People v. Roten

• Court: Superior Court of Guam
• Decided: June 12, 2013
• Docket: CF0151-10
• Status: Unknown

Opinion

IN THE SUPERIOR COURT OF GUAM 2 THE PEOPLE OF GUAM, ) CRIMINAL CASE NO.: CF015l,~9 3 ) 4 Plaintiff- Appellee,~ DECISION AND ORDUY-~-­ ) RE. MOTION FOR NEW TRIAL 5 vs. ) ) 6 ) RIKAT ROTEN, 7 Defendant - Appellant.~

8 INTRODUCTION 9 This matter came before the Honorable Maria T. Cenzon on February 18, 2013 on 10 Defendant Rikat Roten's (referred to herein as "Defendant" or "Roten") Motion for New Trial 11

12 ("Motion"). The People of Guam (the "People") were represented by Assistant Attorney

13 General Matthew S. Heibel. Roten was represented by Attorney Joaquin C. Arriola, Jr. The 14 Court, having considered the Motion, the arguments and the evidence presented during the 15 hearing of this matter, issues the following Decision and Order DENYING Roten's Motion for 16

17 New Trial.

18 BACKGROUND 19 Roten was indicted for five counts of First Degree Criminal Sexual Conduct and thre 20 counts of Second Degree Criminal Sexual Conduct. See Indictment (March 5, 2010). Trial wa 21 held on June 11, 2010, during which time several witnesses testified, including Guam Polic 22

23 Department Officer, Reynold Alcantara ("Officer Alcantara"); the victim; Joseph Rote

24 (identified as the nephew of Defendant Roten); and Investigator, Anthony Bias of the Attorne 25 General's Office. At the conclusion of the trial, Roten was found guilty of all counts an 26

Page 1 of9 sentenced to thirty years in confmement. Judgment was entered on the docket on August 2

2 2010. 1 Roten appealed the conviction and sentence on August 5, 2010. 2

3 On appeal, Roten asserted that the trial court erred by admitting Officer Alcantra' 4 testimony over his hearsay objections and by allowing the officer's testimony into evidence 5 improper opinion testimony. The Guam Supreme Court, however, issued a mandate on May 14 6 2012, fmding that, although the trial court did commit such errors, they were harmless error 7

8 and, therefore, affirmed the judgment of conviction. 3

9 Post-appeal, Roten filed a Motion to Reduce Sentence pursuant to 8 G.C.A. § 120.46 10 stating that his sentence was "unduly severe" and that "based on his statement and allocution t 11 this Court at hearing on this Motion [to Reduce Sentence], new or additional information o 12

13 Defendant's remorse and acceptance of responsibility warrants ~ reduction in sentence.

14 addition, on information and belief, the alleged victim has recanted her testimony and does no 15 wish for Defendant to remain incarcerated."4 Following the hearing on January 23, 2013 o 16 Roten's Motion to Reduce Sentence, this Court denied relief, fmding that the Defendant failed t 17 provide any justification sufficient to warrant a reduction of the sentence imposed. 5 18

19 On January 28,2013, Roten filed his Motion for New Trial pursuant to 8 G.C.A. Chapte

20 110 on the basis that the victim had signed an affidavit purportedly recanting her trial testimony 21 The affidavit, written entirely in the English language, declared as follows: 22

25 1 Notice of Entry on the Docket (Aug. 2, 2010). 26 2 Notice of Appeal (August 5, 2013). See also Judgment, Supreme Court of Guam Case No. CRAlO 27 (April20, 2012). 3 People of Guam v. Rikat Roten, 2012 Guam 3150. Mandate was issued on May 14,2012. 4 28 Mot. to Reduce Sentence; Mem. of Points and Authorities In Support 3 (Sept. 11, 2012). 5 Hearing, Motion to Reduce Sentence (Jan. 23, 2013).

