Trial Transcripts

Prosecution Witness #7: Tecola Sparks
Testimony 2

DIRECT EXAMINATION BY MR. BOENING:

Q	Ma’am, please state your full name.
A	Tecola Jennifer Sparks.
Q	How do you spell your first name?
A	T-e-c-o-l-a.
Q	And how do you spell your last name?
A	S-p-a-r-k-s.
Q	Ma’am how old are you?
A	Twenty-five.
Q	What community do you live in?
A	I live in West Fargo.
Q	Ma’am, what’s your marital status?
A	I am married.
Q	What do you do for a living?
A	I’m a homemaker.
Q	Ma’am, let me ask you a question about something that happened – what we’re here of course today to talk about the 24th of June, 2006 at the Red River Valley Fairgrounds. But let me ask you a question about something else. After that incident, were you in fact charged and convicted of a Theft crime?
A	Yes, I was. I was charged with a misdemeanor.
Q	Let me direct your attention to the 24th of June, 2006. Did you go to the Red River Valley Fairgrounds in West Fargo on the evening of that day?
A	Yes, I did.
Q	Who did you go with?
A	I went with my husband, my ten year old son, and a neighbor’s daughter.
Q	When you got to the fairgrounds, what did you do?
A	We proceeded to walk through and we stopped at a particular point in the fair to see what rides there were and which rides to get on.
Q	Okay, while – when you did that, did you see some sort of an incident at the fairground?
A	I did. My husband was standing on my left side and my son was standing on my right side, and the other girl was standing behind me and the way I was standing I could see a huge crowd of people. And I just thought it was kind of odd that there was a lot of people standing together, I would say like fifteen to twenty people. And the next thing I knew I saw another man standing there, and pulled a bat out of his pants and begin to swing into the crowd of people standing there, with children, and then just all chaos broke right there.
Q	Let’s stop there and talk about that for a second. Do you remember how the person who pulled the bat out and started swinging the bat dressed?
A	Yes I do.
Q	What do you remember about how he was dressed?
A	He had a white sweater with a hood on it, and it wasn’t a zip up, it was just a pullover. And I believe he had jeans on, I don’t remember because it was getting kinda dark.
Q	Okay, and where did this person pull the bat from?
A	From his pants leg.
Q	Could you tell what this person then did with the bat? Who did he hit?
A	He hit the – well he – between him and the person that got hit, they were the tallest people in the crowd, so he hit the tallest person, the other male that was in the crowd.
Q	Okay, and when you saw this group, once again your estimate of the number of people involved in this incident that you observed was what, how many people – fifteen to twenty you think?
A	Fifteen to twenty, there might have been more.
Q	In looking at this group of individuals, did you notice any difference in the ethnicity of the individuals involved?
A	Not at first, the only way that was brought to my attention was when the police were called after the fact, when they got there about fifteen minutes later. The officer said to me, well who do you think it was? And I said, I think they’re Mexican, and he said, well they’re not Mexican, they’re Bosnian, and you should know the difference between them. And I said I’m sorry, I don’t, it was getting dark. That’s when the officer walked away from me.
Q	Okay. So you were there at the – so to say speak the beginning of this incident, and it sounds like you were there at the end of the incident –
A	Yes I was.
Q	-- is that correct?
A	Yes.
Q	How long did the incident last, as best you can recall?
A	I’d say fifteen to twenty minutes. It took a long time – from when I realized that this man was being hit with a bat, I pulled out my cell phone to call 911. That’s when the operator said, we have a lot of people calling are you calling about –

MR. BRANDBORG: Objection, heresay.

Q	After you –

THE COURT: Objection sustained, you may ask your next question, Mr. Boening.

