People v. Cruz

Opinion

IN THE SUPERIOR COURT

OF GUAM

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3 THE PEOPLE OF GUAM, ) Criminal Case No.: CF02(}?~12~ 4 )

)

5 v. )

DECISION AND ORDER

) Re: Motion to Dismiss or 6 DANNY THOMAS CRUZ, ) Bill of Particulars 7 )

)

8 Defendant. ) 9

10 INTRODUCTION

11 This matter came before the Honorable Judge Michael J. Bordallo on May 31, 2012.

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13 The People were represented by Assistant Attorney General Elizabeth Vasiliades. The

14 Defendant was represented by Alternate Public Defender John Patrick Morrison. After 15 considering the matter presented, the Court issues the following decision and order denying the 16 Defendant's motion to dismiss.

17 BACKGROUND

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19 On April 6, 2012, the Defendant was indicted for First Degree Criminal Sexual Conduct

20 (three counts), Second Degree Criminal Sexual Conduct, Family Violence, Child Abuse, and 21 Assault. The Defendant argues that the Indictment fails to properly advise him of the charges 22 against him as contained in Counts two and three of the First Charge and the Second Charge.

23 On May 29, 2012, the Defendant filed a Motion to Dismiss, or in the alternative, a Motion for 24

25 Bill of particulars. Defendant challenges the eight month time period indicated in the

26 indictment for Counts two and three of the First Charge and the Second Charge. 27 In the alternative, the Defendant requests that the People be required to provide a Bill of 28 Particulars and to specify with particularity the facts in the indictment that are necessary to allow him to prepare his defense. The People filed their memorandum in opposition to 2 Defendant's Motion on May 25, 2012. The People argue that the indictment was sufficient, 3 gave adequate notice, and it is unnecessary to provide a date certain to support a sufficient 4 indictment in cases of criminal sexual conduct involving a minor victim.

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6 DISCUSSION

7 The Defendant challenges the eight month time period indicated in the indictment and 8 the alleged victim's ability to narrow down the date of the occurrence to a specific date. The 9 Defendant focuses on whether the victim's ability to state a specific date of the alleged crimes 10

II is legally sufficient to meet the requirement of a valid indictment, and if the length of time

12 indicated in the indictment is sufficient to allow the Defendant to prepare an adequate defense. 13 Thus, the Defendant argues that the indictment should be dismissed, or in the alternative, the 14 People should be required to provide a Bill of Particulars.

15 In opposition, the People argue that in sexual abuse cases involving minor victims, the 16

17 prosecution must be given some flexibility to allow an indictment to state with a broad time

18 frame the date which the alleged assault occurred based on the child victim's age and inability 19 to recall dates. The People assert that under Guam law, time is not an element of criminal 20 sexual conduct. The People argue it "[n]eed prove only that the crime occurred on a date 21 reasonable near the one alleged in the indictment, not on the exact date." United States v.

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23 Hinton, 222 F.3d 664,672 (9th Cir. 2000).

24 Further, the Guam Supreme Court has found that "not alleging a specific time in which 25 the crime or crimes occurred does not invalidate an indictment." People v. Salas, 2000 Guam 26 2, ~16. More specifically, in People v. Atoigue, an opinion from the Ninth Circuit interpreting 27

28 Guam law, the Court found the alleged dates in the indictment, spanning an eight month time frame to be stated with "sufficient specificity because it placed the alleged illegal activity 2 within an identifiable time frame." People v. Atoigue, 36 F.3d 1103 (9th Cir.1994).

3 Additionally, the fact that the victim in Atoigue could not "recall the specific dates within the 4 time periods ... does not require reversal. ... " ld.

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6 The Guam Supreme Court addressed this issue in the case People v. Campbell, and also

7 articulated the "reasonably near" standard explained in Atoigue, saying "while time is not an 8 element of criminal sexual conduct, a conviction may be attacked if the evidence at trial 9 demonstrates that the date proved was not 'reasonably near' the date alleged in the indictment."

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11 People v. Campbell, 2006 Guam 14 ~ 17. The period of the alleged assault in Campbell

12 spanned eight weeks - June 1 to July 31, 2001. ld. The Guam Supreme Court determined that 13 the time period alleged in the indictment against the defendant Campbell was specific enough 14 to survive a challenge based upon an argument of the defendant's deprivation of Due Process 15 rights.ld.

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17 The court in Atoigue explicitly stated "where the statute does not make time a material

18 element of the offense charged . . . the variance between proof at trial and the indictment is 19 irrelevant as long as the defendant was afforded adequate notice of the charge against him.

20 Atoigue at *6. The Supreme Court of Guam, in Campbell, reiterated that in "Guam's Criminal 21 Sexual Conduct Statute, time is not an element of criminal sexual conduct." People v.

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23 Campbell, 2006 Guam at ~ 17 (citing 9 GCA § 25.15 (a)). In the present case, the time period

24 alleged in the indictment is eight months. 25 In People v. Camacho, the District Court of Guam Appellate division determined that 26 testimony from a 17 year old regarding alleged sexual assaults against her that occurred several 27

28 years before did not violate Due Process. People v. Camacho, Criminal. No. 93 00073A; 1994

WL 728129 (D. Guam App_ Div. 1994). The court determined that despite the time period, the 2 indictment was sufficient Id. at 3. As in the Campbell and Camacho cases, the Court finds the 3 time period in the indictment and the age of the victim in the present case are reasonable and 4 sufficient to provide notice to the defendant and to allow the defense to prepare adequately.

