People v. Angoco

• Court: Superior Court of Guam
• Decided: October 30, 2009
• Docket: CF0428-94
• Status: Unknown

Opinion

IN THE SUPERIOR COURT r " 7 OF GUAM

THE PEOPLE OF GUAM 1 CRIMINAL CASE No. CF0428-94 1 VS. DECISION AND ORDER 1 re: Defendant's Motion to Compel MARK BAMBA ANGOCO Discovery, Defendant's Motion to Suppress Statements, Defendant's Defendant. Motion to Dismiss for Failure to 1 Instruct the Grand Jury on the Law

This matter came before the court on December 1lth,2008. Attorney General David Rivera appeared representing the people. Attorneys Delia Lujan and Gloria Lujan both appeared representing the defendant, who was present. Yvette Blas-Ananich appeared for probation. Having reviewed the pleadings and the arguments presented the Court now issues the following decision and order. BACKGROUND

This case concerns the 1994 killing of Darwin Datuin, allegedly by the defendant and several others. After much appellate procedure, the details of whch are irrelevant here, the case is moving towards a second trial. The defendant has brought several motions prior to the second whch would normally be reserved for criminal pre-trial practice, but which the defendant argues are also allowable in this context. The government argues that these motions are inappropriate prior to a second trial based on theories of waiver, and also against the motions individually on the merits. Six individual motions were argued on December 1lfh;three were resolved during that hearing and three the court subsequently took under advisement. The Defendant's Motion to Exclude Statements of Co-Defendant (namely John J. Pangelinan) was denied from the bench. Defendant's Motion for Bill of Partculars was withdrawn orally by counsel during the hearing. Defendant's Motion to

Enlarge Time was dismissed without prejudice, allowing defense counsel to file a more

specific motion on the same issue should defendant choose to do so. The remaining motions in the case are Defendant's Motion to Compel Discovery, Defendant's Motion to Dismiss

for Failure to Instruct the Grand Jury on the Law, and Defendant's Motion to Suppress

Statements. Each of these individual motions will be addressed separately. The government

has also raised in opposition to all three motions the common objection that defendant has forfeited his rights to make such motions via operation of 8 G.C.A. 8 65.15 ( c ). This common argument will also be discussed separately, and as necessary during the sections concerning the individual motions.

DISCUSSION I. Defendant's Motion to Compel Discovery The defendant requests 30 individual items of discovery, generally under 8 G.C.A. 8 65.25 (b) and 8 G.C.A. 8 70, and specifically with individual arguments regarding specific requests. In their opposition, the government objects specifically to only 4 of the listed requests. As to the other requests the government states that discovery has been provided, discovery will be provided, or that there is no evidence responsive to the discovery request. The objected requests are identified as numbers 10, 1l,26, and 28 on the defendant's motion, and will be discussed below. The court also notes at the outset that it is mindful that the age of the case will likely make some issues of discovery more complex than it would normally be in a criminal matter.

A. Request 10 In request 10 the defendant demands "[a] copy of any federal or state probation or pre- sentence report of any prospective witness" and cites to United States v. StrijZer 85 1 F . 2d 1197, 1201 ( 9 Cir. ~ 1988). See Motion at 3. The government objects to this request as

"beyond the scope of material that the People are required to disclose...no good cause exists

for ordering the disclosure...the requested items are equally available to defendant as they

are to the People...[and] the requested items are outside of the People's possession and control". See Response at 4.

The relevant language in Strij7er states that "A defendant is entitled to material in a

probation file that bears on the credibility of a significant witness in the case...[t]he trial court should then review the file in camera and release to the defendant all information of this character." See U S . v. Strij7er 851 F.2d 1197, 1201 (C.A.9 (Ariz.),1988) citing

Brady v. Maryland 373 U.S. 83 at 87,83 S.Ct 1194, 10 L.Ed. 2d 215 (1963) and Moore v.

