People v. Kitano

Opinion

IN THE SUPERIOR COURT OF GUAM

) CRIMINAL CASE NO. CF499-08 1 PEOPLE OF GUAM i lo ) AMENDED DECISION AND ORDER ) (Defendant's Motion in Limine to Exclude 11 VS. ) Rule 404(b) Evidence and Rule 609 ) Evidence; and Motion to Suppress 12 ARNOLD B. KITANO, ) Suggestive Identification) 1 Defendant. i1

l5 I111 INTRODUCTION T h s matter came before the Honorable Anita A. Sukola on December 30, 2008, for a l6

l7 I hearing on Arnold I3 Kitano's ("Defendant") Motion to in Limine to Exclude Evidence and l8 11 Defendant's Motion to Suppress Suggestive Identification. Attorney Stephen Hattori of l9 11 Alternate Public Defender represented Defendant. Attorney Jeffery Moots appeared on behalf of 20 11 the People of Guam ("the People"). Upon review of the evidence, oral and written arguments, 21 11 and legal authorities presented by both attorneys, the court hereby issues this Decision and 11 Order.

23 11 BACKGROUND

11 On November 6, 2008, Defendant was indicted as follows: the first charge was First

I 24

25 (Degree Criminal Sexual Conduct (As a 1" Degree Felony); and the second charge was Second 26 Degree Criminal Sexual Conduct (As a 2nd Degree Felony). Indictment at 1-2 (November 6, 27

People of Guam v. Arnold Kitano, CF499-08 Page 1 of 12 Decision and Order - Defendant's Motion in Limine to Exclude Rule 404(b) Evidence and Rule 609 Evidence; and Motion to Suppress Suggestive Identification On December 15, 2008, Defendant filed a Motion in Limine to Exclude 4040) evidence

3 1I 1I and Rule 609 evidence. Defendant's Motion in Limine at 1 (December 15, 2008). The

Defendant asked the Court to exclude any evidence of prior bad acts that the victim or any other I witness would testify to. Id. at 2. The Defendant also argued that any evidence of felony 5

6 II convictions that are more than ten years old be excluded. Id.at 2-3.

11 On December 17,2008, Defendant filed a Motion to Suppress Suggestive Identification.

I111 Defendant's Motion to Suppress Suggestive Identification at 1 (December 17, 2008). The

Defendant argued that the victim - Chun Ludwick ("Ludwick") - was given the opportunity to I view Defendant alone, and not in a line up. Defendant argued that because the identification was 11 suggestive a subsequent photo line up and any in court identification should be suppressed. Id. 12

13 at 5.

(1II On December 22, the People filed an Opposition to Defendant's Motion to Suppress and l4 l5 an Opposition to Defendant's Motion to Exclude. In their opposition to the motion to suppress, I 16 the People argued that Ludwick was never shown the Defendant for any purpose. People's 17 Opposition to Defendant's Motion to Exclude at 2 (December 22, 2008). In their opposition to 18

l9 20 II the motion to exclude, the People argued that prior sexual acts are allowed under Rule 413.

People's Opposition to Defendant's Motion to Exclude at 2 (December 22, 2008). 21 On December 24, 2008, Defendant filed a Supplemental Memo in support of his 22 previously filed Motion in Limine. Defendant's Supplemental Motion to Exclude at 1 23 (December 24, 2008). Defendant asked that Ludwick's statement about previously seeing 24

25 26 I111 Defendant masturbating in her business; Lili Wan's ("Wan") statement that Defendant

masturbated in her store; and Zie Duenas' ("Duenas") statement that Defendant grabbed her I 27 11 and pulled out his penis be excluded based on Rules 413 and 403. Id. at 1-2. Defendant also I People of Guam v. Arnold Kitano, CF499-08 Page 2 of 1 2 Decision and Order - Defendant's Motion in Limine to Exclude Rule 404(b) Evidence and Rule 609 Evidence; and Motion to Suppress Suggestive Identification asked that prior sexual assaults allegedly committed by Defendant on July 25, 2001 and August

10,2005 be excluded based on Rules 413 and 403. a.at 3-4.

