• 2
5 IN THE SUPERIOR COURT OF GUAM 6
8 CRIMINAL CASE NO. CF 0586-13 Plaintiff, 9 v. 10 DECISION AND ORDER
11 GEORGE GREY,
12 Defendant.
16 This matter came before the Honorable Arthur R. Barcinas on the 21st day of May, 2014, 17 for hearing on the Defendant's Motion in Limine to Exclude Testimony of Surveillance Video. 18 Assistant Attorney General Gabrielle L. Rossi represents the People, and Alternate Public 19
20 Defender Stephen P. Hattori represents the Defendant. For the reasons set forth below, the
21 Defendant's Motion in Limine is DENIED. 22 BACKGROUND 23 The Defendant George Grey is charged with third degree robbery, arising out of an 24 alleged purse snatching outside the Carl Rose Tumon Plaza on October 28, 2013. By and 25
26 through counsel, the Defendant submitted a Motion in Limine to Exclude Testimony of
27 Surveillance Video on May 21, 2014. The Defendant expects the People to call Officer Heflin, 28 who was tasked with reviewing the surveillance footage of the area surrounding the building, to
testify as to his observations of the footage. The Defendant also expects the People to proffer Decision and Order CF0586-13; People v. Grey • three still photographs from the surveillance footage. However, the Defendant expects that the
2 People will not proffer the original surveillance recording or a duplicate thereof. The Defendant
3 requests the Court exclude both Officer Heflin's testimony and the three still photographs for 4 not complying with Guam Rules ofEvidence 1002 and 1003. 5 DISCUSSION 6 The Guam Rules of Evidence are derived from the federal rules, and the current version 7
8 was promulgated by the Supreme Court of Guam in 2006. See 6 GCA Div. 1 §§ 101-103
9 (2011). Guam Rules of Evidence 1002 and 1003 mirror the language of the previous versions of 10 Federal Rules 1002 and 1003, those in effect until the Federal Rules were restyled without II substantive change in 2011. See Guam Rules of Evidence 1002, 1003; see Rules Enabling Act, 12
13 28 U.S.C. § 2072 (2011); see Federal Rule of Evidence 101, Committee Note; see Federal Rules
14 ofEvidence 1002, 1003. 15 Guam Rule of Evidence 1002 reads: "To prove the content of a writing, recording, or 16 photograph, the original writing, recording, or photograph is required, except as otherwise 17 provided in these rules or by the laws of Guam." Guam Rule of Evidence 1002. Guam Rule of 18
19 Evidence 1003 reads: "A duplicate is admissible to the same extent as an original unless (1) a
20 genuine question is raised as to the authenticity of the original or (2) in the circumstances it 21 would be unfair to admit the duplicate in lieu of the original." Guam Rule of Evidence 1003. 22 The key terms in these rules are defined in Rule 1001. The definition of "photograph" includes 23 video recordings. Guam Rule of Evidence 1001 (2). An "original" of a photograph includes the 24
25 photograph itself, any negative or print, and if the photograph is stored electronically, any
26 printout or other output readable by sight and shown to reflect the data accurately. Guam Rule 27 of Evidence 1001(3). A "duplicate" is a counterpart to the original made by techniques that 28 accurately reproduce the original. Guam Rule ofEvidence 1001(4). Page2 of4 Decision and Order CF0586-13; People v. Grey • • The Defendant argues that the three still photographs derived from the surveillance
2 video, and Officer Heflin's testimony about what he saw on the video, are not admissible either
3 as originals or duplicates. Def.'s Mot. p. 2, ll. 15-21 (May 21, 2014). The Court need not rule on 4 the precise status of the three still photographs and the testimony at this time, however, as there 5 are other grounds upon which to adjudicate the motion. 6 Guam Rule of Evidence 1004 creates exceptions to Rule 1002 when originals or 7
8 duplicates are not required. It its entirety, Rule 1004 reads:
9 The original is not required, and other evidence of the contents of a writing, 10 recording, or photograph is admissible if- (1) Originals lost or destroyed. All originals are lost or have been destroyed, 11 unless the proponent lost or destroyed them in bad faith; or (2) Original not obtainable. No original can be obtained by any available 12 judicial process or procedure; or 13 (3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the 14 pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or 15 (4) Collateral matters. The writing, recording, or photograph is not closely 16 related to a controlling issue.
