People v. Rodriguez

Opinion

IN THE SUPERIOR COURT

OF GUAM

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3 THE PEOPLE OF GUAM, ) CRIMINAL CASE No. CF 0222-12 4 )

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DECISION AND ORDER

) On Defendant's Motions to Dismiss 6 CECELIO PALOMARES RODRIGUEZ, )

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Defendant. )

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INTRODUCTION

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11 This matter came before the Honorable Judge Michael J. Bordallo on September 11, 201 12 on Defendant's Motion to Dismiss Indictment. The People of Guam were represented b 13 Assistant Attorney General Christina Lum. The Defendant was represented by Assistant Publi 14 Defender Maria Fitzpatrick. Having reviewed the memorandum and papers presented, the cou 15

16 now issues the following decision DENYING the Defendant's Motion to Dismiss Indictment.

17 FACTUAL HISTORY

18 On April 13, 2013 the Defendant was indicted on multiple counts of both felony 19 Terrorizing and Family Violence, as well as three counts of Assault as a misdemeanor. The 20 charges stern from an incident that allegedly occurred between the Defendant and his wife. On 21

22 August 17, 2013 the Defendant filed a Motion to Dismiss challenging the indictment handed

23 down by the grand jury. The Defendant specifically argues that the evidence presented to the 24 grand jury was not competent. The Defendant also argues that the indictment should be 25 dismissed based upon the prosecutor's failure to provide the grand jury with exculpatory 26

27 evidence. Because the rules of evidence do not apply to grand jury proceedings, the Court holds

28 that the question of competent evidence does not warrant dismissal of the indictment. The

Court further holds that the Defendant has not demonstrated that the evidence that the 2 prosecutor failed to present to the grand jury is in fact "exculpatory."

3 DISCUSSION

4 The Defendant has been indicted on felony charges of Terrorizing and Family Violence, a 5

6 well as three counts of misdemeanor Assault. The Defendant now seeks to have the charge

7 against him dismissed; arguing that the underlying grand jury indictment is flawed. In his Motio 8 to Dismiss the Defendant specifically argues that the grand jury was not presented wit 9 competent evidence. The Defendant further argues that the prosecutor failed to provid 10

11 exculpatory evidence by not providing the grand jury with: (1) the Defendant's handwritte

12 statement to the police, and (2) the police photographs of the alleged victim's injuries. For th

13 following reasons, the Court disagrees with the Defendant and denies his motion. 14 I. The Grand Jury was Presented with Competent Evidence 15 The Defendant has challenged the validity of the indictment arguing that the grand jury wa 16

17 not presented with competent evidence. The Defendant argues that "none of the evidenc

18 presented to the grand jury was competent because the sole witness before the grand jury 19 Investigator Manley, was not competent to testify." The Defendant's challenge to Investigato 20 Manley's competency to testify is based upon on the rules of evidence and the claim that "Hi 21 testimony is not competent because he does not have personal knowledge and did not take part i 22

23 the investigation."

24 The rules of evidence do not apply to grand jury proceedings. For this reason, the grand jur 25 may indict based upon "tips, rumors, evidence offered by the prosecutor, or their own persona 26 knowledge." Us. v. Dionisio, 410 U.S. 1, 15 (1973). Accordingly, "the validity of an indictmen 27

28 is not affected by the character of the evidence considered" and "is not subject to challenge 0 the ground that the grand jury acted on the basis of inadequate or incompetent evidence." Us. v.

2 Calandra, 414 U.S. 338, 345 (1974).

3 The Defendant's current challenge is similar to the facts presented in the U.S. Supreme Co 4 case of US v. Costello. In Costello, the Defendant was accused of tax fraud and "moved t 5

6 dismiss the indictment on the ground that the only evidence before the grand jury was 'hearsay,'

7 since the three officers had no firsthand knowledge of the transactions upon which thei 8 computations were based." 350 U.S. 359, 361 (1956). The Supreme Court ruled against th 9 Defendant holding that to rule otherwise would "run counter to the whole history of the gran 10

11 jury institution," as "The result of such a rule would be that before trial on the merits a defendan

12 could always insist on a kind of preliminary trial to determine the competency and adequacy 0 l3 the evidence before the grand jury." Id. at 408.

14 Investigator Manley's testimony constitutes hearsay, which is competent evidence in a gran 15 jury proceeding. For this reason, Guam case law has upheld an indictment based entirely upo 16

17 hearsay testimony. See People v. Quidachay, D.C. Crim. 85-00067A (1986). Guam statutory la

18 also makes explicit that "the fact that evidence which is incompetent was received by the gran 19 jury does not render the indictment void." 8 G.C.A. §50.42 (1980). Because the rules 0 20 evidence do not apply to grand jury proceedings, Investigator Manley's lack of persona 21 knowledge of the investigation and his hearsay testimony do not render the indictment invalid.

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23 II. Failure to Provide Exculpatory Evidence

24 Dismissal of a grand jury indictment based upon the failure to provide exculpatory evidenc 25 is rare. The U.S. Supreme Court has made clear that, as a general rule, a grand jury indictmen 26 will not be invalidated based upon a prosecutor's failure to present certain evidence. Us. v.

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28 Williams, 504 U.S. 36, 54 (1992). Some states have distinguished this precedent by finding requirement to provide exculpatory evidence based upon statute. California law, which served a 2 the basis for Guam's grand jury statute, requires prosecutors to provide exculpatory evidenc 3 because the statute authorizes the grand jury "to weigh all the evidence submitted to them, an 4 when they have reason to believe that other evidence within their reach will explain away th 5

6 charge, they should order such evidence to be produced." Johnson v. Superior Court, 539 P.2

7 792, 796 (Cal.)(1975). 8 Guam statutory law also places a duty upon the prosecutor to disclose exculpatory evidence.

