IN THE SUPERIOR COURT OF GUAM 2
3 THE PEOPLE OF GUAM, ) 4 ) ) 5 v. ) ) DECISION AND ORDER 6 JON CARSON LE FEVER, ) 7 ) ) 8 Defendant. ) ) 9
II INTRODUCTION
12 This matter is before the Honorable Judge Michael J. Bordallo. Pursuant to Rule 7.1 of 13 the Local Rules of the Superior Court of Guam Defendant's motion to dismiss was taken under 14 advisement on December 20, 2013. The People are represented by Assistant Attorney General, 15
16 Richelle J. Yu. Defendant is represented by Assistant Public Defender Richard S. Dirkx.
17 Having considered the papers, pleadings and file herein, the Court now enters an order denying 18 Defendant's request. 19 BACKGROUND 20 On May 16, 2012, the People filed a Magistrate's Complaint alleging that Defendant 21
22 during a period between September 1, 2011 and May 1, 2012, committed the following
23 charges: 1) Family Violence, as a 3rd Degree Felony and 2) Child Abuse, as a 3rd Degree 24 Felony. On May 23, 2012 a grand jury returned an indictment charging Defendant as follows: 25 1) Family Violence, as a 3rd Degree Felony, six counts; 2) Child Abuse, as a 3rd Degree 26 Felony, six counts; 3) Felonious Restraint, as a 3rd Degree Felony; 4) Aggravated Assault, as a 27
28 3rd Degree Felony. Nearly one year later, on March 13, 2013, the Defendant was indicted in a
Page 1 of5 superseding indictment upon the following 1) Family Violence, as a 3rd Degree 2 Felony, eight counts; Child Abuse, as a 3rd Degree Felony, two counts; 3) Felonious 3 Restraint, as a 3rd Degree Felony two counts; 4) Aggravated Assault, as a 3rd Degree Felony, 4 eight counts; 5) Family Violence, as a Misdemeanor, two counts; 6) Assault, as a 5
6 Misdemeanor, 2 counts; and 7) Child Abuse, as a Misdemeanor, two counts.
7 On August 20, 2013, Defendant filed a motion to dismiss. In it he asserts that during its 8 grand jury presentation the People failed to introduce sufficient evidence in support of the 9 allegations of serious bodily injury and exculpatory evidence. In the March 13, 2013 10
II indictment Defendant asserts that the People, in their superseding indictment, were statutorily
12 required to inform the grand jury of the following and did not: 1) Ms. Castro had been charged 13 and pled guilty to child abuse three months previously; 2) Ms. Castro's custody of the minor 14 had been taken and then restored; 3) Ms. Castro was the only witnesses as to most of the 15 allegations and her credibility is questionable due to self-interest; 4) Ms. Castro's recorded 16
17 interview occurred after she had pled guilty; 5) Child Protective Services had previously
18 interviewed all members of the household and all of them denied that Defendant abuse the 19 child; 6) The full contents of Dr. Que's report; 7) exhibits 2-1 0 which stated no radiographic 20 evidence of non-accidental trauma; 8) Dr. Que's report contained no entry that indicated the 21 injuries involved the likelihood of death or serious bodily injury; 9) The no fracture results of 22
23 the skeletal survey; and 10) Dr. Que did not observe or treat any serious bodily injury.
24 The People filed their opposition on August 30, 2013. In it the People first assert that 25 the Defendant's motion is untimely and that Defendant has not asserted sufficient facts to 26 justify a finding of good cause. In the alternative and upon the merits the People argue and 27
28 assert that the evidence identified by Defendant was not exculpatory and that they had no duty
Page 2 ofS to present it to the grand juries. In support of this argument the People cite to the Appellate 2 Division's in Quidachay and the U.S. Supreme Court's decision in Costello which 3 require a showing of flagrant and substantially prejudicial conduct prior to dismissal. They 4 further assert and argue that there was sufficient evidence presented to the grand juries to 5
6 support probable cause findings of serious bodily injury.
