q	If you could just – do you have your report with you?
A	Yes.
Q	I guess I can help you out a little bit, why don’t you take a look at page twenty-six of your report and see if that refreshes your recollection.

THE COURT: And this has been discovered to defense counsel.
MR. BOENING: Yes, Your Honor.
THE COURT: Any objection, Mr. Brandborg?
MR. BRANDBORG: No objection.
THE COURT: Go ahead officer.

A	Paragraph two of page twenty-six in my report, she in fact did indicate to me, based on the notes that I took that I put in my final report, that suspect Mevludin Hidanovic, in fact was hitting people with the baseball bat.
Q	After interviewing Tecola Sparks, did you in fact interview Joanna Kjono?
A	Yes I did, same date.
Q	Where did that interview take place?
A	At her place of employment.
Q	And did she also identify State’s Exhibit #3, photograph number seven out of the lineup, as the photograph of a person involved in this incident?
A	Yes she did.
Q	And what did you ask her to do when you handed her the lineup?
A	Again I asked her – I told her that I had a series of photographs for her to look at. I asked her to take a look at them and let me know if she recognized any one from the photographs.
Q	And what if anything did she say about the person in photograph number seven, State’s Exhibit #3?
A	Once again she told me that she did recognize this individual as being present at the Red River Valley Fairgrounds on the evening of June 24th of 2006, and actively participating in a large physical – basically a fight, physical altercation.
Q	Let me now direct your attention to the 4th of July, 2006, did you in fact interview Brandee Haas on that day?
A	Yes I did.
Q	Where did that interview take place?
A	That interview took place in my vehicle outside of her residence.
Q	Why did it take place there?
A	Her mother, Patricia Rice, also was a potential witness in this investigation. Obviously at that point you do want to – you want to do the interview separately, you don’t want to have multiple witnesses giving one statement, you want to take statements from each of them. So that’s the reason I had one come out to my vehicle to talk to, and then the other one – followed by the other one.
Q	Did you show her a lineup?
A	Yes I did.
Q	Was it the same lineup that you showed Ms. Sparks and Ms. Kjono?
A	Yes it was.
Q	And how did she respond when you showed her that lineup?
A	Again I showed it to her, I asked her to take a look at it and to tell me whether or not she recognized anyone. She stated that she did, and she did again pick out the individual depicted in photograph number seven of State’s Exhibit.
Q	And with regard to the picture of the person in photograph number seven, State’s Exhibit #3, what was this person doing during this incident on the fairgrounds?
A	Well, basically she told me that, again he was actively participating in the physical altercation.
Q	Was she able to identify the person as either possessing a bat or using a bat?
A	Trying to remember. She stated that this person went after another victim, and was assaulting him. I don’t believe that Brandee Haas puts a baseball bat in his hands, or in his possession.
Q	Did you also interview the witness who testified just before you were called to the stand officer, Cassandra Belgarde?
A	Yes I did.
Q	And when did that interview take interview take place?
A	That interview took place I believe on July 5th of 2006, at her residence.
Q	How did you conduct that interview?
A	Again, I arrived at her residence, I told her that I had a photo lineup for her to look at, some photographs for her to look at. I simply handed them to her, asked her – told her that if there was anyone she recognized from the photo lineup to let me know. She viewed the photo lineup, she said that there people in the photo lineup that she recognized. I asked her where she recognized them from, again she stated from the Red River Valley Fairgrounds on the evening of June 24th, 2006.
Q	Now with regard to all four of the witnesses that you showed – at least these four witnesses that you showed this photo lineup to, what if anything did you have the witnesses do with the photographs if they identified someone in the photograph?
A	If they made identification – positive identification of any one individual in these lineups, I had them turn over the photographs, and place their signature along with the current date and time, to verify at a later date that in fact this was a photograph that they had picked out.
Q	So, for example if a person were to take a look at State’s Exhibit #4, there would in fact be signatures on the backs of various photographs in State’s Exhibit #4, is that correct?
A	That’s correct.
Q	But this isn’t a trial involving the ten other individuals in State’s Exhibit #4, we’re just here with regard to the individual in State’s Exhibit #3, the Defendant, Mevludin Hidanovic, is that correct?
A	That is correct.
Q	Officer, as part of your initial review of this case, did you consider whether or not there was any physical evidence that might tend to establish the elements of a crime in this case?
A	Yes, there was physical evidence in that – again there was – after the physical altercation took place, there was a baseball bat that was recovered on the Midway. I believe there was also a knife, also there were some items of clothing. Those were all taken into custody by our officers at the scene and entered into evidence. Those are things I did look at, I did consider.
Q	Every week officer, millions of Americans sit down in front of their television, watch crime scene investigation shows, and as a result of watching those shows, they think they know how to do your job. Did you submit any of those items for some sort of detailed forensic examination?
A	No I did not.
Q	And why not?
A	The baseball bat is approximately a twenty-seven inch aluminum baseball bat with a grip. A hard rubberized grip that upon my inspection is very non-porous, meaning it doesn’t absorb.

