People v. Flores et.al.

Opinion

2 ) 3 PEOPLE OF GUAM, )

) CLERK OF COURT 4 vs. ) r.-:·.:. ~ ) DECISIO AND·ORDER 5 ) (Defendant L e Tonaichy's 6 HENRY C. FLORE,S et. al., ) Motion to Dismiss Indictment)

)

7 Defendants. ) 8

9 This matter came before the HONORABLE VERNON P. PEREZ on May 5, 2009 o

10 Defendant Luke Tonaichy's Motion to Dismiss Indictment. Assistant Attorney General Jeffe 11 Moots and Assistant Attorney General Clyde Lemons were present for the Prosecution Division 12 Attorney Julie C. Rivera, representing Defendant Luke Tonaichy, was present. Attorney Samue 13

14 S. Teker and Attorney Joshua D. Walsh were present with Defendants Juan L. G. Diaz an

15 Raynold C. Alcantara. Attorney Thomas J. Fisher was present with Defendant Joaquin Q. Castro. 16 Attorney Howard Trapp was present with Defendant Esmeralda A. Sabinay. Attorney Joaquin C 17 Arriola, Jr., was present with Defendant Benedette C. Santos. Attorney Rachel Taimanao-Ayu 18 was present with Defendant Vincent G. Perez. Attorney Lewis W. Littlepage was present wi 19

20 Defendant Henry C. Flores. The Court took the motion under advisement. After having heard th

21 parties' arguments, considering the parties' pleadings and the record, the Court now issues th 22 following Decision and Order.

23 BACKGROUND

24 On March 12, 2009, Defendant Luke Tonaichy (hereinafter "Defendant Tonaichy'') was 25

26 indicted, along with nine other co-defendants, with one charge of Conspiracy to Commit

27 Aggravated Assault (as a 2nd Degree Felony) in violation of9 G.C.A. §§ 13.30 & 13.60 (a). 28 Four of the nine other co-defendants were also charged in the indictment with Aggravated .

People v. Flores et. al Decision and Order (Defendant Luke Tonaichy's Motion to Dismiss)

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1 Assault (as a 2nd Degree Felony), in violation of9 G.C.A. §§ 19.20 (a) (1) and (b). The 2 indictment stems from the alleged assault of a teenage boy being held at the Dededo Precinct and 3 the alleged conspiracy to cover up the assault. An arraignment was held on April 1, 2009 where 4 Defendant Tonaichy waived his right to a speedy trial.

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6 On April15, 2009, Defendant Tonaichy filed a Motion to Dismiss Indictment (hereinafte

7 "Motion to Dismiss"). On April23, 2009, Prosecution filed People's Opposition to Defendant 8 Luke Tonaichy's Motion to Dismiss (hereinafter "Opposition"). On April30, 2009, Defendant 9 Tonaichy filed a Reply in Support of Defendant Tonaichy Luke's Motion to Dismiss (hereinafter 10 "Reply"). A hearing on the Motion to Dismiss was held on May 5, 2009.

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12 DISCUSSION

13 Section 50.54 of Title 8 of the Guam Code Annotated (G.C.A.) sets forth the standards 14 for an indictment and provides that:

15 § 50.54. Form of Indictment: Standards for Indicting.

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17 (a) An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a felony or a felony and a 18 related misdemeanor.

19 (b) The grand jury shall find an indictment when from the evidence presented there is reasonable cause to believe that an indictable offense has 20 been committed and that the defendant committed it. · 21 8 G.C.A. §50.54 22 "Reasonable cause amounts to evidence such that a man of ordinary caution or prudence would 23 be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused." .

24 25 People v. Grajo. 1987 WL 109393 at* 2 (D. Guam App. Div. 1987) (citations omitted). A

26 reviewing court should uphold an indictment "if there is some rational ground for assuming the 27 possibility that an offense has been committed and the accused is guilty of it." Id.

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People v. Flores et. al Decision and Order (Defendant Luke Tonaichy's Motion to Dismiss)

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1 Defendant Tonaichy is charged by way of an indictment, with one charge of Conspiracy 2 to Commit Aggravated Assault (as a 2nd Degree Felony) in violation of9 G.C.A. §§ 13.30 & 3 13.60(a). 9 G.C.A. § 13.30 sets forth that:

4 § 13.30. Conspiracy: Definition.

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6 A person is guilty of conspiracy to commit a crime if:

7 (a) he agrees with one or more other persons that he or one of them will engage in conduct which constitutes such crime;

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9 (b) he does so with the intention of engaging in, promoting or assisting in the conduct which constitutes such crime; and 10 (c) he or one of them performs an overt act in pursuance of the 11 agreement.

