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2 'i\l\9 Jun VI PH 2: 25
CLERKOFCOURT
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4 IN THE SUPERIOR COURT OF GUAN/iY= 5 PEOPLE OF GUAM, ) CRIMINAL CASE NO: CF0216-18 )
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)
7 vs. DECISION AND ORDER DENYING )
) DEFENDANT'S MOTION TO DISMISS 8 ) THE INDICTMENT DRE ANTONIO FLORES, )
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DOBzOS/31/1999, )
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Defendant. )
11 )
3
12 Introduction
13 This matter came before the Honorable Maria T. Cenzon on February 11 and March 25, 14 2019 for a hearing on Dre Antonio Flores's ("Defendant") Motion to Dismiss the Indictment 15 ("Motion to Dismiss") filed on December 26, 2018. Defense Attorney John Morrison of the 16 Alternate Public Defender Corporation represents Defendant. Assistant Attorney General Basil 17 O'Mallan represents the People of Guam (the "People"). After the hearing held on March 25, 18 2019, the Court took the matter Under Advisement pursuant to the Local Rules of the Superior 19 Court of Guam. Having heard the parties' oral arguments and reviewed the record and relevant 20 law, the Court now issues this Decision and Order DENYING Defendant's Motion to Dismiss 21 the Indictment. 22 Background 23 The indictment alleges the following offenses: Charge One AGGRAVATED ASSAULT 24 (as a 2nd Degree Felony) with a Special Allegation: Possession or Use of a Deadly Weapon in 25 the Commission of a Felony and Charge Two AGGRAVATED ASSAULT (as a 3rd Degree 26 Felony) with a Special Allegation: Possession or Use of a Deadly Weapon in the Commission of 27 a Felony. Indictment (Apr. 26, 20l8)I Defendant is accused of stabbing the alleged victims
28 People v. Dre Flares; CF0216-18 Judgment of Conviction 1 JoeShawn Aguon and Ian Otobed. Decl. of Jeremiah Luther (Apr. 7, 2018). As presented during 2 the hearing of the motion, witness accounts allege that two groups of males had an altercation 3 which led to a fight and that the Defendant's group was the aggressor in the confrontation. Id. 4 On December 26, 2018, the Defendant moved to Dismiss the Indictment: [for] Grand 5 Jury Irregularities. The Court set the matter for a hearing on the Motion to Dismiss on February 6 11, 2019. See Amended CR 1.1 Form 3 (Jan. 24, 2019). On February 8, 2019, Defendant filed a 7 Supplemental Notice of Filing re: Discovery and Pending Motions. In this supplemental filing 8 the Defendant objected to any late tiling recognizing that the government's opposition to the 9 instant motion elapsed on January 9, 2019. The Court received the government's unfiled 10 opposition via e-mail dated February 9, 2019, a copy of which was also sent to Defense 11 Counsel.1 12 D ur i ng t he sc he d ul e d he a r i ng on t he mot i on on F e br ua r y l l , 2 0 1 9 , t he C our t 13 acknowledged receipt of the government's emailed opposition. However, the Court rejected the 14 unfiled response because it contained primarily conclusory statements and failed to advance any 15 substantive arguments. During the hearing, however, the Court instructed the government to tile 16 an opposition supported by facts and the law and provided Defense Counsel an opportunity to 17 respond to the government's opposition as well as consider providing case authority that 18 contemplates self-defense as exculpatory evidence under Guard's grand jury proceedings statute. 19 On February 19, 2019, the government tiled its written opposition and on March 1, 2019 the 20 Defense filed its Reply. The Court held oral argument on the Motion to Dismiss on March 25, 21 2019 prior to tatldng the matter under advisement. , 22 Discussion 23 Defendant moves this Court to dismiss the indictment based on grand jury irregularities, 24 raising three distinct arguments in support of the instant motion: (1) that the government failed to 25 present exculpatory evidence in their possession, (2) the government failed to instruct the grand
26 1 See Minute Entry (Feb. ll, 2019). The Court did not previously grant or instruct the People to submit a response 27 by E-mail, as it might and previously has done when circumstances warranted a shortened time to reply, such as in an asserted case. This was not such a situation.
