IN THE SUPERIOR COURT OF GUAM 2
3 THE PEOPLE OF GUAM, ) CRIMll\JAL CASE No .. CF0207-12 4 ) ) 5 v. ) DECISION AND ORDER ) On Defendant's 6 DANNY THOMAS CRUZ, ) Motion to Dismiss Indictment for 7 ) Failure to Present Exculpatory --Defendant: ) · - -- ~£vidence --- --
INTRODUCTION 11
12 This matter came before the Honorable Judge Michael J. Bordallo on December 27, 201 13 on Defendant's Motion to Dismiss Indictment for Failure to Present Exculpatory Evidence. Th 14 People of Guam were represented by Assistant Attorney General Elizabeth Vasiliades. Th 15 Defendant was represented by Alternate Public Defender John Morrison. Having reviewed th 16
17 memorandum and papers presented, the court now issues the following decision DENYING th
18 Defendant's Motion to Dismiss Indictment. 19 FACTUAL HISTORY 20 The Defendant was indicted on one count of felony First Degree Criminal Sexual Conduct 21 three counts of felony Second Degree Criminal Sexual Conduct, one count of felony Famil 22
23 Violence, and one count each of misdemeanor Child Abuse and Assault for allegedly physicall
24 and sexually abusing two of his step daughters. The Defendant was indicted on April 6, 2012, 25 and filed a first Motion to Dismiss Indictment on October 19, 2012. On November 16, 2012, th 26 People obtained a Superseding Indictment on the same criminal charges and on December 28. 27
Page 1 of? 2012 the Defendant filed a Renewed Notice of Motion to Dismiss Indictment for Failure t 2 Present Exculpatory Evidence. 3 In both his first and second Motion to Dismiss Indictment the Defendant argues that th 4 People failed to present exculpatory evidence during the Grand Jury proceedings. The Defendan 5
6 specifically argues that the People failed to present evidence of: (1) alleged victim Z.A.G'
7 audible responses to a Child Protective Services interviewer regarding the alleged sexual abus 8 and, (2) the results of the medical examination performed on Z.A.G. at the Healing Hearts Crisi 9 Center. The People timely filed an opposition countering that the Defense asks the Court to appl 10
II a standard of proof greater than the reasonable cause standard applicable to Grand J
12 proceedings. For the following reasons, the Court agrees with the People. 13 DISCUSSION 14 Dismissal of a grand jury indictment based upon the failure to provide exculpatory evidenc 15 is rare. The U.S. Supreme Court has made clear that, as a general rule, a grand jury indictmen 16
17 will not be invalidated based upon a prosecutor's failure to present certain evidence. US v.
18 Williams, 504 U.S. 36, 54 (1992) (explaining that imposing a legal obligation to presen 19 exculpatory evidence in the prosecutor's possession would be incompatible with the grand jur 20 system). Some states have distinguished this precedent by finding a requirement to provid 21
exculpatory evidence based upon statute. California law, which served as the basis for Guam' 22
23 grand jury statute, authorizes the grand jury "to weigh all the evidence submitted to them, an
24 when they have reason to believe that other evidence within their reach will explain away th 25 charge, they should order such evidence to be produced." Johnson v. Superior Court, 539 P.2 26 792, 796 (1975). 27
Page 2 of7 Guam statutory law similarly places a duty upon the prosecutor to disclose exculpator 2 evidence. 8 G.C.A. §50.46. The law specifically requires that "the prosecuting attorney shal 3 submit any evidence in his possession which would tend to negate guilt." Guam law provides th 4 example that exculpatory evidence is "Evidence known to the prosecutor that would indicat 5
6 [the] defendant was elsewhere at the time the crime was alleged to have been committed."
7 G.C.A. §50.46 (citing People v. Sablan, D.C. Cr. 85-0024A (1986)). Thus, a defendant's alibi i 8 one example of evidence "which must be presented to the Grand Jury." !d. Not all evidence, 9 however, is exculpatory. Both California law and Guam law make clear that exculpato 10
11 evidence is only evidence which "will explain away the charge" and "tend to negate the guilt" o
12 the defendant. 13 The evidence allegedly omitted by the People in the Grand Jury proceedings against th 14 Defendant is not exculpatory. The Defendant argues that the People failed to introduc 15 exculpatory evidence of: (1) alleged victim Z.A.G's audible responses in a Child Protectiv 16
17 Services forensic interview regarding the alleged sexual abuse and, (2) the results of the forensi
18 medical examination performed on Z.A.G. at the Healing Hearts Crisis Center. Had the tw 19 pieces of evidence been presented, the Defendant fmiher argues, "the Grand Jury may well hav 20 not indicted." However, exculpatory evidence is "evidence favorable to the defendant which i 21
material to guilt or punishment." People v. Orallo, 2004 Guam 5 ~12. For the following reasons 22
23 the evidence sited by the Defendant does not satisfy the definition of"exculpatory."