MR. BRANDBORG:  Your Honor, I’m going to object here, I don’t – I’m not objecting to the fact that he may have examined the bat, but I think it’s misleading to the jury that this in fact was the bat used in this incident.
THE COURT: Objection is overruled, I don’t believe that was the question. You may continue your answer.

A	The question was, did it take into account, whether or not there was any forensic value in this evidence that was recovered. And again I was talking about the aluminum bat, for instance, it’s approximately a twenty-seven inch aluminum bat with a approximately a twelve inch hard rubber grip that was very, very worn, and very, very non-porous. Meaning that it – upon inspection, I felt had the ability to absorb, you know, sweat or, you know secretions from somebody’s hands. It was very dirty, the barrel was very dirty. This hard rubberized surface – in the proper light and looking at it, I was able to see partials, partial – very partial fingerprints where it had been touched. There was also a lot of dirt in it, because it was a dark color of black, and looking at it in the light, I did not believe it had any forensic value as far as the presence of latent or hidden fingerprints upon it. That’s a determination I’ve made on numerous pieces of items over the course of, you know, seven years as a criminal investigator. And I have processed myself a lot of items of evidence for the presence of latent fingerprints. I also did check the bat for the presence of – the possible presence of physical forensic evidence, such as blood, hair, fibers on the bat, and did not notice any to the naked eye.
Q	So apart from the testimony that we’ve developed in this case, and it’s been submitted to the jury with regard to Tecola Sparks, Brandee Haas, Joanna Kjono, Cassandra Belgarde, there simply is no physical evidence that you were able to uncover as a result of your investigation in this case, tending to prove that  the Defendant was in fact participating in the riot, and carrying the bat, is that correct?
A	No, there is no physical – no known physical evidence at this time, no.
Q	Now officer, we’ve gone through your investigation on kind of a summary fashion, I guess at this point. How long actually was your report in this case, do you remember? I think you’ve got it in front of you, it’s multi-paged, is that correct?
A	Yeah, I mean – this investigation – I worked on it off and on probably over the course of almost three months. Steady probably two to three weeks, but interviews of people came forward later on in the investigation. It was a pretty lengthy investigation that took quite some time.
Q	So have we talked about everyone that you talked to and interviewed in this case?
A	No.
Q	About this case?
A	Not even close, no.
Q	Okay. Did you in fact conduct an interview with the Defendant?
A	Yes I did, a brief phone interview with him. I believe it was on June 28th of 2006, at approximately 2:00 p.m., I made phone contact with him.
Q	And what did you talk with him about?
A	I identified myself to him, explained the nature of the investigation. I told him I’d like to sit down and speak with him, he didn’t seem real interested at the time in wanting to meet with me personally. He wanted to talk over the phone, so we talked over the phone, it lasted about five minutes. That was the nature of my interview, and only interview with him.
Q	What did – what if anything did he say about being at the fairgrounds on the evening of June when this disturbance took place?
A	He told me he was there, he told me I believe that he arrived around 6:00 p.m. with his children I believe he said. I believe he told me that he was aware that a physical altercation did take place, he did hear about it. He wasn’t part of it, he didn’t witness it. I knew that many of the other suspects I had identified were associates of or knew of him. I asked him if he was familiar with them, he said he was familiar with this people, however he denied seeing any of them at the fairgrounds that evening. That basically was the content of our discussion.
Q	So he told you that he did not see the incident and he did not participate in the incident, is that correct?
A	As best as I recall on my report, that’s what I put based again of the notes I took from him as I was talking to him on the phone.

