People v. Santos

Opinion

Fr .LEE D CLERK oFCO CLERK OF couRT 1 20214 AUG-6-6 PH 202~ AUG 4: If I f} PMl_*g 2 SUPERQOR SUPERIOR CCCOURT URT €ft 3 IN THE SUPERIOR COURT OF GUAM OF GUAM GlJl\fvl 4

55 THE PEOPLE OFGUAM, PEOPLE OF GUAM,

6 Case No. CF0488-21 CF0488-21 vs. vs. GPDReport GPD ReportNo: No:21-23739/21-28491 21-23739/21-28491 7 DERREK DERREKJOHNJOHN MAFNAS MAFNAS SANTOS, SANTOS, 8 DECISION ORDER DECISION AND ORDER aka Derrek John John Santos Santos (Motion (Motion In In Lim'me Limine to Exclude Exclude Defense Defense 9 DOB: 10/06/1989 10/06/1989 Expert Testimony) Expert Testimony) 10 Defendant.

11 I NT RODU CT I ON

12 This matter camebefore matter came beforethe theHonorable HonorableAlberto AlbertoE. E. Tolentino Tolentino at at aa Motion Motion Hearing on

13 February 29, 2024, February 29, 2024, on on the the People People of of Guam's Guam's (the (the"People's") "People's") Motion Motion in Limine to Exclude 14 Expert Expert Testimony. Testimony. Joseph Joseph McDonald, Esq. Esq. appeared appeared for for Defendant. Defendant. Assistant Attorney 15 General Tenorio appeared General Christine Tenorio appearedfor for the thePeople People of of Guam ("People'). The The Court Court announced announced 16 Ir it would take take the the Motion Motion to to Exclude Excludeunder underadvisement advisement on on the the briefings briefings and and now now issues issues this t?is 17 Decision and and Order OrderGRANTING GRANTING the thePeople's People's Motion Motion to to Exclude. 18 BACKGROUND 19 Defendant Defendant was was indicted indicted on on October October8, 8, 2021 2021 on on two two counts counts of of Second Second Degree Criminal Criminal 20

21 Sexual (As aa ls1stDegree Conduct (As Sexual Conduct DegreeFelony). Felony).The People The allege People that allege thatatatsome sometime timeon onor or about about the

22 period period of ofSeptember September 12, 12, 2021 2021 to to September September 29, 2021, 2021, Defendant did intentionally intentionally engage in engage in

23 sexual sexual conduct with with another another on on several several occasions occasions by by touching touching the the primary primary genital area of A.C. area of A.C. 24 (DOB: (DOB:05/31/2010). 05/31/2010). A Superseding Superseding Indictment Indictment was was filed filed on onDecember December14, 14, 2021 2021 add'mg adding a 25 third count of Second Second Degree Degree Criminal Sexual Sexual Conduct (As (As aa let 1st Degree Felony). Felony). The The People People 26

27 Decision Decision and and Order CF0488-21 Motion In CF0488-21 Motion In Limine Limine ro to Exclude Exclude Expert Expert Witness Witness Testimony Page 1 ofof 7 1 allege that that at some time on or or about about the period of ofNovember November1,1, 2020 2020 to to September September 30, 30, 2021, 2021, 2 intentionally engage Defendant did intentionally sexual conduct engage in sexual conduct with another another on several several occasions occasions by 3 4 touching the primary touching the primary genital genital area area of D.C D.C (DOB: (DOB: 11/01/2012). 11/01/2012). On May May 24, 24, 2022, 2022, Jury Jury 4 5 Selection Selection and and Trial Trialwas was scheduled scheduled on on September September 21, 21, 2022. 5

6 In preparation for trial, preparation for trial, Defendant Defendantengaged engagedthe theservices servicesofofDr. Dr.Carol Carol Tyler Tyler for aa

7 Confidential PsychosexualRisk Confidential Psychosexual RiskAssessment Assessment("psychosexual ("psychosexualevaluation"). evaluation"). People's People's Motion In

8 Limine Limine to to Exclude Exclude Defense Defense Expert Expert Testimony, Testimony, November November 2, 2, 2023. 2023. The 'psychosexual 'psychosexual 9 9 evaluation' was included included as as Exhibit F in in Defendant's Defendant's Amended Amended Exhibit Exhibit List, List, though though the the date date

