People of Kitano

Opinion

Territorial Law Library

IN THE SUPERIOR COURT OF GUAM

) CRIMINAL CASE NO. CF499-08 PEOPLE OF GUAM 1

) ARNOLD KITANO, ) DECISION AND ORDER ) (Defendant's Motion in Limine to Exclude Deceased. ) Rule 404(b) Evidence, Rule 609 Evidence ) and Rule 403 Evidence) )

INTRODUCTION This matter came before the Honorable Anita A. Sukola on December 30, 2008, for a hearing on Arnold Kitano's ("Defendant") Motion to in Limine to Exclude Evidence. Attorney Stephen Hattori of Alternate Public Defender represented defendant. Attorney Jeffery Moots appeared on behalf of the People of Guam ("the People"). Upon review of the evidence, oral and written arguments, and legal authorities presented by both attorneys, the court hereby issues this Decision and Order. BACKGROUND On November 6, 2008, Defendant was indicted as follows: the first charge was First

II Degree Criminal Sexual Conduct (As a lStDegree Felony); and the second charge was Second

II Degree Criminal Sexual Conduct (As a 2nd Degree Felony). Indictment at 1-2 (November 6,

2008).

In the Matter of the Estate of Joseph D. Vitale, PR0095-05 Page 1 of 12 Decision and Order - Motion to Vacate and Motion for Stay On December 15, 2008, Defendant filed a Motion in Limine to Exclude 404(b) evidence

and Rule 609 evidence. Defendant's Motion in Limine at 1 (December 15, 2008). The

Defendant asked the Court to exclude any evidence of prior bad acts that the victim or any other

1) witness would testify to. Id. at 2. The Defendant also argued that any evidence of felony convictions that are more than ten years old be excluded. Id.at 2-3.

On December 17, 2008, Defendant filed a Motion to Suppress Suggestive Identification.

Defendant's Motion to Suppress Suggestive Identification at 1 (December 17, 2008). The

Defendant argued that the victim - Chun Ludwick ("Ludwick") - was given the opportunity to

view Defendant alone, and not in a line up. Defendant argued that because the identification was

II suggestive a subsequent photo line up and any in court identification should be suppressed. Id.

at 5.

On December 22, the People filed an Opposition to Defendant's Motion to Suppress and

II an Opposition to Defendant's Motion to Exclude. In their opposition to the motion to suppress,

the People argued that Ludwick was never shown the Defendant for any purpose. Peoule's

Opposition to Defendant's Motion to Exclude at 2 (December 22, 2008). In their opposition to

the motion to exclude, the People argued that prior sexual acts are allowed under Rule 413.

II People's Opposition to Defendant's Motion to Exclude at 2 (December 22,2008).

On December 24, 2008, Defendant filed a Supplemental Memo in support of his

previously filed Motion in Limine. Defendant's Supplemental Motion to Exclude at 1

(December 24, 2008). Defendant asked that Ludwick's statement about previously seeing

25 Defendant masturbating in her business; Lili Wan's ("Wan") statement that Defendant

26 (Imasturbated in her store; and Zie Duenas' ("Duenas") statement that Defendant grabbed her I 27 and pulled out his penis be excluded based on Rules 413 and 403. Id. at 1-2. Defendant also 28

I In the Matter of the Estate of Joseph D. Vitale, PR0095-05 Page 2 of 12 Decision and Order - Motion to Vacate and Motion for Stay asked that prior sexual assaults allegedly committed by Defendant on July 25,2001 and August

' 10,2005 be excluded based on Rules 41 3 and 403. a.at 3-4.

1 On December 29, 2008, the People filed a Opposition to Defendant's Supplemental

Motion to Exclude. People's Opposition to Defendant's Supplemental Motion to Exclude at 1

(December 29,2008). The People offer the statements of Ludwick, Wan and Duenas under Rule

404(b).a.at 1-3. The People offer Defendant's statement of the August 10, 2005 incident is admissible under Rules 801(d)(2) and 804(b)(3). a. at 3-4. The Court now addresses 1

Defendant's Motion in Limine and Motion to Suppress.

DISCUSSION I. Exclusion of Based on 404(b)

The Defendant argued that Ludwick, Wan and Duenas must be prevented from testifying

of any other bad acts of the Defendant based on 6 G.C.A. fj 404(b). Guam Rules of Evidence

1 404(b) bars the introduction of "other crimes, wrongs or acts'' to prove that the accused acted i

conformity therewith. 6 G.C.A. 5 404(b). To be admissible under Rule 404(b), evidence of othe

crimes, wrongs, or acts must (1) must be relevant to an issue other than character or th

propensity to act accordingly and (2) must satisfy Rule 403's balancing test, which requires tha

extrinsic evidence have probative value that is not substantially outweighed by unfair prejudic

that might result from its admission. DiRico v. City of Quincy, 404 F3d 464, 467-468 (1st Cir.

