3 ~, COURT
5 G''"'"=. IN THE SUPERIOR COURT OF GUAM 6
8 CRIMINAL CASE NO. CF 0586-13 Plaintiff, 9 v. 10 DECISION AND ORDER GEORGE GREY, 11
12 Defendant.
16 This matter came before the Honorable Arthur R. Barcinas on the 2nd day of June, 2014, 17 for oral argument on the Defendant's Motion to Exclude Hearsay Statement. Assistant Attorney 18 General Christine Tenorio represented the People and Alternate Public Defender Stephen P. 19
20 Hattori represented the Defendant. Having granted the Defendant's Motion from the bench, the
21 Court hereby sets forth its reasoning. 22 BACKGROUND 23 The Defendant George Grey is accused ofthird degree robbery, arising out of an alleged 24 purse-snatching on October 28, 2013. The victim of the alleged crime is named Mami Misbo, 25
26 and Yuki Noguchi also witnessed it. Both are Japanese women who were present in Guam as
27 tourists. Ms. Misbo and Ms. Noguchi were questioned by and made statements to Police Officer 28 Decision and Order CF0586-13; People v. Grey
Trainee CJ Mangalit. The People do not intend to call the two Japanese witnesses, instead
2 proposing to offer their statements via Officer Mangalit's testimony.
3 The Defendant first filed a Motion in Limine to Exclude Hearsay on May 20, dealing 4 with the same question as the instant motion. On May 23, while the trial was recessed due to the 5 illness of the People's attorney, the Defendant's attorney told the Court that he wished to make 6 motions orally upon the People's attorney's return. The Court instructed that the motion should 7
8 be submitted in writing. Later that day, the Defendant submitted a Motion to Exclude Hearsay
9 Statement and to Dismiss. 10 DISCUSSION 11 I. Procedural Requirements 12 Under 8 GCA § 65.15, a motion to suppress evidence must be made before trial. 8 GCA 13
14 § 65.15(c). The May 23 motion was made during trial. However, the substantially same issue
15 had been previously raised by the Defendant in a motion in limine filed on May 20, before the 16 beginning oftrial. Def.'s Mot.1 (May 20, 2014). The issue was raised in a timely manner. 17 II. Motion to Exclude Hearsay Statements 18 The Defendant moves to exclude the testimony of Officer Mangalit regarding the 19
20 statements made to him by Ms. Misbo and Ms. Noguchi. Def.'s Mot. 1 (May 23, 2014). The 21 Defendant argues that the statements are testimonial hearsay not subject to cross-examination, 22 and thus their admission would violate his right to confront witnesses against him under the 23 Sixth Amendment to the United States Constitution, which applies on Guam via the Organic 24
25 Act of Guam. Def.'s Mot. 2 (May 23, 2014).
26 Crawford v. Washington established that under the Confrontation Clause of the Sixth 27 Amendment, "testimonial" hearsay statements may only be introduced into evidence against a 28
Page 2 of5 Decision and Order CF0586-13; People v. Grey
criminal defendant if the witness is both unavailable to testify and the defendant previously had
2 an opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 54 (2004).
3 The United States Supreme Court defined "testimony" as "[a] solemn declaration or affirmation 4 made for the purpose of establishing or proving some fact." Crawford, 541 U.S. at 51. 5 The U.S. Supreme Court later clarified the difference between testimonial and non- 6 testimonial statements in the twin cases Davis v. Washington, 547 U.S. 813 (2006), and 7
8 Hammon v. Indiana, 547 U.S. 813 (2006). In Davis, the communication being challenged was a
9 911 call, and in contrast the affidavit in Hammon was written after the fact in an attempt by 10 police to investigate a domestic violence incident. Davis, 547 U.S. 813, 817-18; Hammon, 547 II U.S. 813, 820-21. The U.S. Supreme Court adopted the "primary purpose" test, where a court 12 must determine whether the primary purpose of the police interrogation was to enable police 13
14 assistance to meet an ongoing emergency, or if instead it was to establish or prove past events
15 potentially relevant to later criminal prosecution. Davis, 547 U.S. at 822. In Davis, the 911 call 16 was not testimonial, but in Hammon, the post-incident affidavit was testimonial and thus its 17 introduction as evidence was forbidden by the Confrontation Clause. Contrast Davis, 547 U.S. 18
19 at 828, with Hammon, 547 U.S. at 829-30. The Confrontation Clause violation in Hammon
20 required reversal ofthe criminal conviction. Hammon, 547 U.S. at 834. 21 In the present case, Officer Mangalit testified that he received a call about a robbery near 22 the ABC Store in Tumon, and spoke to two Japanese women about the event. Tr. Trans. 3 (May 23 22, 2014). He learned Yuki Noguchi's name from her passport, but Mami Misbo's passport was 24
25 within the purse allegedly stolen, and he only learned her name by being told it. Tr. Trans. 5.
