SUPERIOR Court Associate Judge Wesley Bogdan has denied four of the five dispositive motions filed by defense attorney Brien Sers Nicholas in the case against 17-year-old Kenneth Thomas Blas Kaipat who is accused of raping a 24-year-old woman on June 2, 2019.
The Office of the Attorney General charged Kaipat with sexual assault and other offenses in adult court following the Superior Court’s order granting the criminal division’s request to transfer the case from juvenile court to adult court in May.
Nicholas, on behalf of his client, filed a motion to dismiss counts II and IV; a motion to dismiss for violation of rights to speedy trial; a motion to compel discovery; a motion to suppress evidence; and a motion to make juvenile records public.
In his 20-page order dated Aug. 6, 2021, Judge Bogdan denied the defendant’s motion to dismiss for speedy trial violation, motion to dismiss Counts II and IV, motion to make public juvenile records, and motion to compel discovery.
Judge Bogdan said he would issue a separate order regarding the defendant’s motion to suppress evidence after the evidentiary hearing on Monday, Aug. 9.
The judge at the same time noted the deficiencies in Nicholas’ motions.
“Defendant’s motions contain little or no meaningful discussion of the relevant case law, and do not apply such case law to the facts of this case,” the judge said. “In fact, several of the briefing papers contain little to no citations whatsoever.”
Judge Bogdan said the defendant has not demonstrated actual and substantial prejudice as a result of pre-accusatory delay in his motion to dismiss for speed trial violation.
“Defendant contends he had to spend over 10 months at [Corrections], an adult criminal facility, contrary to CNMI law, and that he was unable to attend school. However, in fact, defendant was detained in the juvenile facility, which is attached to the adult criminal facility, but is separated by sight and sound as legally required by both federal and CNMI laws. That facility has been inspected and approved as a juvenile facility. Additionally, while there is a presumption of release for juveniles, it can be rebutted when the Commonwealth makes a showing that release would be contrary to the welfare of society or the juvenile. Commonwealth statutes provide for pretrial detention because it is appropriate in some cases. Here, the court agrees with the Commonwealth that the fact that this defendant was detained in juvenile custody during the pendency of his juvenile case does not establish prejudice…. Finally, the Court finds the argument that defendant had to attend school virtually holds no merit. Due to the Covid-19 pandemic, nearly all students in the CNMI had to partake in virtual classes.”
In denying the defense motion to dismiss counts II and IV as “multiplicitous,” Judge Bogdan said, “Because sexual assault in the first degree and sexual assault in the second degree have at least one element the other does not, a conviction under either would not violate double jeopardy, and are not multiplicitous.”
Regarding the defense motion to allow for the public release or disclosure of the records of Kaipat’s juvenile case, Judge Bogdan said, “Defendant’s counsel by statute has an absolute right to access to the juvenile records in this case in order to defend his client, but the instant motion does not by itself provide a compelling reason or show good cause to make a full public disclosure of his juvenile records.”
“Defense counsel’s argument for the use of the entire record generated in the juvenile proceedings and/or witness testimony given in the juvenile case in this criminal trial following waiver of the juvenile court’s jurisdiction is totally undeveloped and unsupported by any legal citation or specific reference,” the judge said as he denied the blanket request to make public all of the defendant’s juvenile records.
As for the defense motion to compel discovery, Judge Bogdan said the “defendant has not pointed to any item with particularity that the Commonwealth may be withholding.”
The judge also noted a “concerning” withdrawal of the defense attorney’s request for “adequate samples” for purposes of DNA testing.
“It is somewhat unclear if this footnote notation in a filing concerning designation of experts is an effective withdrawal and the court shall nonetheless for the record construe this request as an unsupported motion to test and/or retest DNA evidence (as apparently also understood by the Commonwealth in its opposition),” the judge said.
“This is so because as the parties and this court have discussed at length, it is without question that DNA evidence will be a central component of this case — to both the Commonwealth and the defendant — at the trial before a jury.”
The judge said it is “therefore somewhat worrisome and extraordinary how it is now, with a jury trial date rapidly approaching, that defendant should give up and abandon the request, in a footnote in a document concerning designation of experts, for samples from the victim to enable the defendant to conduct his own DNA testing to use at trial. During the motions hearing and in his reply brief to the Commonwealth’s opposition to the motion to compel, defendant has been adamant and unyielding in his arguments for such evidence,” Judge Bogdan stated in his order.
The case is being prosecuted by Assistant Attorney General Samantha Vickery.