Kemp 809 F. 2d 702,730 (1 l~ Cir.) Brady v. Maryland is, of course, the touchstone case on

the issue of discovery in criminal trials, and requires disclosure of any evidence "material

either to guilt or to punishment" by the prosecution. 373 U.S. 83 at 87. A probation or pre-

sentence report may contain evidence which is material to a specific case (as in Strifler,

where the probation record of one government witness was deemed so egregious that a

failure by the judge to find materiality after reviewing the file was "clear error"), and can

potentially be discoverable under Brady. See Strzfler at 1202.

This federal case law is reflected in the statutory scheme of 8 G.C.A. 4 70.10 and

5 70.15. Under 8 G.C.A. 5 70.15 the court may order the prosecutor to disclose discovery material not covered under 8 G.C.A. 8 70.10 provided that the items requested are material

to the defense and that the request is reasonable. At this point in the instant case the court is

not aware of whether such documents exist (and even whether any of the government's

Page 3 of 18 1 witnesses have ever been under the supervision of either a state or a federal department of corrections) but if such records do exist, and if after in camera review determines their

materiality, they should be provided to defendant under 8 G.C.A. § 70.15.'

As to the government's further objections; that the requested items are equally available

to the Defendant and outside the government's control, the court turns to the general

proposition that the government is responsible to turn over not just evidence under its

control but evidence "the existence of which is known, or by the exercise of due diligence

may become known to the prosecuting attorney." See 8 G.C.A. 9 70.10 (a). The

government has access to records and databases to which the public is not privy, and in this

case use of those databases is likely the easiest possible way to determine whether any

information of the type requested even exists. See i.e. US.v. Auten 632 F.2d 478,481

(C.A.Tex., 1980) ("the prosecutor has ready access to a veritable storehouse of relevant

facts").

B. Request 11

In request 11 the defendant requests "[tlhe oral and written results of any polygraph test

administered to any witness" citing Carter v. Rafleerty 826 F. 2d 1299, 1306-09 (3d Cir.

1987) and United States v. Lynn 856 F. 2d 430,432-33 (lSfCir. 1989). See Motion at 3.

The government objects to the request as "the results of polygraphs are generally

inadmissible. Such results, if they existed, would be irrelevant." See Response at 4.

'~othingin this request seems to implicate the factors favoring non-disclosure presented in 8 G.C.A. 8 70.15 (b).

Page4of 18 As noted above, Guam statutory law requires that a discovery request seek evidence

which is "material" to a defendant's case. See 8 G.C.A. 8 70.15. Previous Guam law has

been universally critical of the polygraph system, excluding it entirely unless its

admissibility has been stipulated to by the parties prior to examination. See People of Guam

v. Cabrera, DCA Crim. No. 86-00024A, 1987 WL 109387 (D. Guam App. Div. 1987);

People v. Pangelinan No. CR95-00139A, 1996 WL 875775 (D. Guam 1996)2. It is

important to note, however, than "inadmissible" does not necessarily equate to "immaterial"

in the context of Brady requests. See i.e. Sellers v. Estelle 651 F.2d 1074, 1077 (C.A.Tex.,

1981) ("In addressing the issue of materiality, the Magistrate found that [the evidence

requested] would have been inadmissible, hence these reports were immaterial. Such a

conclusion is unwarranted. First, by enabling the defense to examine these reports, Sellers

may have been able to produce witnesses whose testimony or written statements may have

been admissible. Second, the evidence here suppressed was material to the preparation of

petitioner's defense, regardless of whether it was intended to be admitted into evidence or

not.") (internal citation omitted). Polygraph results, as requested here, are potentially

discoverable under 8 G.C.A. 8 70.15. However in this case the distinction seems to be

largely an academic one as the government also objects to the request on the basis that "[tlhe

People are unaware of any material responsive to this request." See Response at 4.

The lack of any asserted evidence of any polygraph administered to any witness in this

2~lthoughthis case concerns a different issue than that argued here, it should be noted that the case concerns the appeal of a co-defendant in this case h m a ruling made by the judge who is also hearing this current case.

