Trial Transcripts

Prosecution Witness #7: Tecola Sparks
Testimony 1

THE COURT: Mr. Brandborg.
DIRECT EXAMINATION BY MR. BRANDBORG:

Q	Hello, Ms. Sparks.
A	Hello.
Q	Ms. Sparks, could you state your full name for the record?
A	Tecola Jennifer Hooper or Sparks, sorry.
Q	Explain that?
A	My maiden name.
Q	Your maiden name is?
A	My maiden name is Hooper, my married name is Sparks, sorry.
Q	So you’re current name is Tecola Sparks?
A	Yeah.
Q	Okay, could you spell that for me?
A	S-p-a-r-k-s.
Q	Ms. Sparks, do you live in Fargo?
A	I live in West Fargo.
Q	West Fargo, and do you recall when Officer Kulesa came to see you regarding an incident at the fair?
A	Yes I do.
Q	And do you recall what he brought with him?
A	Yes I do.
Q	What was that?
A	He brought photographs of potential people that committed a crime at the fairgrounds.
Q	And where was this meeting?
A	At my home.
Q	At your home – in your home?
A	Yes it was.
Q	Was anybody else home with you?
A	No.
Q	Now, do you recall how many photos he showed to you?
A	Probably about nine – nine or ten.
Q	Okay.
A	It might have been more.
Q	And how did he hand you those photos?
A	He just said that he was going to show me some photos of people that might have committed – who I thought committed the crime. And he handed them to me, and he said just slowly go through them, and tell me – pick out who you think was involved. And I went through all of them one time, and then I went through them again, and the second time going through I picked out two of the pictures that I thought for sure were the people committing the crime.
Q	So I’m going to talk a little bit about this – when you say going through them, you were looking – they were there in a stack, and you were going through them one at a time?
A	I think so, yeah.
Q	Were you placing the picture – if you looked at the top picture, did you take that off the top and place it behind?
A	I don’t remember.
Q	Now in the second time through, you say you picked out how many individuals?
A	Two.
Q	Two. And you picked out those individuals as people you had witnessed at the fair?
A	I witnessed them, yes.
Q	And where were you – let me start that – sorry, what did you see them doing?
A	From where I was standing there was two rides in between me, and there was – I just noticed a huge group of people, and I saw one gentlemen pull out a bat, and begin to swing it at the group of people standing there.
Q	Okay.
A	And the other guy was standing with him.
Q	Where did he pull the bat out from?
A	From his pants.
Q	How far away were you?
A	Probably about as far as you are.
Q	From me to you?
A	I was pretty close, because we were trying to figure out what ride to get on. And we had just kinda walked through where the entrance was, and we had stopped right in the middle kinda.
Q	Do you recall what color shirt or what type of shirt this person was wearing?
A	The one gentlemen was wearing a white sweater.
Q	Now the one gentlemen with the white sweater, was that the individual that had the bat?
A	Uh-hum.
Q	Okay, and you said you saw two individuals, right?
A	Yes.
Q	What was the other individual wearing, do you remember?
A	I don’t remember.
Q	Okay, and the person with the white sweater, was the bat down one leg of the pants?
A	Yeah.
Q	Okay, and do you recall what kind of pants they were?
A	Probably he had on jeans, it was getting dark.
Q	How long did all this take?
A	I’d say ten or fifteen minutes from the time I walked in and saw the group of people. That whole thing happening, and then for the police to show up or security, just anybody to come there, I’d say fifteen to twenty minutes all this happened
Q	Did it startle you when you saw this?
A	Yeah.

MR. BRANDBORG: I have nothing further, Your Honor.
THE COURT: Mr. Boening, any question of the witness at this time?
CROSS EXAMINATION BY MR. BOENING:

	When the deputy handed you the photographs to look at, did he in any way suggest to you which photographs you should recognize or select or pick out, anything like that?
	No, I knew right away the second time I went through, exactly who I was looking at.
	Okay, how certain are you that the persons that you picked out in the photographs were in fact involved?
	I’d say 99.9%

MR. BOENING: Nothing further.
THE COURT: For the defense, Mr. Brandborg, any further questions for this witness at this time?
MR. BRANDBORG: Nothing Further, Your Honor.