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People v. Dre Flares; CF0216-18 Judgment of Conviction 1 jury on self-defense, and (3) the indictment is not based on competent evidence. Mot. to Dismiss, 2 at p. 1. In addition, Defense counsel also objected to the government's tardy filing of its 3 opposition. The Court will address each argument below. 4 A. Court has authority to extend filing date 5 As a preliminary matter, the Court hereby addresses Defense counsel's objection to the 6 government's tardy filing of its opposition. The opposition was due on January 9, 2019, 7 however, an in-filed opposition was sent via e-mail to the Court at 1:30 p.m. on the due date, 8 without Court approval of such method of submission. During the February 11 hearing, 9 however, the Court found that more thorough briefing and argument was required from both 10 parties, the Court extended the briefing deadlines for the People and Defendant to February 22, 11 2019 and March 1, 2019, respectively. Under CR 1.1(e) relevant dates and such scheduling 12 order or portions shall not be vacated or changed without good cause determined by the assigned 13 judge and described on the record orally or in writing. In CR l.l(f) If a party is unable to comply 14 with the established schedule despite its diligence, that party shall move for a reasonable 15 extension of time, specifically setting forth the basis for the requested extension, which shall be 16 considered by the court in determining good cause pursuant ro subsection (e) above. 17 The Court afforded both parties an opportunity to provide supplementary case authority 18 in support of their respective positions. The Court finds that its need for additional authority in 19 order to dispose of the motion provided good cause for the Court allow an extension of the filing 20 date. Therefore, the Court will OVERRULE the Defendant's objection to the People's opposition 21 filed on February 19, 2019.
22 B. Failure to present witness statements that defendant acted in self-defense and that defendant did not have a knife 23 The Defendant moves to dismiss the indictment arguing first that the people have failed 24 25 to present exculpatory evidence to the grand jury as required under 8 GCA § 50.46. The alleged
26 exculpatory evidence which was not presented to the grand jury were statements by Anthony 27 Warhol, Briana Lizama, and Jose Benavente. To summarize the defense's position, the witnesses 28
People v. Dre Flores; CF0216-18 Judgment of Conviction 1 allege that the Defendant and his brother were being attacked by up to five adults and were, 2 therefore, acting in self-defense. Additionally, it is argued that none of these witnesses saw the 3 Defendant with a knife. Mot. to Dismiss, at p. 6. Defendant argues that "the government only 4 presented the side of it [to the grand jury] that they wanted to." Id. at p. 4. 5 1. Semdefense does not negate elements of offenses charged
6 The Court will first examine the statements purportedly made by these witnesses, that the 7 Defendant and his brother were being attacked by up to five adults and were acting in self- 8 defense during the incident in question. Mot. to Dismiss, at p. 6. Defendant argues that evidence
9 that a person acted in self-defense is the strongest possible type of exculpatory evidence. Id. at p.
