Trial Transcripts

Prosecution Witness #1: Rosa Arpero

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

Q	Thank you. Please state your full name.
A.	It’s Rosa Maria Garza-Arpero.
Q	Ma’am how do you spell your last name?
A.	Both of them?
Q	Sure.
A.	Okay, it’s G-a-r-z-a hyphened A-r-p-e-r-o.
Q	How old are you ma’am?
A.	I’m twenty-six.
Q	Where do you live?
A.	In Moorhead.
Q	Are you married or single?
A.	Married.
Q	Who are you married to?
A.	Juan Arpero.
Q	Approximately how long have you and Juan been married?
A.	Five years.
Q	Do you and Juan have any children?
A.	Two.
Q	At this point how old are your children?
A.	One is three or four and other one is a year and a half.
Q	Ma’am do you work outside the home?
A.	Sometimes.
Q	I want to direct your attention to this past summer, the 24th of  June, 2006.  Did you go to the Red River Valley Fairgrounds on the evening of that date?
A.	Yes.
Q	Who did you go out to the fairgrounds with?
A.	It was me and my husband, and my four kids.
Q	Okay. Were any other family members out at the Red River Valley Fairgrounds with you that evening?
A.	Yes, we met up with his brother, his girlfriend, and her three kids, and his other brother, and his girlfriend, and her baby.
Q	Your husband is Juan, is that correct?
A.	Yes.
Q	What are the names of the other brothers that you met up with out at the Red River Valley Fairgrounds?
A.	Jose, and the other one is Lionardo.
Q	What did you do at the fairgrounds?
A.	Well, we just wanted to get the girls on the rides, since it was their second year of going to the fair.
Q	And when you say the girls on the rides, what girls are you talking about?
A.	My daughters, I have two older ones besides my other two with my husband.
Q	Okay, was there a point at which you were in the Midway area, the portion of the fairgrounds where there were rides?
A.	Uh-huh.
Q	Was there some sort of an incident that took place while you were in the vicinity of the rides?
A.	Well, we’re just getting on the rides when we heard a loud noise, where it sounded like a – something aluminum hitting a rock or something hard.  I turned around, that’s when I saw everything -- or everybody running around, and my husband was bleeding from his head.
Q	At the point which you first heard this noise, how far away were you roughly from your husband?
A.	I was just in front of the ride where he was suppose to wait with my other two youngest ones.
Q	Okay.
A.	And we’re barely sitting down, that’s when it made me turn around where that thump I heard, and  I turned around , that’s what I saw.
Q	Let’s talk about the spaces here in the courtroom, where you as far away from your husband as I am from you now?
A.	Yes.
Q	Was it a very similar distance?
A.	Close to -- probably against the wall, that’s the farthest it could go.
Q	Okay, so the distance from me to the wall behind you, is that correct?
A.	Yes.
Q	And so that’s maybe fifteen, twenty feet, something like that?
A.	Uh-huh.
Q	So, the first you realized that something was happening, is you heard a sound, is that correct?
A.	Yes.
Q	And so you heard the sound and you did what then?
A.	I got off the ride, I didn’t even get on – stayed on it, I just got off of it, because I saw blood gushing out of husband’s head.
Q	What kind of a ride were you going to go on?
A.	It’s one where you sit various of people, sit around it and it turns around. I don’t know what it’s called.
Q	When you looked back towards your husband, when you saw your husband, what was his position at that point? Was he standing, was he on the ground, was he seated?
A.	He was actually standing holding his head, and then I was seeing everybody else running around. I did see a person running after my husband’s cousin, that she was calling 911. That’s what everybody tells me, cause she was using the phone.
Q	Okay, do you know whether your – I know you’ve talked about your husband holding his head and you’ve said something about blood already, is that correct?
A.	Yes, he already had blood coming out.
Q	Okay, do you know what caused his head to bleed?
A.	Well, the first thought was like, maybe a shot, but then I’m like, well it sounded more like an aluminum bat. That’s the way – the kids have been in T-ball, so I know how it sounds, and that’s my first reaction, it’s like where is it at, and they say – everybody pointed that they threw it under the ride and that’s when I looked and it was there.
Q	After you saw your husband struck, did you personally see anyone holding a bat in his or her hands?
A.	No, I just saw them – some people roughing up with the security that was there trying to stop them, or making them not leave the premises.
Q	So, you were going on the ride, you turned around, you saw your husband, he was holding his head, and there was blood coming from his head, is that correct?
A.	Yes.
Q	And were there other people fighting with your husband at that point or not?
A.	I couldn’t – I really didn’t think about that, just for the fact that my son wasn’t in the stroller anymore, cause the stroller was on the floor.
Q	What – when you were going on the ride, where was your son?
A.	Inside the stroller.
Q	And where was the stroller?
A.	My husband was holding it, well he had my son in the stroller.
Q	So you looked back, you saw your husband, he was holding his head, there was blood. You saw the stroller and you did not see your son at that point, is that correct?
A.	I did not see my son.
Q	What did you do at that point?
A.	Well, I ran and looked for him and some girls had him away from everything, and when I got him, he had a bump on his head. So they say, everybody said that he got hit with the bat and the first thing I did was take him to the hospital, and I guess it was when he fell on the floor.
Q	Okay, and you’re referring to the injury that your son suffered, is that correct?
A.	Yes.
Q	Did you see either of your husband’s brothers that night, do you know whether they suffered any injury?
A.	Yes, I kept them all together, I didn’t let them leave anywhere, we were waiting for the (inaudible) to stay there.
Q	Okay.
A.	One of them got his ear bitten, and got hit in the back. The other one got hit with a -- I don’t know if it was the boot or shoe or something, but his eye was opened, cut – so.
Q	Okay. Madame Clerk, can I have this marked as an exhibit?