Page 2 of9 I, [A.S.], Date of Birth: 03/18/1983, Social Security Number: xxx- xx-xxx, do hereby certify, swear or affirm and do declare that I am 2 competent to give the following declaration based on my personal knowledge unless otherwise stated, and that the following facts and 3 things are true and correct to the best of my knowledge: 4 1. That sometime in February 2010, I flied a criminal 5 complaint against my stepfather, Roten Rikat, Date of Birth: 02/13/1965, claiming that he raped me. 6 2. I am hereby stating that I falsely made those claims against my stepfather and would like to hereby drop and/or dismiss 7 those charges against him. 8 3. What is true is that my stepfather, Roten is a good and fair person and has always shown respect to my mother and 9 me for that matter. 6 10 The Affidavit was executed before a Notary Public in Guam on January 9, 2012- nearly tw 11 years after the Indictment was flied against Roten and over a year before Roten flied his Motio 12

13 for New Trial.

14 On February 18, 2013, the Court heard oral argument on the Motion, including testimon 15 from the victim. The Court took the matter under advisement and now issues its Decision an 16 Order. 17 DISCUSSION 18

19 Section 110.30 of Title 8 of the Guam Code Annotated governs motions for new trial and

20 provides, in relevant part: 21 § 110.30 Grounds for Granting New Trial, Time Limits. 22 (a) The court on motion of a defendant may grant a new trial to him if required in 23 the interests of justice. 24 (c) A motion for a new trial based upon the ground of newly discovered evidence 25 may be made only before or within two (2) years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. 26

6 28 See Affidavit, Exhibit A to Motion for New Trial: Memorandum in Support (Jan. 28, 2013) (referred to herein as "Affidavit").

Page3of9 (d) A motion for a new trial based on any ground other than the ground of newly discovered evidence shall be made within seven (7) days after verdict or finding 2 of guilty or within such further time as the court may fix during the seven-day period. 3 Although a court has broad discretion to grant a new trial, courts should grant such motion 4

5 "sparingly and with caution, doing so only in those really 'exceptional cases."' People v. Leslie,

6 2011 Guam 23125 (citing United States v. Cox, 995 F.2d 1041, 1043 (11th Cir. 1993) (quotin 7 Martinez, 163 F.2d at 1312-13)); see also United States v. Pimentel, 654 F.2d 538, 545 (9th Cir 8 1981) (quoting 2 Charles Alan Wright & Edward H. Cooper, FEDERAL PRACTICE 9 PROCEDURE§ 553, at 487 (1969)); United States v. Capati, 980 F.Supp. 1114, 1132 (S.D. Cal 10

11 1997). Moreover, the trial court may grant a new trial or submit the issues for determination b

12 another jury only if it concludes that the evidence "preponderates sufficiently heavily against th 13 verdict that a serious miscarriage of justice may have occurred." People v. Quinata, 1999 Gu 14 6 at 116 (citing United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)). 15

16 I. Timeliness of Defendant's Motion for New Trial.

17 A. Motion for a new trial based on newly discovered evidence must be mad within two years of the Supreme Court's Mandate. 18

19 8 G.C.A. § 110.30(c) restricts the time in which a motion for new trial may be made o

20 the basis of newly discovered evidence to within two years after "fmal judgment", but if th 21 matter is on appeal, then the trial court may grant the motion "on remand of the case." A "fma 22 judgment" in a criminal case is rendered upon a conviction of guilty. See People of Guam v. 23 Mallo, 2008 Guam 23 118 (This court has jurisdiction over an appeal from a fmal judgment of 24

25 criminal case pursuant to 7 GCA §§ 3107(a) and 3108(a) (2005), 8 GCA §§ 130.10 and 130.1

26 (2005), and 48 U.S.C. § 1424-1(a)(2) (West 2008); People of Guam v. Moses, 2007 Guam 516. 27

Page4of9 In this case, an issue exists as to whether the two-year period commences on the date th

2 judgment of conviction was entered or when the mandate was issued. Defendant argues that hi