Page5 of 18 case persuades the court to reject this discovery request as improper. Compare People v.

Mendiola 1999 Guam 8 at 7 48 (1999). It has hard to imagme that if any polygraphs were

administered to any of the persons involved in this case, that after more than a decade of

litigation not only in this case but also in the cases of the co-defendants, such results would

not have come to light prior to this time. Should this in fact be the case, the defendant is

fiee to re-assert a discovery demand for such results.

C. Request 26

In Request 26 the defendant seeks "[tlhe personnel records of all officer witnesses in this

case....[and]...[all1 prospective witnesses' personnel files" citing United States v. Henthorn

931 F.2d 29 (gfhCir. 1991). See Motion at pg. 7. The defendant further states that "[tlhe

defendant denies making some of the statements alleged by officers investigating this case.

Additionally, the manner in which the case was investigated by officers and reported by

them in their official police reports will be attacked at trial. The officer personnel records

are material for impeachment purposes[.]" The government argues that the defendant has not

demonstrated materiality as required by 8 G.C.A. 5 70.15, and cites multiple decisions of

other jurisdictions in conflict with Henthorn. See Response at pgs. 4-5.

The conflict between Henthom and the contrary authority cited by the government is not

over whether government personnel files are discoverable by defendant, but rather over what

the defendant must show prior to the production of such files, and who should be inspecting

them. Henthorn holds that "[tlhe government is incorrect in its assertion that it is the

defendant's burden to make an initial showing of materiality. The obligation to examine the

Page6of 18 files arises by virtue of the making of a demand for their production. However, following

that examination, the files need not be furnished to the defendant or the court unless they

contain information that is or may be material to the defendant's case." See U S . v. Henthorn

93 1 F.2d 29,3 1 (C.A.9 (Ca1.),1991). In contrast, United States v. Andrus 775 F. 2d 825, 843

(7thCir. 1985) held that: (6

The court held that the speculative assertion that impeaching material may be in a government file did not warrant an order to disclose the contents of the file or to produce the file for the court's inspection. Mere speculation that a government file may contain Brady material is not sufficient to require a remand for in camera inspection, much less reversal for a new trial. A due process standard which is satisfied by mere speculation would convert Brady into a discovery device and impose an undue burden upon the district court. Andrus was not entitled to the personnel files of the law enforcement witnesses without even a hint that impeaching material was contained therein." (internal citations omitted).

The question, therefore, is whether the defendant is required to make an initial showing

of materiality before such information can be disclosed, or whether a mere demand for such

files is sufficient to compel production of the files to the court for an in camera review by

the court.

Initial burdens of materiality present a unique "chicken-and-egg" challenge to criminal

defendants, who must (1) present an initial showing of materiality before receiving

discovery, but also (2) review the discovery to determine if they contain any material

evidence (being otherwise ignorant of their contents). In recognition of this difficult

position, "[a] materiality standard normally 'is not a heavy burden'; rather, evidence is material as long as there is a strong indication that it will play an important role in

uncovering admissible evidence, aiding witness preparation, corroborating testimony, or

assisting impeachment or rebuttal."' See US. v. Lloyd 992 F.2d 348,35 1,301 U.S.App.D.C.

186, 189 (C.A.D.C.,1993), quoting U.S. v. Felt 491 F.supp. 179, 186 (D.C.D.C., 1979).

In the instant case, the defendant has made materiality showing sufficient to satisfy this

lenient standard by outlining its theory as to the materiality of the files in this case in the

~ o t i o n Defendant ~. is therefore entitled to in camera review of the personnel files for the

purposes of determining materiality to h s case under either the standards of Henthorn or

those suggested by the government. However, given the number of years this matter has

been before the courts it is likely that some officers are not available to be witnesses and will

not be called. The prosecutor will provide the requested files for any officer likely to be

called to the court for review. If the defendant has cause to request a file for a former officer

not likely to be called he may submit another motion stating with specificity why the file

should be reviewed in camera.