9 8 G.C.A. §50.46. The law requires that "the prosecuting attorney shall submit any evidence in hi 10

11 possession which would tend to negate guilt." Guam law provides an example of exculpato

12 evidence, explaining that "Evidence known to the prosecutor that would indicate [the] defendan 13 was elsewhere at the time the crime was alleged to have been committed is the sort which mus 14 be presented to the Grand Jury." 8 G.C.A. §50.46 (citing People v. Sablan, D.C. Cr. 85-0024 15 (1986)). The Defendant argues that two such pieces of evidence were omitted. Specifically, th 16

17 Defendant argues that the grand jury should have been provided with: (1) his handwritte

18 statement to the police, and (2) the police photographs of the victim taken after the allege 19 altercation. An analysis of each of these pieces of evidence demonstrates that they do not mee 20 the definition of 'exculpatory' as the evidence does not tend to negate the guilt of the Defendant.

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a. The Defendant's Handwritten Statement 22

23 The Defendant argues that the People's exclusion of his handwritten statement from th

24 grand jury proceedings constitutes a failure to submit exculpatory evidence. According to th 25 motion the handwritten statement "gives a clearer picture of the defendant's version of wha 26 happened." The Defendant asserts that without reading the handwritten statement, the grand ju 27

28 did not learn: (1) that the victim's knee injury is attributable to her slipping and falling, (2) tha

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the victim "physically assaulted" the Defendant, and (3) that the victim and the Defendant slep 2 in the same bed after the alleged incident occurred.

3 The Defendant's version of the alleged incident was presented to the grand jury. It is true tha 4 the Defendant's handwritten statement was not read to the grand jury verbatim. However, upo 5

6 listening to the recording of the grand jury proceedings, it is not clear to the Court that the fact

7 contained within the statement were not effectively summarized. The witness, Inspector Manley 8 read to the grand jury the police officer's notes of his interview with the Defendant, whic 9 contained only minor differences from the facts presented in the omitted handwritten statement.

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II The People did not withhold any facts that would tend to negate the guilt of the Defendant

12 Contrary to the Defendant's assertion, the grand jury was informed of the Defendant's claim tha \3 the alleged victim "sustained [an] abrasion on her knee when she slipped." The grand jury wa 14 also informed that the victim and the Defendant slept in the same bed after the alleged incident.

15 The grand jury was further informed that the Defendant denied grabbing or punching his wiD 16

17 and that he denied ever threatening her. Conversely, the grand jury was not informed that upo

18 being arrested, the Defendant confessed to the police that he had grabbed and shoved his wife. 19 The only fact that was not presented to the grand jury is the Defendant's claim that hi 20 handwritten statement contains evidence of an assault. The Defendant's allegation that the victi 21 was "physically assaulting" him at the time of the alleged altercation is, however, questionabl 22

23 and is certainly not exculpatory. The sole basis of the accusation is the statement that, when th

24 Defendant entered the same room as the victim, the victim began "pulling me to go out." Th 25 victim is not charged with assault and the Defendant's statement that she may have "pulled" hi 26 is not exculpatory and does not negate the current criminal charges against him.

b. The Police Photographs 2 The Prosecutor did not provide the grand jury with photographs of the victim's injurie 3 which were taken shortly after the alleged altercation. The Defendant argues that thes 4 photographs are "exculpatory in nature because the "wounds" suffered by the victim ar 5

6 superficial." The Defendant further argues that the photographs would help demonstrate tha

7 "there was no evidence presented to establish that the victim suffered "serious bodily injury" t 8 support a charge of Family Violence Assault as a third degree felony."

9 The Defendant is not charged with "serious bodily injury." Accordingly to the indictment 10

11 the Defendant is accused of committing Family Violence as a third degree felony pursuant to

12 GCA §§30.1(a)(1) and 30.20(a). As correctly noted by the Prosecutor, neither of these charge 13 involve "serious bodily injury." Instead, the two statutory sections only require evidence that th 14 Defendant was "Attempting to cause or causing bodily injury to another family or househol 15 member," (§§30.1(a)(l)) and that while acting "intentionally, knowingly, or recklessly commit 16

17 an act of family violence" such that he may be proven "guilty of a misdemeanor, or of a thir

18 degree felony." §30.20(a). 19 The police photographs are not exculpatory evidence. The photographs show that the allege 20 victim was injured. The same photos do not, however, prove or disprove whether the Defendan 21 was the cause of these injuries. As such, the photos cannot tend to negate the Defendant's guil 22

23 as to the alleged charges. The photos may speak to the severity of the victim's injuries, bu

24 whether the alleged victim suffered serious or minor injuries does not "explain away th 25 charges" against the Defendant. Johnson at 796.

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CONCLUSION

2 Based on the foregoing, the Court does not find sufficient grounds to establish that th 3 grand jury was presented with incompetent testimony. The Court further holds that the People'

4 exclusion of the Defendant's handwritten statement and the police photographs does no 5

6 constitute a failure to provide exculpatory evidence. Accordingly, the Motion to

7 Indictment is DENIED. Trial setting is hereby scheduled for __"Jcttt,. -1+Lt ___ 8 at 9:00am.

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12 SO ORDERED, this tl day of December 2012.

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15 BLE MICHAEL J. BORDALLO

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