On December 29, 2008, the People filed a Opposition to Defendant's Supplemental

Motion to Exclude. People's Opposition to Defendant's Supplemental Motion to Exclude at 1

(December 29,2008). The People offer the statements of Ludwick, Wan and Duenas under Rule

4040). a. at 1-3. The People offer Defendant's statement of the August 10, 2005 incident is

admissible under Rules 801(d)(2) and 804(b)(3). Id. at 3-4. The Court now addresses

Defendant's Motion in Limine and Motion to Suppress.

DISCUSSION I. Exclusion of Evidence Based on 404(b)

The Defendant argued that Ludwick, Wan and Duenas must be prevented from testifyln:

of any other bad acts of the Defendant based on 6 G.C.A. !j 404(b). Guam Rules of Evidencl

404(b) bars the introduction of "other crimes, wrongs or acts" to prove that the accused acted ii

conformity therewith. 6 G.C.A. 5 404(b). To be admissible under Rule 404(b), evidence of othe

crimes, wrongs, or acts must (1) must be relevant to an issue other than character or thl

propensity to act accordingly and (2) must satisfy Rule 403's balancing test, which requires tha

extrinsic evidence have probative value that is not substantially outweighed by unfair prejudicl

that might result from its admission. DiRico v. City of Quincy, 404 F3d 464, 467-468 (1st C ~ I

2005) (evidence of other crimes, wrongs, or acts is admissible if it has "special relevance to a~

issue in the case such as intent, knowledge, or absence of mistake or accident, and must no

II include bad character or propensity as a necessary link in the inferential chain" and its danger o

II unfair evidence does not substantially outweigh its probative value). Rule 404(b) allows for th~

admission of evidence of other crimes, wrongs or acts to prove motive, opportunity, intenf

People of Guam v. Arnold Kitano, CF499-08 Page 3 of 12 Decision and Order - Defendant's Motion in Limine to Exclude Rule 404(b) Evidence and Rule 609 Evidence; and Motion to Suppress Suggestive Identification preparation, plan, knowledge, identity, or absence of mistake or accident. Old Chief v. U.S., 5 19 1

2 U.S. 172,196,117S.Ct.644,657(1997).

3 4 11 The People bear the burden of establishing that the evidence: (1) proves a materia

element of the crime currently committed; (2) is similar to the charged conduct; (3) is based o 1 5 sufficient evidence; and (4) is not too remote in time. People of Guam v. Evaristo, 1999 Gu 6

7 11 22, 7 11 (citing United States v. Hinton, 3 1 F.3d 817, 822 (9th Cir. 1994). A fifth and final 8

11 consideration that the court must address is whether the probative value of the evidence i

substantially outweighed by the danger of unfair prejudice. 6 G.C.A. 8 403; see also ~varisto,l 1 10 1999 Guam 22 at 7 17. 11 A. Ludwick's Testimony 12

l3 11 Defendant asked the Court to exclude Ludwick's testimony of Defendant's prior bad acts.

Defendant's Supolemental Motion to Exclude at 1 (December 24, 2008). The People offered

l5 1( Ludwick would testify of an encounter with the Defendant approximately three months prior t 1 16 the October 13, 2008 rape, the Defendant smoked a cigarette and masturbated in her business. 17 Motion Hearing at 2:27 p.m. (December 30, 2008). The People argued that Defendant has raise 18

l9 11 the defense of mistaken identification on the part of Ludwick. Id. at 2; Motion at 2:28

20 21 11II p.m. (December 30, 2008). The People offered that Ludwick's testimony of her past encounte

with the defendant goes to show not that she remembers and recognizes the Defendant. 1 Id. el Th

4 22 Court disagrees. 23 The Court determines that the People have not satisfied the test to admit 404(b) evidenc 24

I1 I1 based on the Supreme Court of Guam's holding in Evaristo. More particularly, the People ar 25 26 unable to demonstrate that Ludwick's testimony that Defendant masturbated in her business i 4 27 II similar to the charged conduct - the second prong of the Evaristo test to admit 404(b) evidence1

People of Guam v. Arnold Kitano, CF499-08 Page 4 of 12 Decision and Order - Defendant's Motion in Limine to Exclude Rule 404(b) Evidence and Rule 609 Evidence; and Motion to Suppress Suggestive Identification II Defendant is charged with First Degree Criminal Sexual Conduct. First Degree Criminal Sexua

I11I Conduct requires sexual penetration and the use of force or coercion. See 9 G.C.A. 8 25.15.

