FILED 1 ,1- r r )
3 T 4
6 IN THE SUPERIOR COURT OF GUAM 7
8 PEOPLE OF GUAM, Case No. CF 0363-14 9
to VS. 11 DECISION AND ORDER ON PEOPLE'S MOTION IN LIMINE TO 12 JOHNNY B. ATALIG, COMPEL DEFENDANT TO SHOW TATTOOS FOR IDENTIFICATION 13 AT TRIAL
14 Defendant.
19 INTRODUCTION
20 This matter came before the Honorable Alberto C. Lamorena III on October 16, 2014 21 upon the People of Guam's ("the People") Motion in Limine to Compel Defendant Atalig to
22 Show Tattoos for Identification at Trial. Attorney Leevin T. Camacho represents Defendant and Assistant Attorney General James C. Collins represents the People. For the reasons set forth 23 below, the Court GRANTS the Motion. 24 BACKGROUND 25 On July 29, 2014, a grand jury indicted Defendant on Burglary in violation of 9 G.C.A. 26 §§ 37.20(a) and 37.20(b), and Theft in violation of 9 G.C.A. §§ 43.30(a) and 43.20(a). The 27 Indictment alleges that Defendant committed the above acts in a game room in Harmon on July 28 14, 2014. Officers recovered surveillance video from the premises, which shows a person the Decision and Order CF 0363-14, People v. Atalig
People allege is Defendant enter and leave the scene. The recording also shows that the person 1 in the video has dark coloration on the back of the person's right hand and left arm, which the 2 People allege are tattoos. According to a Department of Corrections commitment sheet, 3 Defendant has both a "spider-web tattoo on the right hand" and "praying hands on the left arm." 4 (People's Mot. to Compel Def., 2:3-5). 5 On September 11, 2014, the People submitted their Motion in Limine to Compel 6 Defendant to Show Tattoos for Identification at Trial. Defendant filed his Opposition to the 7 Motion on September 26. On October 16, the Court heard oral arguments, received video 8 evidence, and took the matter under advisement.
9 On October 20, 2014, the Court issued a brief order granting the People's Motion. It now issues an extended Decision and Order. 10 DISCUSSION 11 Compelling Defendant to show his tattoos at trial violates neither the Fifth Amendment 12 right against self-incrimination nor Guam Rule of Evidence 403. 13 1. Fifth Amendment Right Against Self-Incrimination 14 The first issue is whether the Fifth Amendment right against self-incrimination protects 15 Defendant from showing his tattoos at trial. The Fifth Amendment provides that no person 16 "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. 17 V. This right "protects an accused only from being compelled to testify against himself, or 18 otherwise provide the State with evidence of a testimonial or communicative nature."
19 Pennsylvania v. Muniz, 496 U.S. 582, 589 (1990) (citations omitted). It is well-settled that a defendant's physical characteristics are typically non-testimonial. 20 See Holt v. United States, 218 U.S. 245, 252-53 (1910) (finding the Fifth Amendment does not 21 require "an exclusion of [a defendant's] body as evidence when it may be material"); see also 22 People v. Rasauo 2011 Guam 1 ' 30 ("[P]hysical tests ... are deemed non-testimonial when 23 they consist of observations of the suspect's physical condition and performance and do not 24 result in communication that reveals subjective knowledge by the defendant."); United States v. 25 Bay, 762 F.2d 1314, 1315 (9th Cir. 1984) (noting that a "display of hands is non-testimonial," 26 and that "this has been repeatedly held in cases in which the government seeks to compel a 27 defendant to show various types of physical characteristics to the jury"). 28
Page 2 of 4 Decision and Order CF 0363-14, People v. Atalig
Although the Guam Supreme Court has yet to address the question, courts that have I extend this logic to the government's use of tattoos for identification purposes.' See e.g., State 2 v. Wilson , 329 So. 2d 680, 681 (La. 1976) (finding that the privilege against self-incrimination 3 does not "require an exclusion of the accused's body as evidence," including an accused's 4 tattoos); Walker v. State , 706 So. 2d 1303, 1305 (Ala. Crim. App. 1997) (finding no Fifth 5 Amendment violation where "the sole purpose of showing [the defendant's] tattoo ... was for 6 Bay, 762 F.2d at 1315. 7 The Court is satisfied that tattoos are similar to other physical characteristics, and their 8 use for identification purposes is non-testimonial. The People's Motion thus raises no Fifth