CLERK: State’s Exhibit #1 has been marked.
MR. BOENING: May I approach the witness, Your Honor?
THE COURT: You may.

Q	Ma’am I’m showing you what’s been mark by identification as State’s Exhibit #1. I would ask you to take a look at that. That actually consists of four separate photographs, is that correct?
A	Yes.
Q	Are you familiar with what’s depicted in each one of those four photographs?
A	Yes.
Q	And would each of those four photographs, in the light of the quality of the photographs, constitute fair and accurate depictions of the injuries that had been suffered by persons in either your immediate or extended family, out at the Red River Valley Fairgrounds on the evening of the 24th of June?
A	Yes.

MR BOENING: Your Honor, at this time the State would offer State’s Exhibit #1 in evidence.
MR. BRANDBORG:  No objection.
THE COURT: Exhibit #1 as offered is received, you may proceed Mr. Boening.
MR. BOENING: Thank you.
BY MR. BOENING:

Q	Ma’am why don’t we show – at least so the jury has some idea of what’s in these  photographs, let’s talk about first what’s in the upper left hand corner of this photograph. What is in the upper left hand corner of this exhibit, State’s Exhibit #1?
A	That’s my brother-in-law, that’s where he got hit in the back with the bat.
Q	Okay and that’s your brother-in-law, Jose, is that correct?
A	Jose, yes.
Q	Immediately to the right of Jose, whose photograph is in the upper right hand corner of State’s Exhibit #1?
A	That’s Lionardo, that’s my brother-in-law, and he received a kick on his face.
Q	Let’s talk about the child in the lower right – in the lower left hand of State’s Exhibit #1, who’s that?
A	That’s my son, J.
Q	And what’s his name?
A	J.
Q	Also J?
A	Yes.
Q	So we have – is your husband –
A	He’s a junior.
Q	-- Juan Sr. then?
A	Yes.
Q	I hope his dad wasn’t Juan or was he?
A	No.
Q	Okay.
A	He’s J., Jr.
Q	Okay, and do you recognize the hands holding his head?
A	Those are mine.
Q	Those are your hands in the photo, is that correct?
A	Yes.
Q	And you’re holding this in such a fashion so as to display what appears to be –
	The bump on his forehead.
A	Yes.
Q	And then let’s talk about the photograph in State’s Exhibit #1, in the lower right hand corner, what is that?
A	That’s Jose where he got his ear bitten, right out by his ear lobe, so it’s very deep too.

