People v. Rasauo

Opinion

,'" r{y&ll,fiA"[,

- ]-i

ri

Territorial Law Library

1 IN TIIE SUPERIOR COURT OF GUAM

2 a PEOPLE OF GUAM, ) Criminal CaseNo. CM1207-08 J Plaintiff,

4 v. DECISION AND ORDER re: motion to dismiss

5 KESNER RASAUO,

6 Defendant.

7

8 This matter c:rme before the Honorable Judge Michael J. Bordallo on June 30, 2009.

9 The People were represented byAssistant Attorney General Shane F.T. Black. Defendant

10 was represented by Attorney Maria G. Fitzpatrick. Having held a hearing and reviewed the

ll memorandum and papers presented, the court now issues the following decision denyng

l2 Defendant's motion.

13 BACKGROTIND

T4 On December 29,2008, the People filed a Complaint accusing Defendant of: Driving

l5 Under the Influence of Alcohol (B.A.C.), a Misdemeanor and Driving While Under the

l6 Influence of Alcohol, a Misdemeanor. The Complaint alleges that Defendant committed the

t7 above acts on April 13, 2008. The record in this file contains a document entitled Citation

l8 and Notice to Appear which was signed bythe arresting officer and Defendant. The

19 document that indicates: 1) that Defendant was arrested on April 13, 2008 for Driving Under

20 the Influence;2) that Defendant is to appear at the Superior Court of Guam, on April 1,

2I 2009, at 9:00 a.m., or sooner upon srunmons; and 3) that Defendant promises to appear at

22 the time and date indicated. Pursuant to the promise to appear, Defendant appeared on April

23 1,2009 and was arraigned on the charges set forth in the Complaint. No summons was ever

24 frled by the people, issued/signed by the court, or served upon the Defendant.

I DISCUSSION

2 Defendant has filed a motion requesting that this case be dismissed. In support of his a J motion Defendant argues that his organic right to a speedy trial and statutory right to prompt

4 arraignment were violated. He argues that the three month time period which elapsed

5 between when the complaint was filed and the arraignment, was unjustified and wasted

6 judicial resources and that the People should have been required to summon the Defendant

7 into court sooner. Defendant requests that the court apply a constructive a:raignment date

8 14 days from the date of the complaint was filed and that from that date the court apply 60

9 day speed trial statute.

10 The People oppose Defendant's motion. They assert that a three month lapse is a

l1 typical time period for which surlmons are issued by the court and that by filing a complaint

T2 and a notice to appear, the People complied with Guam's statutory requirernents. They

l3 argue that the arraignment was prompt and that applying a constructive arraignment date, as

t4 urged by Defendant, would be inappropriate because the authority for it arises out of a

15 different statutory scheme.

t6 Excluding those instances where a person has been arrested upon a wa:rant and

I7 subsequent to a police officer making an a:::rest, the Guam Code allows an officer to release

l8 the arrested person so long as he executes a notice to appear. 8 Guam Code Ann. $ 25.10(a)

T9 (2008). The officer's discretion is trumped by a person's demand to see a judge or assertion

20 of his right to speedy trtal.Id. at $ 45.10. The Guam Code provides that subsequent to a:rest

2I a person may demand to be brought be fore a judge within 48 hours of his anest. Id.

22 Section 10.70 of Title 8 of the Guam Code provides that "[a] prosecution is

23 commenced when . . . a complaint is filed. " Id. at $10.70. From the time a compliant is

24 filed a person's speedy trial rights are protected by two statutes: Sections 60.10 and 80.60 of

I Title 8. The most time-limit specific of these two statutes is Section 80.60.1 The time limit

2 in Section 80.60 doesn't commence until anaisrment.Id. at 80.60. Section 60.10 of the a J Guam Code provides,

4 (a) The defendant shall be arraigned promptly after the indictment or information is filed or after the complaint is filed where prosecution by complaint is required 5 by $ 1.15.