THE COURT: You can step down, ma’am. Just have a chair out in the hallway, outside the courtroom. Thank you. Any further evidence the defense wishes to present at this time on this motion?
MR. BRANDBORG:  No, Your Honor.
THE COURT: Then I will hear argument. For the defense, Mr. Brandborg.
MR. BRANDBORG: Your Honor, the problem stems from the way that these pictures were handed to each individual. They were allowed to look through the pictures one at a time, singly, go back through them as Ms. Sparks testified. It wasn’t until the second time through that she recognized somebody, after already perceiving each of these faces, Your Honor.
        Your Honor, the Supreme case, Stovall v. Denno, out of 1967, I have it here Your Honor, I could bring a copy up for you if you’d like, otherwise I have the cite.
THE COURT: If you want to present it to the Court, you can. Thank you, you may proceed.
MR. BRANDBORG: Your Honor, that case talks about specifically the fact that showing a witness pictures singly, is essentially condemned. That alone the defense argument makes it suggestive. It allows somebody’s mental – their cognitive minds to see a face, go back to it at a later time, and perceive it again. That alone makes it suggestive, Your Honor. Based upon that case, Your Honor, I think that the fact that this was suggestive, that all the individuals were startled in this manner, leaves the reliability of the out of court identifications in question. I’d ask the Court to suppress the out of court identifications based upon the manner in which the photo lineup was presented, Your Honor.
THE COURT: For the Denno case though, the U.S. Supreme Court didn’t say that you could never do it.
MR. BRANDBORG: Your Honor, I believe that –
THE COURT: It said that it’s widely condemned, however you have to look at the totality of circumstances. Is that a fair statement or is that not a fair statement on this Court’s part?
MR. BRANDBORG: I think that they say that reliability is the key, Your Honor in that particular case. In that case they allowed it, however, I believe the individual that was viewing the pictures was in the hospital, they didn’t know if she would live. There were extenuating circumstances that provided for them to present a lineup in that fashion, Your Honor.
THE COURT: Mr. Boening, for the State of North Dakota.
MR. BOENING: Your Honor, Mr. Brandborg let me take a look at the Denno case, I see the language that he’s referring to in that case. Again, the State’s at a disadvantage, I don’t purport to have encyclopedic knowledge with regard to this issue. Normally if it’s raised, I go and I pull the case law and I read it, then I do some research. I can’t give – I can not distinguish the Denno case, that language in the case, cause I haven’t read the case.
          I think this is part of the reason that why normally motions are presented in writing. You present a brief, you give each side an opportunity to respond to the case law. So, I think in that regard, the State has been put at an unfair disadvantage in this case. At this point the best I could say based on apparently what’s in paragraph twenty-nine of Syverton, is frankly I don’t understand how putting the photos one on top of the other is in any way suggestive. There may be something in the Denno case that explains that, but I don’t understand what it is. It’s not self evident to me. And there’s no principle of psychology that the State happens to be aware of, that makes it self evident that – in that some way, shape or form that is suggestive. I think that if the test is – even if it is suggestive, whether or not the totality  of the circumstances it’s reliable.I think each of the witnesses in this case saw the lineup in relatively short period of time after the incident took place on the 24th.  Kjono and Sparks both saw it on the 30th of June, Brandee Haas  saw it on the 4th of July, Sandra Belgarde saw it on the 5th of July. So we’re not talking a long period of time since the incident. As best I can tell, the testimony that’s been taken this afternoon, each of the witnesses, were in relatively close proximity to what took place on that night, which I think makes their testimony that much more reliable. And we would submit that at this point the Defendant’s motion should be denied, because under the totality of the circumstances, this was neither unduly suggestive, nor is there anything about it that appears to make it unreliable.
THE COURT: And Mr. Brandborg for the defense, is the defense aware of any case or are you claiming that Denno is the case on point where an array of photos, one at a given time, such as in this case, Exhibit #4, a handful of photos were shown to be flipped through and identified. In regards to Denno, in regards to this case, at least part of the case has to do with law enforcement physically presenting one individual to a witness. And so can you name me a case where it says several photographs in a stack, meaning not presented in array all on one page, but in a stack is somehow inherently suggestive?
MR. BRANDBORG: Your Honor, I think you’re correct in the facts of that case, however I thought that the language talked about pictures being presented, Your Honor, maybe I’m incorrect.
THE COURT: Anything further for the defense?
