Trial Transcripts

Prosecution Witness #5: Joanna Kjono
Testimony #1

THE COURT: You may proceed, Mr. Boening.
DIRECT EXAMINATION BY MR. BOENING:

Q	Please state your full name.
A	Joanna Marie Kjono.
Q	Ms. Kjono, how do you spell your last name?
A	K-j-o-n-o
Q	What community do you live in, ma’am?
A	Moorhead, MinnesotA
Q	What do you do for a living?
A	I’m a customer service representative at Dacotah Paper Company.
Q	Did you attend the Red River Valley Fair on the 24th of June, 2006?
A	I went with my husband and my two children.
Q	Any other family members with you on the evening of that day?
A	No.
Q	What did you do – what did you, your husband, and your children do at the Red River Valley Fair?
A	We just basically go there every year and let my kids ride on the rides, that’s what we were doing.
Q	Was there a point at which you were a witness to an incident which took place near the Midway where the rides were at the fairgrounds?
A	Yes.
Q	To the best of your recollection, what time of the day was that?
A	It was just getting dark, I’m not really sure, maybe eight or so, I’m not sure.
Q	Where were you, and your husband, and your children when this incident took place?
A	Actually my daughter and my husband decided to go on another ride, and my son wasn’t feeling very well. So my son and I had gone to one of the concession stands and got a bottled water. And then on our way back to stand outside the ride that they were on, that’s when everything happened.
Q	What happened?
A	Well my son and I were walking back, my husband and my daughter were on an enclosed ride, the Star Ship ride and around that. And we were standing outside it, and I looked to my right, and at first I didn’t believe what I saw. But there was a guy with a baseball bat swinging at anybody he could possibly – that was standing around. And he knocked one guy to the ground, and at this point there was about ten people standing around that were involved – like pushing each other and trying – like basically fighting. And then the guy with the baseball bat, knocked a guy over, and the guy was with – obviously he was with his wife and children, and they had a stroller, and knocked the guy and the stroller over and the baby fell out of the stroller. And then the women began screaming louder, and then that’s when I took out my phone and called 911. And as I was talking on the phone to the dispatcher, I noticed to the left of me there was another group of people fighting, bigger than the – larger than the group of people that were fighting with the guy with the bat. And they were all on like a – there was like two separate globs of people just kicking, and punching, and fighting each other. So I looked back to the right, and I grabbed my son by the arm and I had him stand next to me. I looked back to the right and the guy that had the baseball bat was hitting the guy that – the guy on the ground. The guy was obviously hurt, and he kept hitting him, hitting him in the back. And then two other guys came over and started kicking this guy in the head, and there was blood everywhere. Someone else jumped on the people that were kicking the guy on the ground, and at some point someone’s shirt got ripped off. It was just chaos, it was really bad, I can’t stress how bad it was.
Q	As best – base on these groups that you saw, both on your left and on your right, how many people do you think were involved in this whole incident?
A	I thought it over, and probably I would say at least thirty, there was a lot. There was like four different groups. The two groups that were fighting with the guy with the bat, and then there were two other groups to the left, cause right in front of me there was like a gaming stand, like a basketball shooting thing. So, there was like separate groups of people there – yeah.
Q	How quickly did law enforcement respond after you called 911?
A	They didn’t, actually I was kinda shocked that when everything ended – when all of a sudden for some – for whatever reason, everybody started running towards the north. Just everyone started running, except for the people that were on the ground injured, started running, and I saw two security guards – I don’t know if they were security guards or what, but they were at the Red River Fair, and they were just walking up to the situation. They didn’t look like they were in too big of a hurry, but I was pretty shocked that nobody responded, so –
Q	Did you contact the authorities or make known to the authorities that you had seen what had happened?
A	Yeah, I saw a couple of people going with the police officers that showed up or guards or whatever they were, and they were walking back towards – I guess there was like a police station in – at the fair, and I followed them back there, my son and I both did. And we approached an officer and said we’d like to fill out a witness statement right away, because we both had seen it, and it was really traumatic and like to this day, and my son is fifteen, and to this day he still talks about it. He’s pretty – I don’t know.
Q	Correct me if I’m wrong, had you ever seen anything like that in real life before?
A	No, that’s why at first I was shocked seeing it, cause I’m like, what are they doing, and then I thought, is that like one of those inflatable bats that you get, but then I realized it was real. And that’s when I just started panicking.
Q	Ma’am did you in fact give a written statement to law enforcement on the night of this incident?
A	Yeah, yes.
Q	And you and I had an opportunity to review that statement the other day, is that correct?
A	Yup.
Q	Now, when you and your son were there watching what was happening, did you recognize either – any of the people involved in this disturbance, this activity?
A	No, no.
Q	Did you know any of the names of the people?
A	No.
Q	Did you – had you seen any of their faces before as best you can recall?
A	No.
Q	And so frankly, you weren’t able to assist law enforcement in identifying who was involved, at least as far as providing them with a name?
A	Oh, no, not at all.
Q	Ma’am, is it true that you were then subsequently interviewed on or about the 30th of June, 2006?
A	Yes, I believe I was at work, and an officer had called me, and asked to meet with me, and he came over to my place of employment on my lunch break.
Q	Okay, and do you recall that that was Deputy Kulesa or do you even remember who came and met with you at that point?
A	Um, I don’t really remember his name.
Q	What did he come over to do with you on that day?
A	He asked if I could look through a few photos and see if any of the pictures like jarred my memory, as far as if I recognized anybody that was involved in the fights.
Q	Did he in fact have some photographs to show you?
A	Yes.