3 Defendant masturbating in Ludwick's business was not similar to the charge of First Degre 4 Criminal Sexual Conduct because there was neither sexual penetration nor use of force or

coercion. The Court Grants Defendant's Motion to Exclude Ludwick's testimony of a past bad

act.

Defendant is also charged with Second Degree Criminal Sexual Conduct. Second Degree

Criminal Sexual Conduct requires sexual contact and the use of force or coercion. See 9 G.C.A 8

25.20. Defendant masturbating in Ludwick's business was not similar to the charge of Second

Degree Criminal Sexual Conduct because there was neither sexual contact nor the use of force or

coercion. The Court Grants Defendant's Motion to Exclude Ludwick's testimony of a past bad

B. Wan's Testimony

Defendant asked the Court to exclude Wan's testimony of Defendant's prior bad acts.

Defendant's Supplemental Motion to Exclude at 1 (December 24,2008). The People offered that

Wan will testify that Defendant was in her store around midnight on October 13, 2008, contr

20 21 1111 to Defendant's assertion that he was at his mother's home. Motion Hearing at 2:32 p.m.

(December 30, 2008). The People argued that Defendant intends to raised the defense of alibi.1

26 People's Opposition to Defendant's Supplemental Motion to Exclude at 2. The People offere

that Wan would testify to a prior encounter with Defendant masturbating in her store fo

identification purposes only. The People argued Wan's identification would place Defendant i

/Iher store (located next door to Ludwick's business) and not at Defendant's mothers home. 4 1 Motion Hearing at 2:32 p.m. (December 30, 2008). The People argued that Wan was able t

People of Guam v. Arnold Kitano, CF499-08 Decision and Order - Defendant's Motion in Limine .I to Exclude Rule 404(b) Evidence and Rule 609 Evidence; and Motion to Suppress Suggestive Identification identify Defendant as being present in her store the night of October 13, 2008 because she

remembered that the Defendant from the prior incident, which he masturbated in her store. a.at

2:33 p.m. The Court disagrees.

The Court determines that the People have not satisfied the test to admit 404(b) evidenc

11 based on the Supreme Court of Guam's holding in Evaristo. More particularly, the People ar4 II unable to demonstrate that Wan's testimony that Defendant masturbated in her store is similar to(

the charged conduct - the second prong of the Evaristo test to admit 404(b) evidence. Defendant

is charged with First Degree Criminal Sexual Conduct. First Degree Criminal Sexual Conduct

requires sexual penetration and the use of force or coercion. 9 G.C.A. 4 25.15. Defendant

II masturbating in Wan's store was not similar to the charge of First Degree Criminal Sexu

II Conduct because there was neither sexual penetration nor use of force or coercion. The Co

II Grants Defendant's Motion to Exclude Wan's testimony of a past bad act.

II Defendant is also charged with Second Degree Criminal Sexual Conduct. Second Degre

II Criminal Sexual Conduct requires sexual contact and the use of force or coercion. See 9 G.C.A 4

II 25.20. Defendant masturbating in Wan's store was not similar to the charge of Second Degre

II Criminal Sexual Conduct because there was neither sexual contact nor the use of force o 1 II II coercion. The Court Grants Defendant's Motion to Exclude Wan's testimony of a past bad act.

C. Duenas' Testimony 1 Defendant asked the Court to exclude Duenas' testimony of Defendant's prior bad acts.

Defendant's Supplemental Motion to Exclude at 1 (December 24, 2008). The People

Duenas' testimony goes to show the similarity in the modus operandi of

Hearing at 2:37 p.m.; People's Opposition to Defendant's Supplemental Motion to Exclude at 3.