MR. BOENING:  Nothing further.
THE COURT:  What we’ll do at this point and time folks, is we’ll remain on the record. If you wish, and as you’re able folks of the jury, and the parties, and counsel can stretch their legs at this point and time.
         Please be seated. We have remained on the record, our twelve members of the jury have remained. Mr. Boening is here, Mr. Brandborg is here, the Defendant is here, the interpreters and our witness investigator, Kulesa. We’ve remained on the record just for a short stretch break. We’ll now proceed pursuant to the rules with cross examination by the defense.
MR. BRANDBORG:  Thank you, Honor.
CROSS EXAMINATION BY MR. BRANDBORG:

Q	Hello Officer Kulesa.
A	Morning.
Q	Officer, you were present in the courtroom for all the testimony today – I’m sorry, for this whole trial?
A	So far, I have been, yes.
Q	And is it a fair statement that we are really just looking at a snapshot of your full investigation involving this case?
A	It’s definitely been condensed, yes.
Q	I don’t mean to demean this part of it, but I just mean that there was a lot more that wasn’t discussed during this trial?
A	Definitely.
Q	I think Mr. Boening asked you in fact, that it took a long time, three months I believe you testified to. Do you recall how many witnesses and or suspects you talked to?
A	Witnesses and suspects alone, approximately twenty to thirty.
Q	I counted up your – I do have a list from you of suspects and I count thirty-two, so I think you’re pretty close. And of all thirty-two of those people that you actually talked with, we heard from Tecola Sparks, who through some sort of testimony placed the baseball bat in Mr. Hidanovic’s hands, correct?
A	That’s correct.
Q	The other three sus – I’m sorry, the other three witnesses we heard from, and you were here, didn’t place the bat in his hands, correct?
A	I believe that’s correct.
Q	In fact other witnesses placed the bat in another suspect’s hands, correct?
A	I believe some did, yes.
Q	In fact, I believe that Brandee Haas placed in Fikret Golubovic’s hands?
A	Fikret Golubovic?
Q	That’s probably how you say it, yes.
A	I believe so, yes.
Q	And that’s consistent with what she told you when you interviewed her?
A	I believe it is, yes.
Q	And in fact Ms. Belgarde places in Sinan Suljic’s hands, the bat as well, is that correct?
A	I believe she does.
Q	And that’s consistent with what your initial interview was with her?
A	I believe it was, yes.
Q	And of the other – the remaining twenty-eight witnesses that you had personal contact with, and or suspects, nobody else placed the bat in Mr. Hidanovic’s hands, is that correct?
A	I believe you’re correct.
Q	So of thirty-two suspects, one – I’m sorry witnesses, one, placed it in his hands and you were here for the testimony, correct?
A	That’s correct.
Q	You were talking about a bat earlier, but you have no evidence to even show that that was the bat that was used, do you?
A	My understanding of that bat, was a bat that was found on the Midway underneath a ride.
Q	Okay, but other than that, you don’t know where that – you don’t even know if that was –that bat could have been under the ride for two weeks before that? Is that accurate?
A	That’s possible, that’s possible.
Q	And you did not submit it for any fingerprint identification to try to link the bat to an assailant?
A	No, again based on my observations, my viewing of the bat, and based on my experience with processing of physical evidence, I did not think it  would be useful to submit for examination.
Q	You said – I believe you also mentioned a knife?
A	Yes.
Q	But you don’t have any evidence that that knife was used in this altercation?
A	No.
Q	And you didn’t submit that knife for any fingerprint identification?
A	No.
Q	So as far as you know, that knife had nothing to do with this incident?
A	I don’t believe it was ever mentioned by anyone.
Q	Mr. Hidanovic wasn’t a suspect initially in this investigation, was he?
A	He wasn’t identified as a suspect until I received information –
Q	I believe you called it an anonymous source?
A	I believe information was supplied to me on June 27th of 2006, which would have been three days after the altercation at the fairgrounds.
Q	So nobody that you talked to directly after the fairgrounds, identified Mr. Hidanovic?
A	No.
Q	This information came to you later?
A	Again, approximately three days later.
Q	From whom?
A	From a source of information that wished to remain anonymous.
Q	They wished to remain anonymous. Do you know if this source – this anonymous source of information knows any of the victims? Do you have personal knowledge of that?
A	Whether or not he knows any of the victims?
Q	Correct, do you have any personal knowledge that your anonymous source knows any of the victims?