12 9 G.C.A. § 13.30 13 In the Motion to Dismiss, Defendant Tonaichy argues that the indictment should be 14

15 dismissed because the evidence presented to the grand jury was insufficient to establish probable

16 cause that he committed the crime of conspiracy. Specifically, Defendant Tonaichy argues that 17 the only evidence. presented to the grand jury was that he was present, in his capacity as a 18 civilian ride along, at the Dededo Precinct on the evening of the alleged aggravated assault.

19 Defendant Tonaichy concludes that the indictment should be dismissed since the evidence 20 21 presented to the grand jury was insufficient for probable cause.

22 Prosecution argues in the Opposition that the evidence was sufficient to establish 23 probable cause in this case for a conspiracy indictment. Prosecution points out, relying upon the 24 holdings in Interstate Circuit v. United States. 306 U.S. 208 (1939) and United States v. Cabrera.

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26 116 F.3d 1243 (8th Cir. 1997), that since prosecution seldom has direct testimony that parties

27 entered into an agreement to be involved in criminal activity, prosecution need only show some 28 degree of knowing involvement or cooperation by th~ defendant. Prosecution sets forth in the

People v. Flores et. al Decision and Order (Defendant Luke Tonaichy's Motion to Dismiss)

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1 Opposition that the testimony before the grand jury showed that Defendant Tonaichy witnessed 2 the alleged assault of the teenage boy by police officers charged herein. 3 The law governing conspiracy cases is quite clear in that each element of conspiracy may 4 be established by circumstantial evidence or reasonable inferences from the evidence presented.

5 6 Glasser v. U.S., 315 U.S. 60, 80 (1942) (holding that "[p]articipation in a criminal conspiracy

7 need not be proved by direct evidence; a common purpose and plan may be inferred from a 8 development and collocation of circumstances."); U.S. v. Daychild, 357 F.3d 1082, 1097 (9th 9 Cir. 2004) (internal quotations omitted); U.S. v. Calabrese. 825 F.2d 1342, 1348 (9th Cir. 1987)

10 (holding that "[a] defendant's knowledge of and participation in a conspiracy may be inferred 11

12 from circumstantial evidence and from evidence of a defendant's actions.") To obtain a

13 conviction for the crime of conspiracy, the evidence may be entirely circumstantial or 14 inferentially established by proof of the conduct, circumstances, actions and the relationship of 15 the parties so charged. See. People v. Herrera. 98 Cal. Rptr. 2d 911, 922 (Cal. App. 2000); State 16 17 v. Abdullah. 967 A.2d 469, 475 (R.I., 2009). The law recognizes that circumstantial evidence is

18 the usual mode of proving a conspiracy since it is not often that direct evidence can be had. Diaz- 19 Rosendo v. U.S .. 357 F.2d 124, 129 (9th Cir. 1966) (holding that the existence of a conspiracy 20 can rarely be proved in any other way); Com. v. Lonardo. 2009 WL 1857339 at *2, 74 Mass.

21 App. Ct. 566 (Mass. App. Ct., 2009) (holding that the "a~;;ts of different persons who are shown 22 23 to have known each other, or to have been in connection with each other, directed towards the

24 ·acComplishment of the same object may be satisfactory proof of a conspiracy.") 25 As Prosecution points out in the Opposition, the essence of the crime of conspiracy is the 26 agreement. The law recognizes that as to the element of an agreement, the existence of a formal 27 agreement between co-conspirators need not be proved because it is only in rare instances that a 28

People v. Flores et. al Decision and Order (Defendant Luke Tonaichy's Motion to Dismiss)

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1 conspiracy may be established by proof of an express agreement to unite to accomplish an 2 unlawful purpose. See~ People v. Vu. 49 Cal. Rptr. 3d 765, 777 (Cal. App. 2006); State v. Millan 3 966 A.2d 699, 706 (Conn., 2009). The requisite agreement may be inferred from proof of the 4 separate acts of the individuals accused as co-conspirators and from the circumstances 5

6 surrounding the commission of the acts. See. People v. Bogan. 62 Cal. Rptr. 3d 34, 36-37 (Cal.

7 App. 2007). The existence of a tacit or mutual understanding between co-conspirators is also 8 sufficient to establish a conspiratorial agreement. U.S. v. Kellam. 568 F.3d 125, 139 (4th Cir.

9 2009); State v. Hall. 669 S.E.2d 30, 37-38 (N.C. App., 2008) (holding that evidence of a mutual, 10 implied understanding will satisfy the agreement element of conspiracy and may be inferred 11

12 from the defendant's behavior.) Prosecution can show the existence of an agreement necessary to

13 support a conspiracy conviction via circumstantial evidence and inferences based on the conduct 14 of those allegedly involved in the scheme. See. U.S. v. Kiriki. 756 F.2d 1449, 1453 (9th Cir.

15 1985); U.S. v. Seher. 562 F.3d 1344, 1364 (11th Cir. 2009).

