People of Kitano

Opinion

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6 IN THE SUPERIOR COURT OF GUAM 7

8 ) CRIMINAL CASE NO. CF499-08 9 PEOPLE OF GUAM )

)

10 OF 1 ARNOLD B. KITANO,

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11 ) AMENDED DECISION AND ORDER ) (Defendant's Motion to Dismiss; and in the 12 Defendant. ) Alternative Motion in Limine to Exclude ) Undisclosed Discovery Evidence)

13 1 14

15 INTRODUCTION 16 This matter came before the Honorable Anita A. Sukola on January 7,2009 and January 17 12, 2009, for a hearing on Arnold B. Kitano's ("Defendant") Motion to Dismiss and in the 18 Alternative Motion in Limine to Exclude Undisclosed Discovery Evidence. Defendant was 19

2o represented by attorney Stephen Hattori of Alternate Public Defender. Attorneys Kimberli

21 Raines and Jeffery Moots appeared on behalf of the People of Guam ("the People"). Upon 22 review of the evidence, oral and written arguments, and legal authorities presented by both 23 attorneys, the court hereby issues thls Decision and Order.

24 BACKGROUND

25 The People filed their additional witness list on January 6, 2009, less than 24 hours prior 26

27 the commencement of trial. See People's Supplemental Witness List (January 6, 2009). The

28 People added an additional two names on their witness list that were on the initial witness list

People of Guam v. Arnold Kitano, CF499-08 Page 1 of 8 Decision and Order - Motion to Dismiss; and in the Alternative

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a.Officer Tainatongo was offered 3 1111 added were Officer Tainatongo and Akson Niosy ('Niosy").

as a witness because he took photographs of the victim and the crime scene and prepared a 1 4 police report. Defendant's Motion to Dismiss. Niosy was offered as a witness because he 5 made a written statement regarding Defendant. a.

6 II 8 1II1 On January 7, 2009, Defendant filed a Motion to Dismiss; and In the Alternative Motion

in Limine to Exclude Undisclosed Evidence. Defendant's Motion to Dismiss at 1-2 (January 7, 1 2009). Defendant argued that the late disclosure is prejudicial to Defendant because it did not

afford him adequate time to interview the potential witnesses and properly review the

photographs, the police report and Niosy's statement. a. at 2. The Court now addresses

Defendant's Motion to Dismiss and Alternative Motion in Limine to Exclude Undisclosed

Evidence.

DISCUSSION

I. Motion to Dismiss

Defendant asked the Court to dismiss this case based on the People's failure to disclos

photographs, police field notes and a written statement of a potential witness.

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Motion to Dismiss at 1-2 (January 7, 2009). When a valid court order is violated the court mus

determine whether a particular sanction is appropriate to remedy the

Tuncap, 1998 Guam 13, f 23. If at any time during the course of the proceedings, it is brought t 23

24 II the attention of the court that a party has failed to comply with an order issued pursuant to thi

25 11 chapter, the court may order such party to comply with the prior order, grant a continuance, o

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26 111 1 issue such other order as it deems just under the circumstances. 8 G.C.A. § 70.45. Th

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11 appropriateness of the sanction rests in the court's discretion. Tunca~,1998 Guam at 7 24 (citin

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28 United States v. Gee, 695 F.2d 1165, 1168 (9th Cir. 1983)). But the court must choose a sanctio People of Guam v. Arnold Kitano, CF499-08 Decision and Order - Motion to Dismiss; and in the Alternative Page 2 of 8

that is proportionate to the misconduct. Id. (citing Gee, 695 F.2d at 1168). The Court shoul

impose the least severe sanction that would result in prompt and full compliance with the court'

3 11 discovery orders. Id.(citing United States v. Sarcinelli, 667 F.2d 6, 7 (5th Cir. 1982).

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4 When deciding the appropriateness of a sanction the court uses the following factors: (1 5 reasons why the disclosure was not made; (2) the extent of the prejudice, if any, to the opposin 6 party; (3) the feasibility of rectifying that prejudice by continuance, and (4) any other relevan

11 circumstances. Tuncap, 1998 Guam at 7 25 (citing Sarcinelli, 667 F.2d at 7).

10 11 On November 21,2008, the Court issued a Criminal Trial Scheduling Order. Pursuant t

the Criminal Trial Scheduling Order issued by the Court, the People had an obligation to tu 11 over Officer Tainatongo's photographs and police report, and Niosy's statement. Criminal Tria 12

l3 11 Scheduling Order. The Court will now address whether sanctions are appropriate under Tuncap.

l4 I1 A. Officer Tainatongo's Photographs and Police Report

l5 16 11 The Court will now address the photographs and Police report taken by office

Tainatongo. Under the test set forth in

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17 why the disclosure of the Officer Tainatongo's photographs and police report were not made in 18

timely manner. The People have articulated that they only found out about the photographs take

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20 II by Officer Tainatongo on January 6, 2009, and on the same day, delivered the photographs to th