D. Request 28

The defense also requests "a list of and disclosure of exhibits the government may use at

trial including but not limited to any power-point presentation, book, paper, document,

photograph or tangible object." See Motion at pg. 7. The government responds that "the

See Motion at pg. 7: "[tlhe defendant denies making some of the statements alleged by officers investigating this case. Additionally, the manner in which the case was investigated by officers and reported by them in their official police reports will be attacked at trial. The officer personnel records are material for impeachment purposes[.]"

Page 8 of 18 People object to this request to the extent that it is beyond the disclosure obligations

specified in [8 G.C.A.] $ 70.10. Upon information and belief all discoverable items within

this request have previously been disclosed." Response at pg.5. This objection appears to

be more of a conflict of semantics than a substantive objection, as the government concedes

earlier in their response (as they must) the potential availability of discovery outside the

scope of 8 G.C.A. $ 70.10 (i.e. via 8 G.C.A. $ 70.15). The government also fails to identify

what, if anythmg, in the request they believe is specificallybeyond the scope of 8 G.C.A. $

70.10, and notes that they believe have already complied with the request. The request is

granted, with the government fiee to object more specifically to any particular portion of the

request should it choose to do so.

The individual discovery requests discussed shall be resolved as stated above.

11. Defendant's Motion to Suppress Statements

The defendant's next motion concerns statements made to police on the night of

November 5', 1994. On the night of the 5', at approximately 8:45 p.m., defendant was

pulled over by a marked Guam Police Department vehicle. See Court's Order of 4/3/95, pg.

3. Defendant was orally advised of his Miranda rights by the officer Jose B. Palacios, and

agreed to be interviewed at Pedro's Plaza. Id. Defendant's license and registration were

confiscated. Id. Afier arriving at Pedro's Plaza, defendant was again read his rights, and

signed a written consent form at approximately 9:33 p.m.. Id. Defendant was questioned by

the police, and completed a first written statement at approximately 1:00 a.m.. Id Defendant made further oral statements, and made a second written statement around 2:20

a.m. Id. After making the second statement, the defendant was asked to write a chronology

of how he had spent the last few days. Id. Officer Palacios noticed discrepancies between

the story related by defendant and previous accounts, and asked him to comment on an

earlier oral statement. Id. At that point, defendant began shaking and made several further

oral statements. Id at pgs. 3-4. Defendant was asked to put the last statements in writing,

but refused. Id at pg.4. Defendant requested a lawyer at approximately 4:00 a.m. and

interrogation ceased. Id. Defendant now seeks to suppress oral statements made between

1:00 a.m. and 4:00 a.m. based on an argument that "based on the totality of the

circumstances, the initial warnings were not effective for the second and third interrogations

which the police conducted between 1:OO-4:00 a.m." See Motion at pgs. 3-4. Defendant's

primary argument seems to be that while there may have been at one time an effective

waiver of rights, that waiver was not effective for the entire series of interrogations which

took place here. See Motion at pgs. 3-4, citing State v. Treesh, 90 O h o St. 3d 460,470,739

N.E. 2d 749,764 (Ohio, 2001).

The government opposes the motion on several grounds. First, the government asserts

that "[slince the defendant is seeking to have the Court reconsider the denial of suppression

of statements on Miranda grounds and since this Court has already decided this issue in the

same case the People submit that the Court is precluded fiom reconsidering the issue." See

Opposition at pg. 3. Second, the government argues that even if the totality of

circumstances test suggested by Treesh is allowed, the warnings provided to the defendant in

Page 10 of 18 this case were effective throughout the entirety of the interrogation up to the point where the

defendant requested counsel. See Opposition at pgs. 4-6. The government also argues that

the defendant's claims are estopped under 8 G.C.A. tj 65. See Opposition at pgs. 6 -7.