9 Amendment implications.
10 II. Guam Rule of Evidence 403 The next issue is whether compelling Defendant to show his tattoos at trial violates the 11 Guam Rules of Evidence. Rule 401 provides that evidence is relevant if it has "any tendency to 12 make the existence of any fact that is of consequence to the determination of the action more 13 probable or less probable than it would be without the evidence." 6 G.C.A. § 401. Even if 14 relevant, evidence may still be excluded "if its probative value is substantially outweighed by 15 the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by 16 considerations of undue delay, waste of time, or needless presentation of cumulative evidence." 17 6 G.C.A. § 403 (emphasis added). 18 Tattoos can serve as demonstrative evidence to establish identity. See State v. Meade ,
19 474 S.E.2d 481, 487 (W. Va. 1996) ("[I]t is not an abuse of discretion ... to direct the accused to reveal or display [his] tattoos ... where ... relevant to the question of the identification of 20 the perpetrator of the offense and where the trial court has weighed the probative value of such 21 evidence against the danger of unfair prejudice."); see also State v. Gallegos, 853 P.2d 160, 161 22 (N.M. 1993) (citing Day, 762 F.2d at 1315-16). 23 The Court has had an opportunity to review both the surveillance video and Defendant's 24 tattoos. While it agrees with Defendant that the footage is somewhat "pixelated and unclear," 25
26 ' If the People were to compel Defendant to show his tattoos for purposes other than identification, it may in fact run afoul of the right against self-incrimination. See e.g., United States v. Greer, 631 F.3d 608, 613 (2d Cir. 2011) 27 (citations omitted) (finding that because the "government relied on the tattoo not as an `identifying physical 28 characteristic' but for the `content of what [was] written ... [t]he tattoo was therefore testimonial").
Page 3 of 4 Decision and Order CF 0363-14, People v. Atalig
(Def.'s Mot. in Opp'n to People's Mot. to Compel Def., 2:14-15) dark coloration around the I area of the body where Defendant has tattoos is visible. 2 Defendant has moreover failed to satisfactorily establish why revealing his tattoos at 3 trial would be unfairly prejudicial. The "mere fact that a defendant has tattoos is not inherently 4 prejudicial." State v. Smith, 826 P.2d 344, 345-46 (Ariz. Ct. App. 1992). Furthermore, like in 5 Smith , there has been no showing as to any "prejudicial associations" that Defendant's tattoos 6 may connote. See id. 7 In fact, instances where the risk of unfair prejudice attendant to displaying tattoos 8 substantially outweighs probative value are relatively limited.
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FILED 1 ,1- r r )
3 T 4
6 IN THE SUPERIOR COURT OF GUAM 7
8 PEOPLE OF GUAM, Case No. CF 0363-14 9
to VS. 11 DECISION AND ORDER ON PEOPLE'S MOTION IN LIMINE TO 12 JOHNNY B. ATALIG, COMPEL DEFENDANT TO SHOW TATTOOS FOR IDENTIFICATION 13 AT TRIAL
