The prosecution rested its case yesterday after the government’s 31st witness, an FBI forensic examiner on nuclear DNA, completed her testimony in the ongoing jury trial in Superior Court of Joseph A. Crisostomo, who is accused of kidnapping and killing bartender Emerita R. Romero.
Interim chief prosecutor Brian Flaherty and assistant attorney general Margo Brown-Badawy, however, criticized Associate Judge Joseph N. Camacho’s decision to allow defense attorney Janet H. King to call to testify today, Wednesday, a rebuttal DNA expert via Skype despite the person’s name being submitted only four days before trial started. The name was not on the pre-trial list of “likely witnesses.”
Flaherty and Brown-Badawy said that Camacho’s ruling is “extremely unduly prejudicial” to the Commonwealth. The prosecutors asked the judge to issue a written order because they are going to appeal it.
Camacho said he is not happy with King’s filing of notice several weeks after the deadline but that he will hold a hearing today, Wednesday, via Skype to determine whether the defendant’s rebuttal witness, Dr. David Haymer, is qualified to testify as a DNA expert.
Interim chief prosecutor Flaherty rested the government’s case yesterday after the examinations of FBI forensic examiner Susannah Kehl that lasted over two hours.
King asked the court to resume trial today, Wednesday, to allow her to call two expert witnesses who are based in Honolulu, Hawaii, and the United Kingdom. She said the two are only available to testify via Skype.
In the government’s opposition, Flaherty pointed out that Haymer is not even on the “likely witnesses” list.
Camacho asked King to provide the court with case law or grounds for her request in order for their witnesses to testify via Skype without filing a 14-day notice as required by rules.
King said it is because of the testimony of FBI forensic examiner Kehl that they want a rebuttal witness.
Camacho told King that she knew from the very beginning that the government will be calling a DNA expert so it should no longer surprise her.
King later told the court that she will call only one rebuttal witness, Dr. Haymer, who is a professor of cell and molecular biology at the University of Hawaii.
Camacho then placed the matter under advisement.
When the trial resumed yesterday afternoon, King called to the witness stand police detective Simon Manacop, who is the lead case agent in the Romero case.
Manacop testified how he became involved in the investigation into Romero’s murder and how their investigation led to Crisostomo as the suspect.
Manacop stated among other things, that the tire tracks found in Garapan, where Romero was last seen boarding into a car, were compared to the tires of a Toyota Corolla with license plate ACG-246 that Crisostomo was driving in the early morning of Feb. 5, 2012.
Manacop said the tire tracks were found to have not enough value as evidence as they did not match the Toyota Corolla.
Manacop said it was FBI special agent Haejun Park who made the determination regarding the tire tracks. He said he did not see the tracks.
Manacop also corroborated the FBI’s and police’s testimonies that their initial persons of interests were Romero’s boyfriend, Taj Van Buuren, and taxi driver Sae Bong Kim.
The detective said the investigation shifted to Crisostomo when the latter’s former common-law wife, Joanne Castro, told them about seeing Crisostomo driving a rental car that fits the description of the car that Romero reportedly boarded in Garapan.
Manacop said the FBI Lab results and phone records also then came out that led their investigation to Crisostomo.
Manacop said that Van Buuren and Kim were later cleared as persons of interests after they established, based on phone records and interviews, that the two indeed met at Van Buuren’s house in Chalan Piao after Kim failed to find Romero, who he was supposed to pick up at her house in Garapan.
Manacop said he himself and other detectives identified Crisostomo’s voice in Romero’s 911 call.
The prosecution played a portion of the 911 call during which the voice of a crying Romero could be heard. Flaherty then asked Manacop what Romero was saying at that time. Manacop explained that Romero was saying to Crisostomo that she did not call anybody.
Manacop said his understanding is that Crisostomo knew that Romero had a cell phone. He said that Romero’s Blackberry cell phone was never recovered.
Manacop said that in the 911 recording, Romero could be heard saying, “Let me pick up my pants, “my neck hurts,” and “my neck’s hurting.”
The autopsy revealed that the 37-year-old Romero died of strangulation with the use of a pair of leggings.
After Manacop’s testimony, the lawyers again discussed the issue of allowing King to call a rebuttal DNA expert from Hawaii via Skype despite her failure to file a 14-day notice.
King said that if Haymer is not allowed to testify via Skype, she will request for funding to arrange for him to come to Saipan.
Flaherty said that King filed a notice of their experts on April 3, 2014, four days before the trial.
After a break, Camacho announced his ruling. He cited the rules of practice that requires a 14-day notice in requesting to file the witness list. Camacho said the rules allow if there is exceptional ground.
Camacho said that being unprepared to anticipate a witness is not exceptional. He, however, expressed concern about the possible delay in the murder trial.
The judge cited some possible results if the court either allows or not permit the defense to call their rebuttal witness, which according to King will be their last witness.
Upon hearing that the court will allow Haymer to testify via Skype, Flaherty reiterated the government’s arguments.
“The rule is a rule. The rule has a strong language,” Flaherty said.
King said they did not anticipate calling Haymer until after Kehl’s testimony, particularly on “mixture of DNA” found in Romero’s vaginal swabs.
Assistant attorney general Brown-Badawy said it’s “greatly unduly prejudicial” to the government as they have no time to review Haymer’s papers.
Brown-Badawy said they also have not talked with Kehl about Haymer being a rebuttal witness.
Flaherty said this witness, described by King as a rebuttal witness, is not on the defendant’s witness list.
“The defense counsel is asking at the 11th hour and 59 minutes for the court’s leniency,” Flaherty said.
King said the court already made a ruling and that it’s not a last-minute notice because Haymer is their DNA expert and that she submitted his name four days before the trial.
Flaherty said that Crisostomo’s three court-appointed counsels chose not to comply with the rule because they have that information about DNA for over a year now.
King extensively grilled Kehl, who explained her findings that Crisostomo’s DNA matched the DNA obtained from swab samples taken from the vagina of Romero.
Kehl explained how she conducted her tests that led to her concluding the positive presence of semen in Romero’s vagina.
Kehl said the test results show that the major DNA contributor from the swab samples was Crisostomo.
Prior to the autopsy conducted on Romero on Feb. 7, 2012, or shortly after her body was found at the former La Fiesta Mall, a rape test-kit was administered on her body and swab samples were taken from the mouth, rectum, and vagina and submitted to the FBI Lab for analysis.