Q	(BY MR. BOENING) You then called 911, is that correct?
A	Yes.
Q	And since you were there from the beginning to the end, how long did it take before – and let me try to make a distinction here, between any security at the fairgrounds arrived on the scene, and how long did it take before any persons dressed as law enforcement arrived on the scene?
A	Security did not show up for at least fifteen minutes, and when they did show up, they just stood there. They looked like they were attending the fair with cut off shirts, smoking a cigarette, and had a big glass of whatever they were drinking. And they stood there, and he said to me, why did you call the police? And I said I don’t see any police, that’s why I called, and then that’s when the police showed up about – I’d say five to eight minutes later.
Q	This person who you saw pull out the bat and swing the bat at other individuals there – and perhaps let’s use this courtroom. How far away were you from this person when you saw him swinging the bat? For example, in relationship to the distance between yourself and me for example at this time?
A	That is the distance, I was not very far.
Q	Okay.
A	Cause there was a line, there was a long line to get on the rides, because I think – I believe it was the last day, so it was kinda crowded, and it was not far.
Q	What exactly were the lighting conditions where you were there? Did – was this a poorly lit area, I think you mentioned – I think you may have mentioned something about the time of day? What – did you have difficulty seeing?
A	If there was more light, I probably would have been able to see a little bit better, but it was – I remember it did rain really bad that night, and so it was cloudy, and it was very, very dark. So basically the lights that you could see were the lights from the ride, but the lights from the ride lit up this area where you standing at.
Q	Okay. So you saw the incident, you reported it to law enforcement, and you were there when the incident ended, is that correct?
A	Yes I was.
Q	Did you know personally any of the people involved in the incident that night? Did you recognize any of the persons that night?
A	No, I did not know anybody.
Q	Okay. So you weren’t able to give law enforcement the names of anyone involved in this incident, is that correct?
A	No.
Q	Was there a point on or about the 30th of June, where Deputy Kulesa came and interviewed you with a photo lineup?
A	Yes.
Q	Okay.

MR. BOENING: Your H, may I approach the witness?onor
THE COURT: You may.

Q	(BY MR. BOENING) Ma’am, I’m going to show you two exhibits. First, State’s Exhibit #4, which was received in evidence yesterday afternoon, and then State’s Exhibit #3.  I’ll ask you to take a look at these, have you ever seen either one of those exhibits, State’s Exhibit 3 or State’s Exhibit 4 before? A  I have seen #3 before, well I’ve seen both of them before.
Q	Okay, can you flip through State’s Exhibit 4 and just take a look at what is there, please?
A	This looks like a lineup of potential suspects that were involved in the crime at fairgrounds.
Q	Okay, and when you look at State’s Exhibit #4, that document consists of multiple pages, it’s stapled together, is that correct?
A	Correct.
Q	Do you recall what Deputy Kulesa showed you, whether or not that was stapled together or not?
A	This was not stapled.
Q	Okay. Now when you look at State’s Exhibit #4, there is in fact a number written in the upper right corner of State’s Exhibit #4, is that correct?
A	Correct.
Q	And State’s Exhibit #4 consists of pages consecutively numbered in the upper right hand corner, one through six, and then eight through eleven. Can you satisfy yourself ma’am that that  is in fact true?
A	Yes.
Q	On the other hand, State’s Exhibit #3 is a single page document with the number seven written in the upper right hand corner, is that right?
A	Yes it is.
Q	Did you in fact identify the photograph in State’s Exhibit #3, the photograph with the number seven up in the right hand corner, as a person participating in the riot?
A	Yes I did.
Q	Okay, did you see that person doing anything else apart from being present at the riot and participating?
A	Just to run off with the rest of the crowd that was participating in the crime.
Q	Okay, today do you remember whether the person you identified in photograph number seven, was in fact the person who was swinging the bat?
A	Yes it was.
Q	Now when you examined these photographs, how long did you take to examine the photographs, do you recall?
A	Just a couple of minutes, I flipped through them all first, and then the second time I went through I immediately picked out the two suspects that I saw at the fairgrounds committing a crime.
Q	Okay, when the photographs were shown to you on the 30th of June, 2006, as they’re laid in front of you now, you can see that the name of the person is on the bottom of the photograph, is that correct?
A	Correct.
Q	Were you able to see the name of the person when you examined the photograph?
A	No I was not.
Q	Ma’am I’d ask you to take a look at the back of State’s Exhibit #3, that single page. There are in fact some signatures and dates and times on the backside, is that correct?
A	Yes there are.
Q	Are any of those signatures and dates and times familiar to you?
A	Yes, just one of them, my own.
Q	Okay, and when you say, your own, what are referring to?
A	My own signature, verifying that this is the suspect that I picked out of the lineup.
Q	Okay, why did you write your name and the date and the time on the back of that? Who suggested that to you?
A	The officer did, just to show that I am the one that picked out that person and that it’s my signature.
Q	Okay.  When you examined that photograph on the 30th of June, 2006, how certain were you that the person in photograph number seven, was in fact a person who was present at the fairground, participating in the riot, and swinging the bat?
A	A hundred percent sure.
Q	Okay, it’s been over six months since you examined that photograph, it’s been a little bit longer since the incident at the fairgrounds. Do you recognize the Defendant in this case, as the person who was swinging the bat at the fairgrounds that night?
A	Yes I do.
Q	You’ve had an opportunity to see the Defendant during the course of these proceedings?
A	Yes I have.
Q	He’s present in the courtroom this morning?
A	Yes he is.
Q	When you examined the photograph, you simply saw an image of him from the head up, is that correct?
A	Correct.
Q	Having seen him in person in the courtroom, seen him stand, seen him walk, are you any more or less convinced that this was in fact the person who was swinging the bat?
A	I’m sure it’s the same person.
Q	At the time you identified the photograph, you didn’t know this person’s name, is that correct?
A	I did not.
Q	And you did not – you were never able to provide his name to law enforcement, they were able to show you that photograph, correct?
A	Correct.
Q	Ma’am, do you have any personal knowledge of whether or not the Defendant is a member of some racial minority or not?
A	I do not.
Q	Do you bear some animosity or anger to any racial minority?
A	No I do not.