14 Defendant.
19 INTRODUCTION
20 This matter came before the Honorable Alberto C. Lamorena III on October 16, 2014 21 upon the People of Guam's ("the People") Motion in Limine to Compel Defendant Atalig to
22 Show Tattoos for Identification at Trial. Attorney Leevin T. Camacho represents Defendant and Assistant Attorney General James C. Collins represents the People. For the reasons set forth 23 below, the Court GRANTS the Motion. 24 BACKGROUND 25 On July 29, 2014, a grand jury indicted Defendant on Burglary in violation of 9 G.C.A. 26 §§ 37.20(a) and 37.20(b), and Theft in violation of 9 G.C.A. §§ 43.30(a) and 43.20(a). The 27 Indictment alleges that Defendant committed the above acts in a game room in Harmon on July 28 14, 2014. Officers recovered surveillance video from the premises, which shows a person the Decision and Order CF 0363-14, People v. Atalig
People allege is Defendant enter and leave the scene. The recording also shows that the person 1 in the video has dark coloration on the back of the person's right hand and left arm, which the 2 People allege are tattoos. According to a Department of Corrections commitment sheet, 3 Defendant has both a "spider-web tattoo on the right hand" and "praying hands on the left arm." 4 (People's Mot. to Compel Def., 2:3-5). 5 On September 11, 2014, the People submitted their Motion in Limine to Compel 6 Defendant to Show Tattoos for Identification at Trial. Defendant filed his Opposition to the 7 Motion on September 26. On October 16, the Court heard oral arguments, received video 8 evidence, and took the matter under advisement.
9 On October 20, 2014, the Court issued a brief order granting the People's Motion. It now issues an extended Decision and Order. 10 DISCUSSION 11 Compelling Defendant to show his tattoos at trial violates neither the Fifth Amendment 12 right against self-incrimination nor Guam Rule of Evidence 403. 13 1. Fifth Amendment Right Against Self-Incrimination 14 The first issue is whether the Fifth Amendment right against self-incrimination protects 15 Defendant from showing his tattoos at trial. The Fifth Amendment provides that no person 16 "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. 17 V. This right "protects an accused only from being compelled to testify against himself, or 18 otherwise provide the State with evidence of a testimonial or communicative nature."
19 Pennsylvania v. Muniz, 496 U.S. 582, 589 (1990) (citations omitted). It is well-settled that a defendant's physical characteristics are typically non-testimonial. 20 See Holt v. United States, 218 U.S. 245, 252-53 (1910) (finding the Fifth Amendment does not 21 require "an exclusion of [a defendant's] body as evidence when it may be material"); see also 22 People v. Rasauo 2011 Guam 1 ' 30 ("[P]hysical tests ... are deemed non-testimonial when 23 they consist of observations of the suspect's physical condition and performance and do not 24 result in communication that reveals subjective knowledge by the defendant."); United States v. 25 Bay, 762 F.2d 1314, 1315 (9th Cir. 1984) (noting that a "display of hands is non-testimonial," 26 and that "this has been repeatedly held in cases in which the government seeks to compel a 27 defendant to show various types of physical characteristics to the jury"). 28
Page 2 of 4 Decision and Order CF 0363-14, People v. Atalig
Although the Guam Supreme Court has yet to address the question, courts that have I extend this logic to the government's use of tattoos for identification purposes.' See e.g., State 2 v. Wilson , 329 So. 2d 680, 681 (La. 1976) (finding that the privilege against self-incrimination 3 does not "require an exclusion of the accused's body as evidence," including an accused's 4 tattoos); Walker v. State , 706 So. 2d 1303, 1305 (Ala. Crim. App. 1997) (finding no Fifth 5 Amendment violation where "the sole purpose of showing [the defendant's] tattoo ... was for 6 Bay, 762 F.2d at 1315. 7 The Court is satisfied that tattoos are similar to other physical characteristics, and their 8 use for identification purposes is non-testimonial. The People's Motion thus raises no Fifth