3 Motion for New Trial was timely filed because it was filed on January 28, 2013 -within tw 4 years from the Supreme Court's Mandate of May 14, 2012, affirming the judgment o 5 conviction. To the contrary, the People contend that the Motion is untimely because it was no 6 brought within two years from the date the judgment of conviction was entered. 7

8 Although the Guam Supreme Court has not passed specifically on this issue, the Nin

9 Circuit has ruled that, for the purpose of determining the timeliness of a motion for new trial o 10 the basis of "newly discovered evidence," the two year limitation starts to run from the "date o 11 which the appellate process 'is terminated."' United States v. Cook, 705 F.2d 350, 350 (9th Cir 12

13 1983).7 Thus, the Defendant's Motion for New Trial on the basis of "newly discovere

14 evidence" is timely as it was made within two years from the date the mandate was issued o 15 May 14, 2012. 8 16 B. Motion for a new trial based on any other ground must be made within seve 17 days after the verdict or finding of guilty. 18 The Government also argues that the motion is untimely under Section 110.30(d) whic 19 provides that a motion for new trial founded upon any other ground than newly discovere 20 evidence must be made "within seven (7) days after verdict or fmding of guilty or within sue 21

22 further time as the court may fix during the seven-day period." As discussed above, since th

23 7 24 8 G.C.A. § 110.30 is substantially similar to the former Fed. R. Crim. P. 33. However, in 1998, Rule 33 w amended to require that motions for new trial based upon newly discovered evidence be made "only within thre 25 years after l! verdict m: fmding of guilty." FED. R. CRIMP. 33 (emphasis added). Since Guam has not amended i Rules of Criminal Procedure, federal cases interpreting the former version of Rule 33 are instructive. Compar 26 Cook, 705 F.2d 350 with United States v. Woods, 399 F.3d 1144 (9th Cir. 2005). 8 27 During the hearing, counsel for Defendant argued that the Motion was timely because it was made "within the tw year period of the newly discovered evidence." (R. 12:15:57, February 18, 2013). Although this is not th 28 applicable standard, the Motion was made well within the two-year time limitation which expires on or about Ma 14,2014.

Page5of9 Defendant's Motion was made based on newly discovered evidence (i.e. the Victim's writte

2 statement of recantation), the two-year limitation period under Section 110.30(c) applies instea

3 of the seven-day period under section 110.30(d). Therefore, the Defendant's Motion is timely. 4 II. The Subsequent Recantation 5 In passing on the question of whether a new trial is warranted on the basis of a witness' 6 recantation, the Court must evaluate the credibility of witnesses and may grant a new trial if i 7

8 concludes that the evidence '"preponderates sufficiently heavily against the verdict that a seriou

9 miscarriage of justice may have occurred."' People v. Leslie, 2011 Guam 23 115 (quotin lO Quinata, 1998 Guam 6116); People v. Gebhart Moses, 2007 Guam 5. 11 The instant case presents the unusual situation where the Guam Supreme Court h 12

13 already determined that the jury in this case "had ample opportunity to evaluate the victim'

14 credibility through direct and cross-examinations." People v. Rikat Roten, 2012 Guam 3148 15 The Supreme Court's determination, in addition to the reasons set forth below, support the denia 16 of the Defendant's Motion. 17 The circumstances surrounding the recantation are suspicious. During the evidenti 18

19 hearing on the Motion for New Trial, the victim testified that she prepared the statement

20 recanting her trial testimony as well as the initial complaint that the Defendant had raped her 21 The recantation was made in the form of an Affidavit. See infra pp. 2-3; (R. at 11:49:06 22 February 18, 2013). She also testified that she had first written the Mftdavit in the Chuukes 23 language, then had her brother-in-law translate it into the English language, after which she too 24

25 it to a notary in Dededo who typed it up for her and notarized the document. (R. at 11:49:06

26 12:01:07, February 18, 2013). The original Chuukese language version of the Affidavit whic 27 the victim claimed was translated into English by her brother-in-law was not produced during th 28

Page6of9 hearing and the victim could not recall if she kept it or threw it away. (R. 11:57:42-11:58:03