7 Defendant filed his reply on October 1, 2013. In it he reasserts his argument that the 8 evidence he has identified was exculpatory. He argues that it is his belief that the testimony of 9 a possible skull fracture was enough to make the jury believe that the minor suffered head 10
II injuries and that it was therefore the prosecutor's duty to provide the results of the skeletal
12 exam and other further medical tests. 13 DISCUSSION 14 I. Timeliness 15 The People first object to the timeliness of Defendant's motion. They assert that the 16
17 Defendant's motion was filed after the motion cut-off date and that Defendant has failed to
18 assert sufficient facts to justify a finding of good cause allowing for the consideration of the 19 motion to dismiss. However, in objecting and asserting this error the People fail to identify 20 any standard or law which governs the consideration of late motions. Absent this the Court is 21 unwilling to consider the People's objection as to timeliness. Lamb v. Hoffman, 2008 Guam 2 22
23 ~~ 34-36.
24 II. Sufficiency and Competency 25 Section 50.42 of Title 8 of the Guam Code provides, 26 The grand jury shall receive only competent evidence but the fact that evidence 27 which is incompetent was received by the grand jury does not render the indictment void where sufficient competent evidence to support the indictment 28 was received by the grand jury.
Page 3 of5 8 GCA § 50.42 (2005). In November of 201 the Guam Supreme Court, citing Section 2
3 of Title 8 of the Guam Code, explained that grand jury serves a gatekeeping function
4 by considering the sufficiency of the evidence to support an indictment .., Guam v. San 5 Nicolas, 2013 Guam 21 ~ 11. Section 50.54(b) provides, "(b) [t]he grand jury shall find an 6 indictment when from the evidence presented there is reasonable cause to believe that an 7 indictable offense has been committed and that the defendant committed it." 8 GCA § 50.54 8
9 (2005). 10 Inherent within this function and these mandates is the People's duty to present to the II grand jury some evidence of each of the essential elements of a charge. See, People of 12 Territory ofGuam v. Quidachay, 1986 WL 68912 at *1-2 (D. Guam App. Div. 1986). While 13
14 Quidachay clarifies that it would be unwise to allow for the re-consideration of whether the
15 evidence that was presented to a grand jury was sufficiently competent or credible, axiomatic 16 to the statute's existence is the Court's duty to ensure some evidence of each element was 17 presented. Id. 18 In this case Defendant asserts that there was insufficient evidence submitted to the 19
20 jury to sustain a finding of probable cause of serious bodily injury. Mot. at 2-5. Defendant,
21 however concedes in his motion that the People asked repeated questions of Ms. Brewster 22 regarding various serious injuries and Ms. Brewster provided answers. Id. at 4. Furthermore 23 the Court's review of the evidence of soft tissue injuries reveals that evidence was presented 24
25 as to each essential element.
26 Defendant also argues and asserts that Ms. Castro testimony was biased and therefore
27 not competent However, Defendant has made no adequate showing that her testimony as 28 presented was, flagrantly so or the cause of substantial prejudice. People v. Palomo, 1993
Page 4 ofS WL 1 *5 (D. Guam App. Div. 1993). Under the above standard the Court's inquiry 2 ends here. As readily explained by the U.S. Supreme Court, the Guam Code and this Court's 3 Appellate division, it is outside of the ability of the Court to look further than whether any 4 evidence was presented as to the specific necessary element. United States v.