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6 In the alternative, the Defendant argues for Bill of Particulars. The statute governing a

7 Bill of Particulars is 8 GCA § 55.30 which reads: 8 Whether or not an indictment or information complies with Sec. 55.10 if it fails to 9 specify the particulars of the offense sufficiently to enable the defendant to prepare his defense, the court may, on motion of the defendant, require the 10 prosecuting attorney to furnish the defendant with a clarification of the pleading 11 containing such particulars as may be necessary for the preparation of the defense.

12 8 GCA § 55.30.The purpose ofa Bill of Particulars is the same as the purpose of an indictment: 13 1) to reduce surprise; 2) to enable adequate preparation; and 3) to protect the defendant against 14 double jeopardy. United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983). Generally, a 15 defendant is not entitled to a Bill of Particulars setting forth the exact date of the commission of 16

17 the offense. Us. v. Noetzel, 124 F.R.D. 518, 519 (D.C. Mass 1989).

18 For cases involving the alleged abuse of minors, a greater degree of flexibility is 19 required because minors are often unable to recall the exact date that a crime occurred. See 20 Commonwealth v. Grof, 548 A.2d 1237 (Pa. Super. 1988); Edward Cheeseman Roberts v.

21 United States, 743 A.2d 212 (D.C. App. 1999); State ofNew Hampshire v. Lakin, 517 A.2d 846 22

23 (N.H.l986); People v. Guerrero, 356 Ill.App.3d 22, (Ill.App. 2005); and People v. Jones, 792

24 P.2d 643, 653 (Cal.Sup.Ct.I990). 25 In Jones, a child molestation case, the Supreme Court of California was "presented with 26 difficult questions regarding the extent to which the defendant's due process rights are 27

28 implicated by the inability of his young accuser to give specific details regarding the time, place and circumstances of various alleged assaults." !d. at 644. The California Supreme 2 Court held that H[a] defendant has no right to notice of an exact date concerning an alleged 3 crime so long as it was within an applicable limitation period." !d. at 656. "So long as the 4 evidence presented at the preliminary hearing supports the number of offenses charged against 5

6 the defendant and covers the time frame [s] charged in the information, a defendant has all the

7 notice the Constitution requires." ld. at 653. 8 A Bill of Particulars is intended to gIve the defendant the minimum amount of 9 information necessary to allow him to conduct a defense. United States v. Mariani, 90 F. 2d 10

11 574, 590 91 (M.D. Pa. 2000). "So long as the evidence presented at the preliminary hearing

12 supports the number of offenses charged against the defendant and covers the time frame [s] 13 charged in the information, a defendant has all the notice the Constitution requires." Jones, 51 14 Ca1.3d at 653. A defendant's right to notice of the charges and right to defend under the Due 15 Process Clause of the Constitution are not affected by a lack of specificity as to the time of the 16

17 incident because "the prosecution clearly has no duty to provide more explicit notice than

18 human nature and science permit," and "the defendant has the option of taking the witness 19 stand and directly denying any wrongdoing. If credible, his testimony should prevail over the 20 unspecific assertions of his young accuser." ld. at 656 657. Additionally, the child's failure to 21 determine an exact date might provide the defendant with additional defenses: "in some cases, 22

23 the very nonspecificity of the child's testimony, especially if uncorroborated, may offer defense

24 counsel fertile field for challenging the child's credibility." ld. at 657. 25 In addition, the Ninth Circuit Court of Appeals has found that the need for a bill of 26 particulars is eliminated by the court ordering full discovery. United States v. Clay, 476 F.2d 27

28 1211, 1215 (9th Cir. 1973). In the Clay case, where the government turned over voluminous

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discovery, the court held that the defendant was not entitled to a bill of particulars. ld. at 36.

2 Guam has codified this maxim, stating that Grand Jury transcripts may be used to clarify 3 certain aspects of the charges against the defendant if such clarification is needed. See Note to 4 8 GCA §55.30 (The transcript of the grand jury proceedings or of the preliminary examination 5

6 nonnally provides the defendant with all the information he needs in felony cases).

7 The Court finds that a Bill of Particulars is unwarranted, and the Indictment, Grand Jury 8 transcripts, and discovery provide sufficient notice and infonnation for the Defendant to 9 prepare his defense. Although the indictment fails to provide an exact time and date for the \0

II charges, time is not an essential element of the crime charged in this particular case. The Court

12 concludes that the facts contained in the Grand Jury Transcripts and discovery adequately

13 advise the Defendant and the charges in the indictment clearly and succinctly place the date of 14 the crime within a sufficient time period.

15 CONCLUSION

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17 Based on the foregoing, Court DENIES the Defendant's Motion to Dismiss and request

18 for a Bill of Particulars. A Trial Setting shall be held on ~ I~ ~ Iz... e?> q~ ~ 19 SO ORDERED, this 9th day of August 2012.

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23 BLE MICHAEL J. BORDALLO

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