A. Law of the case, ruling of 4/3/95

The prosecutor argues that the current Motion is precluded by previously established

"law of the case" specifically the court's order of April 3rd,1995. This argument is only

partially correct. The Guam Supreme Court has held that "Under the 'law of the case'

doctrine, a court is generally precluded fiom reconsidering an issue that has already been

decided by the same court." See People v. Hualde 1999 Guam 3 at 7 13 (1999) (citation

omitted). T h s principal has been re-affirmed and expanded on in People v. Gutierrez 2005

Guam 19 at 7 36 (2005). However, defendant's current motion does not seek to have the

court re-consider the 1995 order, but rather relies on a separate legal theory. Simply because

both motions rely on Miranda and its progeny, does not mean that the current motion is

therefore one to 'reconsider' the previous ruling. While the court agrees that the 1995 order

continues to stand for the conclusion that "[c]onsidering the totality of the circumstances,

[dlefendant did knowingly, voluntarily and intelligently waive his Miranda rights" when he

signed the waiver form at approximately 9:30 p.m., this does not preclude the defendant

fiom asserting a different Miranda theory. See 4/3/1995 Order at pg. 74.

4The order does preclude the defendant, via the "law of the case" doctrine, h m arguing tbat this written waiver was ineffective. Although this is not the defendant's central contention in b r i e h g (indeed this point seems to be conceded) defense counsel did make this argument during oral argument.

Page 11 of 18 The court did not address whether "based on the totality of circumstances, the initial

warnings were...effective for the second ant third interrogations". See Motion at 3-4. This

is hardly surprising, considering the fact that the Order was handed down in 1995, and the

1 case upon to assert this legal standard is an Ohio state case not handed down until 2001. State v. Treesh, 90 Ohio St. 3d 460,739 N.E. 2d 749 (Ohio, 2001). Even assuming

arguendo that this is a legitimate legal standard upon which the defendant may claim relief

(by no means a settled question) the court finds that the defendant is not entitled to relief,

and therefore denies the defense's motion. Both Treesh and the primary case relied upon in I 1 Treesh, State v. Barries, 25 Ohio St.3d 203,208,25 OBR 266,270,495 N.E.2d 922,926

(1986) discuss interrogations which give the court guidance in making this determination.

In Treesh the defendant received only a partial oral advisement of his rights upon arrival at

the police station and commencement of formal interrogation, although he did eventually

receive effective Miranda warnings subsequent to some interrogation. See Treesh at 471.

Nevertheless, the Ohio Supreme Court upheld the trial court's ruling that the statements

made by the defendant were admissible. Id at 472. Here, defendant received a full written

Miranda waiver which he initialed and was found to have undei-stood. See 4/3/95 Order at

pg. 7. In Barnes the defendant was not re-advised of his rights for an entire day, and only

the advised that his rights till applied. See Barnes at 207-208. In this case, despite

characterization of the interval as longer, defendant waived his rights at 9:30 p.m. and

requested counsel at 4 a.m., an interval of less than 7 hours. The court also takes note of the

language of Barnes cited by the government stating that "[a]lthough re-reading appellant's

Page 12 of 18 1 rights to him at this time would have been an extra precaution, it is not one mandated by the

1 Ohio or United States Constitutions." State v. Barnes 25 Ohio St.3d 203,208,495 N.E.2d 1 3 922, 926 (Ohio, 1986). Similarly, while further re-advisements of rights to the defendant in 4

1I1 this case may have been tactful, the officer's failure to re-advise is not grounds to suppress

6 the statements at issue. I 7 8 1 As the court decides the Motion to Suppress on this Issue, the court does not proceed to

the government's further argument concerning estoppel and waiver. The Defendant's 9 Motion to Suppress Statements is DENIED. 10

l1 I1 111. Defendant's Motion to Dismiss for Failure to Instruct the Grand Jury on the Law

l2 13 1 The defendant also argues that "the Grand Jury did not have reasonable cause to indict

Defendant due to the Government's failure to instruct the Grand Jury on all the relevant 14 law." See Motion at pg. 3. The defendant argues, correctly, than the Grand Jury in this case 15

l6 H was not read any law which instructed them on the definition of "attempt". See Motion at 4.

