People v. Simion

Opinion

c’r~ r ~LL.U SUPERLOR COURT ~ Q~J~

1 znzu~ov 15 ~j [4:23 2 CLERK OF C~,U~I 3

IN THE SUPERIOR COURT OF GUAM 5 PEOPLE OF GUAM, ) CRIMINAL CASE NO. CF0293-20 6 ) GPD Report Nos.: 20-06823/20-08884 vs. ) 20-09090/20-10714/20-10716/20-10718 ) 20-10801/20-11130/20-11252 / 20-12963 8 ) 20-12974/20-12975 9 ROBERT EUGENE SIMION, ) DECISION AND ORDER DENYING 10 DOB: 10/03/2000, )) DEFENDANT’S FIRST MOTION TO COMPEL DISCOVERY 11 Defendant. ) 12 A. INTRODUCTION 13 This matter came before the Honorable Maria T. Cenzon on October 18, 2021 for a

hearing on Defendant Robert Eugene Simion’s (“Defendant’s”) First Motion to Compel

Discovery (“Motion”). Assistant Attorney General Renaida San Nicolas represents the People, 16 17 and Attorney William Pole represents Defendant. Having duly considered the parties’ briefs, 18 oral arguments, and the applicable law, the Court now issues the following Decision and Order 19 and DENIES Defendant’s Motion. 20 B. BACKGROUND 21

22 Defendant is charged with Burglary (as a 2nd Degree Felony) (Three Counts). 23 Indictment (Nov. 3, 2020). Defendant is alleged to have burglarized George Washington High 24 School, Mangilao, Guam, on three separate occasions, alongside co-defendant Betwin Daniel 25 Simion (“Co-Defendant”). Id. On September 9, 2021, Defendant filed his First Motion to 26 Compel Discovery. Defendant requested the disclosure of materials that he believes are 27

28 Page 1 of 12 1 necessary in preparing his defense, thus purportedly falling under the Government’s statutory 2 and Constitutional delivery obligations. Motion at 1-3. Specifically, Defendant requested: 3 1. Any security footage, if so available;

2. Any RAP sheets of government witnesses not yet provided; 5 3. Juvenile records of any co-defendants or juveniles charged outside this matter; 6 4. Plea agreements or cooperation agreements of any co-defendants.

8 Motion at 1-2 (Sep. 9, 2021).

On September 23, the People filed their Response to Defendant’s Motion (“People’s 10 Response”). The People addressed each of Defendant’s specific requests as follows:

1. Surveillance footage was not confiscated, and is not in the possession or control 12

13 of either the prosecution or the Guam Police Department. People’s Response at 2 (Sep. 23, 14 2021). 15 2. Discovery statutes do not obligate the People to turn over RAP sheets of all 16 government witnesses, because arrest records may contain expunged charges. Id. at 2. The 17

18 People did, however, acknowledge their duty to turn over any pertinent witness convictions of 19 crimes to the Defendant. Id. at 2. 20 3. The Co-Defendant’s juvenile records should remain confidential unless the 21 Defendant can show bias. Id. at 2. The People also argued that any such juvenile records are 22 sealed, requiring the Defendant to subpoena the records from the Family Division. Id. at 3. 23

24 4. The Co-Defendant has no plea agreements at this time. Id. at 3. 25 On September 29, 2021, Defendant filed his Reply to People’s Response (“Defendant’s 26 Reply”). Defendant stated a court order (rather than a subpoena) was the proper method of

obtaining the juvenile records and, thus, has applied to the Court for such order. Defendant’s

Page 2of12 Reply at 2 (Sep. 29, 2021). Defendant then reiterated his request for the Co-Defendant’s and

2 any other government witness’s juvenile records, classifying them as material to his right to a 3 fair trial. Id. at 2. Defendant has not, however, proffered any basis for claiming materiality of

such information or documents except for this blanket assertion. 5 C. DISCUSSION’ 6 1. A Defendant’s Right to Discovery is Statutory; Not Constitutional.

8 Defendant’s asserts that, “once a Defendant asks for evidence [pursuant to 7 GCA § ~ 70.10 (a) and (b),] not only does the prosecutor have an obligation to make said evidence 10 available, but that subsection b requires the government to make sure that anyone who reports

or was involved with the investigation must turn over said material,” Motion at p. 5. 12

13 Defendant’s postulation is, however, completely dismissive or ignorant of the controlling law in 14 Guam. As a preliminary matter, the Court notes that “[t]here is no general constitutional right to 15 discovery in criminal case.” People v. Orallo, 2004 Guam 5 ¶ 9 (citing Weatherford v. Bursey, 16 429 U.S. 545, 559, 97. S. Ct. 837, 846 (1977). Accordingly, “the right to pre-trial discovery is 17

