1 IN THE SUPERIOR COURT OF GUAM '_,_.! :-:,"P ~" L~' ? Iu--
2 THE PEOPLE OF GUAM, ) CRIMINAL CASE~O. CFQ~~~8~ 3 ) vs. ) 4 ) DECISION AND ORDER ) ON DEFENDANT'S MOTION TO 5 ) COMPEL DISCOVERY MAKSIO ANNEY (aka CHITON), 6 ) Defendant. ) 7 )
8 ----------------------------) 9 This matter came before the HONORABLE VERNON P. PEREZ on September 1,2011 10 on Defendant's Motion to Compel. Attorney Seth Morrison represented Defendant, who w 11 present. Attorney Nelson Werner appeared on behalf of the Government. Having reviewed th 12 pleadings, the arguments presented and the record, the Court now issues the following Decisio 13 and Order. 14 BACKGROUND 15 Defendant asked this Court to compel the Government to comply with all discove 16 requests. The Government responded that it will do its best to comply with all discovery an 17 will not tum over anything it is not permitted to under the rules. As of September 1, 2011, th 18 Parties believe there continues to be a purpose for the Motion to Compel and this Court wil 19 address each item of Discovery. 20 DISCUSSION 21 The Court finds a majority of the discovery requests to comply with the rules. The 22 Government explained in its response to Defendant's Motion to Compel that it would do its best 23 to fulfill its obligations in a timely fashion. As to a few of the discovery items, the Government , 24 did object. Here are the items listed as due by the Defendant and the Court's conclusion as to 25 each item: 26 1. Prior Criminal Records 27 28
People v. Anney, Decision and Order (Defendant's Motion to Compel Discovery) Criminal Case No. CF0680-10 - Page I of 9 - The Government does not object to turning over all criminal records in its 2 possession of any prospective witness. The Court will compel the Government to compl 3 with Defendant's request. 8 GCA § 70.10(a)(5). 4 2. Witness Statements 5 The Government does not object to turning over all witness statements in its 6 possession of any prospective witness. The Court will compel the Government to compl 7 with Defendant's request. 8 GCA § 70.1O(a)(1). 8 3. Documents and Tangible Objects 9 The Government does not object to turning over all documents and tangible 10 objects to be used at trial relating to Defendant. The Court will compel the Government 11 to comply with Defendant's request. 8 GCA § 70.10(a)(4). 12 4. Expert Witness 13 The Government does not object to turning over all expert witness statement or 14 report in its possession. The Court will compel the Government to comply with 15 Defendant's request. 8 GCA § 70.10(a)(3). 16 S. Exculpatory Material 17 The Government does not object to turning over all exculpatory material in its 18 possession of any prospective witness. The Court will compel the Government to compl 19 with Defendant's request. 8 GCA § 70. 1O(a)(7); see Brady v. Maryland, 373 U.S. 83 20 (1963). 21 6. Laxamana Material 22 The Government does not object to turning over all investigator notes, recordings 23 or recollections concerning questions of Defendant or the Codefendants or Victim 24 including officer field notes in the Government's possession. The Court will compel the 25 Government to comply with Defendant's request. See People v. Superior Court v.
26 Laxamana, 2001 Guam 26 ~40. 27 7. Other Items 28
People v. Anney, Decision and Order (Defendant's Motion to Compel Discovery) Criminal Case No. CF0680-10 - Page 2 of9- a. All statements by Defendant, Codefendants or complaining witness in 2 writing or the substance of any oral statement not in writing 3 The Government does not object to turning over all witness, Defendant 4 and Codefendant statements in its possession. The Court will compel the 5 Government to comply with Defendant's request. See 8 GCA § 70.15 and § 6 70.10. 7 b. Arrest and Conviction Record of each prospective Government witness 8 The Government does not object to turning over all arrest and conviction 9 records of any prospective witness in its possession. The Court will compel the 10 Government to comply with Defendant's request. United States v. Strifler, 851 11 F.2d 1197, 1202 (9 th Cir. 1988). 12 c. Criminal Records should be disclosed well in advance of trial 13 The Government does not object to turning over all criminal records of 14 prospective witness before trial. The Court will compel the Government to 15 comply with Defendant's request. See 8 GCA § 70.15. 16 d. Federal or State probation or pre-sentence report of any prospective 17 witness 18 The Government objects to Defendant's request "7(d)" and claims that 19 these items of discovery are not in the possession of the Government or easily 20 accessible. The Government claims that Defendant has equal access to these 21 requested items. The Court will only compel the Government as to these items as 22 they are readily available. 23 e. Oral and written polygraph results of any witness 24 The Government objects to Defendant's request "7(e)" and claims that 25 these items not relevant and not admissible trial. The Government also claims that 26 no evidence of any such polygraph exists. The Court will not compel the 27 Government as to these items as the Government is correct and polygraphs, if 28 they exist in this case, are not reliable.