MR. BOENING:  Objection, relevance.
THE COURT:  And what would the relevance be, Mr. Brandborg?
MR. BRANDBORG:  Your Honor, it’s a theory of the case, he’s testified that he came into contact with my client through some anonymous individual, and I just want to establish the foundation for that testimony.
THE COURT: Okay, what we’ll do folks is, we’re going to take a – allow a recess for the jury, we’ll remain on the record.
          Ladies and gentlemen of the jury, the Court gives your admonishment at this point and time, of your duty not to converse among yourselves or with anyone else on any subject connected with the trial, and you must not form or express any opinion thereon until the case is finally submitted to you.
So counsel, Defendant, witness will remain along with the interpreters. And we’ll rise and excuse the jury for a recess at this time for them.
          (Jury exits the courtroom).
THE COURT: Please be seated. We have remained on the record, the jury has been excused from the courtroom. The courtroom door is shut, Investigator Kulesa as the witness, is still on the stand, still under oath. Mr. Brandborg is here for the defense, and the Defendant is personally present, along with the interpreters. Mr. Boening on behalf of the State of North Dakota.
          We have an objection, Mr. Boening your objection? I think it was relevancy is what you indicated.
MR. BOENING: Yes, Your Honor. This is a trial in which we’ve had the Defendant charged with Engaging in a Riot While Armed. The State’s case is based on the testimony of Rosa Arpero, Juan Arpero, Jose Arpero, Lionardo Arpero, Cassandra Belgarde, Tecola Sparks, Brandee Haas and Joanna Kjono. And the out of court identifications of Sparks, Kjono, Haas and Belgarde with regard to the Defendant, and the fact that he was present at the time of this incident, and participating in the riot. And then at least one witness has testified that she saw him carrying a bat and or swinging it.
           What Mr. Brandborg is attempting, is to extract information from Detective Kulesa with regard to someone who we haven’t called as a witness, hasn’t testified against the Defendant in this case, and merely provided information that was useful to law enforcement, and caused law enforcement to suspect that the Defendant might be involved. And then we have the witnesses who’ve testified in this trial, that he was in fact involved. So, we haven’t called this witness, he’s not testifying against the Defendant. We’ve got the issues that are raised by the elements of the offense that we have in this case. The State fails to see how this testimony is in anyway relevant to any material matter that’s in dispute in this case. And of course separate and apart from that, under Rule 509, the State has a privilege not to disclose his identity.
We haven’t waived that privilege, we don’t intend to waived that privilege, and of course I don’t know if that’s what the Defendant’s trying to get into here, but you know, we feel that whoever provided this information to law enforcement might be at risk of retaliation in this case. It’s not relevant to the trial that we’ve got here today, and it’s for that reason we object.
THE COURT:  Mr. Brandborg, for the defense.
MR. BRANDBORG:  Your Honor, much of the State’s case involves maybe this, maybe that. One of the main themes of the theory of our case, is that this anonymous source, and we’re not asking for the identity of this particular source. But one of our theories of this case, is this source knows the victims, that this source is giving law enforcement bad information. And I just want to establish what law enforcement knows about this source to establish how reliable it is, and where the kernel of this started. After all we’re talking about four witnesses out of thirty-two, Your Honor. Again, we’re not asking for the identity, but I think the State’s been allowed to have witnesses speculate with maybes, and this is certainly a maybe in our case.
THE COURT:  Anything further, Mr. Boening, briefly?
MR. BOENING:  Yes, Your Honor. The – as I understand it, what Detective Kulesa did, is interview thirty-two suspects and witnesses. Now some of those people were suspects, some of them were witnesses, it doesn’t surprise me that other suspects of Bosnian decent denied  to Officer Kulesa, recognizing the Defendant as present during the altercation out at the fairgrounds. It is misleading to state, that these were thirty-two people who even stated that they were – saw anything happen out there, and that only one of the thirty-two, namely Tecola Sparks, identified the Defendant as holding the bat. And we just – this is collateral to this trial, I don’t – whatever their theory is, it doesn’t constitute a defense to this charge.
THE COURT:  Mr. Brandborg, here’s what the Court’s going to do, the jury’s not present as indicated. Counsel, Defendant are present, and the witness is present. Mr. Brandborg, if you’d like to make a record right now to try and show the court somehow how your line of questioning would be relevant, I’ll give you that opportunity with Mr. Kulesa right now. If not with Mr. Kulesa, I’ll let you do an offer of proof, but I’ve yet to hear from the defense as to how this is going to be relevant to the defense case. I’ve not heard anything about some line of defense having to do with somehow pinning blame or somehow making relevant the identity of an informer or what he said or might not have said. So, I’ll give you that opportunity right now to show it to the Court, but you have yet to show anything to the Court in how it’s relevant. You may proceed.
MR. BRANDBORG:  Thank you, Your Honor.
CONT’ CROSS EXAMINATION BY MR. BRANDBORG:

Q	Officer Kulesa, in making this record, what I’m asking is, you know the identity of this informant, I’m not asking you for that identity, but I’m asking if you know personally, if you have personal information that he – this informant knew the victims?
A	I don’t believe that’s the case, I have no information that has ever given to me that would make anybody believe that that was –
Q	So as an accurate statement, you don’t know?
A	I don’t know for sure.
Q	Okay.

MR. BRANDBORG:  Your Honor, that was as far as my questioning was going to go.
THE COURT:  Okay. The objection then is sustained, and Mr. Brandborg, you and the defense are satisfied regards to that line of questioning with the investigator?
MR. BRANDBORG:  Your Honor, am I allowed to ask that in front of the jury?
THE COURT:  You’re not allowed to ask that in front of the jury, cause I still don’t know that’s relevant. You haven’t shown me how that is relevant.
MR. BRANDBORG:  Your Honor, that’s going to be a relevant argument in closing arguments, Your Honor.
THE COURT:  Okay, if you could help the Court as to how, I still don’t understand how that’s relevant.
MR. BRANDBORG:  Your Honor, when they initially started this investigation, they did not have my client’s name in the mix, they didn’t have his picture, they didn’t have anything else. An anonymous source, who we’re not given the name of, comes to law enforcement, and gives them a name. They continue to go through the investigation looking through pictures, thirty-two individuals, eventually they come up with one. My point is, did that individual – what was the motivation for that individual to come to law enforcement? Did he know the victims? Did he not know the victims? And certainly, Your Honor, if the State is going to rely on maybe, we can rely on maybe, Your Honor.
THE COURT:  Okay well, the Court will instruct the jury as to what the burdens are and what not, so we’re talking about maybes, and that’s certainly not a legal term, but that being said. So you want to ask investigator Kulesa in regards to the anonymous informant, did the anonymous informant know the Defendant?
MR. BRANDBORG: The victims.
THE COURT: The victims?
MR. BRANDBORG: Correct.
THE COURT:  And we don’t even know who the victims are, okay, there were thirty people there, we’ve only testified to a handful of victims.
MR. BRANDBORG:  Well, I can ask the specific question, if they knew the Arpero’s, Your Honor. I think that evidence is in front of the Court, your Honor.
THE COURT:  And his answer is, he doesn’t know.
MR. BRANDBORG:  Then that’s all I want, Your Honor.
THE COURT:  Mr. Boening, do you have any problem if he asks that question, or what would be the State’s position on that?
MR. BOENING:  We still object, the fact that Mr. Brandborg now wants to twist that into some sort of an argument, that he uses in closing, doesn’t make it relevant. Seems to me it’s an improper argument, whatever it is. Whatever the motivation of the confidential informant, is frankly not relevant to this case. We’ve got the elements of this crime, the State has the burden of proof with regard to the elements of this crime. Whatever the motivation of the confidential informant may have been, simply has nothing to do with what the witnesses have testified to, and so we object.
THE COURT:  Court being fully advised in the premises, upon review of the evidence presented, the testimony of Investigator Kulesa, the arguments of counsel, the applicable law, including Rule 403 and Rule 509 of the Rules of Evidence.
          The Court makes the following findings, conclusions, and order in regards to the matter. The identity of the informer will not be disclosed. My understanding is defense is not interested in that, and it will not be disclosed. There is a procedure to do that, pursuant to Rule 509, and that has not been followed, even giving that benefit of the doubt, the burden of proof has not been met by the defense as set forth is State v. Denny, 350 N.W.2d 25, (N.D. 1984)). In regards to Rule 403, the Court will allow the defense to inquire that question of Investigator Kulesa, balancing it under Rule 403. I will allow for the simple question to be asked, whether Investigator Kulesa in his own personal knowledge, knows if the anonymous informant knew the Arpero’s.
MR. BRANDBORG:  Yes, Your Honor.
THE COURT:  And thereafter I will not allow further questioning along those lines, because I believe it would be unnecessarily accumulative. It would be a needless presentation of evidence to the jury thereafter, in regards to the questioning of Investigator Kulesa. So I will allow that question by the defense counsel. Mr. Boening, you of course can object again in regards to the matter if you feel it goes past what the parameters of the Court, as just enunciated by the Court on the record. You certainly have the right object again. So the objection by Mr. Boening, I guess is sustained in part, overruled in part, consistent with the opinion of the Court.
          What we’ll do folks, is we still have some time before noon, we’ll remain on the record. We’ll rise and have the jury brought back in.
          (Jury enters the courtroom).
THE COURT: Please be seated. We have remained on the record. Counsel Boening is present on behalf of the State, Mr. Brandborg on behalf of the defense, Defendant appears, along with the interpreters. Our twelve member jury is back and seated in their jury box. Welcome back ladies and gentlemen of the jury. Investigator Kulesa remains on the stand, remains under oath, same oath he took earlier today.
       Cross examination may continue, Mr. Brandborg.
CONT’ CROSS EXAMINATON BY MR. BRANDBORG:

Q	Officer Kulesa we were talking about your unidentified informant, do you have any personal knowledge if he knew the Arpero’s? This unidentified informant?
A	I don’t know.
Q	You don’t know. And you don’t have any personal knowledge of who was involved in the incident, do you?
A	Personal knowledge?
Q	You weren’t present?
A	I wasn’t present, no.
Q	So you don’t have any personal knowledge of who was there?
A	No.
Q	And you don’t have any physical evidence to present to the Court about who was present at the fight, is that correct?
A	Physical evidence, no.

MR. BRANDBORG:  I have nothing further, Your Honor.
THE COURT:  Re direct for the State?
RE DIRECT EXAMINATION BY MR. BOENING:

Q	Mr. Brandborg asked you a question, he said that by his calculation, thirty-two person – thirty-two persons were in – questioned – you had interviewed thirty-two persons in this case, as I understand it, with regard to the facts and circumstances. And only one of the thirty-two, Tecola Sparks identified the Defendant as being a person present during the riot, and actually carrying a bat, is that right?
A	That’s correct.
Q	What would that number, thirty-two consist of in this case?
A	Well, the number thirty-two I believe consists of, known people through various sources of information in conducting interviews that we knew were present at the fairgrounds on that evening. It doesn’t necessarily mean that they were all actively participating in the physical altercation. We knew that they were there, after interviewing them, interviewing the other witnesses, people who were connected to the investigation. Obviously there becomes a point in time where you continually pare that down, as to who was actively participating.
Q	And as a result of your investigation, did – were a  fair number, let me put it that way, a significant fraction of the thirty-two people that you talked with, of Bosnian decent?

MR. BRANDBORG:  Objection, relevance.
THE COURT: Objection overruled, you may answer the question officer.

A	Yes they were.
Q	Now did any of those thirty-two individuals of Bosnian decent admit they had participated in a riot?
A	No.
Q	Of the thirty-two persons that you interviewed, did – were some of those persons the Arperos?
A	Yes, I did – yes I interviewed them.
Q	Okay, so you tried to interview everyone you could find, whether they were Hispanic, Bosnian, or merely bystanders out at the fairgrounds, correct?
A	That’s correct.
Q	Did you find thirty-two bystanders who were out at the fairgrounds who didn’t happen to be of other – either Bosnian decent or Hispanic decent?
A	No, at least none that I’ve spoken to.
Q	So actually – well, apart from Tecola Sparks, Brandee Haas, Joanna Kjono, and Cassandra Belgarde, you spoke with a Thomas Loomis, is that correct?
A	Yes, I believe I did.
Q	And he was neither Bosnian or Hispanic, is that correct?
A	That’s correct, he’s a white male.
Q	You spoke with a Phillip Holmes, he was neither Bosnian or – nor Hispanic, is that correct?
A	That’s correct, he’s African American.
Q	You spoke with a Patricia Rice, she was neither Bosnian nor Hispanic, is that correct?
A	That’s correct.
Q	You spoke with, I believe it’s Joanna Kjono’s son, C.F., is that correct?
A	Actually, I never did personally speak to him myself.
Q	Okay, but those were other individuals who you identified, and would constitute among the thirty-two people that you talked to as part of your investigation in this case?
A	Right, and basically they’re all people who we would designate, not specifically at any given time a suspect witness or that type of thing. But they’re all people of interest in the investigation is how I and investigators would term that. People of interest in an investigation.