11 This, defendant argues, is relevant as the elements of Felony Aggravated Murder (the second l7 18 charge in h s case) include 9 G.C.A. 5 16.30 (a) (2): "it is committed during the commission I 1 or attempt to commit any felony defined in [relevant criminal statutes]." From these facts, I 20 1 the defendant concludes that "[wlithout providing the legal definition of 'attempt' the Grand I ~ 22 I11 Jury could not have had reasonable cause to indict the Defendant on felony aggravated

23 murder." See Motion at 4. I government is terms of required detail and specificity of law instructions to the Grand Jury.

See Response pgs. 2-4. The government relies primarily on People v. Grajo DCA Crirn.

No. 86-00002,1987 WL 109393 (D. Guam App. Div. 1987).

The defendant relies primarily on two cases, People v. Jimmy Aguon Manley, Criminal

Case No. CF0295-01, D&O (Sup. Ct. Guam Feb. 27,2002), and United States v. Du Bo, 186

F.3d 1177, 1179 (9" Cir. 1999). The court in Manley stated that "In order to determine if an

indictable offense was committed, the grand jury must be aware of what elements constitute

the alleged offense and then evaluate the evidence to determine if the offense was committed

and if the defendant committed it." Manley at pg.5. In the Du Bo the grand jury indicting

the defendant was not instructed on the mens rea required to commit extortion under federal

law. The Du Bo court held "that an indictment's complete failure to recite an essential

element of the charged offense is not a minor or technical flaw subject to harmless error

analysis, but a fatal flaw requiring dismissal of the indictment." Dub Bo at 1179. The

defendant's implication in presenting these two case (although, tellingly, this is never

explicitly argued) is that a failure to instruct on 'attempt' is an error of the same magnitude

as what occurred in these two cases; that 'attempt' is an 'element' or even an 'essential

element' of the felony murder charge. This is incorrect. The Guam statute defining

Aggravated Murder (9 G.C.A. 5 16.30) states the following: "(a) Criminal homicide

constitutes aggravated murder when: (1) it is committed intentionally with premeditation; or

(2) it is committed during the commission or attempt to commit any felony...or, (3) death is

Page 14 of 18 directly caused by the illegal use of a Schedule I Controlled Substance...to a minor child ...or

(4) it is committed upon the orders of another person." The construction and structure of

this statute indicates that the elements of Aggravated Murder are (a) criminal homicide (as

defined by 9 G.C.A. 5 16.20) and (b) one of the 4 other potential aggravating factors listed.

The defendant submits no authority contradicting this construction, or any authority that an

instruction on both attempt and commission are required to have a valid charge of felony

murder in any jurisdiction. ,

Supporting this conclusion drawn from the text of the statute is the language of Grajo,

which rejected the argument that "the prosecution's obligations regarding the presentation of

exculpatory evidence to include explaining the significance of such evidence and the

possibility of charging the suspect with a lesser offense." People of Territory of Guam v.

Grajo 1987 W L 109393,2 (D.Guam App.Div.,1987) (emphasis added). The Grajo court

also sates the general rule in federal courts that "the prosecutor exercises great discretion in

presenting a proposed indictment to a grand jury ...and that the government need not detail

the law applicable to everypotential offense against the accused." Id at 2 (emphasis added,

citations omitted). A ruling that a prosecutor charging felony murder would have to in every

case detail both the inchoate and substantive versions of the felony charged is clearly beyond

the scope of the duties of the prosecutor under Guam law. Post-hoc evidence that the

defendant was eventually acquitted of robbery and that the court has previously emphasized

the importance of "attempt" in this case as it has unfolded does not retroactively make the

original indictment improper. See Motion at pgs. 4-5.

Page 15 of 18 The defendant's Motion to Dismiss for failure to Instruct the Grand Jury on the Law is

DENIED.

