~SUPER~R COURT
OF GUMI
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3 4 y 5 6 IN THE SUPERIOR COURT OF GUAM 7 8 PEOPLEOFGUAM, ) 9 ) CRIMINAL CASE NO.: CM0622-11 Plaintiff, )
10 VS. ) 11 ) DECISION AND ORDER RE:
) DEFENDANT’S MOTION TO 12 JAY JULIAN PHILLIP, ) COMPEL DISCOVERY 13 Defendant.
15 INTRODUCTION 16 This matter came before the Honorable Maria T. Cenzon on Jay Julian Phillip’s 17 (“Defendant”) Motion to Compel Discovery (“Motion”) filed on February 6, 2020. The People 18 19 of Guam (“People”) are represented by Assistant Attorney General Alysa Draper-Dehart. 20 Defendant is represented by Assistant Public Defender Zachary C. Taimanglo. The People filed 21 an Opposition to the Motion on February 13, 2020. Defendant did not file a Reply. This Court 22 took the matter under advisement without oral argument, following the cancellation of the
previously scheduled oral argument due to the COVID-19 pandemic.’ Having considered the
25 arguments set forth in the pleadings and the applicable law, the Court now issues the following 26 1 Pursuant to Administrative Order of the Guam Supreme Court ADM2O-210 (Mar. 13, 2020), the Judicial 27 Center in Hagatna was closed to the public on an emergency basis, necessitating the cancellation of the oral argument scheduled to commence at 2:30 p.m. on March 16, 2020.
28 People v Phillip; CM0622-1 1 Decision and Order Re: Defendant’s Motion to Compel Discovery 1 Decision and Order GRANTING Defendant’s Motion SUBJECT TO the in camera review by 2 the court as set forth with more particularity herein.2 3 BACKGROUND
On March 27, 2011, Guam Police Department Officers F.M. Santos, B.T. Benavente, and 5 6 ~ Aguon (collectively “Officers”) responded to a report of a traffic incident with injuries. ~ People’s Decl. (May 19, 2011). Upon arriving at the scene of the accident, the Officers saw that 8 the vehicle driven by Defendant had struck a concrete power pole. Id. The Officers proceeded to 9 interview Defendant regarding the accident and observed signs of intoxication, such as bloodshot 10 and watery eyes as well as a strong odor of an alcoholic beverage emitting from his breath. Id. 11 The Defendant confirmed that he had been drinking alcohol. Id.
12 13 The Officers instructed Defendant to submit to a Field Sobriety Test, which he refused. 14 Id. Guam Police Department Officer 3.1. Aguon (“Officer Aguon”) then attempted to place 15 Defendant under arrest. When Officer Aguon reached for Defendant’s left wrist, he pulled it 16 away. In response, Officer Aguon grabbed Defendant’s left wrist and right shoulder and forced 17 18 him onto the ground. Id. Defendant immediately pushed his body upwards in an attempt to get 19 back up. Id. Officer Aguon instructed Defendant to stop resisting while simultaneously 20 attempting to secure Defendant with his handcuffs. Id. Defendant’s continued resistance 21 prompted Aguon to strike Defendant twice in the head in order to gain his compliance. Id. On 22 May 19, 2011, Defendant was charged with Resisting Arrest (As a Misdemeanor) and Reckless 23 24 Driving (As a Petty Misdemeanor). Compl. (May 19, 2011). 25 26 2 In light of the statutory limitation of 5 G.C.A. §10108(c) protecting the personnel records from public disclosure, the court finds that the Defendant is only entitled to an in camera review of the requested records 27 by this court and a subsequent determination of relevance. See, People vs. Mateo, 2017 Guam 22, ¶18. The court finds this limitation to apply with equal force to Internal Affairs Investigation reports.