The People offered that Duenas will testify that Defendant entered her business and inquired i

People of Guam v. Arnold Kitano, CF499-08 Decision and Order - Defendant's Motion in Limine Page 6 of 12 1 to Exclude Rule 404(b) Evidence and Rule 609 Evidence; and Motion to Suppress Suggestive Identification anyone else was present. Motion Hearing at 2:36 p.m. (December 30, 2008). The People offere 4 IIII that Duenas would testify to a prior encounter with Defendant grabbing her and taking his peni 1 3 out of his pants. Id. The People argued Duenas' identification would show a modus operandi o

the Defendant. Motion Hearing at 2:32 p.m. (December 30, 2008). The Court disagrees with th 4 5

The Court determines that the People have not satisfied the test to admit 404(b) evidenc

based on the Supreme Court of Guam's holding in Evaristo. More particularly, the People ar

1I unable to demonstrate that Duenas' testimony that Defendant grabbed in her and while taking hi 1 10 penis out while in her store was similar to the charged conduct - the second prong of the 11 test to admit 404@) evidence. Defendant is charged with First Degree Criminal Sexual Conduct. 12

13 11 First Degree Criminal Sexual Conduct requires sexual penetration and the use of force 04 14 coercion. 9 G.C.A. 5 25.15. Defendant grabbing Duenas and taking out his penis while in her l5 store was not similar to the charge of First Degree Criminal Sexual Conduct because there was 16 no sexual penetration. Therefore, the Court will grant Defendant's Motion to Exclude Duenas' 17 testimony of a past bad act. 18

l9 11 Defendant is also charged with Second Degree Criminal Sexual Conduct. Second Degre

20 1111 Criminal Sexual Conduct requires sexual contact and the use of force or coercion. See 9 G.C.A 5

21 22 25.20. Defendant grabbing Duenas and taking out his penis while in her store was not similar t 4 the charge of Second Degree Criminal Sexual Conduct because there was no sexual 23 Therefore, the Court will grant Defendant's Motion to Exclude Duenas' testimony of a past ba 24

1 I 11. Rules 801(b)(Z) and 804(d)(Z) Hearsay Evidence Exception

People of Guam v. Arnold Kitano, CF499-08 Page 7 of 12 Decision and Order - Defendant's Motion in Limine to Exclude Rule 404(b) Evidence and Rule 609 Evidence; and Motion to Suppress Suggestive Identification Defendant objects to two statements the Defendant made to the Guam Police Department

during the investigation of other sexual offenses the Defendant was accused of. People's

Opposition to Defendant's Supplemental Motion to Exclude at 3 (December 29, 2008). The

People argued that the statements are admissible under Rule 801(d)(2). Under Rule 801(d)(2), an

admission by party opponent is admissible if "the statement is offered against a party and is (A)

the party's own statement, in either an individual or a representative capacity."

The People also argue that the statements made by Defendant are admissible under Rule

804(b)(3) - statement against interest. Under Rule 804(d)(3), "a statement which was at the time

of its making . . . so far tended to subject the declarant to civil or criminal liability that a

12 II reasonable person in the declarant's position would not have made the statement unless believin

it to be true." The Court agrees that under Rule 802(d)(2) and Rule 804(d)(3) the prior statement

made by Defendant would be admissible. But there is an additional step the Court must appl

l5 11 when determining the admissibility of hearsay evidence. The Court must weigh the probativ el (1 value of the evidence against the unfair prejudice to the defendant. I In U.S. v. Slaughter, 386 F.3d 401 (2nd Cir. 2004)' the Second Circuit determined tha

evidence containing hearsay may be admissible not for its truth but as background information i

"(1) the non-hearsay purpose by which the evidence is sought to be justified is relevant, and (2 1 4 the probative value of this evidence for its non-hearsay purpose is [not] outweighed by th .i danger of unfair prejudice resulting from the impermissible hearsay use of the declarant' "I statement." 386 F.3d at 403; G.R.E. Rule 403. Although the Court finds that the Defendant' 4 statements are relevant, the Court determines that probative value of the of the Defendant'

statements is out weighed by the danger of unfair prejudice. The Court finds that a jury may, "I even though given instructions against do so, use Defendant's statements as an admission of guil

People of Guam v. Arnold Kitano, CF499-08 Decision and Order - Defendant's Motion in Limine Page 8 of 12 1 to Exclude Rule 404(b) Evidence and Rule 609 Evidence; and Motion to Suppress Suggestive Identification in the present case. Therefore, the Court will grant Defendant's Motion to Exclude th

introduction of Defendant's statements concerning prior sexual assaults that occurred in 200

and 2005.