Q	(cont. BY MR. BOENING) Ma’am I’m going to show you what’s been marked by identification as State’s Exhibit #3, I’ll ask you to take a look at that. Have you ever seen that before?
A	Yeah, this is one of the photos that the officer had with him.
Q	Okay, now when the officer showed you the photo – I’ve laid this exhibit in front of you, and you can see that it’s folded here on the bottom. Was this – were you able to see the names of the person beneath the photograph, beneath the picture?
A	No.
Q	Was this in fact folded over on the bottom so the name was not visible to you as best you recall or not?
A	I just – I don’t remember it being folded or anything, I just remember that I didn’t – there were no names on the pictures.
Q	There were no names on the pictures to see?
A	Mm-mm, mm-mm (negative response).
Q	And is it true then ma’am, that when the officer showed you this, on or about the 30th of June, 2006, you did identify at least one or more photographs, is that correct?
A	Correct.
Q	Ma’am do you recall exactly what the deputy who showed you this, asked you to do with the photographs that he was showing to you?
A	He laid them out on the table and he said to take my time, and he said – he asked me if I recognized anybody from the fight. And at that point – it took me a good twenty minutes or so, and there was a few that I thought I had recognized, but only one that I actually was a hundred percent on at that time.
Q	Okay and ma’am, I think that you did in fact identify as I understand it two photographs, is that correct?
A	Yes.
Q	And there was then however one that you actually wrote your name on, is that right?
A	Yeah.
Q	Okay, if I could, I’d ask that you flip that exhibit over on the back side.
A	Okay.
Q	Do you in fact recognize your own handwriting on that exhibit?
A	Yeah, yup it’s – looks like it’s second signature down.
Q	And so this exhibit, #3 was this in fact the photograph of the person that you identified as being involved in the activity at the fairgrounds on the evening of the 24th of June, 2006?

Q	Ms. Kjono, when the officer presented the photos to you, there was more than one?
A	Yes.
Q	I would say probably ten.
A	Yeah, around there.
Q	Were they handed to you in a pile, meaning in a stack?
A	He had them in a pile and then I kinda started pushing them around, and then he placed them on the table for me, so I could look at them a little better.
Q	So you didn’t look at them one at a time? You looked at them, I guess it would be a lineup type?
A	Yeah, I mean I went from picture to picture, but I mean, yeah they were set out – yup.