18 strictly limited to that which is permitted by statute or court rule mandated by constitutional 19 guarantees.” Id. (citing Cole v. State, 835 A.2d 600, 608 (Md. 2003)). 20 The criminal discovery provisions set forth in 8 G.C.A § 70.10 et seq. strictly define the 21 materials/information that govern the discovery obligations between the People and a criminal 22 defendant. Section 70.10 (a)(1)-(7) specifically identify the material and information “within the 23

24 prosecution’s possession or control, the existence of which is known, or by the exercise of due 25 diligence may become known” as subject to such automatic disclosure. 26

27 Because no surveillance footage or plea agreements among the Co-Defendants are known to exist, the Court will focus only on the Defendant’s requests for witness RAP sheets and juvenile records. 28 Page 3 of 12 1 Discovery mandated under this rule includes: 2 (1) the name and address of any person whom the prosecuting attorney intends to call as a witness at the trial, together with his relevant written or recorded 3 statement;

(2) any written or recorded statement and the substance of any oral statement 5 made by the defendant or made by a co-defendant if the trial is to be a joint one; 6 (3) any report or statement of an expert, made in connection with the case, 7 including results of physical or mental examinations and of scientific tests, experiments or comparisons; 8 (4) any book, paper, document, photograph or tangible object, which the prosecuting attorney intends to use in the trial or which was obtained from or 10 belonged to the defendant; ii (5) any record of prior criminal convictions of persons whom the prosecuting attorney intends to call as witnesses at the trial; 12

13 (6) whether there has been an electronic surveillance of conversations to which the defendant was party or of his premises; 14 (7) any material or information which tends to negate the guilt of the defendant as 15 to the offense charged or would tend to reduce his punishment therefor. 16 8 G.C.A. § 70.10(a)(l)-(7). 17

18 Section 70.10(b) extends the prosecution’s obligation under subsection (a) “to any 19 material information in the possession or control of members of his staff and any other persons 20 who have participated in the investigation or evaluation of the case and who either regularly 21 report or with reference to this case have reported to his office. 8 G.C.A. § 70.10(b). The right . . . .

22 to the disclosure of the material in Section 70.10, however, is not absolute, as Defendant 23

24 contends. It is fundamental in all demands for the production of discovery in criminal cases, that 25 a Defendant seeking such disclosure must satisfy the threshold requirement of materiality. In 26 this regard, the Guam Supreme Court has held that Section 70.10(b), “like Brady itself,

‘imposes a general materiality requirement upon items before disclosure.” People v. Mateo,

Page 4 of 12 1 2017 Guam 22 ¶ 14 (citing People v. Tuncap, 1998 Guam 13 ¶ 18). 2 Defendant also cites to 8 GCA § 70.15 as the catchall provision supporting his request 3 for juvenile records and RAP sheets. Mot. p. 5. However, by the very language in the statute,

Section 70.15, like 70.10, also requires “a showing of materiality to the preparation of his 5 defense and that the request is reasonable.” Further, any request for disclosure is subject to the 6 discretion of the court. Id.

8 2. The People need not disclose the Co-Defendant’s or other government witnesses’ RAP sheets because they are not mandated under 8 G.C.A. § 70.10 and Defendant did not establish how they are material to the preparation of 10 his defense. ii 8 G.C.A. § 70.10 requires prosecutors to disclose certain discoverable information to the 12 Defendant. RAP sheets are not specifically covered under 70.10(a); however, even assuming 13 2 arguendo that they fall within any provisions therein, which they clearly do not, Defendant

would still be required to establish their materiality prior to the Court compelling their

16 disclosure. As briefly discussed, supra, Mateo holds that, even if RAP sheets or other material is 17 covered under any provision of Section 70. 10(a)(1)-(7), Section 70.10(b) requires a Defendant 18 to establish that the information is material before the prosecution is required to disclose it. 19 Mateo at ¶ 14 (“8 GCA § 70.10(b), like Brady itself, ‘imposes a general materiality requirement 20

21 upon items before disclosure”)(emphasis added)). See also, ¶ 15 (“Thus, under both sections 22 70.10 and 70.15, as well as our holding in Tuncap, a threshold showing of materiality must be 23 established before the prosecution is obligated to turn over evidence to the defendant either 24

25 2 RAP sheets are not covered under Section 70.10(a). RAP sheets do not contain only the convictions of a Defendant, but also contain arrest records, for which a defendant may not have been charged or even adjudicated. 26 Indeed, RAP sheets differ significantly from conviction records mandated under §70. l0(a)(5). Whereas conviction records establish a witness’s guilt, arrest/indictment records only establish “the reception of somebody’s hearsay 27 assertion of the witness’ guilt.” Corn v. Ross, 252 A.2d 661, 662 (Pa. 1969).Thus, RAP sheets fall outside the scope of 8 G.C.A. § 70.10(a) and the People need not turn them over as generally required discovery under this Section(a). 28 Page 5 of 12 1 automatically (under section 70.10 and Brady) or following a motion by the defendant (under 2 section 70. 15).”).~ A simple request for discovery, the Guam Supreme Court has held, does not, 3 by itself, automatically make the information material for purposes of the statute and thus

require disclosure. Tuncap, 1998 Guam 13 ¶ 19. 5 This “threshold showing of materiality must be established before the prosecution is 6

