People v. Espiritu

Opinion

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IN THE SUPERIOR COURT OF GUAM

2 2D12 APR I 8 PM I: 3 PEOPLE OF GUAM, ) CRIMINAL CASE NO. CM470-11 3 )

4 vs. ) DECISION AND ORDER.

) FOR DISMISSAL 5 KEONI ESPIRITU, )

)

6 Defendant. )

7

8 The matter came before the HONORABLE ELIZABETH BARRETT-ANDERSON on 9 December 22, 2011 for Defendant's Motions to Dismiss (hereinafter referred to as "Motion"). 10 Defendant was not present, but was represented by Attorney Suresh Sampath. People were 11 represented by Assistant Attorney General James C. Collins. The Court having considered all 12 the oral arguments, briefs, and materials filed herein DISMISSED THIS CASE WITHOUT 13 PREJUDICE from the bench on March 26, 2012 and this written decision and order follows. 14 Guam's Supreme Court held I : "that unless good cause is shown, a complaint shall be 15 dismissed where a defendant is not promptly arraigned within 60 days of the filing of the 16 complaint." People v. Rasauo, 2011 Guam 14 ~ 16. Defendant argues that pursuant to People v. 17 Rasauo, 2011 Guam 14 (hereinafter referred to as "Rasauo Ir), this case should be dismissed 18 with prejudice because Defendant was not arraigned within sixty (60) days after the Complaint 19 was filed. See also 8 GCA § 60.10. People argue that the Court should find good cause exists for 20 the delay, and therefore, the dismissal would be inappropriate. As required by Rasauo II, this - - -"',~

21 Court will review the specific facts in this case to determine whether or not there was good 22 cause for the delay in arraigning Defendant beyond the sixty (60) days after the Complaint was 23 filed. Rasauo, 2011 Guam 14 ~ 10, 14. 24 Defendant was arrested on July 21, 2010 and given a notice to appear with a date of July 25 13,2011. On April 15,2011, the Complaint was filed and a Summons was issued on April 28, 26 2011 for an arraignment scheduled for June 22, 2011. Defendant was finally arraigned on July 27

28 I This holding is hereinafter referred to as the "60 day rule."

20,2011, which is more than sixty (60) days after the Complaint was filed.

2 The time between the Complaint and the first appearance on June 22, 2011 does violate 3 the 60 day rule announced in Rasauo II. Thus, the Court must review what days, if any, after 4 June 14, 2011 constitute "good cause" under Rasauo II.

5 The People maintain that once a request for a summons is presented "the People retain

6 no control over the court's decision about when to calendar the date on which a defendant is to

7 return to court." People's Opp'n to Mot. to Dismiss, p.5 (Nov. 18, 2011). Thus, the People

8 advocate that any delay attributed to the court's calendaring of an arraignment should be found

9 to be good cause and not cause the case to be dismissed pursuant to Rasauo II. The Court

10 disagrees that a bright line rule of any delay caused by a court's calendaring of a criminal matter

11 is automatically good cause under the 60 day rule. Guam's Supreme Court makes it clear that it

12 intended the court and its officers to be subject to the prompt arraignment rule put forth in

l3 Rasauo II. Rasauo, 2011 Guam 14 ~ 12; 8 GCA § 80.50(a)("It shall be the duty of all courts and

14 judicial officers ... to expedite such proceedings to the greatest degree that is consistent with the

15 ends of justice"). See e.g. People v. Ilemelong, CF150-10 (Super. ct. Guam Jan. 13, 2012).

16 Since the onus is on all judicial officers, in addition to the prosecuting attorneys, to ensure that a

17 defendant is promptly arraigned, the Court holds that the delay created by the Court scheduling

18 the arraignment date after more than sixty (60) days had passed from the filing of the Complaint

19 is not good cause. The Defendant was not promptly arraigned; therefore, this case must be

20 dismissed. Rasauo, 2011 Guam 14.