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IN THE SUPERIOR COURT OF GUAM 2
3 THE PEOPLE OF GUAM, ) 4 ) ) 5 v. ) ) DECISION AND ORDER 6 JON CARSON LE FEVER, ) 7 ) ) 8 Defendant. ) ) 9
II INTRODUCTION
12 This matter is before the Honorable Judge Michael J. Bordallo. Pursuant to Rule 7.1 of 13 the Local Rules of the Superior Court of Guam Defendant's motion to dismiss was taken under 14 advisement on December 20, 2013. The People are represented by Assistant Attorney General, 15
16 Richelle J. Yu. Defendant is represented by Assistant Public Defender Richard S. Dirkx.
17 Having considered the papers, pleadings and file herein, the Court now enters an order denying 18 Defendant's request. 19 BACKGROUND 20 On May 16, 2012, the People filed a Magistrate's Complaint alleging that Defendant 21
22 during a period between September 1, 2011 and May 1, 2012, committed the following
23 charges: 1) Family Violence, as a 3rd Degree Felony and 2) Child Abuse, as a 3rd Degree 24 Felony. On May 23, 2012 a grand jury returned an indictment charging Defendant as follows: 25 1) Family Violence, as a 3rd Degree Felony, six counts; 2) Child Abuse, as a 3rd Degree 26 Felony, six counts; 3) Felonious Restraint, as a 3rd Degree Felony; 4) Aggravated Assault, as a 27
28 3rd Degree Felony. Nearly one year later, on March 13, 2013, the Defendant was indicted in a
Page 1 of5 superseding indictment upon the following 1) Family Violence, as a 3rd Degree 2 Felony, eight counts; Child Abuse, as a 3rd Degree Felony, two counts; 3) Felonious 3 Restraint, as a 3rd Degree Felony two counts; 4) Aggravated Assault, as a 3rd Degree Felony, 4 eight counts; 5) Family Violence, as a Misdemeanor, two counts; 6) Assault, as a 5
6 Misdemeanor, 2 counts; and 7) Child Abuse, as a Misdemeanor, two counts.
7 On August 20, 2013, Defendant filed a motion to dismiss. In it he asserts that during its 8 grand jury presentation the People failed to introduce sufficient evidence in support of the 9 allegations of serious bodily injury and exculpatory evidence. In the March 13, 2013 10
II indictment Defendant asserts that the People, in their superseding indictment, were statutorily
12 required to inform the grand jury of the following and did not: 1) Ms. Castro had been charged 13 and pled guilty to child abuse three months previously; 2) Ms. Castro's custody of the minor 14 had been taken and then restored; 3) Ms. Castro was the only witnesses as to most of the 15 allegations and her credibility is questionable due to self-interest; 4) Ms. Castro's recorded 16
17 interview occurred after she had pled guilty; 5) Child Protective Services had previously
18 interviewed all members of the household and all of them denied that Defendant abuse the 19 child; 6) The full contents of Dr. Que's report; 7) exhibits 2-1 0 which stated no radiographic 20 evidence of non-accidental trauma; 8) Dr. Que's report contained no entry that indicated the 21 injuries involved the likelihood of death or serious bodily injury; 9) The no fracture results of 22
23 the skeletal survey; and 10) Dr. Que did not observe or treat any serious bodily injury.
24 The People filed their opposition on August 30, 2013. In it the People first assert that 25 the Defendant's motion is untimely and that Defendant has not asserted sufficient facts to 26 justify a finding of good cause. In the alternative and upon the merits the People argue and 27
28 assert that the evidence identified by Defendant was not exculpatory and that they had no duty
Page 2 ofS to present it to the grand juries. In support of this argument the People cite to the Appellate 2 Division's in Quidachay and the U.S. Supreme Court's decision in Costello which 3 require a showing of flagrant and substantially prejudicial conduct prior to dismissal. They 4 further assert and argue that there was sufficient evidence presented to the grand juries to 5
6 support probable cause findings of serious bodily injury.
7 Defendant filed his reply on October 1, 2013. In it he reasserts his argument that the 8 evidence he has identified was exculpatory. He argues that it is his belief that the testimony of 9 a possible skull fracture was enough to make the jury believe that the minor suffered head 10
II injuries and that it was therefore the prosecutor's duty to provide the results of the skeletal
12 exam and other further medical tests. 13 DISCUSSION 14 I. Timeliness 15 The People first object to the timeliness of Defendant's motion. They assert that the 16
17 Defendant's motion was filed after the motion cut-off date and that Defendant has failed to
18 assert sufficient facts to justify a finding of good cause allowing for the consideration of the 19 motion to dismiss. However, in objecting and asserting this error the People fail to identify 20 any standard or law which governs the consideration of late motions. Absent this the Court is 21 unwilling to consider the People's objection as to timeliness. Lamb v. Hoffman, 2008 Guam 2 22
23 ~~ 34-36.