People v. Anney, Decision and Order (Defendant's Motion to Compel Discovery) Criminal Case No. CF0680-10 - Page 3 of9- f. Any express or implied promise, understanding, offer of immunity, 2 compensation or agreement between any witness and the Government 3 The Government does not object to turning over all such materials. The
4 Government does, however, believe that all such materials have already been
5 turned over. The Court will compel the Government to comply with Defendant's
6 request as it applies to any additional evidence indicating offers to witnesses from
7 the Government. 8 g. Any discussion with a witness regarding a prospective plea bargain, 9 advice concerning or contemplated prosecution 10 The Government does not object to turning over all such materials. The
11 Government does, however, believe that no such material is in the Government's
12 Possession. The Court will compel the Government to comply with Defendant's
13 request as it applies to any such evidence in the Governments possession.
14 h. Any evidence that prospective government witness is under investigation 15 by Federal or Guam authorities for any criminal conduct 16 The Government does not object to turning over all such materials. The
17 Government does, however, believe that no such material is in the Government's
18 possession. The Court will compel the Government to comply with Defendant's
19 request as it applies to any such evidence in the Governments possession. 20 i. Any false statements or evidence thereof of any prospective Government 21 witness 22 The Government does not object to turning over all such materials. The
23 Government does, however, believe that all such materials have already been 24 turned over. The Court will compel the Government to comply with Defendant's
25 request as it applies to any additional evidence of false statements by potential 26 Government witnesses. 27 j. Any contradictory or inconsistent statement of any prospective witness 28
People v. Anney, Decision and Order (Defendant's Motion to Compel Discovery) Criminal Case No. CF0680-10 - Page 4 of9- 1 The Government does not object to turning over all such materials. The 2 Government does, however, believe that all such materials have already been 3 turned over. The Court will compel the Government to comply with Defendant's 4 request as it applies to any additional evidence of inconsistent statement of 5 witnesses not already turned over. McDowell v.
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1 IN THE SUPERIOR COURT OF GUAM '_,_.! :-:,"P ~" L~' ? Iu--
2 THE PEOPLE OF GUAM, ) CRIMINAL CASE~O. CFQ~~~8~ 3 ) vs. ) 4 ) DECISION AND ORDER ) ON DEFENDANT'S MOTION TO 5 ) COMPEL DISCOVERY MAKSIO ANNEY (aka CHITON), 6 ) Defendant. ) 7 )
8 ----------------------------) 9 This matter came before the HONORABLE VERNON P. PEREZ on September 1,2011 10 on Defendant's Motion to Compel. Attorney Seth Morrison represented Defendant, who w 11 present. Attorney Nelson Werner appeared on behalf of the Government. Having reviewed th 12 pleadings, the arguments presented and the record, the Court now issues the following Decisio 13 and Order. 14 BACKGROUND 15 Defendant asked this Court to compel the Government to comply with all discove 16 requests. The Government responded that it will do its best to comply with all discovery an 17 will not tum over anything it is not permitted to under the rules. As of September 1, 2011, th 18 Parties believe there continues to be a purpose for the Motion to Compel and this Court wil 19 address each item of Discovery. 20 DISCUSSION 21 The Court finds a majority of the discovery requests to comply with the rules. The 22 Government explained in its response to Defendant's Motion to Compel that it would do its best 23 to fulfill its obligations in a timely fashion. As to a few of the discovery items, the Government , 24 did object. Here are the items listed as due by the Defendant and the Court's conclusion as to 25 each item: 26 1. Prior Criminal Records 27 28