21 While not necessary for this decision, the Court reviewed if the time the Court allows a

22 defendant to meet and confer with counsel prior to being arraigned is reasonable and constitutes

23 good cause. Title 8 Guam Code Annotated section 45.30(c) provides that the Court shall allow

24 reasonable time to a defendant to meet and confer with counsel prior to being arraigned. Meeting with and discussing this with counsel allows a defendant to understand the significance 25 of the arraignment process as well as the defendant's rights, which are asserted or waived at 26 arraignment. Hamilton v. Alabama, 368 U.S. 52 (1961). It is critical for a defendant to have this 27 understanding at time of arraignment. See e.g. Huston v. Com., 171 S.W.3d 743, 744-45 (Ky. Ct.

App. 2005). Further, the concerns of Guam's Supreme Court in People v. Rasauo, 2011 Guam 2 1, are not present when a defendant is appointed counsel and the delay between the Complaint 3 and the arraignment is partially attributed to the time necessary for a defendant to meet and 4 confer with his appointed attorney. 2011 Guam 1 ~ 53(quoted by Rasauo, 2011 Guam 14 ~ 10). 5 The Office of the Attorney General has argued in several cases that any delay of

6 arraignment occasioned by a continuance granted by the magistrate court should be excused for

7 good cause. The Court disagrees that a bright line rule of any delay caused by a court's

8 calendaring of a criminal matter is automatically good cause under the 60 day rule. Guam's

9 Supreme Court makes it clear that it intended the court and its officers to be subject to the

10 prompt arraignment rule put forth in Rasauo II. Rasauo, 2011 Guam 14 ~ 12; S GCA §

Il SO.50(a)("It shall be the duty of all courts and judicial officers ... to expedite such proceedings

12 to the greatest degree that is consistent with the ends of justice"). See also People v. Ilemelong,

I3 CF150-1O (Super. ct. Guam Jan. 13,2012).

14 Further, the Court rejects the contention that any length of delays caused by the time

15 provided to a defendant to meet and confer with an attorney is automatically good cause. The

16 Court finds that a reasonable amount of delay attributed to the time a defendant needs to meet

17 and confer with an attorney is good cause for purposes of the 60 day rule. Cf Flores, 2009

18 Guam 22 ~3S.

19

In this case, Defendant's Motion did not address if any delay attributed to time for the

20 Defendant to meet and confer with counsel is good cause2• Instead, Defendant's Motion argues

21

that no good cause exists for the violation of the 60 day rule in this case.

22

The Court finds that twenty-eight (2S) days is excessive amount of time for a court to

23

provide a defendant to meet and confer with his attorney prior to being arraigned. Since the

24

onus is on all judicial officers and the prosecuting attorneys to ensure that a defendant is

25

promptly arraigned, the Court holds that reasonable time, in the context of a continued

26

27

28 2 This issue was raised orally by other Defense attorneys and Defendant orally joined, but this argument is not raised in the written Motion.

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arraignment after a defendant is appointed counsel, means no more than thirty (30) days 3. 8 2 GCA § 80.50(a). Thus, the delay in this case is not unreasonable, hence this time constitutes 3 good cause. 4 Lastly, the Court must determine if the dismissal should be with or without prejudice. 5 The Court is persuaded by the People's argument4 that the dismissal should be without

6 prejudice. Guam's Supreme Court declined to hold that all violations of the 60 day rule requires

7 a dismissal with prejudice. Rasauo, 2011 Guam 14 ~ 16("The issue of whether or not the case

8 should be dismissed with or without prejudice should be decided in the first instance by the trial

9 court."). This is in contrast to other criminal cases Guam's Supreme Court has addressed, where

10 the case was dismissed with prejudice based upon a finding that there was a statutory bar to re-

11 prosecution of the defendants in those cases. People v. Villapondo, 1999 Guam 31; People v.

12 Palomo, 1998 Guam 12. The People correctly assert that in this circumstance, there is not a

13 statutory bar to re-prosecution, instead the 60 day rule is explicitly dependent on statutory

14 interpretation. Rasauo, 2011 Guam 14 ~ 13; People v. Stephen, 2009 Guam 8 ~ 35-36.

