People v. Dungca

Opinion

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SUPERIOR COURT

!U21!~AR—t4 PHJ2:€I~ CLERK OF COURT

By

IN THE SUPERIOR COURT OF GUAM

PEOPLE OF GUAM, Criminal Case No. CF0387-20 GPD Report No. 20-17543 Plaintiff,

vs. DECISION AND ORDER (Defendant’s Second Motion in Limine) DUANE ARTHUR DUNGCA, DOB: 09/01/1980

Defendant.

This matter came before the Honorable Dana A. Gutierrez on February 18, 2021 for a

hearing on the Defendant’s Second Motion in Limine filed on February 8, 2021. Present via Zoom

was Attorney Stephen Hattori of the Public Defender Service Corporation representing Defendant

Duane Arthur Dungca (“Defendant”). Present in person was Assistant Attorney General Sean E.

Brown representing the People of Guam (the “People”). Upon hearing from both parties, the Court

took this matter under advisement and now issues this Decision and Order.

BACKGROUND

Defendant filed a Second Motion in Limine (“Motion”) on February 8, 2021 seeking to

exclude at trial: 1) all expert testimony, and 2) recordings of Defendant’s telephone calls made from

the Department of Corrections (“DOC”). The People filed a Response to the Motion on February

12, 2021 (“Response) opposing the Motion. With the Court’s permission, the People filed an

Amended Response to the Motion (“Amended Response”) on February 15, 2021 in order to DECISION AND ORDER (Defendant’s Second Motion in Limine) People v. Duane Arthur Dungea; CF0387-20

supplement the People’s opposition.

DISCUSSION

Generally, evidentiary motions, such as motions in limine, are directed to the trial court’s

discretion. People v. Harvey, 211 Ill. 2d 368 (2004). Authority to grant or deny a motion in limine

rests in the inherent power of the court to admit or exclude evidence and to take such precautions as

are necessary to afford a fair trial for all parties. State v. Zakovi, 110 P. 3d 469, 472 (Mont. 2005).

A motion in limine should be granted only when the trial court finds two factors are present: 1) the

material or evidence in question will be inadmissible at a trial under the rules of evidence; and 2)

the mere offer of evidence or statements made during the trial concerning the material will tend to

prejudice the jury. Hersickv. State, 904 So.2d 116, 127 (Miss. 2004).

I. Expert Testimony.

In the Motion, Defendant argues that all expert testimony should be excluded at trial

because: 1) the People’s failure to notify Defendant of the expert witness(es) before December 17,

2020 constitutes a discovery violation; 2) the expert’s testimony will be improperly offered only to

“bolster” the alleged victim’s credibility; and 3) because the expert(s) have not met with the alleged

victim, the expert testimony will not be relevant. In the People’s Response and Amended Response,

the People argue that: 1) they have complied with the rules of discovery; 2) there is a difference

between bolstering a victim’s credibility and rehabilitating a witnesses’ credibility after an attack;

and 3) the testimony will be relevant to explain why a child who has suffered sexual abuse may

exhibit certain unexpected or confusing behaviors.

A. The People Complied With the Rules of Discovery.

Defendant alleges that the People committed a discovery violation based on the claims that:

1) Defendant requested expert witness reports from the government on July 16, 2020 but never

2 DECISION AND ORDER (Defendant’s Second Motion in Limine) People v. Duane Arthur Dungca, CF0387-20

received the reports from the People; 2) the People’s December 17, 2020 Witness List was the first

time the People notified Defendant of expert witnesses; and 3) Defendant was not provided with the

expert’s curriculum vitae (“CV”). The People responded that there are no reports to produce

because no expert witness has met with or evaluated the alleged victim, and Defendant has the CV

for the proposed expert witness and has cross examined her many times.

First, pursuant to Guam’s Rules of Criminal Procedure, the prosecution has a duty to

disclose “any report or statement of an expert, made in connection with the case” if such material or

information is “within his possession or control” and “the existence of which is know, or by the

exercise of due diligence may be known.” 9 GCA § 70.10. There is no evidence before the Court

refuting that any expert reports exist. In fact, Defendant’s Motion acknowledges that the proposed

expert never met with the alleged victim. Motion, at 1 (Feb. 8, 2021). Thus, the People have not

violated the rule to provide expert reports.

Second, the Trial Procedures Order issued by the Court on December 14, 2020 ordered that

Witness Lists be filed by December 21, 2020. The People complied with this order by filing their

Witness List on December 17, 2020 which listed their proposed expert witness.

Third, when the People asserted that they have provided defense counsel with the proposed

expert’s CV, defense counsel stated that he would “look into it” and that he “can wait until during

the trial when [he] can challenge her qualifications and the basis for her expertise” then. Mm.