17 Guam Rule ofEvidence 1004. 18 "Secondary evidence is admissible to prove the contents of a writing if the terms of Rul 19 1004(1) are satisfied." Shorehaven Corp. v. Taitano, 2001 Guam 16, 10 (citing United States v 20 Ross, 33 F.3d 1507, 1513 (11th Cir. 1994)). Oral testimony may serve as secondary evidence. 21
22 Shorehaven Corp. at, 10 (citing Wiley v. United States, 257 F.2d 900, 909 (8th Cir. 1958)). I
23 Rule 1004(1) is satisfied, then the exception to Rule 1002 applies, and neither an original nor 24 duplicate is required. 25 The Defendant states that the three still photos of the surveillance tape "are the onl 26 copies available," implying that the surveillance tape no longer exists. Def.'s Mot. p. 2 ll. 9-1 27
28 (May 21, 2014). But the Defendant does not say why the surveillance tape no longer exists, an
Page3 of4 Decision and Order CF0586-13; People v. Grey • • makes no allegations and proffers no evidence of bad faith by the People. The Defendant does
2 argue that Officer Heflin's observations will be biased, and thus argues that the officer's
3 interpretation is not an adequate duplicate ofthe surveillance video. Def.'s Mot. p. 2, 1. 6, p. 3, ll 4 8-12 (May 21, 2014 ). But this allegation of a police officer's professional bias is unrelated to the 5 reason no original or duplicate surveillance video is available and thus cannot overcome the 6 exception in Rule 1004(1 ). Without any showing of bad faith, the Court must accept secondary 7
8 evidence under the exception. See Shorehaven Corp. v. Taitano, 2001 Guam 16 ~ 11 (overrulin~
9 a Superior Court exclusion of secondary evidence because that there was no proof that a party 10 destroyed or unconscionably hid the original evidence); Edward W. Cleary et al., McCormick's 11 Handbook of the Law of Evidence § 23 7 (2nd ed. 1972) ("[I]f as a practical matter the documen 12
13 cannot be produced because it has been lost or destroyed, the production of the original is
14 excused and other evidence of its contents becomes admissible"). 15 CONCLUSION 16 The Defendant argues the still photographs and testimony are not admissible as originals 17 or duplicates under Guam Rules of Evidence 1002 and 1003. But the Defendant has not 18
19 provided sufficient allegations or proof to show that the Rule 1004(1) exception for lost or
20 destroyed originals is inapplicable. For the reasons set forth above, the Defendant's Motion in 21 Limine to Exclude Testimony of Surveillance Video is DENIED.
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• 2
5 IN THE SUPERIOR COURT OF GUAM 6
8 CRIMINAL CASE NO. CF 0586-13 Plaintiff, 9 v. 10 DECISION AND ORDER
11 GEORGE GREY,
12 Defendant.
16 This matter came before the Honorable Arthur R. Barcinas on the 21st day of May, 2014, 17 for hearing on the Defendant's Motion in Limine to Exclude Testimony of Surveillance Video. 18 Assistant Attorney General Gabrielle L. Rossi represents the People, and Alternate Public 19
20 Defender Stephen P. Hattori represents the Defendant. For the reasons set forth below, the
21 Defendant's Motion in Limine is DENIED. 22 BACKGROUND 23 The Defendant George Grey is charged with third degree robbery, arising out of an 24 alleged purse snatching outside the Carl Rose Tumon Plaza on October 28, 2013. By and 25
26 through counsel, the Defendant submitted a Motion in Limine to Exclude Testimony of
27 Surveillance Video on May 21, 2014. The Defendant expects the People to call Officer Heflin, 28 who was tasked with reviewing the surveillance footage of the area surrounding the building, to
testify as to his observations of the footage. The Defendant also expects the People to proffer Decision and Order CF0586-13; People v. Grey • three still photographs from the surveillance footage. However, the Defendant expects that the
2 People will not proffer the original surveillance recording or a duplicate thereof. The Defendant
3 requests the Court exclude both Officer Heflin's testimony and the three still photographs for 4 not complying with Guam Rules ofEvidence 1002 and 1003. 5 DISCUSSION 6 The Guam Rules of Evidence are derived from the federal rules, and the current version 7
8 was promulgated by the Supreme Court of Guam in 2006. See 6 GCA Div. 1 §§ 101-103
9 (2011). Guam Rules of Evidence 1002 and 1003 mirror the language of the previous versions of 10 Federal Rules 1002 and 1003, those in effect until the Federal Rules were restyled without II substantive change in 2011. See Guam Rules of Evidence 1002, 1003; see Rules Enabling Act, 12
13 28 U.S.C. § 2072 (2011); see Federal Rule of Evidence 101, Committee Note; see Federal Rules
14 ofEvidence 1002, 1003. 15 Guam Rule of Evidence 1002 reads: "To prove the content of a writing, recording, or 16 photograph, the original writing, recording, or photograph is required, except as otherwise 17 provided in these rules or by the laws of Guam." Guam Rule of Evidence 1002. Guam Rule of 18
