People v. Atalig

Opinion

FILED

SUPERIOR COURT

OF GUAM

1 ZUIQ mov 25 PM 12: I"

2 CLERK OF COURT

3 BY:

4 IN THE SUPERIOR COURT OF GUAM 5 PEOPLE OF GUAM, ) CRHVIINAL CASE NO: CF0553-19 6 )

vs. )

7 )

)

) DECISION AND ORDER RE:

8 JOHNNY BORJA ATALIG, ) DEFENDANT ATALIG'S MOTION TO DOB: 05/30/1975, ) SEVER 9 )

)

10 DEFENDANT. >

3

11 JOHNNIE GENE DEL ROSARIO, )

DOB: 07/13/1975, )

12 )

)

13 DEFENDANT. )

)

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15 Introduction 16 This matter c a m e before the Honorable Maria T. Cenzon upon Defendant Johnny Borja 17 Atalig's ("Defendant Atalig") Motion to Sever, filed November 5, 2019. The People of Guam 18 ("People") are represented by Chief Prosecutor J. Basil O'Mallan IH. Defendant Atalig is 19 represented by Attorney William C. Bischoff of the Public Defender's Office. Defendant Johnnie 20 Gene Del Rosario ("Defendant Del Rosario") is the Co-Defendant in this matter and is 21 represented by Attorney Samuel Taker. Neither the People nor Defendant Del Rosario filed a 22 response to the Motion to Sever. After reviewing the Motion, the pleadings on the record, and 23 the relevant law, the Court now issues this DECISION and ORDER GRANTING Defendant 24 Atalig's Motion to Sever. 25 \\ 26 \\

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People v. Atalig; CF0553-_9 D&O re: Defendant Alalig's Motion to Sever . Page I of/4 1 Background 2 On October 18, 2019, Defendant Atalig was jointly charged with Defendant Gene Del 3 Rosario in this matter. Indictment (Oct. 18, 2019). Both Defendants were charged with one count 4 o f FELONY ESCAPE (As a Third Degree Felony). Id. The Indictment alleges that the two 5 Defendants escaped from a detention facility on October 9, 2019. Id. at 1-2. 6 On November 5, 2019, Defendant Atalig filed the above Motion to Sever. Motion to 7 Sever (John Atalig) (Nov. 5, 2019). In his Motion, Defendant Atalig asserted that Defendant Del 8 Rosario made written statements to the authorities upon his arrest which implicate Defendant 9 Atalig. Id. at 1. Defendant Atalig argued that those statements would likely be used against him 10 in trial. Id. Further, if Defendant Del Rosario did not testify at trial, Defendant Atalig would not 11 have the opportunity to cross examine Defendant Del Rosario regarding the statements. Id. 12 Therefore, Defendant Atalig's Sixth Amendment rights could be violated, and the trials must be 13 severed so as to avoid that future infringement of Defendant Atalig's rights. Id. 14 On November 18, 2019, the People filed a Non-Opposition to the Motion. People's Non- 15 Opposition to Motion to Sever (Nov. 18, 2019). The Court determined that oral argument was 16 unnecessary and took the matter under advisement pursuant to Administrative Rule CVR 17 7. 1(€)(6)(E) on November 22, 2019. 18 Discussion 19 "Generally, defendants who are charged together should be jointly tried." United States v. 20 Buena Lopez, 989 F.2d 657, 660 (9th Cir. 1993) (citing United States v. Tootiek, 952 F.2d 1078, 21 1080 (9th Cir, 1991)). "Joint trials prom ote efficiency and 'serve the interests of justice by 22 avoiding the scandal and inequity of inconsistent verdicts."' Id. at 660 (quoting Zafro v. United 23 States, 506 U.S. 534, 537 (l993)). However, where it appears that a defendant may be prejudiced 24 by a joint trial with other defendants, the Court may grant the defendant a separate trial. See 8 25 G.C.A. § 65.35. 26 The Court has considerable discretion when ruling on whether to grant a Motion to Sever. 27 See Parker v. United Stales, 404 F.2d 1193, 1194 (9th Cir. 1986). The defendant, however, bears 28

People v. Amlig; CF0553-I9 D&O re: Defendant Ataugis Motion lo Sever Page 2 of 4 1 the burden to prove "clear, manifest, or undue prejudice from a joint triad." United States v. 2 Polizzi, 801 F.2d 1543, 1554 (9th Cir. 1986) (citing United States v. Sears, 663 F.2d 896, 901 3 (9th Cir. 1981)) (internal quotations omitted). The test is whether jointer was so prejudicial that 4 the trial judge was compelled to exercise his discretion to sever." Uri fed States v. Lewis, 787 5 F.2d 1318, 1321 (9th Cir. 1986). 6 Specifically here, Defendant Atalig argues that his Sixth Amendment rights under the 7 Confrontation Clause of the Constitution will be violated if the Motion is denied. Defendant 8 Atalig claims that he is implicated in written statements about the alleged incident made by 9 Defendant Del Rosario. Defendant Atalig asserts that if Defendant Del Rosario does not testify, 10 Defendant Atalig will not have the opportunity to question Defendant Del Rosario on his 11 implicating statements. Therefore, it is necessary for their trials to be separate, so as to avoid 12 Confrontation Clause issues. 13 The Confrontation Clause of the Sixth Amendment guarantees criminal defendants the 14 right "to be confronted with the witnesses against him." U.S. CONST. amend. XI. "Where 15 testimonial evidence is at issue, the Sixth Amendment demands what the common law 16 required: unavailability and a prior opportunity for cross examination." Crawford v. 17 Washington,541 U.S. 36, 53-54 (2004). "Therefore, where two defendants are tried jointly, the 18 pretrial confession of one cannot be admitted against the other unless the confessing defendant 19 takes the stand." Richardson v. Marsh, 481 U.S. 200, 206 (1987). Severance of defendants is 20 thus required in cases where the confession of a non-testifying co-defendant implicates the other 21 defendant, as the defendant's constitutional right to confront witnesses against him would be 22 infringed. Briton v. United States, 391 U.S. 123, 133-36 (1968). This is regardless of whether 23 the jury is instructed to consider that confession only against the codefendant. Id. 24 Given the Confrontation Clause issues, the Court finds that having two separate trials is 25 required under the circumstances. Therefore, the CourtGRANTS the Motion to Sever. 26 \\

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People v. Amlig, CF0553-I9 D&O re: Defendant Atalig's Motion to Sever , Page 3 o f f 1 Conclusion 2 Based on the foregoing reasons, the Court hereby GRANTS Defendant Atalig's Motion. 3 The case against Defendant Atalig will be now be denoted as CF0553-19-01. The case against 4 Defendant Del Rosario will remain as CF0553-19. The parties are instructed to file all future 5 pleadings as directed herein. 6

7 SO ORDERED this Nov 25 2018 8

9 )

10 BLE MARIA T. CENZON

11 JUDGE, SUPERIOR COURT OF GUAM

12 13 14 15 16 17 18 19 20 21

22 'SERVICE L..-i uuuRT ERA

23 acknowledge thia copy of the original hero Was placed in the 24 wgpgf 930 25 '" »») § my NUEVB9 H 7N1qTime: l'?~~ 26 nepufyccerasupaté,/Murld Guam 27

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People v. Atalig; CF0553-I9 D&O re: Defendant Alalig's Motion lo Sever Page 4 off