MR. BOENING:  Nothing further.
THE COURT:  Re cross for the defense.
MR. BRANDBORG:  Nothing further, Your Honor.
THE COURT:  Investigator, you may step down and remain as case agent with Mr. Boening at counsel table. And please hand the exhibits to Madam Clerk, thank you investigator. Mr. Boening, for the State of North Dakota?
MR. BOENING:  At this time, the State rests, Your Honor.
THE COURT:  Ladies and gentlemen of the jury, the State has now rested. It’s twelve noon, right on the dot, so it’s a perfect time for a lunch break. You will get till 1:30 today, I know some of you are interested in that hour and half lunch, and that will be allowed today.
          Ladies and gentlemen of the jury, I do my duty to warn you of your duty, not to converse among yourselves, or with anyone else on any subject connected with the trial. And you must not form of express any opinion thereon until the case is finally submitted to you.
          Counsel for the parties will remain, Defendant will remain. We’ll rise and we’ll excuse the jury for your lunch break, 1:30 today folks.
(Jury exits the courtroom).
THE COURT:  Please be seated, we have remained on the record. Ms. Tibiatowski, if you would be so kind as to close the courtroom door, that would be appreciated. The jury has been excused, they’re outside the presence of the courtroom. The courtroom door is shut, Mr. Boening is here for the State, Mr. Brandborg for the defense. The Defendant is personally present, along with interpreters. Anything for the defense at this point and time?
MR. BRANDBORG:  Your Honor, the defense at this time would make a motion under Rule 29, a Motion of Acquittal. The State has not met it’s burden of proof in this particular case. In order to find the Defendant guilty in this case, they have to show that in Cass County on the date in question, there was indeed a riot, which I think we’ve established. That he participated in that riot, I think that’s starting to become more questionable. And third, that he was armed, and there certainly is not proof beyond a reasonable doubt that the defendant was armed in this particular case, Your Honor. I’d ask for a Motion of Acquittal at this time. Thank you.
THE COURT:  Mr. Boening.
MR. BOENING:  The State resists the motion, Your Honor,
THE COURT:  Upon review of the evidence presented, including all the witnesses called by the State, one through nine, the exhibits received into evidence, including Exhibit’s 1, 2, 3 and 4, the applicable law including Rule 29.
          The Court being fully advised, the Court makes the following findings, conclusions and order. Viewing the evidence in the light most favorable to the non-moving party, which the Court must do pursuant to mandate of Rule 29 and the North Dakota Supreme Court case law. Viewing the evidence in a  light most favorable to the non moving party, the Court denies the Rule 29 Motion at this point and time by the defense. Specifically, there is sufficient evidence where a reasonable, unanimous fact finder, that being the jury, could find beyond a reasonable doubt each and every element of the alleged crime in regards to this matter. Specifically the Court notes the testimony of Tecola Sparks, indicating the bat being possessed by the Defendant while engaging in what could be considered by unanimous fact finder, as a riot at the Red River Valley Fairgrounds in Cass County, North Dakota on or about June 24, 2006.
          So the Motion of Rule 29 is denied at this time for those reasons. Anything further for the State at this point and time?
MR. BOENING:  No thank you, Your Honor.
THE COURT:  For the defense, Mr. Brandborg, you certainly do not have to indicate anything if you don’t wish to. Any idea on time frame for a defense case at this time?
MR. BRANDBORG:  Your Honor, I’m going to push to have it in today, but –
THE COURT:  So you have at least a handful of witnesses, would that be a fair statement?
MR. BRANDBORG:  I’ve got between four and six.
THE COURT:  Okay, we will reconvene today at 1:30, anything else for the defense?
MR. BRANDBORG:  No, Your Honor.
THE COURT: For the State?
MR. BOENING:  No thank you, Your Honor.
THE COURT:  We’re adjourned, have a good lunch.