16 17 In State v. Millan. 966 A.2d 699 (Conn. 2009), the Connecticut Supreme Court addressed

18 the issue of whether there was sufficient evidence to support the defendant's conviction for 19 conspiracy to commit assault in the first degree. The court set forth that while the state must 20 prove an agreement to commit assault, the existence of a formal agreement between the 21 conspirators need not be proved because it is only in rare instances that conspiracy may be 22 23 established by proof of an express agreement to unite to accomplish an unlawful purpose. Id. at

24 706. The court held that the requisite agreement may be inferred from proof of the separate acts 25 of the individuals accused as co-conspirators and from the circumstances surrounding the 26 commission of these acts. Id. The court also held that a co-conspirator's conduct at the scene can 27 provide the requisite evidence of an agreement. ld. at 707.

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People v. Flores et. al Decision and Order (Defendant Luke Tonaichy's Motion to DisD:riss)

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1 In Harris v. State. 968 A.2d 32 (Del. 2009), the Delaware Supreme Court addressed the

2 issue of whether the evidence was sufficient to support a defendant's adjudication of delinquenc 3 for conspiracy in the second-degree and attempted first-degree robbery. Prosecution claimed that 4 the defendant was a 'lookout' during the robbery, while the defendant claimed he was 'looking 5

6 at' an unfortunate event unfolding before his eyes. The court held that it is not necessary that

7 there be a formal agreement in advance of a crime. Id. at 36. The court held if a person 8 understands the unlawful nature of the acts taking place, and nevertheless assists in any manner 9 in carrying out the common scheme, that person becomes a conspirator to commit the offense.

10 Id. The court found that there was sufficient evidence in the record to support the trial judge's 11

12 conclusion that the defendant understood the unlawful nature of the acts taking place and assiste

13 in carrying out the common scheme, even if only as a lookout. Id. at 37. 14 Defendant Tonaichy's argument that Prosecution failed to present evidence to the grand 15 jury establishing the specifics of a conspiracy overlooks general principles oflaw, hereinbefore 16

17 discussed, that clearly set forth that Prosecution need not detail the specifics of a conspiracy. On

18 the contrary, the existence of a conspiracy, in particular the agreement, may be proved by 19 circumstantial evidence or be inferred from the facts and circumstance of the case. U.S. v. 20 Hernandez. 876 F.2d 774, 777 (9th Cir. 1989); Aguilera v. State, 667 S.E. 2d 378, 381-382 (Ga.

21 App., 2008) (holding that a tacit understanding may be proved by circumstantial evidence, 22 23 inferred from the nature of the acts done, the relationship of the parties, the interest of the alleged

24 conspirators and other circumstances). Prosecution is not required to show that a conspiracy 25 agreement was explicit, an implicit agreement may be inferred from the facts and circumstances 26 of the case. U.S. v. Restrepo. 930 F.2d 705, 709 (9th Cir. 1991) (citations omitted). The law 27 equally recognizes that participation in an illegal combination need not be proved by direct 28

People v. Flores et. al Decision and Order (Defendant Luke Tonaichy's Motion to Dismiss)

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1 evidence, and a person may be held as a conspirator although he joins the criminal concert at a 2 point in time far beyond the initial act of the conspirators. Lile v. U.S., 264 F.2d 278, 279-281 3 (9th Cir. 1958) (holding that if a person joins a criminal concert later, knowing of the criminal 4 design, and acts in concert with the original conspirators, he may he held responsible not only for 5

6 everything which may be done thereafter, but also for everything which has been done prior to

7 his adherence to the criminal design.) 8 After reviewing the grand jury taped proceeding and considering the evidence presented 9 to the grand jury, this Court finds that sufficient evidence was presented to support the charge of 10 conspiracy against Defendant Tonaichy. During the grand jury proceedings in this case, held on 11

12 March 12,2009, Prosecution called five witnesses to testify about the events that took place at

13 the Dededo Precinct on the evening of November 22, 2008, as well as the follow-up 14 investigation. Grand jury witness Kevin Quintanilla testified that Defendant Tonaichy was 15 present in the hallway when the beating of the teenage boy by Guam police officers took place.

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17 (Grand Jury Recording at3:13 p.mJ Kevin Quintanilla testified that when the teenage boy was

18 returned to a holding cell, it was obvious that he had been beaten. (Grand Jury Recording at 3:14 19 p.m.). Kevin Quintanilla testified that the teenage boy was not offered any medical aid by any of 20 the police officers after the beating. (Grand Jury Recording at 3:14p.m.). The teenage boy 21 testified before the grand jury that he was hit by a police officer, as he was being taken from the 22 23 holding cell. (Grand Jury Recording at 2:54p.m.). The teenage boy testified that as he was

24 returning to the holding cell, he was severely beaten by a number of police officers in the 25 hallway. (Grand Jury Recording at 2:56-2:59 p.m.).