111. 413 Evidence

Defendant sought to exclude an allegation of a prior sexual assault allegedly committe

by Defendant on July 25,200 1 as contained in P.R. 0 1- 11313 and an allegation of a prior sexua

allegation allegedly committed by Defendant on August 10, 2005 as contained in P.R. No. 05

16588. Defendant's Supplemental Motion to Exclude at 1 (December 24, 2008). The People i

its moving papers argue that they do not intend to offer neither P.R. 01-1 1313 nor P.R. No. 05

16588 will be offered as evidence.

Exclude at 4 (December 29, 2008). Therefore, the Court will not allow the introduction of th

police reports under Rule 413.

The People only state that they will offer Defendant's statements of other sexual assaults

People's Opvosition to Defendant's Supplemental Motion to Exclude at 3 (December 29, 2008)

Although the People mainly offer the Defendant's statements of other sexual assaults unde

Rules 801(d)(2) and 804(b)(3), the People also make an argument that Rule 413 would allow th

introduction of Defendant's statements of other sexual assaults. Under Rule 413, "[iln a crimina

case in whch the defendant is accused of an offense of criminal sexual conduct, evidence o

defendant's commission of another offense or offenses of criminal sexual conduct is admissible

and may be considered for its bearing on any matter to which it is relevant.'' The Cou

determines that under Rule 413 Defendant's statements may be relevant. U.S v. LeMay, 26

F.3d 1018, 1027 (9th Cir. 2001). But additional step must be applied. a.(citing United

-Mound , 149 F.3d 799, 800-802 (8th Cir. 1998) (concluding that Rule 413 passes constitutions

People of Guam v. Arnold Kitano, CF499-08 Page 9 of 12 Decision and Order - Defendant's Motion in Limine to Exclude Rule 404(b) Evidence and Rule 609 Evidence; and Motion to Suppress Suggestive Identification muster if Rule 403 protections remain in place); United States v. Wright, 53 M.J 476 (C.A.A 1

2000) (same); Kerr v. Caspari, 956 F.2d 788, 790 (8th Cir. 1992) (holding that a Missouri rul

3 allowing for propensity inferences in sex crime prosecutions is constitutional as long as rule 40 4 test is applied)). 5 The Court must apply Rule 403's test before it allows the admissibility Defendant' 6

7 Statements. The test under Rule 403 is although evidence is relevant, it "may be excluded if it

8 probative value is substantially outweighed by the danger of unfair prejudice, confusion of th

issues, or misleading the jury, or by considerations of undue delay, waste of time, or needles 10 presentation of cumulative evidence." G.R.E. Rule 403. The Court finds that the probative valu 11 of Defendant's statements of past sexual assaults is outweighed by the danger of unfair prejudic 12

13 and these statements may mislead a jury. While use of a prior bad act is prejudicial, the issuanc

14 of the proper limiting instruction can prevent that prejudice fiom being unfair. Evaristo, 199 l5 Guam at fi 17. The Court finds that a jury, even though given instructions not to do so, may stil 16 use Defendant's statements as an admission of guilt in the present case. The Court also finds th 17 proving motive and intent may still be proven - without the introduction of Defendant' 18

19 statements - by the testimony of the victim in the present case. Therefore, the Court will gran

20 Defendant's Motion to Exclude the introduction of Defendant's statements concerning prio 21 sexual assaults that occurred in 2001 and 2005. 22 IV. Rule 609 Evidence 23 Defendant asked the Court to exclude evidence of any felony convictions under Rule 609 24