26 Only one of the two women spoke English, and she translated for the other. Tr. Trans. 5. 27
Page 3 of5 Decision and Order CF0586-13; People v. Grey
Before Officer Mangalit's testimony, Daphne Dawn Borja testified that she saw a male
2 wearing long dark pants and a long-sleeved hoodie sweatshirt with the hood up running away
3 from two or three women chasing him. Tr. Trans. 1. After Ms. Borja left the stand, Noel Ignacio 4 Galzote testified that two women came into the ABC Store in Tumon, where he was working, 5 and asked him to call 911. Tr. Trans. 2. Ms. Misbo and Ms. Noguchi spoke to Officer Mangalit 6 about an event that had happened in the recent past that they had witnessed. According to the 7
8 trial testimony, before the conversation between Ms. Misbo, Ms. Noguchi, and Officer
9 Mangalit, Ms. Misbo and Ms. Noguchi had chased the assailant, ceased their pursuit and entered 10 the ABC Store, called the police, and waited for Officer Mangalit to arrive. Considered as a 11 whole, the evidence indicates that there was not an ongoing emergency at the time Officer 12 Mangalit spoke to Ms. Misbo and Ms. Noguchi. It was not Officer Mangalit's primary purpose 13
14 to gather information to enable police assistance to meet an ongoing emergency, as any
15 emergency had ceased by the time he arrived. Instead, the primary purpose of questioning the 16 witnesses was to establish or prove past events potentially relevant to a future criminal 17 prosecution. Officer Mangalit' s statements are much more akin to the police interview in 18
19 Hammon v. Indiana than to the 911 call in Davis v. Washington.
20 The People had originally included Ms. Misbo and Ms. Noguchi on the witness list. 21 People's Witness List 2 11. 9-10 (May 12, 2014). However, immediately prior to jury selection 22 the People clarified that the two witnesses would not be returning from Japan to testify. Tr. 23 Trans. 1 (May 21, 2014). Nor has the Defendant ever had the opportunity to cross-examine Ms. 24
25 Misbo and Ms. Noguchi. Because Officer Mangalit's testimony about what the two women told
26 him was hearsay, the nature of that hearsay was testimonial, and the Defendant has had no 27 opportunity to cross-examine the absent witnesses, that testimony must be excluded from the 28
Page 4 of5 Decision and Order CF0586-13; People v. Grey
record in compliance with the Sixth Amendment to the United States Constitution, as
2 interpreted by the U.S. Supreme Court in Crawford v.
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3 ~, COURT
5 G''"'"=. IN THE SUPERIOR COURT OF GUAM 6
8 CRIMINAL CASE NO. CF 0586-13 Plaintiff, 9 v. 10 DECISION AND ORDER GEORGE GREY, 11
12 Defendant.
16 This matter came before the Honorable Arthur R. Barcinas on the 2nd day of June, 2014, 17 for oral argument on the Defendant's Motion to Exclude Hearsay Statement. Assistant Attorney 18 General Christine Tenorio represented the People and Alternate Public Defender Stephen P. 19
20 Hattori represented the Defendant. Having granted the Defendant's Motion from the bench, the
21 Court hereby sets forth its reasoning. 22 BACKGROUND 23 The Defendant George Grey is accused ofthird degree robbery, arising out of an alleged 24 purse-snatching on October 28, 2013. The victim of the alleged crime is named Mami Misbo, 25
26 and Yuki Noguchi also witnessed it. Both are Japanese women who were present in Guam as
27 tourists. Ms. Misbo and Ms. Noguchi were questioned by and made statements to Police Officer 28 Decision and Order CF0586-13; People v. Grey
Trainee CJ Mangalit. The People do not intend to call the two Japanese witnesses, instead
2 proposing to offer their statements via Officer Mangalit's testimony.
3 The Defendant first filed a Motion in Limine to Exclude Hearsay on May 20, dealing 4 with the same question as the instant motion. On May 23, while the trial was recessed due to the 5 illness of the People's attorney, the Defendant's attorney told the Court that he wished to make 6 motions orally upon the People's attorney's return. The Court instructed that the motion should 7
8 be submitted in writing. Later that day, the Defendant submitted a Motion to Exclude Hearsay
9 Statement and to Dismiss. 10 DISCUSSION 11 I. Procedural Requirements 12 Under 8 GCA § 65.15, a motion to suppress evidence must be made before trial. 8 GCA 13
14 § 65.15(c). The May 23 motion was made during trial. However, the substantially same issue
15 had been previously raised by the Defendant in a motion in limine filed on May 20, before the 16 beginning oftrial. Def.'s Mot.1 (May 20, 2014). The issue was raised in a timely manner. 17 II. Motion to Exclude Hearsay Statements 18 The Defendant moves to exclude the testimony of Officer Mangalit regarding the 19
20 statements made to him by Ms. Misbo and Ms. Noguchi. Def.'s Mot. 1 (May 23, 2014). The 21 Defendant argues that the statements are testimonial hearsay not subject to cross-examination, 22 and thus their admission would violate his right to confront witnesses against him under the 23 Sixth Amendment to the United States Constitution, which applies on Guam via the Organic 24
25 Act of Guam. Def.'s Mot. 2 (May 23, 2014).
26 Crawford v. Washington established that under the Confrontation Clause of the Sixth 27 Amendment, "testimonial" hearsay statements may only be introduced into evidence against a 28
Page 2 of5 Decision and Order CF0586-13; People v. Grey
criminal defendant if the witness is both unavailable to testify and the defendant previously had
2 an opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 54 (2004).