MR. BRANDBORG:  Your Honor, I withdraw my objection.
THE COURT: And do re-offer or have you offered Exhibit #3, Mr. Boening?
MR. BOENING: State offers State’s Exhibit 3 at this time.
THE COURT: Mr. Brandborg.
MR. BRANDBORG. No objection.
THE COURT: Exhibit #3 as offered is received, you may proceed.
CONT’ DIRECT EXAMINATION BY MR. BOENING:

Q	Ma’am as I understand it, you identified the person in the photograph as being present and participating in the activity going on there. The person that you identified in that photograph, did you recognize that person as being a person who was either holding a bat or using a bat at the fairgrounds?
A	I don’t think I did, I think I just basically said that I think – I said that he was one of the people that was involved, but –
Q	Okay, this happened in June, we’re now here in early January of 07’, is your memory any better today than it was back on the 30th of June when you looked at the photograph?
A	Yeah, around there.
Q	Were they handed to you in a pile, meaning in a stack?
A	I guess as far as what I saw there, it’s about – it’s the same I guess, but as far as –
Q	Your memory isn’t better with regard to whether or not this person was carrying a bat, is that correct?
A	Correct.
Q	Okay. You and I talked before hand – before you took the stand here today, I said I would ask you whether or not you recognized the Defendant as the person you saw out at the fairgrounds. Do you recognize him today or not? I mean you’ve had an opportunity to see him, do you recognize him or don’t you?
A	As of like today, this moment, it was so long ago, I can’t say a hundred percent. I can only say what I saw the day he brought the pictures, and then right away I said out of all of them that one I was a hundred percent at that time.
Q	In other words, your memory hasn’t gotten better, but this is what you identified for the deputy on the 30th of June, 2006.
A	Yup.

MR. BOENING: Nothing further.
THE COURT: Cross exam for the defense, Mr. Brandborg.
MR. BRANDBORG: Thank you, Your Honor.
CROSS EXAMINATION BY MR. BRANDBORG:

Q	Ms. Kjono, am I saying that correctly?
A	It’s Kjono, that’s okay.
Q	Kjono. Ms. Kjono, how long had you been at the fair before this fight erupted?
A	I would say it was a good, I would say about two hours.
Q	Were you yourself ever on any rides?
A	No, no.
Q	The kids?
A	Yup, just them.
Q	And if you had to estimate how far away from the fight you were when it initially erupted, would you say you were twenty feet?
A	Uhm.
Q	Twenty yards?
A	At the beginning, it was probably like from me to you, like you would be the person holding the bat, but then right in front here of me, would be like people on the ground that were injured, and at one point a group of people knocked into me, I think actually when I was on the phone with the police, that’s when they knocked into me.
Q	Okay. Now it’s your testimony today that when – was it Officer Kulesa who’s here today, that came to see you?
A	Yeah.
Q	When Officer Kulesa came to see you, he showed you the photos, correct?
A	Uh-hum.
Q	And you got to look at those photos spread out on a table, correct?
A	Correct.
Q	And were these photos all of a specific ethnic background?
A	That’s actually something I mentioned, they were darker skinned like me and – but that’s all the people I saw fighting. I didn’t know any of the – I guess what race the people were that were fighting. I actually –
Q	And Mr. Boening established that you in fact agree that your memory has now become less accurate, is that an accurate thing to say?
A	I would say, yeah it’s been awhile.
Q	And do you recall giving a statement to the police on the day that you actually observed the riot?
A	Uh-huh, yup.
Q	And do you recall telling them at the time that everybody was Hispanic involved in this fight?
A	That’s what I thought at first, but I guess I’m not a very good –
Q	Do you feel that you were incorrect in that first statement?
A	I guess I must have been from –
Q	Is it fair to say that it was a pretty traumatic experience?
A	Yes.
Q	And I can tell from your testimony today, that it’s possible that it affected the way you perceived things, is that correct?
A	The night that it happened, right after everything was over, my son and I rushed over to the police – little station thing, right away so we could get everything down right away. Cause I didn’t want to forget –
Q	And so like I was saying it was pretty traumatic and it may have affected the way you perceived things that night, is that correct?
A	Um.
Q	Yes or no would be fine.
A	I know one thing – yeah.
Q	Yes?
A	Yup.
Q	And it’s your testimony here today under oath, that you’re not necessarily hundred  percent positive that Mr. Hidanovic was involved in that fight?
A	As of today I’m not a hundred percent, I just know what picture I picked out at the time.
Q	After – and that picture was selected after you observed them for twenty minutes or so?
A	Yeah, I wanted to make sure, I didn’t want to –
Q	So you actually looked at that face, looked at other faces and came back and looked at it again?
A	I can’t – yeah.
Q	And then after that time, after looking at it and coming back to it, that’s when it was selected at a later time, twenty minutes later, I believe your testimony said?
A	Actually what I did, was I took a couple of them, I set them to the side right away, and then I pushed the other ones to the side and then I concentrated on a few of them, and then that’s when I said that for sure this one, and I said I’m not sure about another one and so –