25 Defendant's Motion in Limine to Exclude 404(b) Evidence and Rule 609 Evidence at

26 (December 15, 2008). Defendant asked the Court to specifically prevent the People fro 27 introducing evidence of any of Defendant's felony convictions in 1997. Id. Under Rule 609, 28 People of Guam v. Arnold Kitano, (3499-08 Page 10 of 12 Decision and Order - Defendant's Motion in Limine to Exclude Rule 404(b) Evidence and Rule 609 Evidence; and Motion to Suppress Suggestive Identification felony conviction over ten years old is not admissible. G.R.E. Rule 609. The People failed to 1

include in their opposition a response to Defendant's Motion to Exclude Defendant's 1997

3 conviction. Therefore, the Court grants the Defendant's Motion to Exclude Defendant's 1997 4 conviction pursuant to Rule 609. 5 V. Suppression of Identification 6

7 Defendant asked the Court to exclude a photo line up identification and any in court

8 identification as a result of a suggestive identification of Defendant by the victim - Ludwick.

Defendant's Motion to Suppress Suggestive Identification at 3 (December 17, 2008). A court 10 must determine under the "totality of the circumstances" that the identification was suggestive. 11 Neil v. Biggers, 409 U.S. 188, 199, 93S.Ct 375 (1972). The factors to be considered in 12

13 evaluating (1) the likelihood of misidentification include the opportunity of the witness to view

14 the criminal at the time of the crime; (2) the witness' degree of attention; (3) accuracy of the l5 witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness 16 at the confrontation; and (5) the length of time between the crime and the confrontation a.The 17 Court determines that no suggestive identification took place. 18

19 The People argued that Defendant was never shown to Ludwick either in person or

20 through a closed circuit television - essentially arguing that there was no suggestive 21 identification that took place on October 25, 2008. People's Opposition to Defendant's Motion 22 to Suppress at 2 (December 22, 2008). The court agrees. Officer Manglona testified that he 23 interviewed Ludwick at the Tumon precinct. Motion Hearing at 3: 19 p.m. (December 30,2008). 24

25 Officer Manglona testified that the Defendant was never in the shown to Ludwick for

26 identification purposes. Id. at 3:15 p.m. Officer Manglona also testified that Ludwick was not 27

28 People of Guam v. Arnold Kitano, CF499-08 Page 11 of 12 Decision and Order - Defendant's Motion in Limine to Exclude Rule 404(b)Evidence and Rule 609 Evidence; and Motion to Suppress Suggestive Identification given the opportunity to view Defendant via closed circuit television for identification purposes 1

in the Tumon Precinct. Id.

3 Officer Tapao testified that Defendant was placed in an interview room that contained a

closed circuit camera. a.at 3:24 p.m. Officer Tapao testified that he was in the interview room 4

5 with the Defendant. Id. at 3:30 p.m. Officer Tapao testified that Ludwick was not shown a 6

7 television monitor that displayed the Defendant, or taken to the interview room to show her the

8 Defendant. a. at 3:25 p.m. Officer further testified that at no time was Ludwick given an

opportunity to view the Defendant. Id. The Court determines that no suggestive identification 10 took place. Therefore, the Court will deny Defendant's Motion to Suppress Identification. 11 CONCLUSION 12 By preponderance of the evidence and based on the foregoing reasons, the Court 13 GRANTS Defendant's Motion to Exclude the testimony of prior bad acts by Ludwick, Wan, 14

15 and Duenas; Defendant's Motion to Exclude the introduction of Defendant's statements

16 concerning prior sexual assaults that occurred in 2001 and 2005 pursuant Rules 801(d)(2) and 17 804(b)(3); Defendant's Motion to Exclude the introduction of Defendant's statements 18 concerning prior sexual assaults that occurred in 2001 and 2005 pursuant to Rule 413; and 19

20 Defendant's Motion to Exclude Defendant's 1997 conviction pursuant to Rule 609. BUT

21 DENIES Defendant's Motion to Suppress 22 SO ORDERED this day of 23

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People of Guam v. Arnold Ki Decision and Order - Defend to Exclude Rule 404(b) Evidence and Rule 609 Evidence; and Motion to Suppress Suggestive Identification