2005) (evidence of other crimes, wrongs, or acts is admissible if it has "special relevance to

issue in the case such as intent, knowledge, or absence of mistake or accident, and must no

include bad character or propensity as a necessary link in the inferential chain" and its danger

unfair evidence does not substantially outweigh its probative value). Rule 404(b) allows for th

admission of evidence of other crimes, wrongs or acts to prove motive, opportunity,

In the Matter of the Estate of Joseph D. Vitale, PR0095-05 Page 3 of 12 Decision and Order - Motion to Vacate and Motion for Stay preparation, plan, knowledge, identity, or absence of mistake or accident. Old Chief v. U.S., 519

U.S. 172, 196, 117 S.Ct. 644,657 (1997).

The People bear the burden of establishing that the evidence: (1) proves a material

element of the crime currently committed; (2) is similar to the charged conduct; (3) is based on

sufficient evidence; and (4) is not too remote in time. People of Guam v. Evaristo, 1999 Guam

22, 7 11 (citing United States v. Hinton, 31 F.3d 817, 822 (9th Cir. 1994). A fifth and final

consideration that the court must address is whether the probative value of the evidence is

substantially outweighed by the danger of unfair prejudice. 6 G.C.A. 8 403; see also Evaristo,

1999 Guam 22 at 7 17.

a. Ludwick's Testimony

Defendant asked the Court to exclude Ludwick's testimony of Defendant's prior bad acts.

Defendant's Supplemental Motion to Exclude at 1 (December 24, 2008). The People offered that

Ludwick would testify of an encounter with the Defendant approximately three months prior to

the October 13,2008 rape, the Defendant smoked a cigarette and masturbated in her business. Id;

Motion Hearing at 2:27 p.m. (December 30, 2008). The People argued that Defendant has raised

the defense of mistaken identification on the part of Ludwick. Id. at 2; Motion Hearing at 2:28

p.m. (December 30, 2008). The People offered that Ludwick's testimony of her past encounter

with the defendant goes to show not that she remembers and recognizes the Defendant. Id. The

Court disagrees.

The Court determines that the People have not satisfied the test to admit 404(b) evidence

based on the Supreme Court of Guam's holding in Evaristo. More particularly, the People are

unable to demonstrate that Ludwick's testimony that Defendant masturbated in her business is

similar to the charged conduct - the second prong of the Evaristo test to admit 404(b) evidence.

In the Matter of the Estate of Joseph D. Vitale, PR0095-05 Page 4 of 12 Decision and Order - Motion to Vacate and Motion for Stay Defendant is charged with First Degree Criminal Sexual Conduct. First Degree Criminal Sexual

Conduct requires sexual penetration and the use of force or coercion. See 9 G.C.A. 5 25.15.

Defendant masturbating in Ludwick's business was not similar to the charge of First Degre

Criminal Sexual Conduct because there was neither sexual penetration nor use of force 1 coercion. The Court Grants Defendant's Motion to Exclude Ludwick's testimony of a past ba 6

7 act.

Defendant is also charged with Second Degree Criminal Sexual Conduct. Second Degree

Criminal Sexual Conduct requires sexual contact and the use of force or coercion. See 9 G.C.A 5

25.20. Defendant masturbating in Ludwick's business was not similar to the charge of Second

Degree Criminal Sexual Conduct because there was neither sexual contact nor the use of force or

coercion. The Court Grants Defendant's Motion to Exclude Ludwick's testimony of a past bad

act.

b. Wan's Testimony

Defendant asked the Court to exclude Wan's testimony of Defendant's prior bad acts.

Defendant's Supplemental Motion to Exclude at 1 (December 24, 2008). The People offered tha

Wan will testify that Defendant was in her store around midnight on October 13,2008, contr

to Defendant's assertion that he was at his mother's home. Motion Hearing at 2:32 p.m.

(December 30, 2008). The People argued that Defendant intends to raised the defense of alibi.

