People v. Mike

Opinion

IN THE SUPERIOR COURT OF CilX.£\¥') 12 r:; I: 37 2

3 ) CRIMINAL CASE NO. 306-11 4 PEOPLE OF GUAM, ) 5 vs. ) DECISION AND ORDER

6 ) (Motion to Dismiss)

LAWRENCE NARISON MIKE 7 )

Defendant.

8 )

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11 The matter came before the HONORABLE ELIZABETH BARRETT-ANDERSON on 12 December 22, 2011 for Defendant's Motions to Dismiss (hereinafter referred to as "Motion"). 13 Defendant was not present, but was represented by Attorney Suresh Sampath. People were 14 represented by Assistant Attorney General James C. Collins. The Court having considered all 15 the oral arguments, briefs, and materials filed herein now renders the following decision. 16 Guam's Supreme Court heIdI: "that unless good cause is shown, a complaint shall be 17 dismissed where a defendant is not promptly arraigned within 60 days of the filing of the 18 complaint." People v. Rasauo, 2011 Guam 14 ~ 16. Defendant argues that pursuant to People v. 19 Rasauo, 2011 Guam 14 (hereinafter referred to as Rasauo Ir), this case should be dismissed 20 with prejudice because Defendant was not arraigned within sixty (60) days after the Complaint

21 was filed. See also 8 GCA § 60.10. People argue that the Court should find good cause exists for

22 the delay, and therefore, the dismissal would be inappropriate. As required by Rasauo II, this

23 Court will review the specific facts in this case to determine whether or not there was good

24 cause for the delay in arraigning Defendant beyond the sixty (60) days after the Complaint was

25 filed. Rasauo, 2011 Guam 14 ~~ 10, 14.

Defendant was arrested on June 3, 2010 and given a notice to appear with a date of June 26

1,2011. On March 10,2011, the Complaint was filed, and a Summons was issued on March 25, 27

28 I This holding is hereinafter referred to as the "60 day rule."

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2011 for an arraignment scheduled for April 27, 2010. Defendant appeared on April 27, 2011, 2 the date set by the Summons, and was appointed counsel at the hearing. In order to provide 3 Defendant the opportunity to meet and confer with counsel, the arraignment was continued until 4 June 1, 2011, thirty-five (35) days later. The arraignment did not occur on June 1,2011 due to 5 absence of the arraignment magistrate; thus it was continued for thirty-five (35) days later on 6 July 6, 2011. Defendant was finally arraigned on July 6, 2011, which is more than sixty (60) 7 days after the Complaint was filed. 8 The time between the Complaint, March 10, 2011, and the first appearance on April 27, 9 2010 does not violate the 60 day rule announced in Rasauo II. However, the Court must 10 determine if the time between April 27, 2010 and July 6,2011 constitutes good cause or if this 11 case must be dismissed for the 60 day rule violation. In particular, the Court must review what 12 days, if any, after May 9, 2011 constitute "good cause" under Rasauo II. More specifically, the 13 Court must first determine if the time the Court allows a defendant to meet and confer with 14 counsel prior to being arraigned is reasonable and constitutes good cause. 15 Title 8 Guam Code Annotated section 45.30(c) provides that the Court shall allow

16 reasonable time to a defendant to meet and confer with counsel prior to being arraigned.

17 Meeting with and discussing this with counsel allows a defendant to understand the significance

18 of the arraignment process as well as the defendant's rights, which are asserted or waived at

19 arraignment. Hamilton v. Alabama, 368 U.S. 52 (1961). It is critical for a defendant to have this

20 understanding at time of arraignment. See e.g. Huston v. Com., 171 S.W.3d 743,744-45 (Ky. Ct.

21 App.2005). Further, the concerns of Guam's Supreme Court in People v. Rasauo, 2011 Guam

22 1, are not present when a defendant is appointed counsel and the delay between the Complaint and the arraignment is partially attributed to the time necessary for a defendant to meet and 23 confer with his appointed attorney. 2011 Guam 1 ~ 53(quoted by Rasauo, 2011 Guam 14 ~ 10).