Entry, at 8:49:53 AM (Feb. 18, 2021). In light of these facts, the Court finds that the People have

not committed a discovery violation and will not exclude the People’s proposed expert witness

based on these grounds. -

B. Bolstering and Relevance.

Defendant argues that all expert testimony must be excluded pursuant to the Court’s

3 DECISION AND ORDER (Defendant’s Second Motion in Limine) People v. Duane Arthur Dungca; CF0387-20

December 10, 2020 Decision and Order (“D&O”) and on the grounds that expert testimony may not

be offered for the purpose of bolstering the victim’s credibility. Motion, at 2 (Feb. 8, 2020). The

Court notes that the December 10, 2020 D&O explicitly held that the Motion in Limine was granted

“to the extent that unless admissible under a hearsay exception or Supreme Court of Guam

precedent, hearsay testimony from witnesses regarding the victim’s account of the incidents alleged

and expert opinion testimony offered for the purpose of bolstering the witness’s credibility shall be

excluded at trial.” D&O, at 5 (Dec. 10, 2020). The D&O further stated that “this Order shall not

preclude either the People or the Defendant from introducing any specific witness and thereafter

attempting to lay the foundation for a hearsay exception. The Court will make a ruling on such

witnesses and their accompanying testimony as those issues arise.” Id.

Based on the Court’s prior holding in this matter, this Court find.s that a ruling on this issue

prior to trial would be premature. See id. at 4-5. Accordingly, the Court will reserve a ruling on the

exclusion of the expert testimony based on “bolstering” and “relevancy” arguments until the issue

arises at trial.

II. Recordings of Defendant’s Telephone Calls from DOC.

Defendant makes several arguments to support his Motion to exclude the records of

Defendant’s Paytel phone calls from the Department of Corrections (“DOC”) at trial. First,

Defendant argues the statements in the recordings are hearsay. Motion, at 3 (Feb. 8, 2021). Second,

Defendant asserts that Title 9 GCA § 46.91 prohibits the unauthorized use of a customer’s telephone

records. Id. Third, Defendant argues the burden should not be on Defendant to go through DOC’s

“elaborate process” to ensure his Paytel calls are not recorded and Defendant “was not warned that

said phone calls could be used against him at trial or asked to sign a waiver.” Id.

4 DECISION AND ORDER (Defendant’s Second Motion in Limine) People v. Duane Arthur Dungca, CF0387-20

As to these arguments, the Guam Supreme Court has previously addressed the issue of

whether Paytel recordings of phone conversations between a Defendant and a witness are

admissible, and the Court held that Paytel calls from DOC are admissible as proper rebuttal and

impeachment evidence despite a hearsay objection. People v. De Soto, 2016 Guam 12 ¶ 55-56. In

De Soto, the trial court properly overruled the Defendant’s hearsay and relevancy objections where

the People successfully argued that the Paytel calls went to the witness’ bias and credibility. Id.

Based on De Soto, this Court will not exclude the Paytel calls prior to trial solely based on

Defendant’s hearsay argument.

Defendant argues that Guam law prohibits the unauthorized use of telephone records and

cites to 9 GCA § 46.91. However, the prohibitions under this statute are not applicable in this case

as it applies to the telephone records of “customers.” Under 9 GCA § 46.90, “customer” is defined

as “a person who subscribes to a telephone service.” As an inmate at DOC, Defendant is not a

customer who subscribes to a telephone service. Further, 9 GCA § 46.91 was adopted in 2009 prior

to the decision in the De Soto case, yet the Guam Supreme Court did not consider whether the

People’s usage of DOC’s Paytel recordings as evidence at trial violates 9 GCA § 46.91.

Additionally, Defendant references an “Exhibit A” in his Motion that may have supported the

claim that there is an “elaborate process” to ensure that Paytel calls are not recorded; however,

Defendant failed to attach this exhibit to the Motion. Motion, at 3 (Feb. 8, 2021). The De Soto

Court did not address whether it should be the Defendant’s burden to ensure his phone calls are not

recorded, and without the aforementioned exhibit, this Court cannot address the merit of this

argument.

Even if a Defendant believes that his phone calls should be private and he should not have to

go through an elaborate process to protect them, “no prisoner should reasonably expect privacy in

5 DECISION AND ORDER (Defendant’s Second Motion in Limine) People v. Duane Arthur Dungca; CF0387-20

his outbound telephone calls.” US. v. Van Poyck, 77 F.3d 285, 290-9 1 (9th Cir. 1996) (affirming the

trial court’s. decision to deny Defendant’s motion to suppress his phone conversations recorded by

the prison and holding that the prison’s policy to record the phone conversations does not violate

Defendant’s Fourth Amendment rights). In light of the holding in De Soto, a review of 9 GCA §

46.91, and finding that there is no reasonable expectation of privacy for Paytel calls from DOC, this

Court will not exclude Defendant’s Paytel calls based on the aforementioned arguments.