People's O ~ ~ o s i t i oton Defendant's Supplemental Motion to Exclude at 2. The People offere

that Wan would testify to a prior encounter with Defendant masturbating in her store

identification purposes only. The People argued Wan's identification would place Defendant i

her store (located next door to Ludwick's business) and not at Defendant's mothers

Motion Hearing at 2:32 p.m. (December 30, 2008). The People argued that Wan was able t

In the Matter of the Estate of Joseph D. Vitale, PR0095-05 Page 5 of 12 Decision and Order - Motion to Vacate and Motion for Stay identify Defendant as being present in her store the night of October 13, 2008 because sh

remembered that the Defendant from the prior incident, which he masturbated in her store. Id.a

2:33 p.m. The Court disagrees.

The Court determines that the People have not satisfied the test to admit 404(b) evidenc

based on the Supreme Court of Guam's holding in Evaristo. More particularly, the People ar

unable to demonstrate that Wan's testimony that Defendant masturbated in her store is similar t

the charged conduct - the second prong of the Evaristo test to admit 404(b) evidence. Defendan

is charged with First Degree Criminal Sexual Conduct. First Degree Criminal Sexual Conduc

requires sexual penetration and the use of force or coercion. See 9 G.C.A. 8 25.15. Defendan

masturbating in Wan's store was not similar to the charge of First Degree Criminal Sexua

Conduct because there was neither sexual penetration nor use of force or coercion. The Co

Grants Defendant's Motion to Exclude Wan's testimony of a past bad act.

Defendant is also charged with Second Degree Criminal Sexual Conduct. Second Degre

Criminal Sexual Conduct requires sexual contact and the use of force or coercion. See 9 G.C.A §

25.20. Defendant masturbating in Wan's store was not similar to the charge of Second Degre

Criminal Sexual Conduct because there was neither sexual contact nor the use of force o

coercion. The Court Grants Defendant's Motion to Exclude Wan's testimony of a past bad act.

c. Duenas' Testimony

Defendant asked the Court to exclude Duenas' testimony of Defendant's prior bad acts.

Defendant's Supplemental Motion to Exclude at 1 (December 24,2008). The People argued tha

Duenas' testimony goes to show the similarity in the modus operandi of Defendant.

26 11 Hearing at 2:37 p.m.;People's Opposition to Defendant's Supplemental Motion to Exclude at 3. 27 1.1 The People offered that Duenas will testify that Defendant entered her business and inquired id

II In the Matter of the Estate of Joseph D. Vitale, PR0095-05 Decision and Order - Motion to Vacate and Motion for Stay Page 6 of 12 anyone else was present. Motion Hearing at 2:36 p.m. (December 30, 2008). The People offered 1

that Duenas would testify to a prior encounter with Defendant grabbing her and taking hls penis

out of his pants. a.The People argued Duenas' identification would show a modus operandi o 11 5 11 the Defendant. Motion Hearing at 2:32 p.m. (December 30, 2008). The Court disagrees with th

7 II The Court determines that the People have not satisfied the test to admit 404(b) evidence(

based on the Supreme Court of Guam's holding in Evaristo. More particularly, the People ar

unable to demonstrate that Duenas' testimony that Defendant grabbed in her and while talung hi

-4 penis out while in her store was similar to the charged conduct - the second prong of the Evarist

test to admit 404(b) evidence. Defendant is charged with First Degree Criminal Sexual Conduct.

First Degree Criminal Sexual Conduct requires sexual penetration and the use of force o I coercion. 9 G.C.A. 5 25.15. Defendant grabbing Duenas and taking out his penis while in h

l5 11 store was not similar to the charge of First Degree Criminal Sexual Conduct because there wa 4 no sexual penetration. Therefore, the Court will grant Defendant's Motion to Exclude Duenas'

testimony of a past bad act.

Defendant is also charged with Second Degree Criminal Sexual Conduct. Second Degree

Criminal Sexual Conduct requires sexual contact and the use of force or coercion. See 9 G.C.A $

25.20. Defendant grabbing Duenas and taking out his penis while in her store was not similar to

the charge of Second Degree Criminal Sexual Conduct because there was no sexual contact.

Therefore, the Court will grant Defendant's Motion to Exclude Duenas' testimony of a past bad

act.

11. Rules 801(b)(2) and 804(d)(2) Hearsay Evidence Exception

In the Matter of the Estate of Joseph D. Vitale, PR0095-05 Page 7 of 12 Decision and Order - Motion to Vacate and Motion for Stay Defendant objects to two statements the Defendant made to the Guam Police Departmen

during the investigation of other sexual offenses the Defendant was accused of.

Opposition to Defendant's Supplemental Motion to Exclude at 3 (December 29, 2008). Th

People argued that the statements are admissible under Rule 801(d)(2). Under Rule 801(d)(2),

admission by party opponent is admissible if "the statement is offered against a party and is (A

the party's own statement, in either an individual or a representative capacity."