10 6. Defendant further argues that withholding self-defense evidence from the grand jury is 11 problematic because if it had been presented, the grand jury would not have been able to indict
12 based on the elements alone. Defendant posits that as to Charge 1, the grand jury had ro. find 13 there was probable cause to that the defendant acted with extreme indifference to the value of
14 human life and that this would have been difficult ro demonstrate if the grand jury heard 15 statements that the Defendant was acting in self-defense. Id. 16 Guam law requires the prosecuting attorney to submit to the grand jury "any evidence in 17 his or her possession which would tend to negate guilt." 8 GCA § 50.46 (2005)(emphasis 18 added); see People v. Serbian, 1986 W L 68900 *3 (D. Guam App. Div. 1986) (explaining that §
19 50.46 is based on § 939.7 of the.California Penal Code, which the California Supreme Court has 20 interpreted to require the prosecutor to provide exculpatory evidence to the grand jury). The 21 prosecutor's obligation extends to evidence which tends to negate guilt, but does not require
22 informing the grand jury of lesser included offenses, nor does it require providing the grand jury 23 with evidence establishing an affirmative defense. People v. Grajo, 1987 W L 109393 *2 (D. 24 Guam App. Div. 1987), People v. Sablarz, 1986 WL 68900 *3 (D. Guam App. Div. 1986) (citing 25 People v. Snow, 72 Cal.App. ad 950 (1977)). While the only case law on point in this jurisdiction 26 comes from the District of Guam Appellate Division, it is still controlling unless overturned by
27 the Guam Supreme Court. In Re Camacho 2006 Guam 5 (quoting People v. Quenga, 1997 Guam 28
People v. Dre Flores,CF0216-18 Judgment of Conviction 1 6). Defendant points to no case where the court dismissed an indictment based on the prosecutor 2 withholding evidence of self-defense from the Grand Jury. Instead, Defendant relies on various 3 case authorities requiring a self-defense instruction for a petit jury, which is markedly different 4 from the present situtation.2 5 Even if the Court were to have found that the failure to present evidence of self-defense 6 affirmative defense was erroneous _ which it was not _ the defense would have to establish that 7 he was prejudiced by such error. The CoUrt recognizes that dismissal of indictment prior to trial 8 based on the government's failure to present exculpatory evidence to a grand jury is warranted 9 only upon a showing that the defendant is substantially prejudiced by that error. This Court has 10 previously adopted the "reasonably probable" standard applied in8erardi.3 This standard is used 11 to determine whether prejudice is substantial requiring that the record must reflect "a probability 12 that a properly informed jury would not have found probable cause to indict." Berardi v. 13 Superior Court, 149 Cal. App. 4th at 493-494. This analysis requires a consideration of the 14 relative strengths and weaknesses of the evidence supporting the probable cause finding 15 necessary to indict and the undisclosed exculpatory evidence. Id. at 494. 16 Upon examining the record, the Court finds no dismissal is required. The prosecutor had 17 no requirement to present the statements in support of a theory for self-defense because such 18 evidence does not negate an element of the crimes alleged. The Court rejects Defendant's 19 arguments and finds that there is sufficient evidence for the grand jury to find probable cause that 20 the Defendant acted with extreme reckless indifference to human life based on the alleged 21 statements that the Defendant purportedly used a knife during the underlying incident. In People 22 v. Chin Song, extreme indifference to human life is defined as a "conscious[] disregard [of] a 23
24 z Defendant cites to Savage v.Srare which held that self-defense is exculpatory evidence under Brady v, Maryland, 373 U.S. 83, and a new trial is warranted upon a finding that the State withheld such evidence from defense counsel.
25 600 So Zd. 405 (1992). The facts of Savage are distinguishable here because there is no allegation that such facts were withheld from defense counsel. Defendant then cites to Booth v. State which held that it is reversible error 26 when a trial court refuses to instruct the "petit" jury on self-defense, 679 S.W . 2d 498 (2002).
3 CF0066-16, People v. Barcinas Consolidated Decision and Order: Defendant's Motion to Dismiss Indictment and 27 Depose Alleged Victim (Jun. 26, 2017).