9 Amendment implications.
10 II. Guam Rule of Evidence 403 The next issue is whether compelling Defendant to show his tattoos at trial violates the 11 Guam Rules of Evidence. Rule 401 provides that evidence is relevant if it has "any tendency to 12 make the existence of any fact that is of consequence to the determination of the action more 13 probable or less probable than it would be without the evidence." 6 G.C.A. § 401. Even if 14 relevant, evidence may still be excluded "if its probative value is substantially outweighed by 15 the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by 16 considerations of undue delay, waste of time, or needless presentation of cumulative evidence." 17 6 G.C.A. § 403 (emphasis added). 18 Tattoos can serve as demonstrative evidence to establish identity. See State v. Meade ,
19 474 S.E.2d 481, 487 (W. Va. 1996) ("[I]t is not an abuse of discretion ... to direct the accused to reveal or display [his] tattoos ... where ... relevant to the question of the identification of 20 the perpetrator of the offense and where the trial court has weighed the probative value of such 21 evidence against the danger of unfair prejudice."); see also State v. Gallegos, 853 P.2d 160, 161 22 (N.M. 1993) (citing Day, 762 F.2d at 1315-16). 23 The Court has had an opportunity to review both the surveillance video and Defendant's 24 tattoos. While it agrees with Defendant that the footage is somewhat "pixelated and unclear," 25
26 ' If the People were to compel Defendant to show his tattoos for purposes other than identification, it may in fact run afoul of the right against self-incrimination. See e.g., United States v. Greer, 631 F.3d 608, 613 (2d Cir. 2011) 27 (citations omitted) (finding that because the "government relied on the tattoo not as an `identifying physical 28 characteristic' but for the `content of what [was] written ... [t]he tattoo was therefore testimonial").
Page 3 of 4 Decision and Order CF 0363-14, People v. Atalig
(Def.'s Mot. in Opp'n to People's Mot. to Compel Def., 2:14-15) dark coloration around the I area of the body where Defendant has tattoos is visible. 2 Defendant has moreover failed to satisfactorily establish why revealing his tattoos at 3 trial would be unfairly prejudicial. The "mere fact that a defendant has tattoos is not inherently 4 prejudicial." State v. Smith, 826 P.2d 344, 345-46 (Ariz. Ct. App. 1992). Furthermore, like in 5 Smith , there has been no showing as to any "prejudicial associations" that Defendant's tattoos 6 may connote. See id. 7 In fact, instances where the risk of unfair prejudice attendant to displaying tattoos 8 substantially outweighs probative value are relatively limited. They may occur where the tattoos 9 are used to prove gang membership. See e.g., United States v. Thomas, 321 F.3d 627, 631 (7th
10 Cir. 2003) (citations omitted) (finding tattoos inadmissible in such cases because of the danger of the jury attaching a "propensity for committing crimes to defendants who are affiliated with 11 gangs or that a jury's negative feelings towards gangs will influence its verdict"). Another 12 situation where tattoos may be inadmissible is where they depict a weapon similar to that 13 involved in the offense at issue. See e.g., Belmar v. State, 621 S.E.2d 441, 444-45 (Ga. 2005). 14 Here, none of the above risks are present because, crucially, the People only intended to 15 show Defendant's tattoos for identification purposes. The Court notes that at trial Defendant 16 conceded the issue of identity, but this was not known to the Court prior to its ruling. 17 Furthermore, even if the probative value of the tattoos was diminished by this concession, it was 18 not so diminished as to be substantially outweighed by any unfair prejudice. The nexus between 19 Defendant's tattoos and the dark coloration visible in the surveillance footage was thus
20 sufficient to satisfy both the test of relevance and Rule of Evidence 403. The question of how much weight to afford such evidence-especially in light of the video quality-is the unique 21 purview of the jury. 22 CONCLUSION 23 In consideration of the foregoing, the Court hereby GRANTS the Motion such that the 24 People may compel Defendant to show his tattoos at tr, 25 IT IS SO ORDERED this day of Decembe 26 VIA COURT 1-W 27 Ia ;edge that a copy o: the nr. -i hereto was placed it tJ.e HONORABLE ALBEWO C. LAMI RENA III courthoot of: 28 Presiding Judge, Superio' Court of G am
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