The People also argue that the statements made by Defendant are admissible under Rul

804(b)(3) - statement against interest. Under Rule 804(d)(3), "a statement which was at the tim

of its making . . . so far tended to subject the declarant to civil or criminal liability that

reasonable person in the declarant's position would not have made the statement unless believin

it to be true." The Court agrees that under Rule 802(d)(2) and Rule 804(d)(3) the prior statement

made by Defendant would be admissible. But there is an additional step the Court must appl

when determining the admissibility of hearsay evidence. The Court must weigh the probativ

value of the evidence against the unfair prejudice to the defendant.

In U.S. v. Slau&ter, 386 F.3d 401 (2nd Cir. 2004), the Second Circuit determined th

evidence containing hearsay may be admissible not for its truth but as background information i

"(1) the non-hearsay purpose by which the evidence is sought to be justified is relevant, and (2

the probative value of this evidence for its non-hearsay purpose is [not] outweighed by th

danger of unfair prejudice resulting from the impermissible hearsay use of the declarant'

statement." 386 F.3d at 403; G.R.E. Rule 403. Although the Court finds that the Defendant'

statements are relevant, the Court determines that probative value of the of the Defendant'

statements is out weighed by the danger of unfair prejudice. The Court finds that a jury may,

even though given instructions against do so, use Defendant's statements as an admission of guil

In the Matter of the Estate of Joseph D. Vitale, PR0095-05 Page 8 of 12 Decision and Order - Motion to Vacate and Motion for Stay introduction of Defendant's statements concerning prior sexual assaults that occurred in 2001

3 and 2005. 4 111. 413 Evidence 5 Defendant sought to exclude an allegation of a prior sexual assault allegedly cornmitte 6 1 Iby Defendant on July 25,2001 as contained in P.R. 01-1 1313 and an allegation of a prior sexua 7

8 1 allegation allegedly committed by Defendant on August 10, 2005 as contained in P.R. No. 05 1 16588. Defendant's Supvlemental Motion to Exclude at 1 (December 24, 2008). The People i 10 its moving papers argue that they do not intend to offer neither P.R. 0 1-11313 nor P.R. No. 11 16588 will be offered as evidence. People's Opposition to Defendant's Supplemental Motion to 12

Exclude at 4 (December 29, 2008). Therefore, the Court will not allow the introduction of th

l4 11 police reports under Rule 4 13.

l5 16 1( The People only state that they will offer Defendant's statements of other sexual assaults1

People's Opvosition to Defendant's Supplemental Motion to Exclude at 3 (December 17 Although the People mainly offer the Defendant's statements of other sexual assaults unde 18

Rules 801(d)(2) and 804(b)(3), the People also make an argument that Rule 4 13 would allow th

20 introduction of Defendant's statements of other sexual assaults. Under Rule 413, "[iln a 21 case in which the defendant is accused of an offense of criminal sexual conduct,

22 23 II defendant's commission of another offense or offenses of criminal sexual conduct is admissible 1 I and may be considered for its bearing on any matter to which it is relevant." The Co 24

~ 25 1II1 determines that under Rule 413 Defendant's statements may be relevant. U S v. LeMav, 2 6 j

26 1 F.3d 1018, 1027 (9th Cir. 2001). But additional step must be applied. a. (citing United States v.

28 1- Mound, 149 F.3d 799, 800-802 (8th Cir. 1998) (concluding that Rule 413 passes constitutions

In the Matter of the Estate of Joseph D. Vitale, PR0095-05 Page 9 of 12 Decision and Order - Motion to Vacate and Motion for Stay muster if Rule 403 protections remain in place); United States v. Wright, 53 M.J 476 (C.A.A F.

2000) (same); Kerr v. Caspari, 956 F.2d 788, 790 (8th Cir. 1992) (holding that a Missouri rul

allowing for propensity inferences in sex crime prosecutions is constitutional as long as rule 403

test is applied)).