15 Therefore, the Court considers "a showing of prejudice or any other factors" to

16 determine if dismissal with prejudice is appropriate. Palomo, 1998 Guam 12 n.8(quoted by

17 Villapondo, 1999 Guam 31 ~ 52). Cf 18 U.S.C. § 3162(a)(2). Defendant does not make a

18 showing of prejudice, rather argues that dismissal without prejudice renders the meaning of

19 Rasauo meaningless if the People can re-indict him in the future. But see Stephen, 2009 Guam 8 ~ 11. Therefore, as there is not a showing of prejudice, the Court will look at other factors used 20

21 to determine if dismissal with prejudice is required here.

22 "Dismissal of an indictment is a disfavored remedy.... Indictments are rarely dismissed

23 for alleged government misconduct which occurs outside the Complaint process because such

24 misconduct must be "grossly shocking and so outrageous as to violate the universal sense of justice.'" People v. Marada, 1995 WL 604365, *1 (D. Guam App. Div. Sep. 18, 1995)(internal 25

26

27 3 The Court encourages the arraignment judge to consider only granting continuances for a defendant to meet with appointed counsel of two (2) weeks or less in light of the Rasauo II decision; however, the Court accepts that up to 28 thirty (30) days is reasonable.

4 This issue was raised orally, not in the written opposition.

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citations omitted). See also Stephens, 2009 Guam 8 ~ 21(discussing dismissal for unnecessary 2 delay should occur "only in extreme circumstances"); People v. Gutierrez, 2005 Guam 19 W61- 3 70(discussing dismissal based on finding the People acted in bad faith). In this case, there is no 4 alleged government misconduct or bad faith on the part of the Peoples. Instead, there is a

5 violation of the 60 day rule, which was recently announced in Rasauo II, which requires

6 dismissal, but not necessarily dismissal with prejudice.

7 Additionally, dismissal with prejudice is sometimes used by Courts to send a strong

8 message to prosecutors who have consistently violated defendants' rights and force them to

9 reduce pretrial delays in general. US. v. Perez, 2011 WL 2294194, *3 (D. Ct. Guam Jun. 8,

10 2011). Stephens, 2009 Guam 8 ~ 21("If a court is to apply the harsh rule of dismissing a

11 criminal case with prejudice ... it must either establish local rules ... or warn the prosecution

12 that further delay could jeopardize the case."). However, the violation of a defendant's prompt

13 arraignment right is not an issue this Court has been asked to address in relation to arraignments

14 that occurred after Rasauo II was issued. Instead, this Court is merely addressing motions to

15 dismiss based on delays that occurred before the 60 day rule was announced, leading this Court

16 to believe that the People do not require a strong message from this Court to ensure that they are

17 now respecting a defendant's right to prompt arraignment. This factor weighs in favor of

18 dismissal without prejudice.

19 Further, in this circumstance, dismissal without prejudice can not be seen as condoning

20 the People's behavior, because neither the People nor the Court were aware of the 60 day rule at

21 the time of the delay of the Defendant's prompt arraignment. /d. This factor weighs in favor of

22 dismissal without prejudice.

23 In this scenario, Defendant's constitutional rights are not implicated, thus the Court

24 should weigh the violation of Defendant's right to a prompt arraignment with the competing interest "of society to be secure from crime through the regular enforcement of the criminal 25 laws." Gutierrez, 2005 Guam 19 ~ 68(internal citation and quotation omitted). Upon balancing 26

27

28 S All of the procedural facts of this case occurred before the promulgation of Rasauo II, therefore, there can be no finding that the People intentionally violated the 60 day rule.

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these factors as well as taking into consideration of lack of showing of prejudice the Court 2 determines that dismissal without prejudice is most appropriate. 3 The Court finds that Defendant was not promptly arraigned pursuant to 8 GCA § 4 60. 1O(a); therefore, the Court is DISMISSING this case without prejudice.

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6 IT IS SO ORDERED this _ of April, 2012.

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11 HONORABLE ELIZABETH BARRETT-ANDERSON

12 Judge, Superior Court of Guam