26 Special Agent Cruz testified that during the course of his investigation, he secured the 27 Dededo Precinct log book. (Grand Jury Recording at 4:18p.m.). Special Agent Cruz testified 28

People v. Flores et. al Decision and Order (Defendant Luke Tonaichy's Motion to Dismiss)

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1 that the Dededo Precinct log book is an official document and record kept by the Guam Police 2 Department. (Grand Jury Recording at 4:19p.m.). Special Agent Cruz testified that in the log 3 book, there is an entry that states that the teenage boy "was later released to his parents." (Grand 4 Jury Recording at 4:18-4:19 p.m.). Special Agent Cruz testified that to the best of his knowledge, 5

6 the log book entry was prepared by co-defendant Vincent G. Perez. (Grand Jury Recording at

7 4: 19 p.m.). Special Agent Cruz testified that co-defendant Henry C. Flores signed the log book, 8 as the shift supervisor that night. (Grand Jury Recording at 4:19p.m.). Special Agent Cruz 9 testified that the entry in the log book was a false entry as to what happened to the teenage boy.

10 (Grand Jury Recording at 4:19p.m.). Special Agent Cruz testified that the teenage boy was not 11

12 released to his parents, but was transported to Guam Memorial Hospital by medics, after he kept

13 losing consciousness. (Grand Jury Recording ~t 4:18-4:21 p.m.). 14 Kevin Quintanilla testified that he was later told by co-defendant Henry C. Flores that 15 someone from the Guam Police Department would be coming to talk to him about what 16

17 happened that evening. (Grand Jury Recording at 3: 14 p.m.). Kevin Quintanilla testified that co-

18 defendant Henry C. Flores instructed him to say that nothing happened and that he didn't see 19 anything. (Grand Jury Recording at 3:14-3:15 p.m.). Kevin Quintanilla testified that co-

20 defendant Henry C. Flores made it clear that he was to lie to any of the investigating officers 21 about what happened that evening. (Grand Jury Recording at 3:14-3:15 p.m.). Kevin Quintanilla 22

23 testified that he heard co-defendant Henry C. Flores give co-defendant Benedette C. Santos the

24 same instruction, to lie to investigators. (Grand Jury Recording at 3:15p.m.). Special Agent Cruz 25 testified that he interviewed Defendant Tonaichy about the events that took place at the Dededo 26 Precinct. (Grand Jury Recording at 3:58p.m.). Special Agent Cruz testified that Defendant 27

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People v. Flores et. al Decision and Order (Defendant Luke Tonaichy's Motion to Dismiss)

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1 Tonaichy reported that he didn't see any police officers assault anyone that evening. (Grand Jury 2 Recording at 3:59p.m.). 3 Based upon the testimony presented, this Court finds that it was reasonable for the grand 4 jury to find that Defendant Tonaichy was part of the underlying conspiracy. Testimony before 5

6 the grand jury demonstrated that Defendant Tonaichy was present and close to the hallway area

7 where the teenage boy was beaten by police officers. Testimony before the grand jury 8 demonstrated that Defendant Tonaichy reported to a police investigator that he didn't see any 9 police officers assault anyone that evening. Testimony before the grand jury demonstrated that 10 Defendant Tonaichy failed to report the beating of the teenage boy by the police officers in the 11

12 hallway, when questioned by a police investigator as to the events that took place at the Dededo

13 Precinct on the evening of November 22, 2008. While it is true that presence alone is not enough 14 to convict, a single act will suffice if the circumstances permit the inference that the presence or 15 act was intended to advance the ends of the conspiracy. See. U.S. v. Gilmer. 534 F.3d 696, 702 16

17 (7th Cir. 2008).

18 Based on the evidence presented to the grand jury, the Court finds that there is some 19 rational ground for assuming the possibility that an offense, as charged, was committed and that 20 the accused is guilty of it. The evidence presented provided sufficient information for the grand 21 jury to find reasonable cause that Defendant Tonaichy allegedly committed the offense that he is 22

23 charged with. This Court finds that a conscientious jury could clearly have had a strong suspicio

24 that Defendant Tonaichy committed the crime he is charged with. 25 II 26 II 27 II 28

People v. Flores et. al Decision and Order (Defendant Luke Tonaichy's Motion to Dismiss)

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1 • CONCLUSION 2 For the foregoing reasons, Defendant Luke Tonaichy's Motion to Dismiss Indictment is 3 hereby DENIED.

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5 .¥1--

6 So ORDERED this day of ~0 July, 2009.

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8 HONORABLE VERNON P. PEREZ 9 JUDGE, SUPERIOR COURT OF GUAM

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People v. Flores et. al Decision and Order (Defendant Luke Tonaichy's Motion to Dismiss)