MR. BOENING: Okay. Your Honor, at this time we’d ask for leave to publish this exhibit to the jury.
THE COURT: Any objection Mr. Brandborg?
MR. BRANDBORG: No objection.
THE COURT: You may publish, hand it to the first juror, and then the jurors can pass that one juror to the other.
CLERK: State’s Exhibit #2 has been marked.
THE COURT: Exhibit #1 now has been published to all of the jurors. Mr. Boening if you would be so kind as to retrieve that Exhibit #1 from the last juror, please?
MR. BOENING: Your Honor, may I again approach the witness?
THE COURT: You may. Mr. Brandborg you wanted to say something.
MR. BRANDBORG: Your Honor, I know Mr. Boening has several pictures here, the defense would be willing to stipulate their was in fact a riot. That it did occur at the Red River Valley Fairgrounds on the 24th of June, 2006. I don’t have any objection to these pictures being admitted as evidence, Your Honor, although I find them – at this point there has been – with this admission I find that their value to be not prohibitive, Your Honor.
THE COURT: Would you like to be heard Mr. Boening, would you like to be heard outside the presence of the jury at this time?
MR. BOENING: Yes, Your Honor.
THE COURT: That’s what we’ll do folks, what we’re going to do folks is the witness will remain here, okay. So don’t go anywhere, counsel will remain, the parties will remain, including the Defendant, the interpreters will remain. What we’re going to do, we have some business to take care of, we’re going to excuse the jury, this could be a five minute break, it could be short, but we’re going to excuse the jury at this time.
I must warn you, same admonishment. Ladies and gentlemen of the jury 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 we’ll remain on the record, we’ll excuse the jury and rise for the jury at this time. Note pads are face down on your chair with the pen. You may proceed.
         Please be seated, the jury has been excused for a recess, the witness is still on the stand and under oath. Mr. Boening’s here on behalf of the State, Mr. Brandborg on behalf of the defense, the Defendant is present along with our interpreters, the courtroom door is shut.
         We’ll start with Mr. Boening, Mr. Boening noting Mr. Brandborg’s comments.
MR. BOENING: Thank you, Your Honor. As the Court knows that this offense is the offense of, engaging in a riot and while engaging in a riot, being knowingly armed with a dangerous weapon. A riot is defined as a public disturbance involving an assemblage five or more persons, which by tumultuous and violent conduct creates a grave danger of damage or injury to property or persons. What the State intends to do Your Honor is call after this witness, and I’m just about done with questions for her, Juan Arpero, Jose Arpero, and Lionardo Arpero, to essentially have them testify to what happened that night. The extent of the number of other individuals involved in the riot and have them explain what danger of injury they in fact suffered as a result of this incident.
         We appreciate Mr. Brandborg’s offer, however it is the State’s case. We’d prefer to try it in this fashion, and for that reason if this is – we appreciate the stipulation, we have no objection to the Defendant stipulating that there is in fact a riot, but we see no reason why that should preclude the State from taking this relatively brief testimony from the other members of the family who were out there on the evening of the 24th.
THE COURT: Anything further Mr. Brandborg for the defense?
MR. BRANDBORG: Your Honor, my only comment is that injury is not an element of this crime. Being armed, being engaged in a riot are the elements here, along with being in Cass County of course. Your Honor, I think that just parading series of injuries and pictures in front of the jury does not go to the heart of the issue here. I’d ask the Court if we could – they can see that there has been some injury, we stipulated that there indeed was a riot. Your Honor, I’d ask if we could exclude the rest of this testimony, it’s not relevant to the present charge.
THE COURT: Anything further, Mr. Boening?
MR. BOENING: No, Your Honor.
THE COURT: Court being fully advised in the premises, noting the comments of counsel, the evidence thus far presented through Ms.Arpero, arguments of counsel, the applicable law, including N.D.R. Evid. 401, 402 and 403. The Court has done it’s balancing under Rule 403. The court notes that if this were a prior crime, for example a prior D.U.I. or if this were a Felon in Possession of a Firearm case, and it were a prior felony, the Court would feel inclined pursuant to Federal and State case law, to grant the defense request or motion for lack of a better term. This is not an allegation of separate crimes, such as a D.U.I. prior or a felony prior where there could be severe harm to the defense. In balancing under Rule 403,and noting 12.1-25-01(2) the definition of a riot, and 12.1-25-02(1) (c), which is the crime charged and alleged by the State of North Dakota. There must be a riot or must be an engagement in a riot. Looking at the definition of riot provided by the North Dakota legislature, there must be a grave danger of damage or injury to property of persons among other things. And the Court believes that the State of North Dakota is within its right and statutory legal realm to present it’s case in this manner. There could be a later objection to accumulative , there is such a thing as too many pictures, there is such a thing as beating a dead horse, but I do believe the State of North Dakota and Mr. Boening has a opportunity, the way the statues are worded, based upon the burden upon the State, noting I balanced it under 403, considered 401 and 402 of the Rules of Evidence. The Court believes that it’s appropriate to allow this line of questioning and this evidence to be admitted.
          If you want to agree to the admission of the exhibits for defense, that’s okay, if you want to stipulate to their admission, that’s okay, but I do not believe under these facts and circumstances with that analysis that I can preclude the State from presenting it’s case in this manner if it so chooses, and it so chooses.
So Mr. Brandborg, you may have a later objection to accumulative or whatever, but we’ll have to take that up at the time.
          So that motion, if it was a motion, I will treat it as a motion and that motion is denied by the defense.
          The State may proceed. Anything further for the defense at this time?
MR. BRANDBORG: No, Your Honor.
THE COURT: For the State at this time?
MR. BOENING: No thank you, Your Honor.
THE COURT: Then we’ll rise, and the witness will rise, and we’ll bring the jury back in.
Please be seated. Mr. Boening, the State may proceed
MR. BOENING: Thank you, Your Honor, may I approach Ms. Arpero?
THE COURT: You may.
CONT’ DIRECT EXAMINATION BY MR. BOENING:

Q	Let me show you what’s been marked by identification as State’s Exhibit #2. I’ll ask you to take a look at that, do you recognize what’s depicted in State’s Exhibit #2?
A	Yes, that’s my husband.
Q	Would that be fair and accurate depiction of your husband after he suffered the injury out at the fairgrounds on the 24th of June, 2006?
A	Yes.
	Your Honor, the State offers State’s Exhibit #2.

MR. BRANDBORG: No objection.
THE COURT: Exhibit #2 as offered is received. You may proceed Mr. Boening.
BY MR. BOENING:

Q	Thank you. Ma’am let’s take a – and I don’t know that I want to take the jurors time in discussing that, but what is depicted on the second page of State’s Exhibit #2, what’s that show there?
A	That’s the cut that my husband received after the blow on the head, there was sixteen staples on his head.
Q	Okay, and is that apparent in the photograph in this case?
A	Yes.
Q	Your Honor, the State offers State’s Exhibit #2.
A	Yes.
Q	Who went to the hospital that night?
A	They took him by ambulance, and all of us just followed and ended up going to the hospital. That’s me, Jose, Lionardo, his girlfriend, and Jose’s girlfriend.
Q	And I think you’ve already indicated that your child was deemed to have simply fallen over in the stroller, but the child was – your son actually okay, is that correct?
A	Yes.
Q	As I understand it, you were just about getting on a ride, you heard a noise, you turned around and looked. As you think back on what happened that evening, do you know what precipitated this incident? Was your husband doing something, had –
A	No, that’s the thing I don’t understand that. We got there pretty late, you know, it was around probably four. We forgot to buy bracelets, and my sister-in-law went to go get them. So we waited all in one spot, where there were – it was a stand where they were doing punching, see how strong the punch was. From there when she got there, we moved on to the ride, and they all waited there. So the thing is, I know we didn’t say anything, we didn’t talk to anybody but our family, and we just don’t understand why they ended up coming and doing this to us when we had kids there, and pregnant women.
Q	Who was pregnant?
A	My sister-in-law Cassandra, and my other sister-in-law, Ashley.

MR. BOENING: Nothing further.
THE COURT: Cross examination, Mr. Brandborg.
CROSS EXAMINATION BY MR. BRANDBORG:
 

Q	Ms. Arpero, you said, maybe I misunderstood, you said you got there about four, four o’clock in the afternoon?
A	I said it was around four, I wasn’t sure what time, it was pretty late, I know it was raining that day, so.
Q	How long were you there before this fight erupted?
A	We just – probably like an hour.
Q	Nothing further, Your Honor.

THE COURT: Re direct Mr. Boening?
RE DIRECT EXAMINATION BY MR. BOENING:

Q	Ms. Arpero when you took the witness stand this afternoon, you swore to tell the truth and the whole, is that correct?
A	Yes.
Q	And your best recollection now is that this took some place at perhaps 5:00 p.m. on the evening of the 24th of June, 2006, is that correct?
A	Yes, to my best recollection, yes.
Q	Okay, thank you, nothing further.

THE COURT: Re cross, Mr. Brandborg?
MR. BRANDBORG: Nothing further, Your Honor.
THE COURT: And Mr. Boening, may this witness be excused?
MR. BOENING: Yes Your Honor.
THE COURT: Mr. Brandborg, may this witness be excused?
MR. BRANDBORG: Yes, Your Honor.
THE COURT: Mr. Boening, if you’d retrieve the exhibits, make sure the Court gets both exhibits, one and two. And ma’am, you’re free to leave, thank you.
WITNESS: Thank you.
THE COURT: State may proceed.