Next, Defendant argues that the Paytel calls should be excluded at trial because the People

did not mention the records until after the exhibit list cut off date and sent defense counsel a

“document dump” of the records containing about 200 conversations. Although the Exhibit Lists

were due on December 21, 2020 and the People did not mention the Paytel calls until a hearing on

December 23, 2020, the People provided the discovery to Defendant on December 24, 2020, only a

day or two after obtaining the records from DOC. Motion, at 3 (Feb. 8, 2020). Therefore, as of the

date of trial, Defendant will have had the discovery in his possession for over two months.

Additionally, since disclosure of the Paytel telephone records, the People have narrowed the

discovery by providing Defendant with a list of specific windows of time in the recordings that the

People intend to use at trial. See Exhibit B to Motion (Feb. 18, 2021). Accordingly, the Court will

not exclude the Paytel calls based on Defendant’s allegation that the People have committed a

sanctionable discovery violation.

Defendant also argues that the Paytel calls between Defendant and potential witness Natasha

Gomez are protected by the “confidential marital communications privilege” under Rule 504(e) of

the Guam Rules of Evidence (“GRE”) and 6 GCA § 3102(1). Motion, at 5-6 (Feb. 8, 2021).

Although these rules do protect statements made between spouses, it is “necessary that the legal

relationship of husband and wife exist at the time the communication is made” in order to invoke the

6 DECISION AND ORDER (Defendant’s Second Motion in Limine) People v. Duane Arthur Dungca; CF0387-20

confidential marital privilege. Barbara E. Bergman et al., 3 Wharton’s Criminal Evidence §~

11:41-11:42 (15th Ed. 2020); see e.g., People v. Catlin, 26 P.3d 357, 388 (Cal. 2001) (“The marital

privilege applies only in the case of valid marriage.”). Therefore, in jurisdictions where

common-law marriage is not recognized, statements made between a couple that is not legally

married are not protected by the marital communications privilege. Id.

Guam does not recognize common-law marriage. See 9 GCA § 3101; People v. Pablo, 2016

Guam 11 ¶ 3, n. 1 (“Guam does not recognize common law marriage[.]). Defendant concedes that

Defendant and Gomez are “not legally married.” Motion, at 6 (Feb. 8, 2021). Accordingly, this

Court cannot extend the “confidential marital communications privilege” to protect communications

between Defendant and Gomez, and the Court will not exclude the Paytel calls based on Defendant’s

claim that they are protected by this privilege.

Lastly, Defendant argues that the proffered recorded conversations are not relevant or

probative, and in the alternative, Defendant argues that if they are admitted, the conversations must

be played in their entirety as required by the “Rule of Completeness.” Mm. Entry (Feb. 18, 2021).

In De Soto, the Supreme Court held that the Paytel calls were admissible despite a relevancy

objection where the People laid the foundation to introduce the calls as rebuttal and impeachment

testimony. De Soto, 2016 Guam 12 ¶ 55-56. Based on the holding in De Soto, this Court finds that

it would be premature to make a ruling as to the relevancy and probativeness of the Paytel calls prior

to trial. Accordingly, the Court will reserve a ruling on the exclusion of the Paytel calls based on

this argument until the issue arises at trial.

However, as the Defendant notes, Rule 106 of the GRE provides that when a “recorded

statement or part thereof is introduced by a party, an adverse party may require the introduction at

that time of any other part or any other writing or recorded statement which ought in fairness to be

7 DECISION AND ORDER (Defendant’s Second Motion in Limine) People v. Duane Arthur Dungca; CF0387-20

considered contemporaneously with it.” In accordance with the “Rule of Completeness,” if the

People attempt to introduce a portion of the Paytel recordings, the Defendant may avail himself of

this rule.

In sum, the Court holds that it will not exclude Defendant’s telephone calls made from DOC

and finds that: 1) 9 GCA § 46.91 et seq. does not prohibit the recording and usage of these calls; 2)

the People’s provision of the recordings to Defendant did not constitute a “document dump”•

warranting a discovery sanction; and 3) the calls are not protected by the “confidential marital

communications privilege. Further, the Court finds that it would be premature to exclude the

telephone calls prior to trial based on Defendant’s arguments that they will be improper hearsay and

will not be relevant or probative.

CONCLUSION

At this time, the Court does not find that all expert testimony and Defendant’s telephone calls

from DOC will be inadmissible at trial under the rules of evidence, nor does it find that the mere

offer of this evidence during trial will prejudice the jury. For the reasons stated above, the Court

hereby DENIES Defendant’s Second Motion in Limine.

SO ORDERED this 4th day of March, 2021.

SERVICE VIA E-MAIL I acknowledge that an electronic ~yoTth~gIfl~ma~edt0

Date:__ __

Deputy Clerk, Superior Court of Guam