MR. BRANDBORG:  Your Honor, I’m going to object to the witness’s out of court identification of Mr. Hidanovic in the photo. It may be something we should take up outside of the jury’s presence, Your Honor.
THE COURT:  Ladies and gentlemen of the jury, I do 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 or express any opinion thereon until the case is finally submitted to you.
        We’ll remain on the record, the witness will remain, counsel will remain, Defendant will remain. We’ll rise and we’ll excuse the jury at this time.
Please be seated. The jury has been excused for a break. You may have a chair ma’am. Jury has been excused for a break, the courtroom door is shut, they’re outside the presence of the courtroom. Mr. Boening is here, Mr. Brandborg is here, the Defendant is here, the interpreters are here and the witness is still under oath, still on the stand.
         Mr. Brandborg you wanted to make a motion of some sort?
MR. BRANDBORG:  Your Honor, I would ask if the witness’s out of court identification through the lineup presented by Officer Kulesa would be stricken from the record at this time. I would ask for a jury instruction regarding it. My basis for that instruction is – stems out of the Supreme Court case involving Stovall, which is again brought up in several North Dakota cases, Norrid and Packineau.
       Your Honor, essentially what the Supreme Court case said is that, a lineup can be ultimately suggestive. It basically verbatim stated that showing somebody pictures one at a time, there’s serious problems with that. I think in this particular case we go beyond that, we not only don’t have a sterile scientific environment for a lineup, we’re literally handing the pictures over to the witness, allowing them to manipulate them, put them where they want them. I don’t believe it carries with it the necessary voracity that out of court identification should be required to take. I believe it was unkneadingly suggestive, and I would ask the Court if it could be stricken, and an instruction to the jury given, Your Honor.
THE COURT: And the reason it was not brought up pretrial during – and by and – or before the motion deadline date would be?
MR. BRANDBORG: Your Honor, I think I got involved in this case much after the motion deadline date, Your Honor.
THE COURT: It’d be a good time to lay that down right now on your behalf, and your client’s behalf as to when did you get involved, and why did you get involved Mr. Brandborg?
MR. BRANDBORG: Your Honor, I know the Court assigned me to this case, I believe it was sometime in the beginning of December, Your Honor.
THE COURT: And Mr. Beauchene had been retained prior to that?
MR. BRANDBORG: As far as I know, I don’t have any details on that, Your Honor.
THE COURT: And you were appointed by an Order of Judge McCullough in regards to this file and then perhaps another public defender was appointed on a different file in front of Judge McCullough. Is that your understanding?
MR. BRANDBORG: I’m not certain which judge assigned me, Your Honor, but that – it’s very possible, yes.
THE COURT: I’ll take judicial notice of that, it was Judge McCullough that appointed you, by the way. Okay, Mr. Boening for the State of North DakotA
MR. BOENING: Rule 12 (b) (3) provides motions that must be made before trial, the following must be raised before trial, (C) a motion to suppress evidence. And it seems to me that, that’s essentially what this motion is. It hasn’t been raised prior to the trial, it’s not supported by any brief here today. I unfortunately am not familiar with the cases that Mr. Brandborg’s cited to – if he wants to impose on the Court and take a recess today and he can let me do some research, so I can take a look at the law. Maybe there was a problem with the procedure in this case, maybe there wasn’t a problem with the procedure in this case. But, you know it seems to me that whether it was done on a pretrial basis or whether it was done in a Motion in Limine heard this morning before we picked the jury.  It seems to me that this was a motion that could have been raised before trial. Under 12 (e), a party waives any Rule (b) (3) defense, objection or request not raised by the deadline the Court sets under Rule 12(c) or any extension the Court provides. For good cause the Court may grant relief from the waiver. But we submit that this issue being raised by the Defendant in this case certainly is something that could have been handled at a motion hearing. We could have had an Evidentiary Hearing, taken testimony, but it’s not timely at this point, Your Honor, and we ask that the Court deny the motion.