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People v. Dre Flores; CF0216-18 Judgment of Conviction 1 substantial and unjustifiable risk that death will result from his conduct..." People v. Chin Song, 2 2012 Guam 21 '1[ 36. The Chin Song court further opined that"[s]ome conduct almost always 3 carries a substantial risk of death, such as engaging another person in a fight with a deadly 4 weapon or firing a gun at another person." Id. 5 As argued by the People, even if the alleged exculpatory statements had some evidentiary 6 value showing the Defendant was not the aggressor, this would not necessarily justify, excuse or 7 clear the Defendant from the charges. People's Opp. at p.3. "The use of force upon or toward 8 another person is justifiable when the defendant believes that such force is immediately 9 necessary for the purpose of protecting himself against the use of unlawful force by such other 10 person on the present occasion." 9 GCA § 7.84. The use of deadly force is not justifiable if the 11 person knows that he can avoid the necessity of using deadly force with complete safety by 12 retreating. Id. at § 7.86 (b)(2). There are limits on the use of deadly force for self-defense under 13 Guam's Self-Defense Statute. While this evidence may be material to the outcome of a trial, 14 Defendant cited to no authority stating such evidence is material to the outcome of a grand jury 15 deliberation. 16 2. Statements regarding Defendant possessing a knife is not exculpatory 17 The Court will now examine the statements from Ms. Lizama and Mr. Benavente as 18 suggested by Defendant that neither of them observed the Defendant with a knife. Defendant 19 argues that had the grand jury learned of these facts, they may have called additional Witnesses 20 or had subpoenas issued until they were satisfied who actually possessed the knife. Mot. to 21 Dismiss at p. 7. As a preliminary matter, the Court recognizes "the fact that the record can 22 support a finding of probable cause does not mean there is no reasonable probability the jury 23 would have rejected such a finding." Berardi v. Superior Court, 149 Cal. App. 4th at 497. 24 Nevertheless, the Court must still determine that "the prosecution's disclosure to the grand jury 25 was inadequate and inaccurate, and the disclosure deficiencies seriously interfered with the grand 26 jury's investigatory function, undermining its independence." Id. at 481. 27 28
People v. Dre Flores, CF0216-18 Judgment of Conviction
I In Berardi, the court dismissed the indictment because the prosecution withheld a 2 statement from an alleged co-actor that the Defendant was "not involved" in the shooting and 3 that a witness disclosed to the government her intent to lie about the Defendant's involvement. 4 Id. at 496. Additionally, the Berardi court disagreed with the prosecution's summarization of the 5 co-actor's statement. Id. The Berardi court held the suinnlarization incorrectly suggested an 6 agreement ro commit murder. Id. 7 Unlike in Berardi, the prosecution in this case did not withhold alleged statements 8 discrediting a potential material witness. Defendant conceded that Ms. Lizama and Mr. 9 Benavente only witnessed the initial altercation and left when things "degraded in to a melee." 10 Def.'s Mot. to Dismiss at p. 4. Therefore, the fact that these witnesses did not see the Defendant 11 with a knife.prior to the tight is neither helpful nor hurtful to the grand jury's determination. 12 Further, Defendant also conceded that evidence was presented to the grand jury that a knife was 13 used during the fight. Therefore, Ms. Lizama's statement that she did not see anybody with a 14 knife at the inception of the fight would have been irrelevant.4 This statement would not have 15 been useful to a reasonable grand jury since there are other evidence that a knife was in fact used 16 during the incident. When taken as a whole, the Court finds the prosecution's failure to disclose 17 Ms. Lizama and Mr. Benavente's statements do not portray inadequate or inaccurate recollection 18 of the incident.Berardi v. Superior Court, 149 Cal. App. 4th at 481. 19 C. Government is not required to instruct the grand jury on self-defense 20 The People argue that the prosecutor is under no obligation to introduce evidence of 21 affirmative defenses which might be available, such as self-defense or insanity. The Court 22 agrees. The District of Guam Appellate Division adopted a distinction between evidence that 23 directly negates an essential element of the crime (which should be the subject of mandatory 24 disclosure) and evidence that supports an affirmative defense (which a prosecutor need not