MR. BRANDBORG: No, Your Honor.
THE COURT: Court being fully advised in the premises, noting the evidence presented to the Court in regards to this motion, noting the applicable law. The Court makes the following findings and conclusions, and order in regards to the matter.
           The Court does consider, and has reviewed the testimony given today by Sparks, Kulesa and Kjono, K-j-o-n-o. The Court has reviewed Exhibit #3, which is in evidence, the Court has reviewed Exhibit #4, which is  in evidence. It’s uncontradicted that 3 and 4 together comprise the photos that were presented to the four individuals, Haas, Sparks, Belgarde, and Kjono in regards to the matter. The Court has also reviewed State v. Syvertson, 1999, ND 137, 26,27,28. The Court has reviewed State v. Norrid, 2000 ND 112, the Court has just reviewed U.S. Supreme Court, the Stovall v. Denno case, 388 U.S. 1967 case. In regards to this, based upon the facts and circumstances presented, the Court notes the testimony given here today, which is largely uncontroverted, if not exclusively – or completed uncontroverted. The detail and certainty of those in regards to this matter at the time of the identification, is relatively certain, and relatively detailed, meaning far more than fifty, fifty. These are detailed and certain identifications from an array of photos, more than a handful, not sure if it’s ten or eleven. If you combine three and four that’s your total.
           This was done at a time near to the incident of June 24, 2006, meaning within a few days. The manner presented by Detective Kulesa of these photos to the individuals, Haas, Sparks, Belgarde, and Kjono, was an in a non-suggestive manner, as based upon the evidence presented to the Court. Ms. Kjono certainly took her time, and perhaps there are some arguments as to weight and credibility, but the Court does not believe in regards to admissibility of the manner in which it was presented to Ms. Kjono as well. She simply wanted to be certain. I had a change to observe her, and the other witnesses for this motion hearing. I find her to be very credible in regards to her testimony that she took the time, and wanted to take the time, that’s her choice. I can find no facts or circumstances which would support the suggestive nature or a claim by defense counsel of a suggestive nature of the photo lineup.
The Court is aware that show ups, meaning an individual to be shown to a witness or victim or a single photograph show up, are deemed to be – and are frowned upon. They’re widely condemned if you use the Denno language from the U.S. Supreme Court. The North Dakota Supreme Court indicates that the multiple photographs or lineups are preferred to single photographs. So either way it’s frowned upon, but that is not the case here. The photos were simply in a stack, the alleged witnesses were allowed to look through those photos.
           The Court can find nothing suggestive about this process that’s been done by Investigator Kulesa in regards to the matter. I guess one could make an argument that they are single photos, but I think we miss the totality of the circumstances in how they were presented, the time in which they were presented, the details that were given, the certainty of the testimony and identification. So I think in a vacuum perhaps there is an argument about a single photo being shown one at a time by leafing through them, but you have to take the totality that there were multiple photos here. And quite frankly there’s nothing suggestive in taking a look at Exhibit 4 and 3 together. All the individuals are of a same or similar background. They do have different colored shirts on, some have facial hair, some do not. They all have a similar tone of skin color. The Court cannot find a pattern, for example where all the other individuals in Exhibit 4 are African American or black. In Exhibit #3, The Defendant is not, and that is not the case here, and I cannot find that type of a suggestion where the burden would then shift to the State.
           Noting all those findings by the Court, looking at the applicable case law. In regards to this matter the Court – first of all the Court will not rule on the fact that this was not timely pursuant to Rule 12. The Court is mindful, and I’ve commented on that, that the State had a significant disadvantage. To Mr. Brandborg’s defense, he frankly has only been counsel for about a month, and he was brought on late in time. My guess is long after the pre-trial motion deadline, doesn’t mean he couldn’t have filed it a week or so ago, but to his defense, Mr. Brandborg is doing his job, trying to vindicate his client’s rights, his client’s Constitutional Rights. And to Mr. Brandborg’s defense, he was brought on board late in time, not by his choice, but by his appointment from Judge McCullough for this case. That said, it should have been done on an earlier date pursuant to the rules, the Court does not make a ruling on Rule 12 or otherwise.
