Trial Transcripts

Opening Statements

COURT READ THE OPENING JURY INSTRUCTIONS.
And if the bailiff would be so kind to hand a note pad, one to each juror and a pen to each juror. Thank you sir.
          Thank you, at this point and time pursuant to the rules, we are ready for opening statements. For the State of North Dakota, Mr. Boening.
MR. BOENING: Thank you, Your Honor. It please the Court, counsel, members of the jury, once again it’s my privilege to represent the people of the State of North Dakota in this criminal case. As you know, this Defendant is charged with Engaging in a Riot While Armed, that’s the crime, that’s the name of the crime under North Dakota law. I’m not going to talk with you at this point about the specific elements of the offense. The judge at the close of the trial will actually instruct you with regard to the specific elements of the offense. But broadly speaking, what we’ve got the Defendant charged with here is we alleged that he engaged in a riot. That term is a term of art under North Dakota law, it has a specific meaning under North Dakota law, it has a specific meaning under North Dakota law. Essentially a public disturbance involving five or more persons which puts property or human beings at risk. And that during this incident the Defendant was in fact armed with a dangerous weapon.
         The purpose of the opening statement like this is to outline for you the State’s case, so I’ll do that in a summary fashion.
         On the evening of the 24th of June, 2006, the Arpero family, a number of members of the Arpero family, went to the Red River Valley Fairgrounds out at West Fargo in order to enjoy themselves, in order to see the fair, in order to walk around and do what we all do when we go to the fair. And while they were standing out at the fairgrounds, suddenly they were attacked. They were attacked by a group of individuals who attacked without provocation. The Arperos hadn’t done anything to these individuals, the Arperos were standing there, they were in the Midway area, and suddenly they were attacked. A number of the Arpero’s involved who were attacked suffered some injury out at the Red River Valley Fairgrounds. Juan Arpero was hit in the head with a baseball bat, he was actually transported to a local hospital that evening. His scalp was split open on the top of his head, as you probably know, scalp wounds tend to bleed a lot, so there was blood all over the place with regard to his injury. His brother, I believe it’s Jose, was actually struck on the back with the baseball bat. We’ve got a photo that we’re going to offer in evidence where you can see the mark that was left on his bat – on his back, excuse me. Lionardo Arpero, another brother was out there. Lionardo apparently got kicked in the head. He suffered a cut over I believe it’s actually his left eye, he required four stitches to close the cut over his left eye. Juan actually required sixteen staples in the top of his scalp in order to close the injury that he suffered.
          Rosa and Juan Arpero were married, Juan was I believe actually holding one of their children when the attack took place. The child was actually struck, we have a fairly poor quality photo of a what appears to be a mark to the child’s forehead.
           The Arperos did what they could to resist, they were the ones who were attacked in this case. Law enforcement ultimately arrived on the scene, and it ultimately resulted in the Cass County Sheriff’s Department conducting an investigation in this case. The case was assigned to Deputy Al Kulesa, who’s the detective for the Cass County Sheriff’s Department. Deputy Kulesa conducted an investigation, and he did what you might expect a person would do in this case. The Arperos really didn’t know who had assaulted them. They didn’t know the names of the people who assaulted them, they didn’t recognize the people who had assaulted them. So the Cass County Sheriff’s Department undertook an investigation, and the purpose of the investigation was to try to identify who was responsible for attacking the Arpero’s, who was responsible for this riot that took place, this small fight on the fairgrounds on the evening of the 24th of June 2006.
          So essentially what Detective Kulesa did in this case, is he identified suspects. He put together a list of people who were potential suspects in the case, and he showed actually the photograph essentially to as many people as he could think of who might possibly be able to identify whoever was responsible in this case. He conducted numerous interviews, talked with suspects, talked with people who might be witnesses in the case. And at a point in this case, I believe it’s – I think it’s on or about the 29th of June, about five days after this incident, he actually put together a photo lineup. And the photo lineup consisted of eleven different pictures. What he did is he actually went to North Dakota Drivers License records, he printed out the Drivers License photographs in color of the eleven people that he suspected might be involved in this case. And then he took that photo lineup, those eleven different photographs to potential witnesses in the case who might be able see it. I believe by that point he already identified some other suspects. He had taken the photos to the Arperos, the Arperos couldn’t identify any of the photographs as being photographs of the people who were involved in this assault on the Arperos, this riot that took place out on the Red River Valley Fairgrounds.