25 4 Relevant evidence is defined as "evidence having any tendency no make the existence of any fact that is of 26 consequence xo the determination of the action more probable or less probable than in would be without the evidence." 6 G.C.A. §401 27
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People v. Dre Flores;CF0216-18 Judgment of Conviction
Page 7of9
1 produce).5 The Court will not divert from precedent from the Appellate Division of the District 2 Court of Guam unless and until the Guam Supreme Court addresses the issue. In Re Camacho 3 2006 Guam 5 (quoting People v. Quenga, 1997 Guam 6) (emphasis added). . 4 "The prosecutors duty consists of fairly presenting all the evidence available," but the 5 prosecutor is not required to explain the significance of the evidence. People v. Grajo, 1987 W L 6 109393 *2 (D. Guam App. 1987). Dismissal of the charge to which the exculpatory evidence was 7 relevant is an appropriate remedy if the People fail to presentmaterially exculpatory evidence to 8 the grand jury. See People v. Grajo, 1987 WL 109393 *2 (D. Guam App. 1987), See also People 9 v. Sablan, 1986 W L 68900 *3-5 (D. Guam App. 1986). The Court in Grajo declined to overturn 10 the conviction because Ir determined the indictment had been proper. 11 Assuming arguendo that the People had a duty to present the self-defense evidence, the 12 Court finds the People do not have a duty to instruct the grand jury on self-defense. As to his 13 other arguments, Defendant fails to cite to any authority creating such a requirement. The Court 14 adopts the holding in Grajo and finds the prosecutor has no duty to explain the significance of 15 the evidence. People v. Grajo, 1987 WL 109393 *Z (D. Guam App. 1987). 16 D. Indictment based on hearsay does not warrant dismissal 17 Defendant relies on 8 GCA § 50.42 and requests this Court to dismiss the indictment 18 because it the testimony received by the grand jury was not admissible evidence. Defendant 19 argues the indictment was based almost entirely on hearsay, since the only evidence proffered to 20 the grand jury were the testimony of two police officers who told the grand jury what people told 21 them and what people told people who then told the police. Mot. to Dismiss, at p. 11. 22 The provision which Defendant seeks to challenge the competency of the evidence 23 received by the grand jury operates with the caveat that "the fact that evidence which is 24 incompetent was received by the grand jury does not render the indictment void where sufficient 25 competent evidence to support the indictment was received by the grand jury." 8 G.C.A. § 50.42. 26
27 5 People v. Grata, 1987 WL 109393 *2 (D. Guam App. Div. 1987), Peoplev. Serbian, 1986 WL 68900 *3 (D. Guam App.Div. 1986) (citing People v. Snow, 72 Ca1.App. ad 950 (1977)).
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People v. Dre Flores, CF0216-18 Judgment of Conviction 1 The Supreme Court of the United States has found that allowance for trial courts to review 2 findings of a grand jury "would run counter to the whole history of the grand jury institution, in 3 which laymen conduct their inquiries unfettered by technical rules." Costello v. U.S., 350 U.S. 4 359, 364 (1956). In that vein, the Costello court opined: "No case has been cited nor have we 5 been able to find any, furnishing an authority for looldng into and revising the judgment of the 6 grand jury upon the evidence, for the purpose of determining whether or not the finding was 7 founded upon sufficient proof..." (quoting U.S. v. Reed, 27 Fed.Cas. pages 727, 738, No. 8 l6,l34). 9 The note in Section 50.42 providing "A Grand Jury indictment will not be overturned 10 because it was based on hearsay testimony. It was the intent of the amendment to this section (§ 11 50.42) that less than 'admissible' evidence is required before the grand jury. Compiler's Note 12 cited in case." (emphasis added). The Court finds People v. Quidachay is controlling, as 13 specifically addressed in In Re Camaeho.6 Since People v. Quidaehay remains controlling, the 14 Court will not overturn the Grand Jury indictment merely because it was based on hearsay 15 testimony.
16 Conclusion 17 For these reasons, the Court will DENY Defendant's Motion to Dismiss Indictment.
SO ORDERED this
JUN 1 7 2019
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25 6 Holding "[p]recedent [from the Appellate Division of the District Court of Guam] that was extant when [the Guam 26 Supreme Court] became operational continues unless and until [the Guam Supreme Court] address the issues discussed there. [The Guam Supreme Court] will not divert from such precedents unless reason supports such 27 deviation." 2006 Guam 5 (quoting People v. Quenga, 1997 Guam 6) (emphasis added).
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People v. Dre Flores; CF0216-18 Judgment of Conviction