28 People v Phillip; CM0622-1 1 Decision and Order Re: Defendant’s Motion to Compel Discovery 1 The instant motion seeks an order of this court compelling the production of “any and 2 all discipline records, complaints, documents, Internal Affairs records and the like for officer 3 Aguon identified on page 11 in discovery.” Def Mot. to Compel Discovery at p. 2. Defendant
claims that the government’s responsive pleading as well as discovery thus far produced “reveal 5 6 an apparent pattern of behavior on the part of Officer 3.1. Aguon that would exculpate Mr. Phillip of the most serious allegation in charged herein. [sic]. This pattern is established in pleadings and
8 proceedings in CF-654-19 and CF0355-14.” Id. at p. 3. Defendant identifies specific complaints ~ of excessive force that have been filed against Officer Aguon. Additionally, the Defendant 10 contends that Officer Aguon “testified in the past, he had been subject of at least one excessive 11 12 force complaint, which according to his testimony, was investigated and found to be 13 unsubstantiated.” Mot. at 2. 14 The People oppose the motion, arguing that any such records are irrelevant “because the 15 instant case occurred in 2011, almost a full nine years ago [while] the cited incidents involving 16 Officer Aguon allegedly occurred six years ago and last year, nowhere close in time to when this 17 18 incident occurred.” People’s Response to Def ‘s Mot. To Compel Discovery at p. 3. The People 19 claim further that they neither (1) internal affairs investigations of Officer Aguon,3 nor (2) 20 records of CF00654-19 or CF0355-14, which Defendant claims contain allegations of excessive 21 . . . . .
force which were, or currently are, under investigation, are within their control or possession. Id.
22 II 23 2411
25/! 26 ~ The People claim that the Office of the Attorney General of Guam “does not have access to or control of” 27 Guam Police Department internal affairs reports and that GPD records are records that must be subpoenaed.
Response at p. 2.
28 People v Phill~p; CM0622-1 1 Decision and Order Re: Defendant’s Motion to Compel Discovery 1 DISCUSSION 2 The Defendant asserts that discovery material already provided to him indicates that 3 Officer Aguon was previously investigated (and may be subject to an ongoing investigation) for
using excessive force while apprehending suspects; therefore, he is entitled, under Brady vs.
5 6 Maryland, 373 U.S. 83 (1963), and its progeny and pursuant to Guam law, to an order of this court mandating the prosecution to disclose or permit the inspection of “any material or
8 information which tends to negate the guilt of the defendant as to the offense charged or would 9 tend to reduce his punishment therefor.” 8 GCA § 70.1 0(a)(7). Defendant seeks any and all 10 discipline records, complaints, documents, Internal Affairs records and the like. Id. 11 12 The People argue Defendant has not sufficiently established the materiality of the 13 personnel files to the instant matter. The People claim Defendant’s request is irrelevant because 14 the incidents of Officer Aguon’s alleged use of excessive force occurred in 2014 and 2019, 15 while the instant matter occurred in 2011. Thus, the People contend that Officer Aguon’s 16 personnel files will have no bearing in this matter and will not aid Defendant in the preparation 17 18 of his defense. 19 I. DEFENDANT’S RIGHT TO DISCOVERY OF MATERIAL INFORMATION. 20 Generally, there is no constitutional right to discovery in a criminal case. Weatherford v. 21 Burnsey, 429 U.S. 545, 559 (1977). “[T]he right to pre-trial discovery is strictly limited to that 22 which is permitted by statute or court rule mandated by constitutional guarantees.” People v. 23 24 Orallo, 2004 Guam 5 ¶ 9 (quotation marks and citations omitted). 25 Section 70.10, Title 8 of the Guam Code Annotated regulates the discovery process in 26 criminal proceedings and provides, in relevant part: 27 28 People v Phill~p; CM0622-1 1 Decision and Order Re: Defendant’s Motion to Compel Discovery 1 (a) Except as otherwise provided by §~ 70.20 and 70.30, at any time after the first appearance upon noticed motion by the defendant, the court shall order the 2 prosecuting attorney to disclose to the defendant’s attorney or permit the defendant’s attorney to inspect and copy the following material and 3 information within his possession or control, the existence of which is known, 4 or by the exercise of due diligence may become known to the prosecuting attorney:
5
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6 (7) any material or information which tends to negate the guilt of the 7 defendant as to the offense charged or would tend to reduce his punishment therefor.
8 8 GCA § 70.10(a)(7).