24 I. The Audible Responses From the First Interview are not Exculpatory 25 The Defendant argues that the failure of the People to introduce evidence of allege 26 victim Z.A.G. 's audible responses during her first forensic interview constitutes exculpato 27
28 evidence. Since the criminal case commenced, Z.A.G. has undergone two forensic interview
Page 3 of? with Child Protective Services ('CPS'), in addition to a series of counseling sessions with 2 licensed therapist from the court's Client Services and Family Counseling ('Client Services' 3 division. At her first forensic interview with CPS, conducted in October of 2011, Z.A.G denie 4 that her step-father had sexually assaulted her and solely disclosed that he had physicall 5
6 punished her by spanking her with a belt. Six year old Z.A.G. was then referred to Clien
7 Services where, after a number of sessions, she disclosed to her therapist that her step-father ha 8 sexually assaulted her. This disclosure led to a second forensic interview with CPS, conducted i 9 March 2012, where Z.A.G. again disclosed sexual abuse. 10
II The Defendant argues that the People failed to accurately describe the interactio
12 between Z.A.G and the CPS interviewer during the first forensic interview in October, 201 L 13 CPS investigator Maeleen Sanchez testified at both the Grand Jury proceedings for the origina 14 indictment as well as the superseding indictment that during the first interview Z.A.G denie 15 being sexually assaulted. In both proceedings, Ms. Sanchez stated that during the first interview 16
17 Z.A.G. "did not disclose any sexual abuse" and that Z.A.G. was non-responsive in that the mino
18 child only "nodded her head" to communicate 'No,' instead of verbally saying 'No.' Ms 19 Sanchez did not testify as to any of Z.A.G.'s responses that did not directly pertain to th 20 allegation of sexual abuse. 21 The Defendant incorrectly argues that the failure of the People to present evidence o 22
23 Z.A.G. 's audible responses during the first forensic interview constitutes exculpatory evidence.
24 The Defendant argues that omission of all of the audible responses to all of the questions aske 25 during the entire interview "is not accurate" and that it fails "to give the Grand Jury a true sens 26 of the interview between Ms. Sanchez and Z.A.G." The Defendant insists that the Grand Ju 27
28 "had a right to know" all of the questions asked during the interview because Z.A.G. "gav
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IN THE SUPERIOR COURT OF GUAM 2
3 THE PEOPLE OF GUAM, ) CRIMll\JAL CASE No .. CF0207-12 4 ) ) 5 v. ) DECISION AND ORDER ) On Defendant's 6 DANNY THOMAS CRUZ, ) Motion to Dismiss Indictment for 7 ) Failure to Present Exculpatory --Defendant: ) · - -- ~£vidence --- --
INTRODUCTION 11
12 This matter came before the Honorable Judge Michael J. Bordallo on December 27, 201 13 on Defendant's Motion to Dismiss Indictment for Failure to Present Exculpatory Evidence. Th 14 People of Guam were represented by Assistant Attorney General Elizabeth Vasiliades. Th 15 Defendant was represented by Alternate Public Defender John Morrison. Having reviewed th 16
17 memorandum and papers presented, the court now issues the following decision DENYING th
18 Defendant's Motion to Dismiss Indictment. 19 FACTUAL HISTORY 20 The Defendant was indicted on one count of felony First Degree Criminal Sexual Conduct 21 three counts of felony Second Degree Criminal Sexual Conduct, one count of felony Famil 22
23 Violence, and one count each of misdemeanor Child Abuse and Assault for allegedly physicall
24 and sexually abusing two of his step daughters. The Defendant was indicted on April 6, 2012, 25 and filed a first Motion to Dismiss Indictment on October 19, 2012. On November 16, 2012, th 26 People obtained a Superseding Indictment on the same criminal charges and on December 28. 27
Page 1 of? 2012 the Defendant filed a Renewed Notice of Motion to Dismiss Indictment for Failure t 2 Present Exculpatory Evidence. 3 In both his first and second Motion to Dismiss Indictment the Defendant argues that th 4 People failed to present exculpatory evidence during the Grand Jury proceedings. The Defendan 5
6 specifically argues that the People failed to present evidence of: (1) alleged victim Z.A.G'
7 audible responses to a Child Protective Services interviewer regarding the alleged sexual abus 8 and, (2) the results of the medical examination performed on Z.A.G. at the Healing Hearts Crisi 9 Center. The People timely filed an opposition countering that the Defense asks the Court to appl 10
II a standard of proof greater than the reasonable cause standard applicable to Grand J
12 proceedings. For the following reasons, the Court agrees with the People. 13 DISCUSSION 14 Dismissal of a grand jury indictment based upon the failure to provide exculpatory evidenc 15 is rare. The U.S. Supreme Court has made clear that, as a general rule, a grand jury indictmen 16
17 will not be invalidated based upon a prosecutor's failure to present certain evidence. US v.
