People v. Limes

Opinion

erritorial Law Library

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3 IN THE SUPERIOR COURT OF GUAM CL~:-;,~ r,,;' C(YdRT 4 )

5 PEOPLE OF GUAM ) CRIMINAL CASE NO. CF0199-l0 )

6 vs. )

7 ) DECISION AND ORDER ON JIMMY W ABOL LIMES ) DEFENDANT'S TWO MOTIONS TO 8 ) DISMISS INDICTMENT WITH )

PREJUDICE 9 Defendant.

)

10 INTRODUCTION 11

12 This matter originally came before the Honorable Alberto C. Lamorena, III, 0

13 Defendant Limes' original Motion to Dismiss With Prejudice. Following the hearing on th 14 original motion, Defendant Limes filed an additional Motion to Dismiss With Prejudice. Th 15 hearing on this latest motion was held on October 5, 2011. Attorney Ryan F. Kaiser represente 16 Defendant, Jimmy Limes. Attorney Brian D. Gallagher appeared on behalf of the People 0 17

18 Guam. This Court has since taken both motions to dismiss under advisement. Having given du

19 consideration to the parties' arguments relating to the above motions, the Court now issues it 20 Decision and Order.

21 FACTUAL BACKGROUND 22

23 On March 25, 2010, a grand jury returned an indictment charging Defendant with tw st 24 counts of First Degree Criminal Sexual Conduct (As a 1 Degree Felony), one count 0 25 Attempted Second Degree Sexual Conduct (As a 1st Degree Felony), three counts of Child Abus 26 (As a Misdemeanor), and one count of Indecent Exposure (As a Petty Misdemeanor). Thes 27 charges stem from allegations that on three separate occasions Defendant engaged in acts 0 28

criminal sexual conduct with K.O.G., a minor family member.

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Following the return of the indictment Defendant raised concerns that the prosecution ha 2 not offered to the grand jury certain evidence contained within an internal investigation repo 3 prepared by the Guam Police Department ("GPD"). That report contains a brief summary of 4 statement by a school official indicating that K.O.G.'s story had not been entirely consistent 5

6 Defendant filed a motion to dismiss the indictment with prejudice for the prosecution's failure t

7 present exculpatory evidence to the grand jury. After a delay in receiving a copy of the interna 8 police report from GPD for the court's inspection, this Court took the matter under advisement 9 Thereafter, Defendant filed a second motion to dismiss and attached two supporting affidavit 10

11 signed by K.O.G. and K.O.G.'s mother. Those affidavits effectively recant all allegations mad

12 by K.O.G. that implicate Defendant. Defendant argues in his motion that K.O.G.'s withdrawal 0 13 all allegations effectively renders the prosecution unable to prove the charges and Defendan 14 therefore requests dismissal of the charges with prejudice.

15 DISCUSSION 16

17 1. The Prosecution's Failure to Present Exculpatory Evidence

18 Under Guam law, the prosecution is required to present exculpatory evidence to the gran 19 jury. Title 8 section, 50.46 of the Guam Code Provides:

20 Prosecuting Attonrey Only Officer to Present Evidence; Duty to Disclos 21 Exculpating Evidence in His Possession. 22 The grand jury shall receive only evidence presented to it by the prosecutin 23 attorney but the prosecuting attorney shall submit any evidence in his possession whic would tend to negate guilt and the grand jury shall weigh all the evidence submitted.

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8 G.C.A. § 50.46. As the Ninth Circuit has noted, section 50.46 offers no guidance as to th 25

26 proper course of action when the prosecution runs afoul of the statute and thus this court rna

27 look to federal law to determine whether dismissal of the indictment is required. See Peo Ie 0 28 Territory of Guam v. Muna, 999 F.2d 397, 399 (9th Cir. 1993).

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Dismissal of an indictment is considered a drastic measure that is disfavored by the court 2 and dismissal should therefore be granted only under narrow circumstances. See Muna, 999 F.2 3 at 399; U.S. v. Rodgers, 751 F.2d 1074, 1076-77 (9th Cir. 1985). Where the trial court consider 4 a defect in the grand jury proceedings prior to trial the appropriate inquiry for determinin 5

6 whether the indictment should be dismissed centers on "whether the defendant has bee

7 prejudiced by the error." Muna, 999F.2d 397 at 399 (citing Bank of Nova Scotia v. Unite 8 States, 487 U.S. 250, 255, 108 S.Ct. 2369, 2373,101 L.Ed.2d 228 (1988)); accord United State 9 v. Fernandez, 288 F.3d 1199, 1239 (9th Cir. 2004) (recognizing that a court may dismiss 10

11 indictment only if the prosecutorial misconduct is flagrant and causes substantial prejudice to th

12 defendant). Prejudice exists if"'the violation substantially influenced the grand jury's decision t 13 indict,' or if there is 'grave doubt that the decision to indict was free from substantial influenc 14 of such violations.'" Bank of Nova Scotia v. United States, 487 U.S. 250,257, 108 S.Ct. 2369 15 2374 (1988) (quoting United States v. Mechanik, 475 U.S. 66, 78, 106 S.Ct. 938, 945, 8 16

17 L.Ed.2d 50 (1986) (O'Connor, J. concurring).

18 In the present case, Defendant argues that a notes contained within a GPD Intern 19 Affairs Investigation Findings relating to a statement by Diaz, K.O.G.'s principal, constitute 20 exculpatory evidence that should have been presented to the grand jury. The notes indicate tha 21 K.O.G. had discussed the allegations with Diaz and that Diaz noted some inconsistency wit 22

23 K.O.G.'s allegations: "Diaz stated that [K.O.G.'s] story seemed to change from time to time

24 because when [K.O.G.] was interviewed by the CPS worker, Muyco, [K.O.G.] did not disclos 25 everything to Muyco, that [K.O.G.] has told her (Diaz)." (Internal Affairs Investigation Findings 26 lAS Case No.1 0-024, pg 12).

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This Court agrees with Defendant that this statement constitutes evidence would tend t 2 negate guilt and should have been disclosed to the grand jury under section 50.46. In a cas 3 involving alleged acts of criminal sexual conduct, the statements and credibility of the victim ar 4 critical to the prosecution's case. Where portions of a police report contain statements tha 5

6 undermine the credibility of the victim and the allegations of criminal acts, such evidence rna

7 have a critical effect on the grand jury's decision to indict and such evidence should therefore b 8 presented to the grand jury. Cf. Smith v. Cain, 543 U.S. _ (2012) (detective's notes containin 9 statements inconsistent with a witness's identification testimony constituted material exculpato 10

11 evidence that should have been submitted to defense). This Court therefore finds that Defendan

12 was prejudiced by the failure to present evidence tending to negate guilt and therefore dismissa 13 without prejudice is appropriate.

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15 II. Sufficiency of the Evidence 16 Given that dismissal is warranted based on the prosecution's failure to presen 17 exculpatory evidence, this Court need not decide the motion to dismiss for insufficient evidence.

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19 CONCLUSION 20 Based on the foregoing, the Court hereby GRANTS Defendant's Motion to Dismiss fo 21 Failure to Present Exculpatory Evidence and DISMISSES the indictment without prejudice.

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23 It is SO ORDERED, this 2nd day of April, 2012.

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