24 The Office of the Attorney General has argued in several cases that any delay of 25 arraignment occasioned by a continuance granted by the magistrate court should be excused for 26 good cause. The Court disagrees that a bright line rule of any delay caused by a court's 27 calendaring of a criminal matter is automatically good cause under the 60 day rule. Guam's

Supreme Court makes it clear that it intended the court and its officers to be subject to the 2 prompt arraignment rule put forth in Rasauo II. Rasauo, 2011 Guam 14 1 12; 8 GCA § 3 80.50(a)("It shall be the duty of all courts and judicial officers ... to expedite such proceedings 4 to the greatest degree that is consistent with the ends of justice"). See also People v. flemelong, 5 CF150-10 (Super. Ct. Guam Jan. 13,2012). 6 Further, the Court rejects the contention that any length of delays caused by the time 7 provided to a defendant to meet and confer with an attorney is automatically good cause. The 8 Court finds that a reasonable amount of delay attributed to the time a defendant needs to meet 9 and confer with an attorney is good cause for purposes of the 60 day rule. Cf Flores, 2009 10 Guam 22 1 38. II In this case, Defendant's Motion did not address if any delay attributed to time for the 12 Defendant to meet and confer with counsel is good cause2 . Instead, Defendant's Motion argues 13 that no good cause exists for the violation of the 60 day rule in this case.

14 The Court finds that thirty-five (35) days3 is excessive amount of time for a court to

15 provide a defendant to meet and confer with his attorney prior to being arraigned. Since the

16 onus is on all judicial officers and the prosecuting attorneys to ensure that a defendant is

17 promptly arraigned, the Court holds that reasonable time, in the context of a continued

18 arraignment after a defendant is appointed counsel, means no more than thirty (30) days4. 8

19 GCA § 80.50(a). Thus, the delay in this case is per se unreasonable, hence this case should be

20 dismissed for the violation of the 60 day rule.

21 The Court took judicial notice of the unavailability of a magistrate available to hear

22 arraignments on June 1, 2011. The delay in a criminal case due to the unavailability of a judge has been found to be good cause in exceptional circumstances. Gill v. Superior Ct. of Guam, 23 1996 WL 875781, *4 (D. Ct. Guam Oct. 4, 1996). However, there is no showing of exceptional 24

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26 2 This issue was raised orally by other Defense attorneys and Defendant orally joined, but this argument is not raised in the written Motion.

27 335 days between April 27 th and June 1st.

4 The Court encourages the arraignment judge to consider only granting continuances for a defendant to meet with 28 appointed counsel of two (2) weeks or less in light of the Rasauo II decision; however, the Court accepts that up to thirty (30) days is reasonable.

circumstances for delay that commenced on June 1, 2011. It is also of note that since the onus is 2 on all judicial to ensure that a defendant is promptly arraigned, the arraignment might have been 3 continued to the following week, but instead it was continued for over a month. Therefore, the 4 Court finds that the unreasonable delay caused by the unavailability of a magistrate to arraign 5 Defendant is not good cause. Thus, this delay in this case is per se umeasonable, hence this case 6 should be dismissed for the violation of the 60 day rule.

7 Lastly, the Court must determine if the dismissal should be with or without prejudice.

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8 The Court is persuaded by the People's argument1 that the dismissal should be without 9 prejudice. Guam's Supreme Court declined to hold that all violations ofthe 60 day rule requires 10 a dismissal with prejudice. Rasauo, 2011 Guam 14 ~ 16("The issue of whether or not the case 11 should be dismissed with or without prejUdice should be decided in the first instance by the trial 12 court."). This is in contrast to other criminal cases Guam's Supreme Court has addressed, where 13 the case was dismissed with prejUdice based upon a finding that there was a statutory bar to re- 14 prosecution of the defendants in those cases. People v. Villapondo, 1999 Guam 31; People v. 15 Palomo, 1998 Guam 12. The People correctly assert that in this circumstance, there is not a 16 statutory bar to re-prosecution, instead the 60 day rule is explicitly dependent on statutory 17 interpretation. Rasauo, 2011 Guam 14 ~ 13; People v. Stephen, 2009 Guam 8 ~~ 35-36.