18 Williams, 504 U.S. 36, 54 (1992) (explaining that imposing a legal obligation to presen 19 exculpatory evidence in the prosecutor's possession would be incompatible with the grand jur 20 system). Some states have distinguished this precedent by finding a requirement to provid 21
exculpatory evidence based upon statute. California law, which served as the basis for Guam' 22
23 grand jury statute, authorizes the grand jury "to weigh all the evidence submitted to them, an
24 when they have reason to believe that other evidence within their reach will explain away th 25 charge, they should order such evidence to be produced." Johnson v. Superior Court, 539 P.2 26 792, 796 (1975). 27
Page 2 of7 Guam statutory law similarly places a duty upon the prosecutor to disclose exculpator 2 evidence. 8 G.C.A. §50.46. The law specifically requires that "the prosecuting attorney shal 3 submit any evidence in his possession which would tend to negate guilt." Guam law provides th 4 example that exculpatory evidence is "Evidence known to the prosecutor that would indicat 5
6 [the] defendant was elsewhere at the time the crime was alleged to have been committed."
7 G.C.A. §50.46 (citing People v. Sablan, D.C. Cr. 85-0024A (1986)). Thus, a defendant's alibi i 8 one example of evidence "which must be presented to the Grand Jury." !d. Not all evidence, 9 however, is exculpatory. Both California law and Guam law make clear that exculpato 10
11 evidence is only evidence which "will explain away the charge" and "tend to negate the guilt" o
12 the defendant. 13 The evidence allegedly omitted by the People in the Grand Jury proceedings against th 14 Defendant is not exculpatory. The Defendant argues that the People failed to introduc 15 exculpatory evidence of: (1) alleged victim Z.A.G's audible responses in a Child Protectiv 16
17 Services forensic interview regarding the alleged sexual abuse and, (2) the results of the forensi
18 medical examination performed on Z.A.G. at the Healing Hearts Crisis Center. Had the tw 19 pieces of evidence been presented, the Defendant fmiher argues, "the Grand Jury may well hav 20 not indicted." However, exculpatory evidence is "evidence favorable to the defendant which i 21
material to guilt or punishment." People v. Orallo, 2004 Guam 5 ~12. For the following reasons 22
23 the evidence sited by the Defendant does not satisfy the definition of"exculpatory."
24 I. The Audible Responses From the First Interview are not Exculpatory 25 The Defendant argues that the failure of the People to introduce evidence of allege 26 victim Z.A.G. 's audible responses during her first forensic interview constitutes exculpato 27
28 evidence. Since the criminal case commenced, Z.A.G. has undergone two forensic interview
Page 3 of? with Child Protective Services ('CPS'), in addition to a series of counseling sessions with 2 licensed therapist from the court's Client Services and Family Counseling ('Client Services' 3 division. At her first forensic interview with CPS, conducted in October of 2011, Z.A.G denie 4 that her step-father had sexually assaulted her and solely disclosed that he had physicall 5
6 punished her by spanking her with a belt. Six year old Z.A.G. was then referred to Clien
7 Services where, after a number of sessions, she disclosed to her therapist that her step-father ha 8 sexually assaulted her. This disclosure led to a second forensic interview with CPS, conducted i 9 March 2012, where Z.A.G. again disclosed sexual abuse. 10
II The Defendant argues that the People failed to accurately describe the interactio
12 between Z.A.G and the CPS interviewer during the first forensic interview in October, 201 L 13 CPS investigator Maeleen Sanchez testified at both the Grand Jury proceedings for the origina 14 indictment as well as the superseding indictment that during the first interview Z.A.G denie 15 being sexually assaulted. In both proceedings, Ms. Sanchez stated that during the first interview 16
17 Z.A.G. "did not disclose any sexual abuse" and that Z.A.G. was non-responsive in that the mino
18 child only "nodded her head" to communicate 'No,' instead of verbally saying 'No.' Ms 19 Sanchez did not testify as to any of Z.A.G.'s responses that did not directly pertain to th 20 allegation of sexual abuse. 21 The Defendant incorrectly argues that the failure of the People to present evidence o 22
23 Z.A.G. 's audible responses during the first forensic interview constitutes exculpatory evidence.
24 The Defendant argues that omission of all of the audible responses to all of the questions aske 25 during the entire interview "is not accurate" and that it fails "to give the Grand Jury a true sens 26 of the interview between Ms. Sanchez and Z.A.G." The Defendant insists that the Grand Ju 27
28 "had a right to know" all of the questions asked during the interview because Z.A.G. "gav
Page4of7 audible answers to questions and at other times shook her head to indicate a yes or no answer.' 2 The Defendant specifically insists that the Grand Jury should have been informed of Z.A.G.' 3 audible statements that she: (1) "understood the difference between the truth and a lie," (2) "wa 4 not allowed in the room where the abuse is alleged to have occurred," and, (3) "denied eve 5
6 being alone in the room with Mr. Cruz."