People v. Anney, Decision and Order (Defendant's Motion to Compel Discovery) Criminal Case No. CF0680-10 - Page I of 9 - The Government does not object to turning over all criminal records in its 2 possession of any prospective witness. The Court will compel the Government to compl 3 with Defendant's request. 8 GCA § 70.10(a)(5). 4 2. Witness Statements 5 The Government does not object to turning over all witness statements in its 6 possession of any prospective witness. The Court will compel the Government to compl 7 with Defendant's request. 8 GCA § 70.1O(a)(1). 8 3. Documents and Tangible Objects 9 The Government does not object to turning over all documents and tangible 10 objects to be used at trial relating to Defendant. The Court will compel the Government 11 to comply with Defendant's request. 8 GCA § 70.10(a)(4). 12 4. Expert Witness 13 The Government does not object to turning over all expert witness statement or 14 report in its possession. The Court will compel the Government to comply with 15 Defendant's request. 8 GCA § 70.10(a)(3). 16 S. Exculpatory Material 17 The Government does not object to turning over all exculpatory material in its 18 possession of any prospective witness. The Court will compel the Government to compl 19 with Defendant's request. 8 GCA § 70. 1O(a)(7); see Brady v. Maryland, 373 U.S. 83 20 (1963). 21 6. Laxamana Material 22 The Government does not object to turning over all investigator notes, recordings 23 or recollections concerning questions of Defendant or the Codefendants or Victim 24 including officer field notes in the Government's possession. The Court will compel the 25 Government to comply with Defendant's request. See People v. Superior Court v.
26 Laxamana, 2001 Guam 26 ~40. 27 7. Other Items 28
People v. Anney, Decision and Order (Defendant's Motion to Compel Discovery) Criminal Case No. CF0680-10 - Page 2 of9- a. All statements by Defendant, Codefendants or complaining witness in 2 writing or the substance of any oral statement not in writing 3 The Government does not object to turning over all witness, Defendant 4 and Codefendant statements in its possession. The Court will compel the 5 Government to comply with Defendant's request. See 8 GCA § 70.15 and § 6 70.10. 7 b. Arrest and Conviction Record of each prospective Government witness 8 The Government does not object to turning over all arrest and conviction 9 records of any prospective witness in its possession. The Court will compel the 10 Government to comply with Defendant's request. United States v. Strifler, 851 11 F.2d 1197, 1202 (9 th Cir. 1988). 12 c. Criminal Records should be disclosed well in advance of trial 13 The Government does not object to turning over all criminal records of 14 prospective witness before trial. The Court will compel the Government to 15 comply with Defendant's request. See 8 GCA § 70.15. 16 d. Federal or State probation or pre-sentence report of any prospective 17 witness 18 The Government objects to Defendant's request "7(d)" and claims that 19 these items of discovery are not in the possession of the Government or easily 20 accessible. The Government claims that Defendant has equal access to these 21 requested items. The Court will only compel the Government as to these items as 22 they are readily available. 23 e. Oral and written polygraph results of any witness 24 The Government objects to Defendant's request "7(e)" and claims that 25 these items not relevant and not admissible trial. The Government also claims that 26 no evidence of any such polygraph exists. The Court will not compel the 27 Government as to these items as the Government is correct and polygraphs, if 28 they exist in this case, are not reliable.
People v. Anney, Decision and Order (Defendant's Motion to Compel Discovery) Criminal Case No. CF0680-10 - Page 3 of9- f. Any express or implied promise, understanding, offer of immunity, 2 compensation or agreement between any witness and the Government 3 The Government does not object to turning over all such materials. The
4 Government does, however, believe that all such materials have already been
5 turned over. The Court will compel the Government to comply with Defendant's
6 request as it applies to any additional evidence indicating offers to witnesses from
7 the Government. 8 g. Any discussion with a witness regarding a prospective plea bargain, 9 advice concerning or contemplated prosecution 10 The Government does not object to turning over all such materials. The
11 Government does, however, believe that no such material is in the Government's
12 Possession. The Court will compel the Government to comply with Defendant's
13 request as it applies to any such evidence in the Governments possession.