           The Court denies the Defendant’s oral motion in regards to this matter on the merits and on the Constitutional grounds. The identifications out of court through the lineups, 3 and 4 combined, not show ups by Haas, Sparks, Belgade, Kjono are admissible. Specifically the Court finds that the Defendant had the initial burden to prove the identification procedure was suggestive. The Court finds and concludes the Defendant has not met that burden. If that burden has been met by the defense, the Court further finds and concludes to, that the identification procedure and identification specifically by those four individuals I named as testified to here today, and presented to the Court was, under the totality of the circumstances reliable and thus admissible. So even if it was suggestive, which the Court finds it was not, the Court finds under the totality of circumstances the identification was reliable and admissible. That’s for Haas, Sparks, Belgarde, and Kjono. So the court denies the defense oral motion to suppress those out of court identifications for those four individuals. And that’s my understanding, it was involving those four individuals that the motion was made. So that’s why the Court ruled on those four.
         Anything further in regards to that order by the Court, findings and conclusions. For the defense, Mr. Brandborg?
MR. BRANDBORG: No, Your Honor.
THE COURT: For the State, Mr. Boening?
MR. BOENING: No, Your Honor.
THE COURT: One thing that I would like to address before we get too far. The Court in it’s opening instructions today to the jury, read them to the jury on the record. There was one word that was omitted from the standard instructions given. I orally stated that word on the record today to the jurors, so they know that word and it was told to them on the record today by the Court. If you go to page two of the Opening Instructions, go to the Evidence Defined paragraph, go to line number eighteen. And the copy that you folks received before, it said “testimony of witnesses and the blank received”. When I read the instructions to the jury today, I included the word “exhibits”, because that’s the word that always goes there. It was mysteriously gone from the copy that you folks got, but I did read that word, “exhibits” in there when I read it to the jury on the record today during their Opening Instructions, and that word will be included in the Final Instructions written that will go to the jury. Is that acceptable to the State of North Dakota?
MR. BOENING: Yes, Your Honor.
THE COURT: To the defense, Mr. Brandborg?
MR. BRANDBORG: Yes, Your Honor.
THE COURT: Thank you. And at this point and time we got side tracked, but frankly that’s what we’re here for folks, to make sure the constitutional issues are decided appropriately. I understand the State was at a disadvantage, but I appreciate you gentlemen – your candor and willingness to take it on, head on, and try and see if we could take care of it in a timely manner, and I appreciate that.
Mr. Boening, you’re looking at tomorrow morning, a good part, if not all, for your case in chief, as best you can tell?
MR. BOENING: Yes, Your Honor. We’ve got – I think we’re probably just about done with Joanna Kjono. We’ve  got Ms. Sparks, Ms. Haas, Cassandra Belgarde, and the Detective Kulesa to call in our case in chief.
THE COURT: And Mr. Brandborg, then the defense would be allowed to present a case if they so choose, don’t have to if you don’t want to of course. If the defense presents a case, you don’t assume that it will take more than for example a day, would that be a fair statement?
MR. BRANDBORG: That would be a fair statement, Your Honor.
THE COURT: The Court has been working on some of the Final Instructions, I cannot complete them of course until I see what evidence is raised, and or any possible defenses. So, but I am working on that, you folks will get an opportunity to receive that in writing, have ample time to take a look at the Final Instructions before I take objections to any Final Instructions, if there are objections. I have not received any written requested instruction from the State or defense at this point and time, so I assume that I won’t.
Anything further at this point and time for the State of North Dakota before we break?
MR. BOENING: Your Honor, if the State has any proposed instructions we’d like to submit, I assume you would like those as soon as possible, tomorrow for example?
THE COURT: I would, I would have loved them a week ago, but –
MR. BOENING: I don’t know that there is anything we’re going to request, but if there is, we’ll do it ASAP, Your Honor.
THE COURT: The Court would plan on otherwise generally following the jury – standard jury instructions, so. Anything further for the State?
MR. BOENING: No thank you, Your Honor.
THE COURT: Anything for the defense?
MR. BRANDBORG: No, Your Honor.
THE COURT: And Mr. Hidanovic, the interpreters have been working hard all day, laboring away, and I believe doing a good job. It seems that you’ve been satisfied, and you’re understanding their translation and the like, is that correct?
           Are you understanding the interpreters, Mr. Hidanovic?
THE DEFENDANT: Yeah.
THE COURT: Thank you very much. We’re adjourned for the evening, have a good evening.