The Court must apply Rule 403's test before it allows the admissibility Defendant'

Statements. The test under Rule 403 is although evidence is relevant, it "may be excluded if it

probative value is substantially outweighed by the danger of unfair prejudice, conhsion of th

issues, or misleading the jury, or by considerations of undue delay, waste of time, or needles

presentation of cumulative evidence." G.R.E. Rule 403. The Court finds that the probative valu

of Defendant's statements of past sexual assaults is outweighed by the danger of unfair prejudic

and these statements may mislead a jury. While use of a prior bad act is prejudicial, the issuanc

of the proper limiting instruction can prevent that prejudice from being unfair. Evaristo, 199

Guam at 7 17. The Court finds that a jury, even though given instructions not to do so, may stil

use Defendant's statements as an admission of guilt in the present case. The Court also finds tha

proving motive and intent may still be proven - without the introduction of Defendant

statements - by the testimony of the victim in the present case. Therefore, the Court will gra

Defendant's Motion to Exclude the introduction of Defendant's statements concerning pric

sexual assaults that occurred in 2001 and 2005.

IV. Rule 609 Evidence

Defendant asked the Court to exclude evidence of any felony convictions under Rule 60'

Defendant's Motion in Limine to Exclude 404(b) Evidence and Rule 609 Evidence at

(December 15, 2008). Defendant asked the Court to specifically prevent the People fro1

introducing evidence of any of Defendant's felony convictions in 1997. Id.Under Rule 609,

In the Matter of the Estate of Joseph D. Vitale, PR0095-05 Page 10 of 12 Decision and Order - Motion to Vacate and Motion for Stay felony conviction over ten years old is not admissible. G.R.E. Rule 609. The People failed to

include in any of their opposition to Defendant's Motion to Exclude Defendant's 1997

conviction. Therefore, the Court grants the Defendant's Motion to Exclude Defendant's 1997

conviction pursuant to Rule 609.

V. Suppression of Identification

Defendant asked the Court to exclude a photo line up identification and any in court

identification as a result of a suggestive identification of Defendant by the victim - Ludwick.

Defendant's Motion to Suppress Sunnestive Identification at 3 (December 17, 2008). A court

must determine under the "totality of the circumstances" that the identification was suggestive.

Neil v. Bigners, 409 U.S. 188, 199, 93S.Ct 375 (1972). The factors to be considered in

evaluating (1) the likelihood of misidentification include the opportunity of the witness to view

the criminal at the time of the crime; (2) the witness' degree of attention; (3) accuracy of the

witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness

at the confrontation; and (5) the length of time between the crime and the confrontation a.The

Court determines that no suggestive identification took place.

The People argued that Defendant was never shown to Ludwick either in person or

through a closed circuit television - essentially arguing that there was no suggestive

identification that took place on October 25, 2008. People's Opposition to Defendant's Motion

to Suppress at 2 (December 22, 2008). The court agrees. Officer Manglona testified that he

interviewed Ludwick at the Tumon precinct. Motion Hearing at 3: 19 p.m. (December 30,2008).

Officer Manglona testified that the Defendant was never in the shown to Ludwick for

identification purposes. a. at 3:15 p.m. Officer Manglona also testified that Ludwick was not

In the Matter of the Estate of Joseph D. Vitale, PR0095-05 Page 11 of 12 Decision and Order - Motion to Vacate and Motion for Stay given the opportunity to view Defendant via closed circuit television for identification purposes

in the Tumon Precinct. a. Officer Tapao testified that Defendant was placed in an interview room that contained a

closed circuit camera. Id. at 3:24 p.m. Officer Tapao testified that he was in the interview room

with the Defendant. a. at 3:30 p.m. Officer Tapao testified that Ludwick was not shown a television monitor that displayed the Defendant, or taken to the interview room to show her the

Defendant. a. at 3:25 p.m. Officer further testified that at no time was Ludwick given an

opportunity to view the Defendant. Id. The Court determines that no suggestive identification

II took place. Therefore, the Court will deny Defendant's Motion to Suppress Identification.

CONCLUSION By preponderance of the evidence and based on the foregoing reasons, the Court

II GRANTS Defendant's Motion to Exclude the testimony of prior bad acts by Ludwick, Wan,

and Duenas; Defendant's Motion to Exclude the introduction of Defendant's statements

concerning prior sexual assaults that occurred in 2001 and 2005 pursuant Rules 801(d)(2) and

804(b)(3); Defendant's Motion to Exclude the introduction of Defendant's statements

concerning prior sexual assaults that occurred in 2001 and 2005 pursuant to Rule 413; and

Defendant's Motion to Exclude Defendant's 1997 conviction pursuant to Rule 609. BUT

DENIES Defendant's Motion to Suppress Suggestive Identification.

SO ORDERED this 14 day of fm ,208

1 HONORABLE ANITA A. SUKOLA Judge, Superior Court of Guam

In the Matter of the Estate of Joseph D. Vitale, PR0095-05 Page 12 of 12 Decision and Order - Motion to Vacate and Motion for Stay