10 when the the evaluation evaluationtook tookplace placewas wasnot notlisted. listed. Defendant's Amended Exhibit List, October October 30, 11 2023. According AccordingtotoDefendant, Defendant, Dr. Dr. Tyler's Tyler's report report diagnosed diagnosed Defendant as "being Defendant as "being aware of 12 12 conventional knowledge and conventional knowledge and morality morality pertaining pertaining to to sexual sexual boundaries boundaries between between adults adults and and 13 13 children and andhas hasno nocognitive cognitivedistortions". distoilions". Defendant's Opposition to to the the People's People's Motion In 14 14 15 Lirnine Limine to Exclude Defense Expert Testimony, November 20, 2023 2023.. 15

16 16 The People filed filed this this instant instant Motion Motion to to Exclude Exclude on onNovember November2,2,2023, 2023, and and Defendant Defendant

17 17 filed his Response to People's Response to People's Motion to Exclude Exclude ("Defendant's Opposition") on on November

18 18 20, 20, 2023. As aa related 2023. As related matter, Defendantalso matter, Defendant alsofiled filedaaMotion MotionIn InLimine Limine to to Allow Allow Defendant's Defendant's

19 19 Expert to Testify Testifyby byContemporaneous Contemporaneous Transmission Transmission on on September September 6, 6, 2022. 2022. 20 The Court Court scheduled scheduled aa motion motion hearing hearingon onthe thePeople's People's Motion Motion In Limine to Exclude Exclude 21 Defense Defense Expert Testimony for February Expert Testimony 29, 2024. February 29, 2024. At Atthe the hearing, hearing, the the Court Court informed informed the the 22 Patties Parties that that it would would take take the the matter under advisement. advisement. 23 DISCUSSION 24 A. Admissibility AdmissibilityofofExpert ExpertTestimony Testimonyon onthe theAbsence Absence of of Mental Mental Disease Disease Has Not 25 Been Addressed Addressedby by the the Guam Guam Supreme Supreme Court Court 26

27 Decision Decision and and Order CF0488-21 Motion Motion In In Limine Limine to to Exclude Exclude Expert Expert Witness Testimony Page Page 2 of7 11 The Guam Guam Supreme Supreme Court Court has has not considered the not considered the admissibility admissibilityof of evidence evidence of of aa

2 defendant's lack of proclivity proclivity for for sexual sexual deviance deviance in in aa criminal sexual sexual conduct conductcase. case. However, However, 3 absent binding absent binding precedent precedentin in Guam Guam law, law, the Guam Guam Rules Rules of Evidence ("GRE") are based ("GRE") are based upon 4 the the Federal Rules of Evidence Federal Rules Evidence ("FRE") ("FRE")and andthe themany manycase caseininfederal federalcourts courtsaddressing addressing this this 5 1 question are are illustrative and read as and read as persuasive persuasive authority authority in in Guam Guam1. . As As the the Guam Guam Supreme Supreme 6 People v. Court stated in People v. Jesus: Jesus: "[t]he "[t]heGuam Guam Rules Rules of ofEvidence Evidence are are essentially essentially identical identical to its 7

8 like-numbered counterpartsininthe like-numbered counterparts theFederal FederalRules Rulesof ofEvidence. Evidence. Therefore, interpretations interpretations of the

9 Federal Rules of ofEvidence Evidence from fromother otherjurisdictions jurisdictions are are persuasive persuasive authority." 2009 Guam 2 ,rii authority." 2009

10 10 32 n.8. n.8. On Onevidentiary evidentiaryissues issues similar similartotothe the instant instant case, case, People v. Chine/, 2013 Guam 24 ,r,r v. Chined, W

11 11 22-26 adopted adopted the the federal federal courts' courts' interpretation of FRE FRE 413 413 when when determining determining the the admission, admission, 12 12 by the the prosecution, prosecution, of aa defendant's defendant's propensity to commit sexual propensity to sexual crimes crimes or for for pedophilia pedophilia 13 13 under GRE 413. 413. 14 14 B. Defendant's Defendant'sCited CitedAuthority Authority Is Is Not Not Persuasive Persuasive 15 15 Defendant Defendant cites cites People People v. v. Stoll, Stoll, 49 49 Cal.3d 1136, 1136, 1158 1158 (1989), (1989), United United States States v. v. 16 16

Robinson, Robinson, 94 F.Supp.2d 751, 754-55 F.Supp.2d 751, 754-55 (W.D. (W.D. La. 2000), 2000), and and United States v. John, States v. John, 309 F.3d 17 17 th 18 18 298, 302 (5 298, 302 (5th Cir. 2002)for Cir.2002) forthe theadmissibility admissibilityof ofhis hisproffered proffered evidence. evidence. However, However, these these cases cases

19 19 are distinguishable and not persuasive and not persuasive in in their application to the instant question. question.