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

Q	Morning, Ms. Sparks.
A	Good morning.
Q	Ms. Sparks you’ve actually seen or been in the same room with the Defendant since this incident, haven’t you?
A	I have.
Q	And that in fact happened in the courtroom, is that not correct?
A	Correct.
Q	What courtroom was that?
A	It was then when he filed for the continuation a couple of months ago.
Q	You were present at the court house?
A	Right.
Q	Do you remember what month that was?
A	Probably November, I’m not sure, I was in school then.
Q	Okay, so you were present in the courtroom at that time?
A	Right.
Q	And you saw Mr. Hidanovic in the courtroom asking for a continuance?
A	Yes.
Q	And you knew that he was there regarding this crime?
A	Yes.
Q	So, in a way your visual memory was refreshed at that time, is that an accurate statement?
A	Well, I saw him in the hallway also, before court was in session.
Q	But you’ve seen him since the incident?
A	Yeah.
Q	And you in fact were in court that day yourself, is that correct?
A	Not that –

MR. BOENING: Objection, relevance. I don’t know if this is some attempt at impeachment, or whatever, but it’s entirely improper under the rules.
THE COURT: Is this related to the information that was elicited by the State on direct in it’s first question?
MR. BRANDBORG: Yes, Your Honor.
THE COURT: And that was a conviction, Mr. Boening?
MR. BOENING: Yes, Your Honor.
THE COURT: You may proceed with the question, and rephrase the question. So the objection is overruled. You may proceed, Mr. Brandborg.

Q	(BY MR. BRANDBORG) You in fact were in court dealing with some of your own charges, is that correct?
A	Not that day.
Q	What were you doing here that day?
A	I thought I had to be in court to testify that day, and I did not find out until after he had seen the judge, and his attorney at the time spoke to me in the hallway, and said that, oh, we’re going to get a continuance for sure and we will send you a letter letting you know the date.
Q	So you had arrived thinking you had to testify that day?
A	Correct.
Q	Back on the 7th of September of 2006, however you were in court handling some of your own charges, is that correct?
A	Yes.
Q	And you haven’t been completely honest with the court here today about what those charges were, were you?
A	I said it was Theft, and I said I was charged with a  misdemeanor.
Q	But in fact you weren’t charged with a misdemeanor, were you?
A	Yes I was.

MR. BOENING: Your Honor, I’m going to object, and I’d like to take this up outside the hearing of the jury.
THE COURT: Okay, what we’ll do folks at this point and time, ladies and gentlemen of the jury, your admonishment. The Court warns you, as I must under North Dakota law 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.
This may be a short break, may be a bit longer, but you may come back in on a short notice, so please stay close to your room. Enjoy your brief morning recess at this point and time. We’ll rise, we’ll excuse the jury.
           (Jury exits courtroom).
           Please be seated folks. The jury has been excused from the courtroom, courtroom door is closed. Mr. Boening is here on behalf of the State, Mr. Brandborg for the defense. The Defendant is personally present, our interpreters are of course here, and our witness is on the stand and still under oath.
Folks, is this a misdemeanor by disposition, or what are we talking about here?