THE COURT: And Mr. Boening, the – and I’ll hear from Mr. Brandborg as well, the State’s – or the Court is familiar with State v. Norrid, that’s a case I prosecuted and that’s a case I argued in front of the Supreme Court. Was affirmed unanimously, frankly I remember where I argued it, Linto, North Dakota, in the high school gym, quite frankly. And I remember Justice Marring had some concerns based upon Professor La Fave, and how that case proceeded in the facts and circumstances. The Court I believe was correct, I argued it that way, and they were unanimous in their opinion, basing it upon U.S. Supreme Court case law as opposed to LaFave and basing it upon the North Dakota Supreme Court. That case is a little bit different factually, but certainly does set out some law that would be applicable, show ups versus lineups and the like. What the Court is inclined to do at this point and time is pursuant to Rule 12, including 12 (b) (3) and (c), as noted by Mr. Boening, this is an issue that should have been brought to the Court’s attention prior to the jury trial. That being said the Court is, and always is concerned to make sure that the Constitutional Rights, State and Federal of the Defendant are protected. The Court has heard some information about how the lineup was conducted, I wouldn’t characterize it as a show up here, which perhaps defense counsel is doing, but with what the Courts heard so far, it would be more of a lineup. What the Court is inclined to do, is allow for a hearing tomorrow morning prior to the jury trial. For us to continue the jury trial at this point and time, and allow for a hearing tomorrow morning if the defense counsel wishes to argue tomorrow morning. We can take some evidence, certainly the investigator should be allowed to testify to talk about how it was presented to the witness or the witnesses and the like, and we should have a full record prior to the Court making any sort of final ruling. I’m not convinced that this very preliminary juncture that any Constitutional violation has occurred, based upon the Court’s knowledge of State v. Norrid and applicable law for lineups, but that doesn’t mean that there isn’t. And so I’d like to have a further explanation of – I guess we could do it right now and send the jury home, or we could do it tomorrow morning and continue to take testimony today. Quite frankly that’s not fair to Mr. Boening and the State, as they didn’t know about this motion, that’s why we have Rule 12 in part. So the State isn’t surprised and they can prepare for such a motion. So we can either do it now, meaning have the motion now, take that testimony and make a decision today, if at all possible, or we could continue with the presentation of evidence upon today’s date until we’re done today, and then take a motion hearing tomorrow morning. Say for example at 8:30 or so before we commence the jury trial and depending upon the Court’s ruling, whether we commence the jury trial tomorrow morning. Any thoughts – or we could do a third option folks. If you folks want to talk and give me fifteen minutes to go read Norrid again –
MR. BOENING: I would like to read Norrid, so I would know what the right question is to ask.
THE COURT: Okay, do you folks want to take another recess right now and then we can – you folks are visiting right now, that’s why I say maybe it will be helpful for you folks to visit and perhaps Mr. Brandborg would want to talk to Mr. Kulesa, and perhaps the State would make that available and maybe that will take care of it and maybe it won’t. But would it be wise for the Court simply to take a ten minute recess and leave you folks alone to visit about it?
MR. BOENING: Could you do that, Your Honor, I’d ask that the Court give us ten minutes so I can – Mr. Brandborg can bring me up to speed. It sounds like he’s got the case law with him, I just need to take a look at it.
THE COURT: Mr. Brandborg, is that acceptable to the defense?
MR. BRANDBORG: It is, Your Honor.
THE COURT: Okay, so what we will do, the jury is not present and they will not come back in the courtroom at this time. Mr. Bailiff we’re going to continue to take a recess, so they can continue on their break. That’s all fine and good, I’ll let you know when I want the jurors back in the courtroom. I will leave the courtroom and we’ll go off the record in a second.
Madame Witness, if you’d stick around in the courtroom, just in case they need to visit with you, that would be appreciated. Any questions, you can talk to Mr. Boening, okay Madame Witness?
MS. KJONO: Okay.
THE COURT: And Mr. Kulesa will stay as well. We’ll go back on the record without the jury in ten minutes. We’re adjourned.
ADJOURNED: 3:50 p.m.

