SUPERIOR Court Judge Joseph N. Camacho has denied the defense’s motion for a mistrial in the second-degree murder case against Calvin Tagabuel.
In a 13-page order on Tuesday, Judge Camacho said the prosecution’s “late disclosure did not prejudice defendant’s right to a fair trial as there is still time to use the newly provided information.”
“The failure to disclose a name in the context of a video footage that was already provided to defendant, though perhaps unnecessarily injects error into the government’s case, does not rise to the level of willful suppression of exculpatory evidence,” the judge added.
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.
Saying that his client’s right to due process was violated, defense attorney Joey 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 the three individuals involved in the 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.”
But according to the prosecution, “David Norita’s identity is immaterial to the case.”
Citing Rule 16, Chief Prosecutor Chester 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 said.
“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 that the identity of David Norita was vital to the defense’s case,” the opposition stated.
In his order, Judge Camacho finds that “the failure of the Government to provide the identity of [David] Norita as part of video footage that was previously provided to defendant does not rise to a…violation for failure to disclose material exculpatory evidence.”
Recognizing the defendant’s concerns, Judge Camacho also ordered the prosecution to provide the defense with the complete criminal history of David Norita, including all pending criminal charges, plea agreements, and agreements to cooperate or testify, if any.
“Additionally, the Government shall disclose the complete criminal history, including all pending criminal charges, plea agreements, and agreements to cooperate or testify, if any, of any other individuals involved in the altercation,” the judge added.
He said the defense “will be given ample time to cross-examine Shannon Dela Cruz, who is already on the stand, and all other witnesses involved in the altercation, including David Norita and Todson Sachuo, when called by the government.”
On Tuesday, Dela Cruz, who was again called by the defense to the witness stand, testified about the victim’s autopsy report, among other things.
For his part, Cool Laundry security guard MD Jakir Hossain testified that he told the victim to leave the place because he was bothering a female customer.
Hossain, through a Bangladeshi-speaking translator, told the jury that he did not see any injury to the face of the victim prior to the punching incident.
He said Tagabuel asked him not to call the police as “he [Kasian] will sleep it off, he will be okay.”
George Babauta, DPS officer; Joseph Cing, EMT; and Mary Louise Tanaka, DPS evidence custodian and crime scene technician have also testified in the jury trial that began on Feb. 11 and will continue today, Wednesday at 9 a.m.