CONT’ CROSS EXAMINATION BY MR. BRANDBORG:

Q	Ms. Sparks, it was your testimony today that you were previously charged with a misdemeanor, correct?
A	Yes.
Q	But in fact that’s not true is it?
A	Correct.
Q	You were charged with a felony?
A	Correct.
Q	That was a felony Theft.
A	Right.
Q	And were convicted then of a misdemeanor?
A	Right.
Q	Ms. Sparks you testified that that day at the fair it was dark when this occurred?
A	It was getting dark.
Q	Do you recall what time it was?
A	Probably 5:30 or 6:00.
Q	This was in – on the 14th of June? Is that – I’m sorry, on the 24th of June, is that correct?
A	I think so, yes.
Q	At about 5:00 or 6:00 it was getting dark?
A	Yes, because it was going to rain. So, I’m sure if it wasn’t going to rain, it probably would have been a little more lighter – lit outside.
Q	Ms. Sparks, do you recall giving a statement to law enforcement shortly after the incident?
A	Yes I do.
Q	And it’s your testimony today that the person you saw with the bat was wearing jeans and a white sweater?
A	Correct.
Q	And I believe you said it had a hood, is that correct?
A	Correct.
Q	Do you recall giving a statement to law enforcement that the person with the bat was wearing a white coat with blue stripes on it possibly?
A	I don’t remember if I said that.
Q	But that statement—you remember giving a statement?
A	I remember speaking to the officer, but I don’t remember if that’s what I said.
Q	And that occurred right after the incident, is that correct?
A	Right.
Q	And that is obviously closer in time to the incident than we are here today, is that correct?
A	Correct.
Q	So wouldn’t imagine your memory is better at the time of the incident?
A	Probably.
Q	So, today you’re not certain exactly what the individual with the bat was wearing, is that correct?
A	Right, but I would know his face if I saw him again.
Q	But, I just asked you, today you’re not certain what the individual with the bat was wearing , is that correct?
A	Correct.
Q	Was this whole event pretty startling?
A	Yes it was, I just got custody of my son back, and this was his first outing with us. And I had my neighbor’s daughter, so I was responsible for her also.
Q	Was it raining at the time of the incident?
A	No it wasn’t.
Q	Now this – let’s get back to this white sweater with the hood, is this one of these sweaters that has a zipper on it?
A	No it did not have a zipper, it was a hoodie, so it – you just put it on, and then your hood would just be hanging there.
Q	So it was a pullover is what you remember?
A	Yes.
Q	Did it – one that had pockets in the front?
A	I don’t remember.
Q	But this is different testimony, if you had previously given testimony to the officer – I’m sorry given a statement to the officer regarding a jacket with blue stripes. Do you think that that’s more accurate then or do you think your testimony today is more accurate?
A	I think my testimony today is more accurate, it might have been something that the officer said to me, and I probably said, yes.
Q	So your testimony today, eight months after the incident is more accurate than your statements to the officer way back to the day this occurred, is that correct, is that your statement today?
A	Yes.
Q	Ms. Sparks, what did you do last night?
A	I don’t remember, I was very tired after I left here.
Q	How about the night before that, what did you?
A	I made cookie dough with my children, and we put the Christmas tree away.
Q	And the night before that?
A	I don’t remember.
Q	It’s a pretty fair statement that as time goes on, your memory starts to decline as far as the accuracy, isn’t that not correct?
A	Well, if it’s a traumatic thing happening in front of you, you remember.
Q	Is that not correct, that generally as time goes on, your memory as you testified here today, deteriorates as time goes on, is that correct?
A	Yeah.
Q	Who was the other individual you identified in the photo lineup?
A	Do you want me to pick him out of the lineup?
Q	Yeah.
A	The gentleman on number three.
Q	Number three, and does he have a name? Is that on there?
A	Sinan Suljic, I guess. I don’t know how to pronounce it.
Q	And did you see him fighting at the time?
A	Yes I did.
Q	And what did you see him doing?
A	He was standing there hitting another person with possibly a cell phone in his hand.
Q	He was hitting somebody with a cell phone?
A	Yes.
Q	Did he have a bat?
A	Not that I could see.
Q	Do you recall what he was wearing on the day of the incident?
A	No I don’t.
Q	You don’t know if he was wearing a jacket?
A	I don’t remember.
Q	Blue jacket?
A	It was a long time ago?
Q	Jeans?
A	Don’t remember.
Q	So, your testimony is today, that was a long time ago, you don’t remember what the other individual you picked out of the lineup was wearing, correct?
A	Right.
Q	But the individual that you saw in court once already since the incident, you’ve got a fresh memory, and your memory today is better than it was the day of the incident. Is that your testimony today?
A	Yes, because that gentleman is taller than the other guy.
Q	Where is this other gentleman, how do you know that?  Have you seen the other gentleman since the incident?
A	Yes I have.
Q	Where was that?
A	In the hallway yesterday.
Q	That gentleman in that picture?
A	I don’t know if it was in the hallway, but I have seen him and I know that he is shorter than this gentleman.
Q	No, no, I want to get back to this. You saw that gentleman in this hallway, yesterday?
A	I believe so, they had a couple of people with them.
Q	That – oh, so he had a couple of people, that you saw him in the hallway yesterday?
A	Yes.
Q	And he had a couple of people with him?
A	Yes.
Q	And you think that one of those individuals was that person there?
A	Yes.
Q	What if I told you that individual was not in the courthouse yesterday?
A	Then I was mistaken, but I have seen him in person before.
Q	So you were mistaken when you saw a group of Bosnians together, about who they are. And now you’ve picked that picture out of there, out of that lineup, and you identified as being in the hall yesterday?
A	I wasn’t sure if he was in the hallway yesterday, but he was the tallest person in –
Q	And this just occurred yesterday?
A	-- I said I wasn’t sure.
Q	Okay, so you’re not certain?