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MR. BOENING: Let me call Ms. Kjono back to the witness stand. Ma’am, if you’d step forward, take the witness chair.
THE COURT: Mr. Brandborg, any problem with Mr. Boening proceeding at this time?
MR. BRANDBORG: No, Your Honor.
THE COURT: So ma’am, why don’t you take the witness stand again, making you bounce up and down. Thank you. Ms. Kjono, you’re under oath, the same oath you took, oh gosh a couple of hours, about an hour ago, now. Okay? Mr. Boening.
MR. BOENING: Your Honor, may I approach the witness?
THE COURT: You may
RE DIRECT EXAMINATION
BY MR. BOENING:

Q	Ma’am, I’m going to show you what’s been marked by identification as State’s Exhibit #4. I’ll ask you to take a look at that, do you know what that is?
A	Yeah, these were the pictures that the officer brought to my work for me to look through.
Q	State’s Exhibit #3 is the picture that we’ve already introduced into evidence in this case, is that correct?
A	Right.
Q	And Detective Kulesa not only showed you that single photograph that we had marked as State’s Exhibit #3, the photograph of the Defendant in this case, but he showed you a whole series of photographs, is that correct?
A	Correct.
Q	Now, State’s Exhibit 4 which is lying in front of you right now,  is stapled together, is  that  correct?
A	Correct.
Q	I just put a staple through all of those documents here in the courtroom, is that correct?
A	Correct.
Q	When you looked at the documents, were the documents stapled together or not?
A	No, they were not.
Q	How were they handed to you as best as you can recall?
A	In a pile like this, and then –
Q	So they were one on top of one another –
A	Yes.
Q	-- is that correct?
A	Uh-hum.
Q	Were the names visible on the documents or not, do you recall?
A	They weren’t on there.
Q	Okay, so you didn’t see any names?
A	No.
Q	But you saw the photographs themselves, is that correct?
A	Yes.
Q	And they were stacked one on top of the other, is that right?
A	Yes.
Q	When you look at those documents, can you see in the upper right hand corner a number circled?
A	Yes.
Q	And to the best of your recollection, was that number circled on the documents that were shown to you? Do you recall or not?
A	I don’t remember.
Q	Now on State’s Exhibit #7, you signed your – you signed the back of that document, is that correct?
A	Number seven on here?
Q	Excuse me, document number seven, it’s actually - - it’s in evidence as State’s Exhibit #3.
A	Okay, that one.
Q	That’s the document we were talking about when the jury was in here, right?
A	Correct.
Q	And you signed that one, right?
A	Correct.
Q	Do you remember if you signed any of the other ones?
A	I think I signed one more, I believe.
Q	After they were handed to you by the deputy, what did you do with them?
A	I took them from his hands and he said to take my time and look through them. So I set them down on the table, and the officer said here, and he helped me set them out, cause I couldn’t reach across the table. So, we sat them out, and them I made – I took a few that I thought I had recognized and I moved them to the side. And then I took my time like he said.
Q	Do you recall whether the deputy at any point suggested that you take a closer or less look at any of the photographs?
A	I don’t remember, I just remember saying that I wanted to look at them, cause I did not want to make a mistake.
Q	Do you know what the word suggestive means?
A	Yeah.
Q	Okay, as you think back on the way these photographs were submitted to you, was there anything about the manner in which these photographs that were submitted to you, that you find to be suggestive?