20 Stoll applied Stoll applied §§1102 of the 1102 of the California California Evidence Evidence Code, Code, which which has has no no corollary corollary in in Guam Guam 21 law and is, in and is, in fact, fact, contradictory contradictorytotoit.it. California California explicitly explicitly permits permitsevidence evidence"[o]ffered "[o]ffered by the 22

11 The The highest highest appellate appellate courts of some some states states have have addressed addressed this this issue issueand andgenerally generallyfound found this this type type of evidence 23 inadmissible. SeeSee e.g. e.g. Tungate Tungate v. Commonwealth, 901. S.W. v. Commonwealth, S.W. 2d 2d 41 41 (Ky. (Ky.1995) 1995)(Stating (Statingthat that in in considering considering the the "admissibility of defense-proffered expert testimony expert testimony on a criminal criminal defendant's propensity for molesting 24 children...[t]he ... weight weight of of authority authorityinin other otherstates states and and in in the the federal federal courts courts is is resoundingly resoundingly in favor of excluding evidence.").See such evidence."). See also State v. Hulbert, Hulbert, 481 N.W. 2d 329 (Iowa 1992); State v. Friedrich, Friedrich, 135 135 Wis.2d 1 (1987); (1987); 25 State State v. v. Tucker, Tucker, App., 165 Ariz. 340, 798 P.2d P.2d 1349 (1990); State v. Person,Person, 20 Conn.App. 115, 564 A.2d A.2d 626, 626, 631 631 (1989). (1989). 26

27 Decision Decision and and Order CF0488-21 Motion In CF0488-21 Motion In Limine to Exclude Expert Witness Testimony Page 3 of7 of 1 defendant to prove his conduct defendant conduct in in conformity conformity with with such such character character or or trait trait of of character" but GRE

22 404(a) 404(a) states states the the opposite opposite proposition proposition and and "[e]vidence "[e]vidence of of a person's character character or a trait trait of of 3 character is not admissible admissible for the purpose purpose of proving proving action action in conformity conformity therewith therewith on a 4 particular occasion occasion..." (emphasis added). 5 Robinson, the Court held that expert testimony was allowed to show that defendant In Robinson, 6 7 did not have a sexual interest in young females because it does not address the ultimate issue to 7 8 be decided by the decided by the trier trier of fact. fact. Robinson, Robinson, 94 F. Supp. ad at Supp. 2d at 754 754 (W.D. (W.D. La. La. 2000). 2000). The The court 8

99 reasoned that reasoned that FRE FRE 704(b) 704(b) does does not preclude preclude an expert from from giving aa diagnosis diagnosis of of mental mental

10 illness, but illness, but only only precludes precludes an an expert expert from from giving giving an an opinion as to the effect the defendant's

11 mental illness illness has has on on his his ability abilitytotoappreciate appreciatewrongdoing." wrongdoing Id. Id at at 755. 755. However, However, the the Court Court in 12 . . . . . . Robinson admits that Robinson admits that it does not construe construe Rule 704(b) 704(b) strictly, strictly, in in concordance concordance wlth with the 5th the 5th 13 13 Circuit Court's rulings Circuit Court's rulings on onthe thesame samematter. matter. Id. Id Moreover, Moreover, the the ruling ruling in Robinson neglects to 14 14 address the prohibition address the prohibition in FRE 404(a) 404(a) making making inadmissible inadmissible character evidence seeking to character evidence 15 15 16 prove that on a particular occasion the person acted in accordance with the the character character or or trait in 16

17 17 question. question.