14 h. Any evidence that prospective government witness is under investigation 15 by Federal or Guam authorities for any criminal conduct 16 The Government does not object to turning over all such materials. The
17 Government does, however, believe that no such material is in the Government's
18 possession. The Court will compel the Government to comply with Defendant's
19 request as it applies to any such evidence in the Governments possession. 20 i. Any false statements or evidence thereof of any prospective Government 21 witness 22 The Government does not object to turning over all such materials. The
23 Government does, however, believe that all such materials have already been 24 turned over. The Court will compel the Government to comply with Defendant's
25 request as it applies to any additional evidence of false statements by potential 26 Government witnesses. 27 j. Any contradictory or inconsistent statement of any prospective witness 28
People v. Anney, Decision and Order (Defendant's Motion to Compel Discovery) Criminal Case No. CF0680-10 - Page 4 of9- 1 The Government does not object to turning over all such materials. The 2 Government does, however, believe that all such materials have already been 3 turned over. The Court will compel the Government to comply with Defendant's 4 request as it applies to any additional evidence of inconsistent statement of 5 witnesses not already turned over. McDowell v. Dixon, 858 F.2d 945, 949 (4 th Cir. 6 1988). 7 k. Any inconsistent statement of one witness with that of another witness 8 The Government does not object to turning over all such materials. The 9 Government does, however, believe that all such materials have already been 10 turned over. The Court will compel the Government to comply with Defendant's 11 request as it applies to any additional evidence of inconsistent statement between 12 witnesses not already turned over. 13 l. Any evidence of bias or prejudice of any witness against the Defendant 14 The Government does not object to turning over all impeachment 15 evidence. The Government does, however, believe that all impeachment evidenc 16 has already been turned over. The Court will compel the Government to comply 17 with Defendant's request as it applies to any additional evidence of bias or 18 prejudice against the Defendant not already turned over. United States v. Strifler, 19 851 F.2d 1197, 1202 (9 th Cir. 1988). 20 m. Any evidence of misconduct, bad acts or criminal act not resulting in a 21 conviction 22 The Government does not object to turning over all exculpatory evidence. 23 The Government does, however, believe that all exculpatory evidence has already 24 been turned over. The Court will compel the Government to comply with 25 Defendant's request as it applies to any additional evidence of bad acts of 26 prospective witnesses not already turned over. 27 n. Any evidence of any witness ever engaging in deceit, fraud or false 28 statement regardless of there being a conviction
People v. Anney, Decision and Order (Defendant's Motion to Compel Discovery) Criminal Case No. CF0680-10 - Page 5 of9- The Government does not object to turning over all impeachment
2 evidence. The Government does, however, believe that all impeachment evidenc
3 has already been turned over. The Court will compel the Government to comply
4 with Defendant's request as it applies to any additional evidence of deceit, fraud
5 or false statement by witnesses not already turned over.
6 o. Any evidence that a witness consumed drugs or alcohol before witnessing
7 the event alleged 8 The Government does not object to turning over all impeachment
9 evidence. The Government does, however, believe that all impeachment evidence
10 has already been turned over. The Court will compel the Government to comply
11 with Defendant's request as it applies to any additional evidence of drug or
12 alcohol use before witnessing the alleged events. 13 p. Any evidence showing a medical or psychiatric evaluation indicating a 14 witness's ability to perceive, remember, communicate or tell the truth is 15 impaired or evidence of narcotic, controlled substance or alcohol abuse 16 The Government does not object to turning over all impeachment and
17 exculpatory evidence. The Government does, however, believe that all
18 impeachment and exculpatory evidence has already been turned over. The Court
19 will compel the Government to comply with Defendant's request as it applies to
20 any additional evidence indicating an inability for a witness to perceive,
21 remember, communicate or tell the truth. 22 q. Evidence that someone other than the Defendant was suspected of the 23 crime alleged. 24 The Court finds this request to be redundant with exculpatory evidence
25 requested in Defendant's request "5". The Court will compel the Government to 26 comply with Defendants request. 8 GCA § 70.10(a)(7); see Brady v. Maryland, 27 373 U.S. 83 28 r. Personnel files of all prospective witnesses
People v. Anney, Decision and Order (Defendant's Motion to Compel Discovery) Criminal Case No. CF0680-10 - Page 6 of9- The Government objects to Defendant's request "r" and claims that
2 Defendant's desire to see personnel files is not material to the case or reasonable.
3 The Court does not find personnel files to be expressly discoverable under the
4 rules and is not convinced that personnel files are relevant to the matter at hand.