24 II. Sufficiency and Competency 25 Section 50.42 of Title 8 of the Guam Code provides, 26 The grand jury shall receive only competent evidence but the fact that evidence 27 which is incompetent was received by the grand jury does not render the indictment void where sufficient competent evidence to support the indictment 28 was received by the grand jury.
Page 3 of5 8 GCA § 50.42 (2005). In November of 201 the Guam Supreme Court, citing Section 2
3 of Title 8 of the Guam Code, explained that grand jury serves a gatekeeping function
4 by considering the sufficiency of the evidence to support an indictment .., Guam v. San 5 Nicolas, 2013 Guam 21 ~ 11. Section 50.54(b) provides, "(b) [t]he grand jury shall find an 6 indictment when from the evidence presented there is reasonable cause to believe that an 7 indictable offense has been committed and that the defendant committed it." 8 GCA § 50.54 8
9 (2005). 10 Inherent within this function and these mandates is the People's duty to present to the II grand jury some evidence of each of the essential elements of a charge. See, People of 12 Territory ofGuam v. Quidachay, 1986 WL 68912 at *1-2 (D. Guam App. Div. 1986). While 13
14 Quidachay clarifies that it would be unwise to allow for the re-consideration of whether the
15 evidence that was presented to a grand jury was sufficiently competent or credible, axiomatic 16 to the statute's existence is the Court's duty to ensure some evidence of each element was 17 presented. Id. 18 In this case Defendant asserts that there was insufficient evidence submitted to the 19
20 jury to sustain a finding of probable cause of serious bodily injury. Mot. at 2-5. Defendant,
21 however concedes in his motion that the People asked repeated questions of Ms. Brewster 22 regarding various serious injuries and Ms. Brewster provided answers. Id. at 4. Furthermore 23 the Court's review of the evidence of soft tissue injuries reveals that evidence was presented 24
25 as to each essential element.
26 Defendant also argues and asserts that Ms. Castro testimony was biased and therefore
27 not competent However, Defendant has made no adequate showing that her testimony as 28 presented was, flagrantly so or the cause of substantial prejudice. People v. Palomo, 1993
Page 4 ofS WL 1 *5 (D. Guam App. Div. 1993). Under the above standard the Court's inquiry 2 ends here. As readily explained by the U.S. Supreme Court, the Guam Code and this Court's 3 Appellate division, it is outside of the ability of the Court to look further than whether any 4 evidence was presented as to the specific necessary element. United States v. Costello, 350 5
6 U.S. 359,363 (1956); 8 GCA § 50.42; People ofTerritory ofGuam v. Quidachay, 1986 WL
7 68912 at *1 (D. Guam App. Div. 1986). 8 III. Exculpatory Evidence 9 In 1993 the Court's Appellate Division held, "the failure to prevent exculpatory 10
II evidence will not serve as grounds to dismiss an indictment where it does not "amount to
12 flagrant deception or overreaching of a grand jury." People of Territory of Guam v. Palomo, 13 1993 WL 129624, *5 (D. Guam App. Div. 1993). A review of the evidence identified by the 14 Defendant reveals it is not sufficient to support a finding under this standard. While each of 15 the facts and evidences identified by the Defendant may perhaps serve a legitimate purpose at 16
17 a trial as impeachment, they are insufficient to be exculpatory. !d.
18 CONCLUSION 19 Based on the foregoing, Court DENIES the Defendant's Motion to Dismiss. A Pre- 20 Trial Conference is hereby set for February 4, 2014, at 10:00 am. 21
23 SO ORDERED this-------"=------/- day
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