2 February 13, 2013).

3 The written recantation was significantly different from her Victim Impact Statement · 4 terms of the language used to express herself - Chuukese was used in the 2010 VIS and Englis 5 was used in the 2012 Affidavit- and in the sophisticated composition of the statements made· 6 the Affidavit compared to the VIS. Additionally, during the evidentiary hearing, as well a 7

8 during the trial, the victim required a Chuukese language interpreter. In marked contrast, he

9 recantation statement was entirely in near-perfect English with no indication 10 translated from Chuukese except for her testimony during the evidentiary hearing. 11 Further, over a year after she had prepared the notarized Affidavit, she then delivered it t 12

13 Mr. Arriola, although she claims no one had instructed her to do so. (R. at 11:30:59- 11:32:07

14 February 18, 2013). She testified that he was the first person whom she told that she lied · 15 court. /d. The victim's Affidavit was executed on January 2, 2012, but the Defendant's motio 16 was not filed until over a year later, on January 28, 2013. The Court fmds it incredible that th 17 victim decided for herself, almost two years after Roten's conviction, to write a recantation 18

19 first in Chuukese and then translated into English - and then, delay for a year afterwards befor

20 delivering it to the Defendant's attorney. There was no reason given to account for the dela 21 between the time she executed the Mfidavit and the day she delivered it to Mr. Arriola. Whe 22 asked why she waited so long between the trial and the recantation, she stated simply, "I don' 23 have time." (R. at 11:04:54-55, February 18, 2013). 24

25 However, it appears that the victim faced some form of pressure or undue influence fro

26 family members to recant her testimony. For instance, the victim resides with her mother, wh 27 continues to be in a relationship with the Defendant. Shortly after the trial, the victim noted · 28

Page 7 of9 her VIS that her mother had told her not to come to Guam from Saipan so that her stepfather, th

2 Defendant, could be released. (R. 11:21:34-11:26:40, February 18, 2013). After the trial an

3 conviction of the Defendant, the victim did not return to Guam until December, 2011. (R 4 11:58:33-12:00:07, February 18, 2013). The above gives the Court reason to believe that th 5 victim is subject to the influence and manipulation of immediate members of her family an 6 would likely succumb to any pressure to recant her testimony, whether directly or indirectl 7

8 made. 10 The court determined that the victim's recantation is also suspect because, regardless o

9 whether she was told directly by any family member to recant- and there is no evidence that i lO the case- it appears to the Court that she is recanting in order to appease her family. In fact, sh 11 testified that if the Defendant were released, she believed her mother and siblings "would b 12

13 happy because their father has returned." (R. 11:41:10-11:42:11, February 18, 2013).

14 Lastly, the Court puts no credence into the victim's explanation as to why she lied. Whe 15 asked by the Government why she lied during the trial, the victim replied that it was because th 16 Defendant "made me mad." (R. 11:32:21-45, February 18, 2013). Yet when asked how he mad 17 her mad, she replied, "I don't know." (R. 11:32:45, February 18, 2013). On re-direc 18

19 examination by Mr. Arriola, she repeated that she didn't know what made her so mad at th

20 Defendant that she lied about the rape during the trial. (R. 11:44:14, February 18, 2013). Th 21 victim's explanation is clearly insufficient and therefore supports the Court's denial o 22 Defendant's Motion. 23

27 10 See U.S. v. George, 960 F.2d 97, 98 (9th Cir. 1992) (victim's recantation of testimony several months after th 28 trial when she had returned to live with her mother was found not credible where the victim was found to subjected to the influence and manipulation of others).

Page8of9 CONCLUSION 2 For the reasons set forth above, the Defendant's Motion for New Trial is DENIED. 3

o~~Ji!iidJ~eW, 2'k.Ot::1~3·~~=:=:=:=:=:=--------­ 4

5 SO ORDERED this 121h day 6

7 ~MARIA T. CENZON Judge, Superior Court of Guam 8

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