IV. The Government's general waiver arguments under 8 G.C.A. 5 65.15 ( c )

The Government presents in opposition to the three motions disposed of here (and in

other submissions) the language of 8 G.C.A. 8 65.15 which states that: "Any defense,

objection or request which is capable of determination without the trial of the general issue

may be raised before trial by motion. Motions may be written or oral at the discretion of the

judge. The following shall be raised prior to trial...[subsections relevant to all the motions

presented here]". The government emphasizes the mandatory phrasing of the statute;

arguing essentially that simply because defendant has been granted a re-trial in this case, it

does not follow that he is entitled to another pre-trial, and that all of these motions should be

precluded as waived by operation of law as they were not raised before defendant's first

trial. In opposition to this broad theory, the defendant presented to the court at oral

argument the case of United States v. Romano 241 F. Supp. 933 @. Ct. Me., 1965).

The Romano case involved several co-defendant who were originally convicted at trial of

multiple charges springing fiom an illegal bootlegging operation. Id at 935. On appeal, the

convictions of the defendants were reversed on the grounds that some of the evidence used

at trial was obtained via an illegal search. Id. The defendants before their re-trial, filed

further motions under the Federal Rules of Criminal procedure to suppress other evidence

which the alleged was the result of a second distinct illegal search. Id. The government

Page 16 of 18 argued that under the federal rules defendants had waived their rights to make further 'pre-

trial' evidentiary motions. Id. At 936. The court disagreed, finding that: "[the] purpose [of

the relevant federal rule] is to avoid the delay and confusion which would result fiom the

necessity of determining during trial an issue as to the admissibility of evidence which may

be efficiently isolated and disposed of in advance of trial ...[dlefendants' present motions

have been filed well in advance of their impending second trial, and the issues which they

present can be determined at this time without contravening the policy underlying the Rule."

US. v. Romano 241 F. Supp. 933,936 (D.C. Me. 1965) (citation omitted). The court further

held that: "[a defendant] is not precluded fiom filing a motion to suppress evidence prior to

his retrial. Nor is he precluded fiom urging in support thereof legal grounds not previously

raised." Id at 936-937 (citation omitted). While the government is correct in pointing out

"the dissimilarity of the rule interpreted in Romano to Guam's current statutory provisions"

the court finds the reasoning of the Romano court is sound, and can provide guidance in this

case. See Government's Supplemental Submission Concerning Romano Decision at pg. 3.

In this case, the parties are returning to trial more than 15 years subsequent to the original

incident. Allowances must be made for this unique situation. As in Romano, the court feels

that some of the issues presented by the defendant in this case can be determined at t h s time

without contravening the policy underlying the Guam statutes. Regarding the defendant's

discovery requests, the court recognizes the difficult both the government and the defendant

will have to contend with in preparing this case for trial. Defendant's current counsel (who

did not represent hun in the original trial) must be provided with discovery sufficient to

Page 17of 18 argue their case in a manner which a closely as possible approximates the opportunity of

defendant's original counsel to do so. This will require the co-operation of the government.

The defendant's other two Motions are less supported by the Romano case. Although

Romano states the proposition that a defendant is entitled to file suppression motions prior

to his retrial, including use of legal grounds not previously raised, it does not follow that the

defendant is entitled to re-litigate issues previously decided by the court based on legal

standards created years after the original motions were decided.

Having decided all the motions under advisement on other grounds, the court declines to

rule on the effect of 8 G.C.A. § 65.15 on further motions in this matter. This section should

still be taken by the litigants in the current case as guidance as to the court's opinion of what

will in future be required of the parties in litigating this unique re-trial properly.

CONCLUSION The individual discovery requests discussed shall be resolved as stated above. The

Defendant's Motion to Suppress Statements is DENIED. The defendant's Motion to

Dismiss for failure to Instruct the Grand Jury on the Law is DENIED.

+ SO ORDERED this 30 day of October 2009.

'\ KATHERINE A. MARAMAN JUDGE, Superior Court of Guam

Page 18 of 18 OCT 3 0 2009

Deputy Clerk Superlor Court of Guam