18 18 John held that that aa character character instruction should be instruction should be permitted permitted (and an an expert expert witness witness

19 19 opinion on the Defendant's Defendant's status status of of being a pedophile admissible) admissible) as "a vital part of John's

20 20 theory of of defense". defense". John, John, 309 F.3d at at 302 302 (5th (5th Cir. 2002). The The Court Courtreasoned that, without reasoned that, 21 any witnesses or other corroborating corroborating evidence evidence supporting the the child's accusations, guilt "hinged "hinged 22 entirely on credibility". credibility". Id. Id. However, However, while while the the defendant defendant in John was charged with a similar 23 crime, ime, the the legall issue issue at ha hand wa was whether whether the the judge judge should should ha ve per have mitted aa cha permitted r a cter character 24 instr uction toto the instruction the jury, y, not solely solely the the aadmission dmission of ofexper t witness expert witness testimony testimony r regarding ega r ding 25

Defendant's character. character. The defense defense also also presented presented other other character character evidence evidence from from family family 26

27 Decision Decision and and Order CF0488-21 Motion Motion In In Limine Limine to Exclude Exclude Expert Expert Witness Testimony Testimony Page 4 of Page of7 7 1 members and social members and social workers that knew the that knew the Defendant Defendant and and could could speak speakto to his his character. character. In In the 2 2 present case, Defendant present case, Defendanturges urgesadmission admissionofof his his expert's expert's testimony testimony to to assist the jury assist the jury in in 3 determining an"absence determining an "absenceof of sexual sexualdeviance". deviance". Defendant's Response at Defendant's Response at 4. 4. This This purpose purpose is 4 plainly plainly inadmissible propensityevidence inadmissible propensity evidenceunder underthe thegeneral generalrule ruleof of GRE GRE 404(a) 404(a) as as quoted quoted 5 supra. 6 6 C. Defendant's Defendant'sPropensity Propensity for forSexual Sexual Deviance Deviance Is Is Not at at Issue Issue 7

As required required by GRE GRE 413, 413, the the People Peoplehave havenot notdisclosed disclosedany anyintention intention to to present present 8

9 evidence Nom from which which the the jury jury may may consider consider that that Defendant's Defendant's propensity propensity to commit commit criminal criminal

10 sexual sexual conduct against against minors minors makes makesitit more more probable probable he he committed the the offenses charged in in the

11 11 Indictment. Indictment. Consequently, Consequently, Defendant's introduction of aa diagnosis introduction of diagnosis for for non-propensity non-propensity is not not 12 12 relevant under under GRE 401 when GRE 401 when the the jury is not tasked tasked with with determining determining and and weighing weighing his alleged

13 13 propensity as as probative probative of of his commission of of the the charged offenses. 14 14 . The Superseding Indictment charges Superseding Indictment chargesDefendant Defendantwith with specific specific acts directed towards towards two 15 15 individuals over the course course of of approximately approximately one one year. year. Defendant's Defendant's preferred proferred evidence evidence does does not 16 16

17 meet meet the the GRE 401 401 test test ofofrelevance, relevance, without without some some permitted permitted chain chain of of inference inference that that aa 17

18 18 psychiatric psychiatric diagnosis, diagnosis, made made three years after the offenses charged three years charged in in the the Indictment, Indictment, makes makes aa

19 19 fact fact charged charged in in the the Superseding Superseding Indictment "more probable Indictment "more probable or or less less probable. probable." 77 This

20 20 "circumstantial evidence"(Defendant's "circumstantial evidence" (Defendant'sResponse Responseatat33(November (November 20, 20, 2023)) 2023)) is explicitly explicitly 21 prohibited underGRE prohibited under GRE404(a) 404(a) if if the the only inference the jury inference the jury can can make make is is "proving action action in in 22 conformity therewith on a particular particularoccasion occasion....". .... Beyond Beyondpropensity propensityevidence, evidence,Defendant Defendant has has 23 not suggested anotherlogical suggested another logical inference inference between between this this evidence evidence and and the the charges charges filed filed by the the 24 People. 25

26'

27 Decision Decision and and Order Order . CF0488-21 Motion In CF0488-21 Motion Liming to Exclude Expert Witness Testimony In Limine Page 5 of7 of 11 D. The The Expert Expert Report Report and and Testimony Testimony are are Inadmissible under under GRE 403

2 A finding that Defendant's evidence is not relevant could change if or when when Defendant's Defendant's 3 propensity to commit the charged h offenses is brought into issue, issue, as it would were the People to 4 submit notice of an intent intent to to introduce introduce GRE GRE413 413 evidence. evidence. However, even even then, GRE 403 states 5 that relevant relevant evidence evidence "may be excluded excluded ifif its its probative probative value is substantially substantially outweighed by 6 7 danger of of the of unfair prejudice, confusion of the issues, issues, or or misleading misleading the the jury jury...."" On On this issue, and 7

8 assuming Defendant's evidence is relevant, the risk of of confusion confusion of the issues and misleading

99 the jury substantially outweighs its probative value.

