People v. Hewinin

Opinion

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I

FILED SUPERIOR COURT 1 UF GUAH

2 2019 JUL -3 PH e a n 3 CLERK 05 COURT

7 IN THE SUPERIOR COURT O F GUAM 8

9 PEOPLE OF GUAM, CRIMINAL CASE no. CF0133~18

10 vs. ll DECISION AND ORDER ATRIKO A. HEWININ 12 DOB: 03/25/1982

13 Defendant. 14

15 INTRODUCTION 16 This matter came before the Honorable Judge Arthur Barcinas on April 4, 2019, upon 17 the Defendant's Motion to Dismiss the Indictment filed November 5, 2018. The Defendant

18 Atriko A. Hewinin ("Defendant") was present and represented by Attorney William Pole.

19 Assistant Attorney General Christine S. Tenorio represented the People of Guam ("the 20 People"). Having reviewed the pleadings and having heard oM arguments in this matter, the

21 Court issues the following Decision and Order. 22 BACKGROUND 23 The Defendant was arrested and charged with Md degree criminal sexual conduct and 24 terrorizing against his minor relative K.K. (DOB: 4/22/2001) on July 1, 2017, video 25 voyeurism, fourth degree criminal sexual conduct, and invasion of privacy against his long

26 term partner J.S. (DOB: 5/26/1982) on January.25, 2018, and first and second degree criminal ... , 27 sexual conduct, child abuse, aggravated assault, and* resisting arrest against, or in the 28 commission of crimes against, J.S.'s minor child S.S. (DOB: 06/02/2013) on March 2, 2018. lllll l I l

Dec is ion and Order Criminal Cas e No. CF0133- 18; People v. Atriko A. Hewinin

1 When the People brought these charges in front of a grand jury on October 4, 2018, the

2 People failed to disclose that they were prosecuting the Defendant over. the objection of J.S.

3 Def.'s Mot. to Dismiss. The People also failed to present evidence that J.S. is not sure who

4 made the videos relating to the video voyeurism charge in the present case, and even suggested

5 that a person other than the Defendant may be at fault. Def.'s Mot. to Dismiss. As such, the

6 Defendant claims that the People withheld exculpatory evidence from the grand jury and

7 improperly vouched for the credibility of its witness, J.S. The Defendant also argues that the

8 presentation of all of the charges to the grand jury at the same time may have led to bias and an

9 improper indictment.

10 DISCUSSION

11 "A felony prosecution requires an indictment upon a probable cause determination by a

12 grand jury." People v. Villapando et ad., 1999 Guam 1 31. Under 8 GCA § 50.46, the

13 prosecuting attorney, "shall submit any evidence in his possession which would tend to negate

14 guilt" to the grand jury. Section 50.46 is derived from the California Penal Code, and therefore

15 California law is persuasive.

16 Although the California Penal Code obligates the prosecution to "inform the grand jury

17 of [the] nature and existence" of any known exculpatory evidence, an indictment will be

18 dismissed only if the prosecution's failure to disclose exculpatory evidence "results in

19 substantial prejudice." People v. Becerra, 165 Cal. App. 4th 1064, 1070 (2008).

20 When a defendant challenges a grand jury indictment before trial, the court must

21 determine whether a reasonable probability exists that "a properly informed jury would have

22 declined to find probable cause to indict had it known of the omitted evidence." Berardi v.

23 Superior Court, 149 Cad. App. 4th 476, 495 (2007). The court must "evaluate the record as a

24 whole, taldng into consideration all relevant factors," including "the strength and nature of both

25 the undisclosed exculpatory evidence and the probable cause evidence that was presented."

26 at 495, see also Becerra, 165 Cad. App. 4th at 1070.

27 In this instance, the Court finds that there is not a reasonable probability that the grand

28 jury would have declined to indict the Defendant had they been made aware of J.S.'s

Page 2 of 4 Decision .and Order Criminal Cas e No. CF0133-18; People v . Atrik o A. Hewinin

1 uncertainty as to whether it was the Defendant who committed the crimes and her desire not to

2 pursue charges. The Defendant claims that the failure to provide the exculpatory evidence

3 constitutes improper vouching by the People such that the grand jury was not able to properly

4 determine probable cause. However, the grand jury was presented with testimony that the

5 crimes against J.S. occurred while she ,was asleep, and therefore the grand jury was aware that

6 she could not definitively identify her attacker. Moreover, J.S.'s desire not to pursue charges,

7 while potentially relevant to a jury weighing evidence, does not substantially alter a grand

8 jury's calculation of probable cause, as reasons beyond a defendant's innocence or guilt may

9 color a victim's decision not to prosecute. Therefore, the Court finds that, in weighing the

10 strength and nature of the undisclosed exculpatory evidence and the probable cause evidence

11 that was presented, there is not a reasonable probability that the grand jury would have

12 declined to find probable cause had it known the omitted evidence.

13 The Defendant further contends that the submission of adj three sets of charges, each of

14 which relates to a different set of accusations on a different date, had a cumulative effect on the

15 grand jury that prejudiced the Defendant. Although the Court did subsequently order the three

16 sets of charges to be separated so as to not prejudice the Defendant at trial, the Court does not

17 find that the initidsubMssion of all three sets of charges to the grand jury was improper. The

18 role of the grand jury is not to determine guilt, but rather to decide whether there is enough

19 evidence of a crime to produce an indictment. Therefore, the submission of the three sets of

20 charges would only be prejudicial to the extent that the grand jury relied upon the totality of the

21 charges in lieu of specific evidence in finding probable cause for a specific charge. In

22 reviewing the evidence presented to the grand jury, the Court finds that enough competent

23 evidence was provided by the People to support a reasonable showing of probable cause for

24 each indictment. Therefore, the Defendant's Motion to Dismiss the Indictment is DENIED.

25 CONCLUSION

26 For the reasons set forth above, that there was no reasonable probability that the grand

27 jury would have declined to indict the Defendant had they had access to the exculpatory

Page 3 of 4 Dec is ion and Order C r i m i n al Case N o . CF0133-18, People v . Atrik o A. Hewinin

1 evidence, and that the submission of adj three sets of charges did not prejudice the Defendant,

2 the Court hereby DENIES the Defendant's Motion.

4 IT IS so ORDERED 1uLna 2m9 •

8 1 ' HONORABLE ARTHUR R. BARCINAS 9 Judge, Superior Court of Guam 10

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