21 IIDefendant. Motion Hearing at 11:27 a.m. (January 7, 2009). Attorney General's Offic el

22 llInvestigator 23 Maria Apuron ("Apuron") testified she discovered Officer Tainatongo' 4 photographs and police from a "follow-up" interview with Officer Camacho - who is als 24

25 I(assigned at the Guam Police crime lab. Id. at 1:49 p.m.; People's Opposition to ~ e f e n d a n t ' j

26 1 Motion to Dismiss at 2 (January 7,2009). Apuron testified that she was aware that Guam Polic

d

27 II crime lab - where Officer Tainatongo was assigned - was involved in the investigation when she1

People of Guam v. Arnold Kitano, CF499-08 Page 3 of 8 Decision and Order - Motion to Dismiss; and in the Alternative requested and picked up Officer Camacho's photographs. Motion Hearing at 1:48 p.m. (Janu

12, 2009).

The People stated that Officer Tainatongo took pictures on October 13, 2008, the day th

alleged crime occurred. Motion Hearing at 11:27 a.m. (January 7, 2009). Officer Tainatongo'

photographs show the Chun Ludwick's (Ludwick), who is the victim, injuries and Ludwick7

business - where the alleged crime occurred. Officer Tainantongo's police report was made t

accompany the photographs taken on October 13, 2008. See Defendant's Motion to

1

Officer Tainatongo's photographs and police report were made on the day of

which should have been the first place that the People would begin the investigation. The Peopl

had ample time to discover Officer Tainatongo's photographs and police report when th

photographs were taken on October 13,2008. The People had opportunities to interview Office

Carnacho prior to January 6, 2008, and could have found out about Officer Taingatongo7

photographs at an earlier date. The People were aware that Guam Police crime lab - wher

Officer Tainatongo is assigned - was involved in the case. Motion Hearing 1:48 p.m. (Janu

12, 2009). The Court cannot find their reason for delay acceptable. Therefore, the Court find

that the People's reason is not sufficient to excuse the disclosure of Officer Tainatongo'

photographs and police report on the eve of trial.

The Court must next look at what is the extent of prejudice to the Defendant. The Peopl

offer that Defendant had eight days to review Officer Tainatongo's photographs and

report, and suffered no prejudice. Id. at 1 5 4 p.m. The Court disagrees. The People failed t

recognize that jury selection had already begun. Coordinating an interview with Office

Tainatongo may not be as easy as the People argue - especially when jury selection ha

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People of Guam v. Arnold Kitano, CF499-08 Page 4 of 8 Decision and Order - Motion to Dismiss; and in the Alternative commenced. Therefore, the court finds Defendant has suffered prejudice resulting from th 1

II People's delay in turning over Officer Tainatongo's photographs and police report.

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The People also argued that there is no prejudice to the Defendant because th

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photographs taken by Officer Tainatongo were similar to photographs taken by Office

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II 1 5 Camacho. Motion Hearing at 11:28 a.m. (January 7, 2009). The Court disagrees. Office 6

8 11)1 Tainatongo took his set of photographs on October 13, 2008. Motion Hearing at 11:26 a.m.

(January 7, 2009). Officer Camacho took his set of photographs, on October 25, 2008. Id. ~ h d

10 I Court finds that there is a gap of almost two weeks difference between when Officer Tainatongo

took photographs of the victim and the crime scene and when Officer Camacho took 11 of the victim and the crime scene. Because of the gap in time the Court finds that there ar 12

111 1 serious questions as to whether the photographs are similar in nature. Therefore, the court find l3 14 Defendant has suffered prejudice resulting fi-om the People's delay in turning over Office

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l5 11 Tainatongo's photographs and police report.

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16 The Court must next look at the feasibility of rectifying that prejudice by continuance.

17 Tuncap, 1998 Guam at f 25 (citing Sarcinelli, 667 F.2d at 7). The People argued that 18

l9 11 continuance is the proper remedy. People's Opposition to Defendant's Motion to Dismiss at 3-

20 [((January 7, 2009). The Court disagrees. The Defendant asserted his right of speedy trial od

21 I November 12, 2008. 8 G.C.A.

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80.60(a)(2). A continuance would mean that the trial waul

22 23 11 effectively stop. Defendant's 45 days have been exhausted. a. The Court will not continue thi

matter. Therefore, the Court finds that sanctions are appropriate under Tuncap.

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25 11 B. Akson Niosy's Statement

I1 The Court will now address Niosy's statement. Under the test set forth in Tuncap, th

11 26 27 Court must first look at the People's reasons why the disclosure of Niosy's statement was no1

People of Guam v. Arnold Kitano, CF499-08 Page 5 of 8 Decision and Order - Motion to Dismiss; and in the Alternative made in a timely manner. On December 19, 2008, Apuron interviewed Niosy after receivin

information independent to any police report filed in this case. Motion Hearing at 1:44 p.

(January 12, 2009). Subsequent to the interview, Apuron received the written statement fro

Niosy on December 19, 2008, but the People did not hand over the written statement to th

Defendant until January 6, 2009. Motion Hearing at 11:27 a.m.; Motion Hearing at 1:47 p.