THE COURT: Folks, I’m going to interrupt at this point and time, okay. Mr. Brandborg ask a question, allow the witness to give an answer. If you think the answer is not responsive to your question, you’ll have to let the Court know, but you cannot speak over each other. We have interpreters here, they need to their job, and the jury of course needs to hear the evidence. So Mr. Brandborg, you may ask your next question.
MR. BRANDBORG: I apologize, Your Honor.

Q	(BY MR. BRANDBORG)  Ms. Sparks so you’re not certain if that individual was in the hallway yesterday, correct?
A	No, I’m not sure.
Q	But you just testified that you saw him in the hallway yesterday, correct?
A	Right.
Q	And that’s what you’re basing on the fact Mr. Hidanovic is taller than that individual, correct?
A	Yes.
Q	But you then later testified that you’re not certain if he was in the hallway, is that correct?
A	Right.
Q	And this is twenty four hours ago, correct?
A	Right.
Q	And now you’re testifying today that nine months ago, that you can positively identify which individual out of a group of like ethnic background had the bat, was swinging the bat, was hitting people with a cell phone. That’s what your testimony is today?
A	(no response)

MR. BRANDBORG:  I have no further questions, Your Honor.
THE COURT: Mr. Boening, re direct for the State.
RE DIRECT EXAMINATION BY MR. BOENING:

Q	Ma’am when you went home last night, did a riot break out?
A	No.
Q	If there had been a riot in your home last night, do you think you might have remembered some of what you did last night?
A	Yes.
Q	If the riot had lasted for fifteen or twenty minutes, do you think you might have remembered that better than if the riot had only lasted for a minute or two?
A	Yes.
Q	On the 24th of June you apparently talked to a police officer, is that correct?
A	Correct.
Q	Do you remember writing out a statement for the police office?
A	He didn’t want to take my statement, he just wanted my name and my phone number.
Q	Okay, so you didn’t write anything out in your own handwriting –
A	No, I did not.
Q	-- out at the fairgrounds, correct?
A	Correct.
Q	Do you know whether the police officer when he wrote, whatever he wrote, wrote it accurately? Do you have any personal knowledge of whether or not the police officer accurately took down what you told the police officers?
A	No.
Q	It’s of course possible that the police officer wrote something down wrong, correct?
A	Correct, yes.

MR. BOENING: Nothing further.
THE COURT: Re cross for the defense?
MR. BRANDBORG: Nothing further, Your Honor.
THE COURT: And for the State of North Dakota, may this witness be excused?
MR. BOENING: Yes, Your Honor.
THE COURT: Mr. Brandborg, same question for the defense?
MR. BRANDBORG: Yes, Your Honor.
THE COURT: Ma’am, you can step down, you’re free to go, thank you.
MS. SPARKS: Thank you.