3 The United States Supreme Court defined "testimony" as "[a] solemn declaration or affirmation 4 made for the purpose of establishing or proving some fact." Crawford, 541 U.S. at 51. 5 The U.S. Supreme Court later clarified the difference between testimonial and non- 6 testimonial statements in the twin cases Davis v. Washington, 547 U.S. 813 (2006), and 7
8 Hammon v. Indiana, 547 U.S. 813 (2006). In Davis, the communication being challenged was a
9 911 call, and in contrast the affidavit in Hammon was written after the fact in an attempt by 10 police to investigate a domestic violence incident. Davis, 547 U.S. 813, 817-18; Hammon, 547 II U.S. 813, 820-21. The U.S. Supreme Court adopted the "primary purpose" test, where a court 12 must determine whether the primary purpose of the police interrogation was to enable police 13
14 assistance to meet an ongoing emergency, or if instead it was to establish or prove past events
15 potentially relevant to later criminal prosecution. Davis, 547 U.S. at 822. In Davis, the 911 call 16 was not testimonial, but in Hammon, the post-incident affidavit was testimonial and thus its 17 introduction as evidence was forbidden by the Confrontation Clause. Contrast Davis, 547 U.S. 18
19 at 828, with Hammon, 547 U.S. at 829-30. The Confrontation Clause violation in Hammon
20 required reversal ofthe criminal conviction. Hammon, 547 U.S. at 834. 21 In the present case, Officer Mangalit testified that he received a call about a robbery near 22 the ABC Store in Tumon, and spoke to two Japanese women about the event. Tr. Trans. 3 (May 23 22, 2014). He learned Yuki Noguchi's name from her passport, but Mami Misbo's passport was 24
25 within the purse allegedly stolen, and he only learned her name by being told it. Tr. Trans. 5.
26 Only one of the two women spoke English, and she translated for the other. Tr. Trans. 5. 27
Page 3 of5 Decision and Order CF0586-13; People v. Grey
Before Officer Mangalit's testimony, Daphne Dawn Borja testified that she saw a male
2 wearing long dark pants and a long-sleeved hoodie sweatshirt with the hood up running away
3 from two or three women chasing him. Tr. Trans. 1. After Ms. Borja left the stand, Noel Ignacio 4 Galzote testified that two women came into the ABC Store in Tumon, where he was working, 5 and asked him to call 911. Tr. Trans. 2. Ms. Misbo and Ms. Noguchi spoke to Officer Mangalit 6 about an event that had happened in the recent past that they had witnessed. According to the 7
8 trial testimony, before the conversation between Ms. Misbo, Ms. Noguchi, and Officer
9 Mangalit, Ms. Misbo and Ms. Noguchi had chased the assailant, ceased their pursuit and entered 10 the ABC Store, called the police, and waited for Officer Mangalit to arrive. Considered as a 11 whole, the evidence indicates that there was not an ongoing emergency at the time Officer 12 Mangalit spoke to Ms. Misbo and Ms. Noguchi. It was not Officer Mangalit's primary purpose 13
14 to gather information to enable police assistance to meet an ongoing emergency, as any
15 emergency had ceased by the time he arrived. Instead, the primary purpose of questioning the 16 witnesses was to establish or prove past events potentially relevant to a future criminal 17 prosecution. Officer Mangalit' s statements are much more akin to the police interview in 18
19 Hammon v. Indiana than to the 911 call in Davis v. Washington.
20 The People had originally included Ms. Misbo and Ms. Noguchi on the witness list. 21 People's Witness List 2 11. 9-10 (May 12, 2014). However, immediately prior to jury selection 22 the People clarified that the two witnesses would not be returning from Japan to testify. Tr. 23 Trans. 1 (May 21, 2014). Nor has the Defendant ever had the opportunity to cross-examine Ms. 24
25 Misbo and Ms. Noguchi. Because Officer Mangalit's testimony about what the two women told
26 him was hearsay, the nature of that hearsay was testimonial, and the Defendant has had no 27 opportunity to cross-examine the absent witnesses, that testimony must be excluded from the 28
Page 4 of5 Decision and Order CF0586-13; People v. Grey
record in compliance with the Sixth Amendment to the United States Constitution, as
2 interpreted by the U.S. Supreme Court in Crawford v. Washington and its progeny.
4 For the reasons set forth above, Officer Mangalit's testimony about Mami Misbo and 5 Yuki Noguchi's testimonial statements are inadmissible under the Confrontation Clause, and 6 thus the Defendant's Motion to Exclude Hearsay Statements is GRANTED. 7
11 IT IS so ORDERED this day of ,JlJN Q 3 2014 12
13 • 14 HONORABLE ARTHUR R. BARCINAS 15 Judge, Superior Court of Guam 16
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