5 Therefore, 8 GCA §70.15 governs and the Court finds no reason for the evidence
6 to be material to the case. The Court will not compel the Government to tum ove
7 this evidence. 8 s. Any other evidence affecting bias or credibility of prospective witnesses 9 The Government does not object to turning over all impeachment
10 evidence. The Government does, however, believe that all impeachment evidence
11 has already been turned over. The Court will compel the Government to comply
12 with Defendant's request as it applies to any additional evidence of drug or
13 alcohol use before witnessing the alleged events. 14 t. Complete disclosure of information relating to credibility of any 15 accomplice 16 The Government does not object to turning over all impeachment
17 evidence. The Government does, however, believe that all impeachment evidence
18 has already been turned over. The Court believes that evidence may exist relating
19 to the credibility of Codefendants or other potential accomplices that may be in 20 the Government's possession. The Court compels the Government to tum over 21 any evidence regarding the credibility of the Codefendants and accomplices. 22 u. Name and last known address of each prospective witness 23 The Government will comply with this request and must provide a witness
24 list in advance of trial. The Government explained that they do intend to submit 25 all names and addresses of all proposed witnesses. The Court will not compel th 26 Government to include the home addresses of Police Officers. 27 v. Name and last known address of each witness not to be called in this case 28
People v. Anney, Decision and Order (Defendant's Motion to Compel Discovery) Criminal Case No. CF0680-10 - Page 7 of9- The Government will comply with this request and must provide a witness
2 list of all witnesses known to the Government that will not be called as witnesses th 3 in this case, ifthere are any. United States v. Cadet, 727 F.2d 1453, 1469 (9
4 Cir. 1984). 5 w. Name of any witness who made a favorable statement concerning 6 Defendant or who was unsure of Defendant's identity or participation in
7 the crime 8 The Court does not find this request to be adequately definitive. This
9 evidence could include anyone making any statement at any time, but if in
10 possession of the Government and relevant to this case, the Court will compel the
11 Government to comply. 12 x. Any evidence including statement tending to exculpate Defendant. 13 The Court finds this request to be redundant with section "5" and
14 subsection "q". The Court will compel the Government to comply with
15 Defendants request. 8 GCA § 70.10(a)(7); see Brady v. Maryland, 373 U.S. 83
16 y. Any notes or other writings used by any witness before the grand jury 17 The Court will compel the Government to comply with Defendants
18 request relating to all documents used by witnesses before the grand jury. 8 GCA
19 §70.10. 20 z. Agent or prosecutor notes of interviews with prospective witnesses. 21 The Court will compel the Government to comply with Defendants
22 request relating to all agent and prosecutor notes of interviews with any witness.
23 8 GCA § 70.10; see Goldberg v. United States, 425 U.S. 94 (1976) 24
26 27
People v. Anney, Decision and Order (Defendant's Motion to Compel Discovery) Criminal Case No. CF0680-10 - Page 8 of9- CONCLUSION 2 For the foregoing reasons, the Court GRANTS Defendant's Motion to Compel, excep 3 where provided above. The Court will not assess any sanctions upon the Government as an 4 non-compliance or delay with the Defendant's Motion for Discovery appears to be in good faith 5 Yet, if the Government does not tum over any discoverable evidence in its possession in a timel 6 fashion, the Court may exclude use of that evidence at trial. 7 So ORDERED this lotk'-day of February, 2012.
8 9 10 HONORABLE VERNON P. PEREZ JUDGE, SUPERIOR COURT OF GUAM 11 I do h~rehy eNtl'y thaI the foregolog 12 15 ft fllll l(ue and {orr.:ct copy ~)f the / / ori):III ..1 011 file in Ihe office of the cI~rk of pet!or CO>.ltt of Gual\1
0,,,, • "'~'iG020l2~\\~ 13
14 1)4 u If~ S.c. ~n.a~ 15 .Superior ~ of c.uw .... / / 16 17 18 / / 19 20 21 22 23 24 25 26 27 28
People v. Anney, Decision and Order (Defendant's Motion to Compel Discovery) Criminal Case No. CF0680-10 - Page 9 of9-