MR. BRANDBORG: Objection, calls for a legal conclusion.
THE COURT: The way the question was phrased, that’s overruled, the way she would find as suggestive. You may answer the question to the best of your ability, ma’am.

A	Can you repeat it?
Q	(BY MR. BOENING:) Do you know what the word suggestive means?
A	Yeah.
Q	And I understand that you do.
A	Yes.
Q	And so my question is, was there anything about the manner in which those pictures were set down in front of you, that you found to be suggestive?
A	No, cause I guess when I was given the pile, I laid them out and, I guess I was  the one that laid the pictures out, so I would say no.
Q	Ma’am, just so we’re sure you know what the word suggestive means, what might have constituted a suggestive procedure in your mind in this case?
A	I would –

MR. BRANDBORG: Objection, asks for speculation.
THE COURT: Objection is overruled, you may answer the question to the best of your ability, ma’am.

A	If it was me and I was trying – and I had a pile of pictures and I was trying to suggest to someone, I would probably place the pictures in a certain way. Like maybe in one area where I thought – I don’t know, I guess that’s what I would do, but –
Q	If for example there were photos of six Chinese and one Bosnian, would that have been – would you have found that to be suggestive?
A	I –
Q	You don’t need to worry about whether your answer is right or wrong ma’am, just do the best you can with it.
A	Suggestive as?
Q	Well, you know what the word suggestive means, right?
A	Right.
Q	Was there anything about those – the way those photographs were submitted to you, that in some way suggested that you should pick out photograph #7?
A	Oh, no, no.

MR.BOENING: Nothing further.
THE COURT: And Exhibit #4 was handed to the witness, do you wish to offer that or –
MR. BOENING: I’m sorry, at this time Your Honor, the State offers into evidence State’s Exhibit 4.
THE COURT: Mr. Brandborg, would you take a look at that, and let me know the defense thoughts.
MR. BRANDBORG: No objection, Your Honor.
THE COURT: Exhibit #4 as offered is received. Prior to cross examination, ma’am, during your direct testimony – and Mr. Brandborg, if you’re done with that, could you hand that to the Court please? Thank you. So four is received.
DIRECT EXAMINATION
BY THE COURT:

Q	Ma’am – Madame Witness, during your testimony during the direct examination and cross examination when the jury was here. You mentioned a couple of things, that the officer, that being, Mr. Kulesa, came and interviewed you on June 30th 2006, is that correct?
A	Correct.
Q	And that’s the date that he did the photo lineup with you?
A	Correct.
Q	And this incident occurred June 24, 2006, so approximately six days later?
A	Approximately, yes.
Q	Came to your work place?
A	Yes
Q	And do you remember what time of day roughly?
A	I think it was around noon, I would say.
Q	And so he gave you the ten or so pictures in State’s Exhibit #4, and the additional picture, State’s Exhibit #3, is that correct?
A	Correct.
Q	Okay, and those are the photos that he gave to you, and then you put them out, and you went through them, and during a process of about twenty minutes, you – as one photo you identified it was #3?
A	Correct.
Q	And you identification of #3, how far in the process minute wise of that twenty minutes did that come?
A	I think within the first few minutes I set aside two or three pictures, I would say, and I really – like I said I did not want to say I recognized anybody if I didn’t. So that’s why it took so long, cause I knew it was really serious. So I took my time, and then the rest of the time I spent kinda looking at them, when I said okay, yeah, and then I picked the ones that I signed.
Q	Okay, and specific to #3, you did pick that one?
A	Yes.
Q	And you picked that one because why?
A	It looked familiar to me as far as what I saw, and who I saw fighting. There were a lot of people fighting, but that picture just struck me as a face I can remember.
Q	Okay, and your direct testimony  or in your cross, I can’t remember, but when the jury was here, you said that was one of the people. Was that one of the people or not? Okay, I’m not asking you what you know right now, because we’ve been through that and down that road.
A	Okay.
Q	I’m asking you the photo lineup that you went through –
A	Yes.
Q	--with Detective Kulesa, did you pick that as one of the people?
A	Yes I did.
Q	Okay, and at that point and time, you were guessing, at that point and time you were certain, at that point and time you mentioned a hundred percent in your testimony here today. What would you say was your certainly level at that point and time?
A	I was pretty sure – I was a hundred percent certain at that time of the picture I saw.
Q	Today’s a different date, I understand.
A	I would not have – I wouldn’t have said anything if I wasn’t a hundred percent on that day.

