Trial Transcripts

Prosecution Witness #5: Joanna Kjono
Testimony #2

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	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	Gave you those pictures to look through, is that a better way to put it?
A.	Yes.
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. BOENING: No, Your Honor.