OPD: Police’s ID procedures overly suggestive

The Office of the Public Defender wants the Superior Court to suppress a witness’ testimony related to a photo identification of the driver of a vehicle who was allegedly involved in a hit-and-run case that killed a pedestrian near Saipan Ice and Water Co. in As Mahetog last April 1.

Assistant public defender Jean Pierre Nogues, counsel for David Desebel Kapileo, asserted that the photo identification procedures were overly suggestive, undermining the reliability of the eyewitness identification.

Kapileo is charged with homicide by vehicle, driving while under the influence of alcohol, failing to stop after an accident causing injury or death, and reckless driving.

The Office of the Attorney General alleged that Kapileo was driving a car around 6:53pm on April 1, 2018, when he hit a pedestrian, causing injuries that killed the victim.

In Kapileo’s motion to suppress, Nogues pointed out that Police Sgt. Norris Kwon’s affidavit and his preliminary hearing testimony indicate that Kapileo waived his constitutional right to an attorney at 9:30am before the April 2, 2018, interview.

However, Nogues said, the discovery provided in this case reveals the opposite: Kapileo invoked his right to counsel at 9:39am, declaring that he did not want to talk to Kwon without a lawyer present.

The lawyer said that, 9:46am, after Kapileo invoked his right to an attorney and while he was still in custody, Kwon took photographs of Kapileo.

Nogues said that, on the evening of Tuesday, April 3, Kwon interviewed three potential witnesses. Neither two of three witnesses were able to see the face of the driver of the green Mitsubishi Montero, Nogues said.

He said the third witness told Kwon that he was able to see the driver of the Montero as it passed his mother’s car shortly before the pedestrian was hit.

Nogues said the third witness did not provide any physical description of the Montero’s driver except to refer to the driver using male pronouns. When asked if he was able to see the driver’s face, the witness only said “only the side view,” Nogues said.

When Kwon asked the witness if he would be able to identify the driver of the Montero if shown pictures, the witness replied yes.

Nogues said Kwon then showed the witness the custodial photos of Kapileo taken on April 2.

The witness positively identified Kapileo as the operator of the Montero.

Nogues said that, six weeks later, on May 14, Kwon showed the witness a “photographic lineup.” The lineup consisted of 12 front-facing photos of male individuals.

Nogues said the witness correctly recognized Kapileo as individual No. 5 in the lineup.

The defense counsel said that, notably and troubling, Kwon neglected to mention in his preliminary hearing testimony that he had shown the witness a single, front-facing photo of the only suspect in the case on April 3.

Nogues said Kwon misleadingly testifies as if the May 14 photo lineup was the first time that he had showed the witness a front-facing photo of Kapileo.

Nogues said the pretrial photo identification procedures were overly suggestive and any resulting or subsequent identification of Kapileo by the witness are unreliable and tainted and should be suppressed.

Police arrested the 50-year-old Kapileo last May 28. He is currently detained at the Department of Corrections for failing to post a $100,000 cash bond.

The victim, a 38-year-old Chinese male, was hit by the Montero at the intersection of Chalan Pale Arnold Road and As Mahetog near the Saipan Ice and Water Co. last April 1.

The victim sustained severe injuries and was pronounced dead at the Commonwealth Health Center that same day at 9:45pm.

Police said that, according to a witness, after the Montero struck the victim, the driver kept driving south, then reportedly made a left turn on Mihaville in Garapan.

Police located the SUV seven hours later.