THE COURT: Okay. For the defense, Mr. Brandborg.
RE CROSS EXAMINATION
BY MR. BRANDBORG:

Q	Ms. Kjono, when the – I know that this seems really bizarre, but, I want you to try to remember when you were first handed the stack of pictures, --
A	Okay.
Q	--did you look through them all, and then decide you wanted to spread them out?
A	Yeah.
Q	So you paged through one at a time?
A	I kinda set some to the side and I – the table was only about –
Q	Let me stop you there, when you say you set some aside, you’d looked at – you got the file in your hand, you looked at the top one. You either put it in the back or you set it aside?
A	I set it to the side.
Q	Set it aside, and you took the next one, set it on top of that one?
A	I think I set to the other side, and I kind of moved them around.
Q	Okay, so as you looked at them one at a time, you set them out?
A	Yeah.
Q	Is that fair?
A	Yeah.
Q	And you – earlier in your testimony, you said it took about twenty minutes, is that an accurate statement?
A	I would say approximately twenty minutes, total.
Q	And I know words like a hundred percent, and pretty sure, I mean they’re hard to talk about now, but after looking at these pictures for approximately twenty minutes, that’s when you decided that this was the picture?
A	That’s when I felt comfortable enough to say that, yes, but –
Q	So is it a fair statement that right away when you looked at the picture, you weren’t comfortable enough to say this is the person? Is that what you’re saying?
A	No, well –
Q	Well, you either were comfortable enough right away when you saw it or you weren’t. And from your earlier testimony it appeared that you weren’t. And from your earlier testimony it appeared that you weren’t comfortable immediately?
A	I wasn’t comfortable immediately as far as – what I took it as, as when I got the pictures, basically when I say that this is the person, then –
Q	You wanted to be certain?
A	I wanted to be certain, I did not want anyone in trouble if they didn’t do it.

MR. BRANDBORG: I understand. I have nothing further, Your Honor.
THE COURT: Anything further for the witness at this time, Mr. Boening?
MR. BOENING: No thank you, Your Honor.
THE COURT: Okay, you can step down ma’am, thank you. Have a chair in the hallway, is that okay, Mr. Boening?
MR. BOENING: Yes, Your Honor.
THE COURT: Okay, Mr. Brandborg?
MR. BRANDBORG:  Yes, Your Honor.
THE COURT: Just have a chair in the hallway, ma’am, that would be appreciated. Thank you.
At this point and time, I don’t know if the defense wants to call any other witnesses. If you want to call Investigator Kulesa and just ask him how he did this, or what you folks want to do at this point and time. I’m not exactly following how you wish to proceed, I could call him myself and ask the questions, if you want me to?
MR. BRANDBORG: Your Honor, the defense would call Officer Kulesa, and I think that we could – as far as what the defense is intending to attack about these lineups, I think we can do it through his testimony.
THE COURT: Any problem with that procedure, Mr. Boening?
MR. BRANDBORG: It is, Your Honor.
THE COURT: Okay, so what we will do, the jury is not present and they will not come back in the courtroom at this time. Mr. Bailiff we’re going to continue to take a recess, so they can continue on their break. That’s all fine and good, I’ll let you know when I want the jurors back in the courtroom. I will leave the courtroom and we’ll go off the record in a second.
          Madame Witness, if you’d stick around in the courtroom, just in case they need to visit with you, that would be appreciated. Any questions, you can talk to Mr. Boening, okay Madame Witness?
MS. KJONO: Okay.
THE COURT: And Mr. Kulesa will stay as well. We’ll go back on the record without the jury in ten minutes. We’re adjourned.
ADJOURNED: 3:50 p.m.