EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, May 19, 2014


How often do we see an evidence case out of the Northern Mariana Islands? This is a well written and concise Order written with a healthy dose of common sense by Associate Judge Joseph N. Camacho of the Superior Court for the Commonwealth of the Northern Mariana Islands – Commonwealth of the Northern Mariana Islands v. Parvej MD. Barpery and Daisina Suda, Crim. Case No. 14-0014, available at: http://www.cnmilaw.org/pdf/superior/14-05-05-CR14-0014.pdf.

At issue were statements made by Ms. Suda (a co-defendant) that the Commonwealth requested to use against Mr. Barpery (the defendant for purposes of the Order).There was not a hearsay problem because they were statements of a party opponent when offered by the government due to the co-conspirator rule. The question was whether the statements violated Mr. Barpery’s Sixth Amendment right to confront witnesses against him (Ms. Suda). The government asked for and was granted a joint trial against both Suda and Barpery on April 16, 2014. No doubt assuming that Suda would assert her right to refrain from testifying, the government requested a pre-trial order to ensure it would be able to use her statements against Barpery. Judge Camacho denied the government’s request based upon Bruton v. U.S., 391 U.S. 123 (1968) and its progeny.

On May 14, 2014, a six-person jury found security guard Barpery not guilty of the count of sexual assault in the first degree, and Judge Camacho determined he was not guilty of the misdemeanor charge of disturbing the peace. Suda (Barpery’s former girlfriend) had earlier accepted a plea offer from the government to plead guilty to disturbing the peace in exchange for the dismissal of the sexual assault charge. She testified against Barpery at his trial.

The facts of the case as set out by the government were disturbing. The government contended that Barpery, Suda, Suda’s 17-year-old daughter, and Suda’s 3-year-old son took a taxi to the San Jose Hotel. The following were Suda’s statements the government sought to use at trial:

[M]y 17-year-old daughter [ ], my 3-year-old son [ ], another person, and I took a taxi to the San Jose Motel, where we ate dinner and I drank 3 cans of Busch Ice .... The next day, [my 17-year-old daughter] told me she was sexually assaulted and said she couldn't believe that I made it happen. I told her I didn't remember anything because I was drunk. (January 10, 2014 statement – italics added)


[My 17-year-old daughter] told me I was holding her leg while she was sexually assaulted in the motel room. I told her I was sorry and that I couldn't do anything because I was threatened and I was scared. I was in the motel room during the sexual assault but was too scared to do anything.

[My 17-year-old daughter], [my 3-year-old son], another person and I took a taxi to the San Jose Motel. My nephew [ ] was outside at the time. He asked what we were going to do in the motel room and I told him we were going to spend some family time. I put [my 3-year-old son] in the shower. I was drinking beer quickly in the motel room because I was scared. [My 17-year-old-daughter] was naked, crying really loud, and screaming. I held [her] leg while she was sexually assaulted because I was scared.

(January 15, 2014 statement – italics added)

Barpery objected to the use of these statements without his right to cross-examine Suda. The government responded that “by replacing Defendant Barpery’s name with neutral pronouns, the redacted statements are constitutionally permissible and not a violation of the defendant’s confrontation rights.”

On pages 3, 4, and 5 of the Order, Judge Camacho set forth some Confrontation Clause and Bruton jurisprudence, and he listed state and federal court “varying results” concerning the use of neutral pronouns. He ultimately determined that there were only two co-defendants (Barpery and Suda) and stated the following:

Finally, the Court finds that even if Defendant Suda’s redacted statements were the first piece of evidence to be introduced at trial, the jury could infer from those statements the fourth person in the hotel room, the person who committed the sexual assault, was Defendant Barpery. Thus even though evidence introduced after the redacted confessions, such as the testimony of the alleged victim, may confirm that inference, such external evidence would not be necessary to make the inference.

The Judge further determined that the statements would violate Barpery’s confrontation rights even in the event a limiting instruction was given to the jury. It would be quite obvious to the jury who "another person" was in these circumstances.

This is a useful case for class to show Confrontation Clause issues, the Bruton doctrine, credibility of witnesses, and prior inconsistent statements.


Additional links:

Newspaper article on testimony at trial: http://www.saipantribune.com/index.php/2-cousins-say-barpery-sexually-assaulted-motel/

Newspaper article on Barpery’s not guilty jury verdict (sexual assault) and not guilty bench decision (disturbing the peace): http://www.saipantribune.com/index.php/2-cousins-say-barpery-sexually-assaulted-motel/

Submitted by: Professor Ann M. Murphy, Gonzaga University School of Law



| Permalink

TrackBack URL for this entry:




At the bottom both your links go to the same article.

Posted by: Daniel | May 23, 2014 8:46:20 PM

Post a comment