(January 12,2009). The People admit that they cannot give any reason why the written stateme

was not handed over to the Defendant. Id.at 11:27 a.m. (January 7,2009). The People stated als

that they understood that they are under a continuing duty to deliver the Niosy's writte

statement. See 8 G.C.A 8 70.40. But the People did not turn over Niosy's statement until Januar

6, 2009. Therefore, the Court finds that the People cannot give the Court an adequate reason fo

the delay of almost three weeks to deliver Niosy's written statement to the Defendant.

The Court must next look at what is the extent of prejudice to the Defendant. The Peopl

offer that Defendant had eight days to review Niosy's statement, and suffered no prejudic

Motion Hearing at 1:54 p.m. (January 12, 2009). The Court disagrees. The People forget th

during those eight days Defendant was and is preoccupied with jury selection and tri

preparation. Coordinating an interview with Niosy - who is represented by counsel - may not b

as easy as the People argue - especially when jury selection has commenced. Defendant did no

have the luxury of reviewing Niosy's statement since December 19, 2008 - as did the Peopl

Therefore, the court finds Defendant has suffered prejudice resulting from the People's delay i

turning over Niosy's statement.

The Court must next look at the feasibility of rectifying that prejudice by continuanc

Tuncap, 1998 Guam at 7 25 (citing Sarcinelli, 667 F.2d at 7). The People argued that

1 continuance is the proper remedy. People's Opposition to Defendant's Motion to Dismiss at 1- 4 People of Guam v. Arnold Kitano, CF499-08 Page 6 of 8 Decision and Order - Motion to Dismiss; and in the Alternative

I11I speedy trial on November 12,2008. See 8 G.C.A. 5 80.60(a)(2). A continuance would mean tha

the trial would effectively stop. Defendant's 45 days have been exhausted. Id.The Court will no 4 continue thls matter because Defendant asserted his Sixth Amendment right to speedy trial 5 Therefore, the Court finds that sanctions are appropriate under Tuncap.

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7 C. Remedy of the Delay in Turning over Discovery

I11 The Defendant argued that dismissal is the adequate remedy for the People's delay in

discovery. Defendant's Supplemental Motion to Dismiss at 4 (January 7,2009). The court

disagrees. The sanction of dismissal is a disfavored remedy. Tuncap, 1998 Guam at T[ 26 (citing

People v. Marada, Crim. No. CR94-00070A, 1995 WL 604365 D.Guam App. Div. Sept. 18,

l3 11 1995(citing United States v. Rodaers, 75 1 F.2d 1074, 1076-77 (9th Cir. 1985))). "Dismissal of ar

l4 11 indictment is considered a drastic step and is generally disfavored as a remedy." People v. Muna,

l 5 11999 F.2d 397,399 (9th Cir. 1993) (citing United States v. Rogers, 751 F.2d 1074, 1076-77 (9th

Cir. 1985); See Marada, 1995 WL 604365 (Court stated that the sanction for dismissal is a

disfavored remedy). Dismissal of an indictment occurs when the government's misconduct is so

l9 11 outrageous and violates justice. Tuncap, 1998 Guam at 26 (citing Marada, 1995 WL 604365).

20 I1 The Court may impose sanctions that are less harsh than an outright dismissal, instead of

preventing the case from going forward. Id.at T[T[ 27-28. The Court determines that a dismissal is

not warranted in the present case. But finds that the less harsh sanction of exclusion of Officer

Tainatongo's photographs and police report, and exclusion of Niosy's statement are more

appropriate remedies.

11 The People never intended to conceal Officer Tainatongo's photographs or police report,

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27 or Niosy's statement. Motion Hearing at 2:00 p.m. (January 12,2009). The delay was due to the

People of Guam v. h o l d Kitano, CF499-08 Page 7 of 8 Decision and Order - Motion to Dismiss; and in the Alternative a

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information "falling through the cracks" at the Attorney General's office. Id.at 2:01 p.m. But the 1

People's oversights caused prejudice to Defendant. The Court determines that the People's

3 oversight was not so outrageous to warrant a dismissal with prejudice, but rather warrants an 4 exclusion of the undisclosed discovery - which is a less harsh remedy to the prejudice suffered 5 as a result of the People's delay in turning over discovery. Therefore, the Court will deny the 6

7 Defendant's Motion to Dismiss, but will grant Defendant's Alternative Motion in Limine to

8 Exclude Undisclosed Discovery Evidence. 9 CONCLUSION 10 By preponderance of the evidence and based on the foregoing reasons, the Court 11 DENIES Motion to Dismiss, but GRANTS Defendant's Alternative Motion to Exclude 12 Undisclosed Discovery Evidence.

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14 SO ORDERED this /( day of

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People of Guam v. Arnold Kitano, CF499-08 Decision and Order - Motion to Dismiss; and in the Alternative Motion in Limine to Exclude Und~sclosedDiscovery Evidence