7 The People explicitly introduced evidence of Z.A.G.'s initial denial of abuse during th 8 Grand Jury proceedings for both the original indictment and the superseding indictment. Th 9 People have made no attempts to hide Z.A.G.'s initial denial of sexual abuse during the firs 10
11 forensic interview and, instead, repeatedly asked Ms. Sanchez about the denial during th
12 proceedings for the superseding indictment. Ms. Sanchez also accurately testified that Z.A.G. 13 did not offer audible responses when asked about the alleged sexual abuse. The video tape ofth 14 first interview shows Z.A.G. denying the sexual abuse by shaking her head 'No' when asked i 15 she had been sexually assaulted. That Z.A.G. made audible responses to other questions durin 16
17 the course of the interview does not change the fact that Ms. Sanchez, a trained professional,
18 found the child to be non-responsive to questions specific to the allegation of sexual abuse by he 19 step father. 20 Ms. Sanchez summarized the results of the first and second forensic interviews, as well a 21
the counseling sessions with Client Services, as the results pertain to the question of whether o 22
23 not Z.A.G. disclosed sexual abuse. Not all of Z.A.G.'s audible responses during the secon
24 forensic interview where she stated that she had been sexually assaulted were addressed b 25 the People during the Grand Jury proceedings. Similarly, not all of Z.A.G.'s audible response 26 during the multiple sessions with Client Services were discussed as the discussion was limited t 27
28 statements pertaining to the alleged sexual assault. That Z.A.G. said she understood th
Page 5 of7 difference between a truth and a lie, that she said she was not allowed in her mother's bedroom, 2 and that she initially denied being alone in the bedroom with Mr. Cruz is all evidence that rna 3 be introduced at trial to impeach the witness. The evidence of Z.A.G. 's audible statements d 4 not, however, provide the Defendant with an alibi, nor do they explain away the criminal charge 5
6 he is currently facing.
7 II. The Results of the Forensic Examination were Presented 8 The Defendant also argues that the indictment must be dismissed because the Peopl 9 failed to present the results of Z.A. G.'s forensic examination. The Defendant's argument is base 10
11 on the premise that when Ms. Sanchez testified at the proceedings for the superseding indictmen
12 she stated "that she could not remember the results [of the exam], but that there had been
13 exam." Ms. Sanchez's testimony was given in direct response to a juror who specifically aske 14 about the results of Z.A.G.'s forensic examination. The Defendant insists that "in the context o 15 the Grand Jury presentation, when a Juror is asking for evidence that could determine th 16
17 outcome of the indictment, the government is obligated to produce it." The Defendant continue
18 on to argue that "Had this evidence been presented, that there were no findings, the Grand Juf) 19 may well have not indicted." 20 The Defendant's argument contains two fallacies. First, it is incorrect to state that 'n 21 findings' were produced from the forensic examination of 6 year old Z.A.G. The medical repo 22
23 clearly indicates that the results of the examination were inconclusive and that sexual abus
24 could be neither proven nor disproven. The report clarifies that Z.A.G.'s inconclusive result 25 were typical of any case involving a more than five month lapse between when the sexual abus 26 allegedly occurred and when the exam was performed. 27
Page 6 of7 More critically, the Grand Jury was informed of the results of forensic examination. I 2 does not matter that Ms. Sanchez was unable to remember the results of the forensic examinatio 3 because the results had already been presented to the Grand Jury. The inconclusive results ofth 4 forensic examination were discussed during the Grand Jury proceedings for the origina 5
6 indictment. During the proceedings for the superseding indictment, the taped proceedings fro
7 the original indictment were played back in their entirety. By listening to the playback of th 8 proceedings for the original indictment, the jury members had the opportunity to hear Ms. 9 Sanchez testifY at 11 :36am on April 6, 2012 that the results of the forensic examination wer 10
II inconclusive due to the five to six month lapse oftime between the alleged sexual abuse and th
12 examination. Accordingly, while it is unfortunate that Ms. Sanchez did not remember 13 previous testimony, it cannot be said that the evidence was kept from the Grand Jury. 14
15 CONCLUSION 16
17 Based on the foregoing, the Court finds that the Defendant has failed to demonstrate tha
18 the People excluded exculpatory evidence during the Grand Jury proceedings. Accordingly, th 19 Court DENIES the Defendant's Motion to Dismiss Indictment. Further Proceedings are set fo
_'f--'--+t-l--~-Z--20 13 at 9am. 20
24 SO ORDERED, this /2...--day of April2013.
Page 7 of7