Justices place Calvo’s appeal under advisement

The CNMI Supreme Court heard Tuesday and placed under advisement the appeal of convicted child molester Patrick M. Calvo, who is challenging his conviction and eight-year prison sentence.

Associate Justices Pro Tempore David A. Wiseman, Joseph N. Camacho, and Timothy H. Bellas presided over the appellate proceedings.

Attorney Bruce Berline argued for Calvo after the high court denied the request of lawyer Anthony Long, counsel for Calvo, to appear via telephone. Long is now based in the U.S. mainland.

Assistant attorney general Teresita Sablan argued for the CNMI government, which is opposing the appeal.

Berline argued that prosecutorial misconduct during the government counsel’s cross examination of Calvo warrants a new jury trial in count 1 sexual assault in the second degree and count 2 sexual abuse of a minor in the second degree.

Berline said the prosecutor asked Calvo over and over again if the victim and a witness “were lying.” Such improper questions, Berline said, were not isolated but the prosecutor’s organized and planned scheme.

He said the judge should have stopped the prosecutor from repeatedly asking the question.

“It happened too many,” he said.

In an interview after the hearing, Berline said one of the major issues is when the prosecutor repeatedly asked Calvo, who took the stand, whether he thought other witnesses were lying.

“In essence, by doing that, you forced the witness to choose and say, ‘Am I lying?’ or the other witness is lying. Of course the witness who’s testifying is always gonna have to say the other witness is lying,” he said.

Berline said the question has no probative value so most jurisdictions find it improper.

However, he said, that was done repeatedly in this case so they brought up the matter to the high court for resolution.

At the hearing, Berline argued, among other things, that no physical evidence was presented in the case so it’s based solely on the credibility of the victim and Calvo.

The other arguments that Calvo raised in his appeal is that the conviction of count 3 sexual abuse of a minor in the third degree and count 4 disturbing the peace should be vacated and the case remanded for jury trial as the bench trial on those charges is a violation of the Sixth Amendment to the U.S. Constitution.

Assistant attorney general Sablan argued that even if the “were they lying” questions are deemed improper, it was a harmless error. Sablan said the questions were not prejudicial to Calvo and that it was not designed to inflame the jurors. She said the harmless error should not be ground for overturning Calvo’s conviction.

Sablan said the judge also gave the jury curative instructions and general instructions on the credibility issue.

Sablan said the victim’s version of events was corroborated by other witnesses.

She also argued that Calvo did not receive multiple punishments for the same offense but that he’s being punished for separate offenses.

Sablan said Calvo’s term of imprisonment of eight years and probation of seven years did not exceed the statutory maximums.

Sablan asked the court to affirm the judgment on all counts, and remand for resentencing for the limited purpose of imposing the seven-year probation term as part of a suspended period of incarceration or fine.

In his oral order, Presiding Judge Robert C. Naraja had imposed a seven-year probation sentence on Calvo. But in his written order, the judge put 10-year probation.

The CNMI Board of Parole recently denied Calvo’s application for parole.

In September 2009, a Superior Court jury found Calvo guilty of sexually assaulting a 13-year-old girl in 2008. Naraja sentenced the then-47-year-old Calvo to eight years in prison.