18 Therefore, the Court considers "a showing of prejUdice or any other factors" to

19 determine if dismissal with prejUdice is appropriate. Palomo, 1998 Guam 12 n.8(quoted by

20 Villapondo, 1999 Guam 31 ~ 52). Cf 18 U.S.c. § 3162(a)(2). Defendant does not make a

21 showing of prejudice, rather argues that dismissal without prejUdice renders the meaning of

22 Rasauo meaningless if the People can re-indict him in the future. But see Stephen, 2009 Guam 8 ~ 11. Therefore, as there is not a showing of prejudice, the Court will look at other factors used 23

24 to determine if dismissal with prejudice is required here.

25 "Dismissal of an indictment is a disfavored remedy.... Indictments are rarely dismissed

26 for alleged government misconduct which occurs outside the Complaint process because such

27 misconduct must be "grossly shocking and so outrageous as to violate the universal sense of

28 5 This issue was raised orally, not in the written opposition.

justice. '" People v. Marada, 1995 WL 604365, *1 (D. Guam App. Div. Sep. 18, 1995)(intemal 2 citations omitted). See also Stephens, 2009 Guam 8 ~ 21(discussing dismissal for unnecessary 3 delay should occur "only in extreme circumstances"); People v. Gutierrez, 2005 Guam 19 ~~ 61-

4 70(discussing dismissal based on finding the People acted in bad faith). In this case, there is no

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5 alleged government misconduct or bad faith on the part of the People . Instead, there is a

6 violation of the 60 day rule, which was recently announced in Rasauo II, which requires 7 dismissal, but not necessarily dismissal with prejudice. 8 Additionally, dismissal with prejudice is sometimes used by Courts to send a strong 9 message to prosecutors who have consistently violated defendants' rights and force them to 10 reduce pretrial delays in general. Us. v. Perez, 2011 WL 2294194, *3 (D. Ct. Guam Jun. 8, 11 2011). Stephens, 2009 Guam 8 ~ 21("If a court is to apply the harsh rule of dismissing a 12 criminal case with prejudice ... it must either establish local rules ... or warn the prosecution 13 that further delay could jeopardize the case."). However, the violation of a defendant's prompt 14 arraignment right is not an issue this Court has been asked to address in relation to arraignments 15 that occurred after Rasauo II was issued. Instead, this Court is merely addressing motions to 16 dismiss based on delays that occurred before the 60 day rule was announced, leading this Court 17 to believe that the People do not require a strong message from this Court to ensure that they are

18 now respecting a defendant's right to prompt arraignment. This factor weighs in favor of

19 dismissal without prejudice.

20 Further, in this circumstance, dismissal without prejudice cannot be seen as condoning

21 the People's behavior, because neither the People nor the Court were aware of the 60 day rule at

22 the time of the delay of the Defendant's prompt arraignment. Id. This factor weighs in favor of

23 dismissal without prejudice.

24 In this scenario, Defendant's constitutional rights are not implicated, thus the Court

25 should weigh the violation of Defendant's right to a prompt arraignment with the competing interest "of society to be secure from crime through the regular enforcement of the criminal 26

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28 6 All of the procedural facts of this case occurred before the promulgation of Rasauo II, therefore, there can be no finding that the People intentionally violated the 60 day rule.

laws." Gutierrez, 2005 Guam 19 ~ 68 (internal citation and quotation omitted). Upon balancing 2 these factors as well as taking into consideration of lack of showing of prejudice the Court 3 determines that dismissal without prejudice is most appropriate. 4 There are one hundred eighteen (118) days between the filing of the Complaint and 5 Defendant's arraignment. The forty-eight (48) days between the filing of the Complaint and 6 Defendant's first appearance do not violate the 60 day rule. As indicated above, the thirty-five 7 (35) days between Defendant's first appearance and Defendant's first scheduled continued 8 arraignment is an unreasonable delay and is not good cause. Further, the additional thirty-five 9 (35) days between the first scheduled arraignment and his actual arraignment is an unreasonable 10 delay and is not good cause. Since there is not good cause shown for the entire duration of the II violation of the 60 day rule, Defendant's Motion is GRANTED in part. Rasauo, 2011 Guam 14 12 ~ 16. The Court finds that Defendant was not promptly arraigned pursuant to 8 GCA § 60.10(a);

13 therefore, the Court is DISMISSING this case without prejudice. 14

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IT IS SO ORDERED this - " - - - - March, 2012.

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19 Judge, Superior Court of Guam 20

21 22 23 24 25 26 GlnrleJ.A4