10 In addition to the enumerated discoverable items listed in 8 GCA § 70.10, “upon noticed 11 motion by the defendant and a showing of materiality to the preparation of his defense and that 12 the request is reasonable, the court in its discretion may order the prosecuting attorney to disclose 13 to the defendant’s attorney any relevant material and information not covered by § 70.10.” 8 14 15 GCA § 70.15(a). In short, before the court compels the prosecution to disclose such information, 16 the Defendant must establish, as a threshold matter, that such material or information would tend 17 to negate the guilt of the defendant as to the offense charged or tend to reduce his punishment 18 therefor, or show the “materiality” of such information. People v. Mateo, 2017 Guam 22 ¶ 15. 19 “Although this standard is not difficult to meet, this general limitation must be considered prior 20 21 to disclosure.” People v. Tuncap, 1998 Guam 13 ¶ 18.~ 22 At issue is the discoverability of Aguon’s “discipline records, complaints, documents, 23 Internal Affairs records, and the like.” This court’s review of Defendant’s request is limited to 24 two categories: (1) Internal Affairs records and (2) personnel records, into which “discipline 25 26 ~ See also, People v. Fisher, 2001 Guam 2 ¶ 13 (“Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding 27 would have been different. A ‘reasonable probability’ is probability sufficient to undermine the confidence in the outcome.”) (quoting United States v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988)).
28 People v Phill~p; CM0622-1 1 Decision and Order Re: Defendant’s Motion to Compel Discovery 1 records, complaints, documents... and the like” shall fall. Applying the materiality requirement 2 set forth in Mateo and Tuncap, supra, the court now considers whether Defendant is entitled to 3 each category of records.
A. Internal Affairs Records Relating to Complaints Involving Officer Aguon are 5 Material. 6 Reports of police officer violations or misconduct on the part of a police officer are
processed as set forth in 10 G.C.A. §77 133. Any such complaint shall be forwarded within forty-
8 eight (48) hours to the Chief of Police, who shall forward the alleged violation to the Internal
10 Affairs (IA) unit of the Guam Police Department and to the Guam Community Police Review 11 Commission “and shall further forward a copy of the alleged violations to the Attorney General.” 12 10 G.C.A. §77133(a)(emphasis added). Section 77133 contains additional mandatory procedures, 13 including compelling the Chief of Police to forward a report summarizing the allegations and any 14 15 final disposition to the Office of the Attorney General (OAG). 10 GCA §77133(c). The OAG 16 shall review all records and may initiate an independent investigation of the alleged violation. It 17 is reasonable, therefore, that the OAG is presumed to have control over and access to such 18 complaints involving Officer Aguon. 19 Although Defendant does not allege specifically that such IA complaints exist, he points 20 21 to recorded testimony of Officer Aguon in Criminal Case No. CF0355-14, whereby he “testified 22 that in the past, he had been subject of at least one excessive force complaint which, according to 23 his testimony, was investigated and found to be unsustained. [sic]” Def ‘s Mot. at 2. Additionally, 24 the People admit matter-of-factly that the incidents which are the subject of such excessive force 25 26 complaints against Officer Aguon occurred in 2014 and 2019, but proffer that the lapse in time 27 renders such complaints irrelevant. Thus, this is not the situation where a Defendant asserts a 28 People v Phillip; CM0622-1 1 Decision and Order Re: Defendant’s Motion to Compel Discovery 1 blanket discovery request for internal affairs investigations or complaints without any reasonable 2 basis for such request. 3 Instead, the court finds that any allegations of excessive force which are the subject of an
IA complaint are material to the defense in this case, where the Defendant is charged with 5 6 Resisting Arrest (as a Misdemeanor). Moreover, any lapse in time between the charges in this case (2011) and Officer Aguon divulging, during a trial in 2014, that he had been the subject of