(b) Araignment shall be conducted in open court and shall consist of reading the 6 indictment, information or complaint to the defendant or stating to him the substance of the charge and calling on him to plead thereto. The defendant shall be 7 given a copy of the indictment, information or complaint before he is called upon 8 to plead.2

9 I Section 80.60 of Title 8 provides, 10 (a) Except as otherwise provided in Subsection (b), the court shall dismiss a 1l criminal action if (1) An information is not filed or an indictment returned within the time t2 prescribed bV $$ 45.45,45.50 and 45.80; 13 (2) The trial of a defendant, who is in custody at the time of his a:raignment, has not cornmenced within forty-five (45) days after his a:raignment; or T4 (3) The trial of a defendant, who is not in custody at the time of his arraignment, has not commenced within sixty (60) days after his arraignment.

l5 (b) A criminal action shall not be dismissed pursuant to Subsection (a) if:

t6 (l) The action is set on a date beyond the prescribed period upon motion of the defendant or with his consent, express or implied, and he is brought to T7 trial on the date so set or within ten (10) days thereafter;

l8 (2) The defendant failed to appear for trial and he is brought to trial within thirty (30) days following his next appearance in the trial court; or T9 (3) Good cause is shown for the failure to commence the trial within the 20 prescribed period.

8 Guam Code Ann. $80.60 (2008).

2l 2 The Statute's Compiler's note contains the following:

22 Section 60. 10 does not provide a specific time for a:raignment but rather requires 23 a prompt arraignment and relies on the general rule against unreasonable delay and a right to a speedytrial. See $ 1.1 l. It might be noted, however, that $ 45.30 24 does not permit the defendant to be required to plead at his first appearance. A 1 8 Guam Code Ann. $60.10. (2008) (footnote inserted).

2 In this case the salient issue is the interpretation of the word "prompt" in Section a J 60.10.1d. Absent a criminal rule defining it or the Guam Supreme Court interpreting it,

4 noteworthy to the court's analysis is the time limit for service in a civil action. Guam R.

5 Civ. P. a(m) (2008). Subsequent to the filing of a complaint Guam's civil rules require that

6 the other party be served within 180 days. /d.

7 Although not specific to the issue of promptness, the Guam Supreme Court atalyzed

8 the merits of a cause challenge associated with the delay to a defendant's right to speedy

9 trial, in 2007 and 1998. Nicholson v. Superior Court of Guam,2007 Guam 9, fl!|l1-22 (Sup.

l0 Ct. Guam 2007); Carver v. Superior Court of Guam,1998 Guam 23,1lll (Sup. Ct. Guam

11 1998). In Carver the Guam Supreme Court held that whether good cause lies for a speedy

t2 trial delay is "within the discretion for the trial court." Carver v. Superior Court,1998 Guam

l3 n nIl (Sup. Ct. Guam 1998). Nine years later in Nicholson the Court explained, t4 [w]e held for several reason in Carver that the petitioner's speedy trial rights were not violated. First, the petitioner filed the motion to dismiss initiating the delay.

15 Second, the motion was to petitioner's benefit because if granted, the motion would result in the dismissal of several charges against him. Third, the trial court worked I6 diligently to promptly dispose of the motion. t7 Nicholson, at 18. The right to speedy trial was designed to protect the three interests: (l) to l8 prevent oppressive pretrial incarceration; (2) to minimize anxiety and concem of the t9 accused; and (3) to limit the possibility that the defense will be impaired. Of these three 20 interests, "the most serious is the last, because the inability of a defendant adequately to 2l prepare his case skews the fairness of the entire systern." .Id. 22 In this case approximately 93 days elapsed between when the People filed their 23

24 reasonable period for consultation with counsel should be provided in every case.

25 Page -4-

I Complaint and when the Defendant was arraigned. Defendant argues that he was prejudiced

2 in this matter because he was not able to arrange for a global plea of his other charged a J offenses.

4 The court is troubled by the People's behavior in this matter. It is further cognizant

5 that in all instances the People should be required to minimize the level of anxiety and

6 concern that is associated with a Defendant's waiting for arraignment. However in this case

7 the court is unable to find that the Defendant suffered any prejudice. The court is unwilling

8 to find prejudice in unspecified possibilities; being precluded from a possible and favorable

9 global plea deal. Furthermore, although the Defendant was perhaps unaware of the filing of

t0 the complaint, he was not unaware of the arest nor of his decision to postpone his possible

11 a:raignment at the time of his arrest.

l2 CONCLUSION 13 For the reasons above Defendant's motion to dismiss is denied.

I4 SO ORDERED this ^fr day of July 2009. 15

t6 t7 , Superior Court of Guam 18

19 I q0td

20 #'itr ^*j*:al

1 []

2l lttog

22

23