SUPERIOR Court Judge Joseph N. Camacho will rule Tuesday on the defense’s motion for a mistrial in the second-degree murder case against Calvin Tagabuel.
At Friday’s motion hearing, Judge Camacho placed under advisement the motion for a mistrial after hearing the arguments of defense attorney Joey McDoulett and Chief Prosecutor Chester Hinds, who opposed the motion.
The jury trial that began on Feb. 11 will resume at 9 a.m., Feb. 18.
Tagabuel, 48, is accused of causing Lark Kasian’s death by delivering a single punch to Kasian’s face, rendering him unconscious and causing him to fall onto the concrete floor, where he struck the back of his head.
Citing violation of his client’s right to due process, McDoulett filed a 10-page motion following the testimony of Department of Public Safety Detective Shannon Dela Cruz on the second day of the jury trial. Dela Cruz testified about a prior altercation involving Kasian, 44.
Dela Cruz identified three individuals involved in that altercation: Kasian, Todson Sachuo, and David Norita.
During the trial, McDoulett requested a sidebar to discuss “the issue of an apparent failure to disclose vital exculpatory information to the defense.”
In his motion, he said the government “has withheld three pieces of evidence, namely: 1) the identification of David Norita as one of the attackers of Lark Kasian during the early morning hours of January 6, 2025; 2) the fact that David Norita is a violent criminal currently facing charges for assault and assault and battery; and 3) the fact that a named witness, Todson Sachuo, changed his story from that provided to the police concerning the identity of David Norita.”
McDoulett said the prosecution “was well aware of the defense theory that the injuries suffered by Lark Kasian were more likely caused by one or both of the previous violent encounters Mr. Kasian engaged in prior to being punched by Mr. Tagabuel…. The fact that one of the previous attackers captured on video was known to be a violent offender and is currently being prosecuted for a similar crime is clearly material and exculpatory.”
“Another concern,” McDoulett said, “is for the prosecutor to conduct investigations in order to provide his witnesses with the testimony he intends to elicit from the witness while concealing the same facts from the defense.”
Immaterial
In its opposition to the defense’s motion for a mistrial, the prosecution stated that “David Norita’s identity is immaterial to the case.”
Citing Rule 16, Hinds said there are four types of information that are subject to discovery production by the government: statement of defendant, defendant’s prior record, documents and tangible objects, and reports of examinations and tests.
“David Norita’s identity in the surveillance footage does not fit into any of these categories, and thus his identity is not subject to disclosure,” Hinds argued.
“There was no specific discovery request by the defense,” he added.
“The Commonwealth is only aware of two arguments that defendant was going to claim: (1) self-defense and (2) that it was Todson Sachuo, who punched Lark Kasian earlier in the evening. The Commonwealth did not know the identity of David Norita was vital to defense’s case,” the prosecution stated.
It said the surveillance footage was so grainy that it had not been able to positively confirm David Norita’s identity other than the name provided by Todson Sachuo.
“The Commonwealth has never interviewed a David Norita in connection with the case nor would it know which David Norita to interview first as there are multiple David Noritas in the CNMI and several David Noritas in our system,” the prosecution stated.
“The footage is blurry, and the Commonwealth cannot make out what the individual in question looks like in the video. The only information the Commonwealth had prior to trial was the name of the individual, and this information … is not exculpatory,” the prosecution added.
Constitutional obligations
McDoulett, in his reply to the prosecution’s opposition, stated: “The prosecution’s position that they are not obligated to provide exculpatory or impeachment material without a specific request from the defendant’s attorney flies in the face of justice and their constitutional obligations. Is the prosecution suggesting that because they did not receive a specific request from Calvin Tagabuel for the name of the man in the red shirt, they were never obligated to provide it? Or is it that, because Calvin’s most recently assigned attorney did not make a discovery request, they were released from their obligations triggered by the Public Defender’s Office on February 6, 2024? Either of the propositions is unsupported in the law and is unethical under the ABA Model Rule of Professional Conduct 3.8(d).”
McDoulett said the “prosecution’s cavalier attitude to their obligations … is one of the reasons it is important to take the completely reasonable and necessary step of holding them accountable for their actions. This case must be dismissed with prejudice.”
McDoulett said after seeing the surveillance footage, Detective Shannon Dela Cruz admitted that Lark Kasian was kicked.
“In fact, the footage clearly shows that both Todson Sachuo and David Norita struck Lark Kasian with both their fists and, at least one of them, with his feet. The video does not contradict the statement of the defendant, on the contrary, it corroborates his story. Further, the ‘little boy’ identified by the defendant was Mr. Todson Sachuo, who himself was 22 years old at the time of the incident and hardly a little boy. The video footage clearly shows these two men delivering a violent beating using fists and feet to Lark Kasian. One of those men was identified by the prosecution and was concealed until after the beginning of trial, yet the prosecution continues to maintain that they cannot see how that is exculpatory or impeachment evidence,” McDoulett said.
“The trial began on February 11,” he added. “Shannon Dela Cruz testified on February 12 that she was informed of the exculpatory and impeachment materials on February 11, not February 10 as stated in the opposition. Which means the exculpatory and impeachment materials were available two days before the trial ever began. And it should not be up to pure luck that a defendant is informed of the exculpatory and impeachment material regardless of how closely in time it was discovered by the prosecutor.”
McDoulett said the “fact that Shannon Dela Cruz confirmed the identity of David Norita under oath belies the prosecution’s representation now that they have not positively identified David Norita. Instead, they claim there are many David Noritas.”
Seated at the defense table with McDoulett was investigator Jeremy Wolfe, while Assistant Attorney General Heather Barcinas is prosecuting the case alongside Hinds. AAG Daniel Johnson drafted the prosecution’s opposition to the motion for a mistrial.
Four government witnesses have so far testified: George Babauta, DPS officer; Joseph Cing, EMT; Mary Louise Tanaka, DPS evidence custodian and crime scene technician; and Shannon Dela Cruz, DPS detective.