           He took the photos to – ultimately showed the photos to four individual who we’re going to testify in this trial today. One of the individuals is a Joanna Kjono, Ms. Kjono was out there at the fairgrounds on the night of this incident. In fact she may have been the initial 911 caller to law enforcement with regard to what she saw unfolding in front of her eyes as she was out at the fairground. And the way Detective Kulesa did this, is he took the photographs, and he folded over the name on the photographs, but he numbered each one of the eleven photographs. So he laid the eleven photographs down in front of Ms. Kjono, and ultimately Ms. Kjono identified photograph seven. And photograph seven, unknown to Ms. Kjono, because Detective Kulesa didn’t show any of these witnesses the names of the persons who were actually depicted in the photographs. Photograph number seven was the photograph of this Defendant in this case. And what Ms. Kjono recalls, is that the Defendant was in fact out at the Red River Valley Fairgrounds, and she saw him participating in this fight, actually participating in the riot. I believe on the same day, it’s either the 29th or 30th of June 2006, Detective Kulesa shows the same eleven photograph lineup, I believe to Tecola Sparks, I believe that’s the person whose sees it on that day again. And she also looks at the photographs, she also picks out photograph number seven, and photograph number seven is the photograph of the Defendant in this case, as a person who was out at the Red River Valley Fairgrounds, actually participating in this fight. But her testimony is a little bit more extensive than Ms. Kjono, because Tecola Sparks actually remembers seeing the Defendant carrying a baseball bat. Swinging the bat, participating in this riot that was taking place out at the fairgrounds and carrying the bat, and of course her testimony is very important to this case because of the specific nature of the charge. Detective Kulesa showed the same eleven photograph lineup to a woman by the name of Brandee Haas. He actually showed Ms. Haas the photo lineup on the 4th of July. Ms. Haas looked at the photographs, she again picked out photograph number seven as a photograph of a person who was out at the Red River Valley Fairgrounds and actually participating in the riot. And then finally Detective Kulesa showed this eleven photograph lineup to a woman by the name of Cassandra Belgarde. Now, Cassandra Belgarde had also been out at the Red River Valley Fairgrounds on the night of the incident, on the 24th of June 2006. She was actually there with her fiancé, and her fiance is one of the original victims in this case, Jose Arpero. Ms. Belgarde looked at the photographs without names on them, looked at the numbers on the photographs and again saw that photograph number seven, which is actually the photograph of the Defendant in this case. Her recollection was that, that person, depicted in photograph number seven, the Defendant in this case, was also out at the Red River Valley Fairgrounds and participating in the riot in this case.
          So we’re gonna call all those witnesses in this case, we’re gonna call them to testify, we’ll have them testify to what happened, either happened to them as victims as part of this riot, or what they saw then, when they subsequently identified the photographs. Now these photographs were examined by the witnesses in this case, end of June, beginning of July, and we believe that Detective Kulesa, pursuant to an exception, and the definition of the rule, defining heresay, Detective Kulesa will be able to testify to what they told him when they saw these photographs when he showed them the photographs in June or July of 2006. He will describe his investigation, how he conducted his investigation, and again what these witnesses found. I don’t know at this point whether any of the witnesses who identify the Defendant as participating in the riot and or was actually swinging the bat, carrying the dangerous weapon in this case, will actually be able to identify the Defendant today, as participating in the riot. They may be able to recognize him today, they may not be able to recognize him today, but again we’re talking about an incident that took place over six months ago, end of June 2006. We do believe that they’re out of court identification of the Defendant in these photographs at the end of June and early July will be admissible. And we’ll prove to you beyond any reasonable doubt that the Defendant in fact is responsible for the crime that we have him charged with, namely Engaging in a Riot, as that term is defined under North Dakota law, on or about the 24th of June, 2006 as established by the testimony of the eye witnesses in this case.
           The persons who actually saw the Defendant, and have indicated to law enforcement that they saw the Defendant out there, based on their identification of his photo after the incident on the 24th, namely Cassandra Belgarde, Tecola Sparks, Brandee Haas and Joanna Kjono. And at the close of this case I will return to you and ask you to return a guilty verdict.
           Thank you, Your Honor.
THE COURT: Thank you Mr. Boening. Mr. Brandborg for the defense, would the defense like to reserve it’s opening or would it like to give it’s opening statement right now?