8 “at least one excessive force complaint” is not sufficient to deny the production of such 9 complaints which are material to the preparation of the defense and which request is reasonable 10 in light of the charges against Defendant. See, 8 GCA § 70.15(a). See also, Tuncap at ¶ 16 (“In 11 12 situations where discovery is not covered under Section 70.10, the defendant may obtain other 13 discovery upon a showing of materiality to the preparation of his defense; and 2) the request is 14 reasonable.”). 15 The Court’s analysis of Defendant’s request is focused on the threshold concept of 16 materiality. Defendant has the burden to show, beyond mere speculation, that the documents will 17 18 contain material, relevant evidence. See People v. Mateo, 2017 Guam ¶ 17-20. Defendant’s 19 request is based upon the assertion that the personnel files of Officer Aguon may contain 20 relevant, exculpatory material. Specifically, Defendant offers in support of his motion the 21 following: (1) that Officer Aguon was the subject of a complaint involving excessive force in 22 CF0355-14, and (2) a Declaration contained in CF0564-19 stating that Office Aguon conducted 23 24 an open palm strike to the abdomen of the arrestee in order to gain compliance. The People have 25 also admitted that such complaints certainly exist, but deny their materiality based on mere 26 passage of time. The court rejects this argument. 27 28 People v Phillip; CM0622-1 1 Decision and Order Re: Defendant’s Motion to Compel Discovery 1 While this court’s decision is controlled by the principles set forth in Mateo, factually the 2 case is distinguishable and, therefore, not a bar to Defendant’s request here. The Guam Supreme 3 Court in Mateo found that Defendant failed to establish materiality of the police officers’
personnel files to the preparation of his defense and denied it on that basis.5 In marked contrast, 5
6 there are claims made by Defendant, the People and, indeed, by Officer Aguon himself in ~ testimony in another criminal matter, that Officer Aguon was the subject of “at least” one 8 excessive force complaint. As such, the court fmds that IA reports are subject to disclosure under 9 Brady and 8 GCA § 70.10(a)(7). However, the People are ordered to submit these reports to the
10 court UNDER SEAL for an in camera review during which the court will make a determination 11 12 of relevance and whether they are subject to public disclosure. 13 B. The People Must Establish, To The Court’s Satisfaction, That IA Records are Not Within Its Control.
14 15 The second basis on which People ask this court to deny Defendant’s request for IA 16 records is a summary statement that “after a review of the case files cited, the people do not 17 possess the records therein.” Response at p. 3. This declaration, without more, is insufficient 18 reason to deny Defendant, through an in camera inspection of any such reports by this court, 19 access to material evidence.
20 21 There is a presumption that the OAG has possession and control over IA reports which 22 have been received by the Chief of Police, who “shall forward” it to the IA unit of GPD ~ to 23 the Attorney General. 10 G.C.A. §77133. At the very least, a copy of any complaint, whether 24 disposed of or not, is within the control and possession of the OAG. Section 77133 further 25 ~ The Court in Mateo did not address specifically the discoverability of police officers’ IA reports because the 26 issue was not addressed at the trial court level. Mateo at fn. 2 (“no record evidence exists to determine whether any internal affairs complaint would have been material to Mateo’s defense, a requirement under 27 Brady v. Maryland, (citation omitted). We therefore decline to use our discretion to review Mateo’s Brady claim with respect to internal affairs documents.” (Citations omitted)).
28 People v Phillip; CM0622-1 1 Decision and Order Re: Defendant’s Motion to Compel Discovery 1 mandates the Chief of Police to prepare a statement open to the public indicating the preliminary 2 disposition of the allegation of misconduct by a police officer and reduce any final determination 3 to a report, which is then also forwarded to the OAG. 10 G.C.A. §77133(b), (c).
Based upon these provisions, the OAG is presumed to have control and possession of 5 6 these IA records; therefore, absent any sufficient showing, the OAG is ordered to so produce these records for the court’s in camera review.
8 C. Personnel Records Are Material. 9 For the same reasons articulated above, and, in particular, that the personnel records of 10 Officer Aguon are material to the preparation of the defense to the extent they contain reports of 11 12 use of excessive force and, further, that they may reveal information relevant to the defense or 13 negation of charges against Defendant of Resisting Arrest under Brady, the court fmds that 14 Officer Aguon’s Personnel Records (“discipline records, complaints, documents... and the like”) 15 are discoverable. However, the court orders that such personnel records shall be submitted 16 UNDER SEAL for review by the court in camera.
17 CONCLUSION
19 For the foregoing reasons, the Court hereby GRANTS Defendant’s Motion to Compel 20 Discovery and ORDERS the People to submit such IA and personnel records to the court 21 UNDER SEAL for in camera review by this court. 22 SO ORDERED THIS 8 ~UIJ LU 23 24 I do hereby certify that the foregoing is a full true and correct copyof the Original Signed by 25 :I1::~~ ~ Honorable Maria T. Cenzon 26 Dated a agatna,~uam.° HONORABLE MARIA T. CENZON 27 4 (~ ~ Curtis M Auleno
(2~c; JUDGE, SUPERIOR COURT OF GUAM 28 Deputy Clerk, Superior Court of Guam People v Phzllzp; CM0622-1 1 Decision and Order Re: Defendant’s Motion to Compel Discovery