ASSISTANT Attorney General Samantha Vickery has asked the Superior Court to deny the request of defense attorney Brien Sers Nicholas to suppress any evidence seized from 17-year-old Kenneth Thomas Blas Kaipat, including DNA evidence that may be used against him at his trial.
Kaipat was charged with three counts of sexual assault in the first degree, two counts of sexual assault in the second degree, aggravated assault and battery, assault with a dangerous weapon, strangulation, and burglary.
In her opposition, Vickery said, “The court should note the unique situation presented by the facts of this case: at the time of the collection of both DNA samples and his clothing, defendant had claimed to be a victim, and the evidence was being collected in the normal course of the investigation as though he was a victim.”
This incident was reported on June 2, 2019, Vickery said.
“Defendant claimed that he was a second victim in this attack and was treated as such. He was taken to the hospital by his parents, as defendant was a minor at the time of the incident. On the same date, June 2, 2019, Crime Scene Technician [or CST] Edward Cepeda Jr. was directed to go to the hospital to take photos of both victims and collect any necessary evidence.”
After taking photos of the victim and Kaipat, Cepeda proceeded to collect Kaipat’s clothing, Vickery said.
“When defendant was released from the hospital on June 2, 2019, he was invited to the Criminal Investigation Division of [the Department of Public Safety] to give his statement. Defendant’s parents consented to this and drove him to the station. Detective Buddy Igitol asked for and received verbal consent from defendant’s mother…to collect defendant’s DNA. CST Edward Cepeda Jr. took a buccal swab from defendant as well as scrapings from the fingernails of both of his hands pursuant to this consent. On June 3, 2019, Detective Igitol met with defendant’s parents again and requested verbal consent to collect a second DNA sample from their son. The mother gave verbal consent. On June 5, 2019, [the parents] brought the defendant to CIB where that DNA sample was collected,” Vickery said.
“Defendant’s clothing was legally obtained and should not be suppressed,” she added.
“Defendant was considered a victim at the time the clothes were collected — it is common practice for police to collect and inventory the clothing of an assault victim at the hospital for evidentiary purposes,” Vickery said.
“Defendant was a minor at the time of the offense, so it is his parents who are responsible for giving consent. Defendant’s parents first gave consent for their son’s DNA to be extracted by Buddy Igitol on June 2, 2019. A buccal swab and fingernail scrapings were collected on that date. The next day, June 3, 2019, Detective Igitol met with both of defendant’s parents and requested consent for a second DNA collection. Defendant’s parents provided verbal consent. The second DNA collection, a buccal swab, was performed on June 5, 2019,” Vickery reiterated.
“That is exactly how defendant’s parents acted here — they consented to a search and seizure of their son’s DNA because they believed him to be a victim of a crime and a ‘wholly innocent’ person and wished to assist law enforcement in finding the ‘real’ perpetrator,” Vickery said.
“It is only now, after their son has been charged with very serious crimes based on that DNA, that they suddenly claim that they never gave consent in the first place.
“The circumstances in this case show that consent was voluntarily given by defendant’s parents. They provided verbal consent on two separate occasions while they believed that their son was a victim. There is no indication whatsoever that defendant’s parents were coerced or under any type of duress either time they gave consent for their son’s DNA to be collected,” Vickery said.
Defense attorney Brien Sers Nicholas, for his part, has asked the court to dismiss the case for violation of his client’s right to a speedy trial.
He said that over a year has passed since Kaipat’s initial arrest, but “defendant still has yet to have a trial date much less a trial, contrary to his constitutional right to a speedy trial.”
Nicholas also said that the government needed to obtain a search warrant before seizing any saliva samples from Kaipat, but “none was obtained from this court,” he added.
Kaipat’s parents filed two separate affidavits stating that they had not given the police consent to obtain any DNA from their son.