10 The key question for the jury jury in this matter is the the alleged sexual conduct with the minor

11 victims victims by Defendant during the Defendant during the time time period period of November November 2020-September 2020-September 2021, 2021, and and is is an 12 . . . . . .. . . as . issue that Issue that is distinctly different is dlstlnctly different from from detennlnlng determining If if Defendant Defendant is aware of is "aware of conventional conventional 13 13 knowledge and and morality morality pertaining pertaining to to sexual sexual boundaries boundaries between between adults adults and and children children and has no 14 14 cognitive distortions". distoltions". Defendant's Defendant's Response Response at 5 (November 20, 2023). The The two two questions questions are 15 15 sufficiently removed removed from from and and unrelated unrelated to each each other other such that presenting evidence of of the latter 16 16 17 is "likely "likely to to confuse the jury and divert divert its attention away from from the central question in the case."79 17

18 18 Pires, y 642 F.3d at 12. 12. Although Althoughthe theage ageof ofthe the alleged alleged Victim Victim and and aa diagnosis diagnosis of of pedophilia are

19 19 arguably related, Defendant's propensity to commit the alleged offense has not been raised in propensity to

20 20 any legally cognizable cognizable way waythat that would would result result in in anything anything but but prohibited prohibited uses of the the evidence by 21 the jury, as discussed in Section Section III.C. supra. 22 The Court is also cautious of the dangers of of expert testimony pointed out u t in Py Pires that 23 smce i n c e "such c h testimony t i m o n y can a n carry n ' y with iitt aan n u unwarranted nwar ant aaura u r oof f s special p e c i a l r reliability eliab y aand n 24 25 trustworthiness, courts must trustworthiness, courts must guard guard against against letting letting itit intrude intrude in in areas areas that that jurors, jurors, by by dint of of 25 uniquely competent to common experience, are uniquely to judge judge without without the theaid aidof ofexperts." experts."Id.Id Although 26

27 Decision Decision and and Order CF0488-21 Motion Motion In In Liming Limine to to Exclude Exclude Expert Expert Witness Testimony Page 6 of7 of 7 1 the jmy is instructed not to assign additional weight to the testimony of an expert, there is 2 always a risk "such testimony can carry with it an unwarranted 'aura of special reliability and 3 trustworthiness'." Id. (quoting US v. Fosher, 590 F2d 381,383 (1s t Cir. 1979)). 4 In considering the above, the Court finds that introduction of evidence removed from the 5 scope of their charge presents a significant 'risk of confusing the jury in this matter or would 6 result in impermissible inferences under GRE 404(a). The introduction of this evidence through 7 an expert magnifies these risks such that they would outweigh any probative value for the jury. 8

9 Defendant's proffered evidence should not be presented as a matter of right when it is

well-settled that the United States Constitution as incorporated by the Organic Act of Guam do

11 not guarantee "an unfettered right to offer testimony that is incompetent, privileged, or

12 otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 US 400, 410 13 (1988). The exercise of Defendant's fundamental rights "must comply with established rules of 14 procedure and evidence designed to assure both fairness and reliability in the ascertainment of 15 guilt and innocence." Chambers v. Mississippi, 410 US 284, 302 (1973). 16

18 CONCLUSION AND ORDER 19 For the above reasons, the People's Motion In Limine to Exclude Expert Report and 20 Testimony is GRANTED. 21 AUG O6 2024 22

23 SERVICE VIA'E•MAIL I acknowh:,dge_ thaian electronic 0

24 copy of the Drifnal Wise-manec1 ID: HONORABLE ALBERTO E. TOLENTINO Judge, Superior Court of Guam 25

27 Decision and Order CF0488-21 Motion In Limine to Exclude Expert Witness Testimony Page 7 of 7