MR. BRANDBORG: Right now, Your Honor.
THE COURT: You may proceed
MR. BRANDBORG: Thank you. Good afternoon ladies and gentlemen. This is an odd case and the defense doesn’t disagree with much of what the State had just said. You’re going to hear testimony today, there was a disturbance out at the fairgrounds. You’re going to hear that it involved many people, but the problem is what you’re not going to hear. And I’m just going to ask you all to listen very carefully to each of what the witnesses say in this case.
          You’re going to hear from four State witnesses that apparently identified Mr. Hidanovic at the fair. But when Officer Kulesa gets on the stand you’ll hear that there were many other witnesses that did not, and they basically picked and choose who would be here today in order to present their case to you.
           What you’re gonna find out once the State has rested, you’re gonna find out what Mr. Hidanovic did that day. Where he was, what he was doing with his family that day. In fact, Mr. Hidanovic started the day at a picnic with his family and friends.
He’s originally from Bosnia, and the community is very tight, they do things together. They take – and he was at picnic out at Lindenwood Park enjoying himself. At the time it was himself, his fiancé and their four children.
          Now as kids often do, the kids were begging to go to the fair. I’m sure those of you with kids would understand, they wanted to go to the fair. But as you know, many times at the Red River Valley Fair, it rains that time of the year, somebody said that it was raining. So they made a promise to their children like parents often do, if it stops raining, we’ll go out to the fair. Well, as the evening approached, guess what? It stopped raining, and so to live up to their promise, Mr. Hidanovic, his fiancé and four kids pack up in the car, and go out to the fair. They get out to the fair, they park their car, they go in. The kids are having a blast, in fact at one point I believe that they had to go back and get wrist bands because they had bought just single tickets I think previously, they had to go back and get wrist bands so the kids could continue to enjoy the rides and games and just generally have a good time. And during this whole time Mr. Hidanovic was with his children, his finance, some friends come and go during this time, they see him there.
         Eventually the kids want to go to the Fun House, they want to go to some game and the three adults that are there, which would be Mr. Hidanovic, his fiancé and a friend of theirs decide that they’re going to go on a ride. They get on some kind of a ride where they lie down, three next to each other and I think it spins in some manner, we’ll have to ask them when they testify. But it spins and they’re enjoying themselves, and as the ride is slowing down and stopped, their cell phone is ringing. And somebody from the Bosnian community is phoning them, telling them that there is quite a riot. While their kids are not on the ride with them, so immediately they’re concerned, where are our kids, there’s something going on. They get off of this ride, they go directly to their children, they get their children, and when they arrive on the scene, everything – people have dispersed. The fight is over, people have run away, law enforcement is coming in. Eventually this family was there enjoying the fair, finds a child who belonged from the Bosnian community, whose parent had apparently ran off, they didn’t know. They take that child under their wing and they give that child a safe ride home to his family.
          Now, again a lot of what you’re going to hear in this case is what four witnesses claim to have seen. But what you’re not going to hear is what I want you to listen for. You’re not going to hear any about any physical evidence, you’re not going to hear about the fingerprints on the bat. All you’re going to hear is what people say, and if you listen to what each one of them says, it’s going to differ. Each one’s going to have a different story, I want you to listen to that.
          When all the evidence comes in, I’m going to ask you to take that evidence, deliberate on it, think about it, and when it’s all said and done, I ask you to return a not guilty verdict, because there simply is not going to be the evidence to convict this man on the charge that he’s charged with.   
         Thank you
THE COURT: Thank you Mr. Brandborg. At this point and time folks, reminder to counsel that Rule 615 has been ordered by the Court, exclusion of witnesses sequestration, and counsel for both parties are required to enforce that rule.
We’ll remain on the record. I’ll give an opportunity now for jurors, parties, counsel to stand and stretch their legs. We’ll remain on the record, but if you want to rise as you’re able and stretch your legs, you may at this point and time.
          Please be seated. We have remained on the record, counsel for both parties have remained, the Defendant has remained. Our twelve members of the jury are remaining as well. Again, the sequestration order is in place, and it’s incumbent upon counsel to enforce that order, so I’ve made that abundantly clear on the record at this point and time.
          At this point and time pursuant to the rules, we will proceed with the State’s case in chief. Mr. Boening.