19 Evidence 1003 reads: "A duplicate is admissible to the same extent as an original unless (1) a
20 genuine question is raised as to the authenticity of the original or (2) in the circumstances it 21 would be unfair to admit the duplicate in lieu of the original." Guam Rule of Evidence 1003. 22 The key terms in these rules are defined in Rule 1001. The definition of "photograph" includes 23 video recordings. Guam Rule of Evidence 1001 (2). An "original" of a photograph includes the 24
25 photograph itself, any negative or print, and if the photograph is stored electronically, any
26 printout or other output readable by sight and shown to reflect the data accurately. Guam Rule 27 of Evidence 1001(3). A "duplicate" is a counterpart to the original made by techniques that 28 accurately reproduce the original. Guam Rule ofEvidence 1001(4). Page2 of4 Decision and Order CF0586-13; People v. Grey • • The Defendant argues that the three still photographs derived from the surveillance
2 video, and Officer Heflin's testimony about what he saw on the video, are not admissible either
3 as originals or duplicates. Def.'s Mot. p. 2, ll. 15-21 (May 21, 2014). The Court need not rule on 4 the precise status of the three still photographs and the testimony at this time, however, as there 5 are other grounds upon which to adjudicate the motion. 6 Guam Rule of Evidence 1004 creates exceptions to Rule 1002 when originals or 7
8 duplicates are not required. It its entirety, Rule 1004 reads:
9 The original is not required, and other evidence of the contents of a writing, 10 recording, or photograph is admissible if- (1) Originals lost or destroyed. All originals are lost or have been destroyed, 11 unless the proponent lost or destroyed them in bad faith; or (2) Original not obtainable. No original can be obtained by any available 12 judicial process or procedure; or 13 (3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the 14 pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or 15 (4) Collateral matters. The writing, recording, or photograph is not closely 16 related to a controlling issue.
17 Guam Rule ofEvidence 1004. 18 "Secondary evidence is admissible to prove the contents of a writing if the terms of Rul 19 1004(1) are satisfied." Shorehaven Corp. v. Taitano, 2001 Guam 16, 10 (citing United States v 20 Ross, 33 F.3d 1507, 1513 (11th Cir. 1994)). Oral testimony may serve as secondary evidence. 21
22 Shorehaven Corp. at, 10 (citing Wiley v. United States, 257 F.2d 900, 909 (8th Cir. 1958)). I
23 Rule 1004(1) is satisfied, then the exception to Rule 1002 applies, and neither an original nor 24 duplicate is required. 25 The Defendant states that the three still photos of the surveillance tape "are the onl 26 copies available," implying that the surveillance tape no longer exists. Def.'s Mot. p. 2 ll. 9-1 27
28 (May 21, 2014). But the Defendant does not say why the surveillance tape no longer exists, an
Page3 of4 Decision and Order CF0586-13; People v. Grey • • makes no allegations and proffers no evidence of bad faith by the People. The Defendant does
2 argue that Officer Heflin's observations will be biased, and thus argues that the officer's
3 interpretation is not an adequate duplicate ofthe surveillance video. Def.'s Mot. p. 2, 1. 6, p. 3, ll 4 8-12 (May 21, 2014 ). But this allegation of a police officer's professional bias is unrelated to the 5 reason no original or duplicate surveillance video is available and thus cannot overcome the 6 exception in Rule 1004(1 ). Without any showing of bad faith, the Court must accept secondary 7
8 evidence under the exception. See Shorehaven Corp. v. Taitano, 2001 Guam 16 ~ 11 (overrulin~
9 a Superior Court exclusion of secondary evidence because that there was no proof that a party 10 destroyed or unconscionably hid the original evidence); Edward W. Cleary et al., McCormick's 11 Handbook of the Law of Evidence § 23 7 (2nd ed. 1972) ("[I]f as a practical matter the documen 12
13 cannot be produced because it has been lost or destroyed, the production of the original is
14 excused and other evidence of its contents becomes admissible"). 15 CONCLUSION 16 The Defendant argues the still photographs and testimony are not admissible as originals 17 or duplicates under Guam Rules of Evidence 1002 and 1003. But the Defendant has not 18
19 provided sufficient allegations or proof to show that the Rule 1004(1) exception for lost or
20 destroyed originals is inapplicable. For the reasons set forth above, the Defendant's Motion in 21 Limine to Exclude Testimony of Surveillance Video is DENIED. The denial of this motion is 22 not a ruling that the still photographs and testimony are admissible, and the Court reserves the 23 right to rule on admissibility at a later time. 24 MAY 2 2 2014 ------------------------------------ 26 'i,,
. :· • 27 HONORABLE ARTHUR R. BARCINAS 28 Judge, Superior Court of Guam
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