~ obligated to turn over evidence to the defendant either automatically or following a motion by 8 the defendant.” Mateo at ¶15. “Evidence is material only if there is a reasonable probability ~ that, had the evidence been disclosed to the defense, the result of the proceeding would have 10 been different. A ‘reasonable probability’ is probability sufficient to undermine confidence in

the outcome.” People v. Fisher, 2001 Guam 2 ¶13 (quoting U.S. v. Pressur, 844 F.2d 1275, 12

13 1281 (6th Cir. 1988)). “Mere speculation that a government file might contain Brady material is 14 not sufficient” towards proving the materiality of requested discovery. Mateo at ¶ 17. Although 15 Mateo addresses a showing of materiality as it pertains to a request of internal affairs reports, 16 materiality is nonetheless a requirement for all material that does not fall within Section 17

18 70.10(a) and, therefore, applies here. 19 Defendant states that the requested RAP sheets are necessary to prepare a defense. 20 Motion at 2 (Sep. 9, 2021). Defendant argued for the RAP sheets’ materiality as being 21 exculpatory and carrying impeachment value. See Motion at 2 (Sep. 9, 2021); Defendant’s 22 Reply at 4 (Sep. 29, 2021). However, as clearly established by controlling law, Defendant may 23

24 not simply rely upon a blanket assertion that RAP sheets in general contain impeachment 25 evidence required to be disclosed under Brady. The Guam Supreme Court in Mateo firmly 26

27 ~ The Court may order the prosecutor to disclose “any relevant material and information not covered by § 70.10” upon “a showing of materiality to the preparation of’ the defendant’s defense. 8 G.C.A. § 70.15(a). 28 Page 6 of 12 rejects any notion, including that which is recognized in the Ninth Circuit, that eliminates a

2 showing of materiality prior to compelling disclosure of “other” material, stating: “We agree 3 with the trial court that the better approach is that adopted by the overwhelming majority of

jurisdictions, which requires a threshold showing of materiality to trigger a mandatory review 5 by the prosecution, or an in camera review by the court.. ..“ Mateo, 2017 Guam 22 ¶ 17. 6

7 Moreover, the Guam Supreme Court affirms that Brady does not require that a 8 Defendant be given all information in the prosecution’s possession or control, particularly when ~ the request is merely speculative. In this regard, the Court in Mateo instructed that “Brady’s 10 overriding concern [is] with the Justice of finding of guilt, not with the accused’s ability to

prepare for trial.” Id. (citing Kitano, 2011 Guam 11 ¶ 21). Thus, a Defendant cannot simply

13 claim entitlement to RAP sheets because they may contain exculpatory evidence. In fact, the 14 Guam Supreme Court prohibits such a practice because it places an undue burden upon trial 15 courts to review RAP sheets based upon pure speculation that they contain Brady material. Id. 16 (“Mere speculation that a government file may contain Brady material is not sufficient to 17

18 require a remand for in camera inspection, much less reversal for a new trial. A due process 19 standard which is satisfied by mere speculation would convert Brady into a discovery device 20 and impose an undue burden” upon the trial courts”) (quoting United States v. Navarro, 737 21 F.2d 625, 631 (7th Cir. 1984), cert. denied, 469 U.S. 1020 (1984)). 22 Because the Defendant has failed to demonstrate the materiality of the RAP sheets as 23

24 required, the People need not disclose them to Defendant under Section 70.10(b) or 70.15. 25

28 Page 7 of 12 3. Even if the Defendant were entitled to the disclosure of the RAP sheets, any prior expunged arrests are not admissible at trial unless the protections of 2 expungement are waived by the individual who benefits from the expungement. 3

4 Guam’s expungement statute provides that “the official records of the court, the ~ Attorney General, and the police reports in connection” with a criminal prosecution “shall be 6 expunged when the subject of the report is acquitted of the offense charged, when the

prosecuting attorney decides not to prosecute the offense, when the time for commencing the

criminal action... has passed, or on approval of the Pardon Review Board.” 8 G.C.A. § 9

10 11.10(a). “Expungement means the sealing of records to all persons outside of the law ii enforcement agencies of Guam and federal agencies thereto and a refusal by such agencies to 12 admit the existence of such records to persons not entitled to examine them.” 8 G.C.A. § 11.11. 13 Thus, expunged charges cannot be used for impeachment purposes at trial. See State v. Leitner, 14 646 N.W.2d 341, 352 (Wis. 2002). 15

16 Notwithstanding the benefits of expungement inuring to an individual, the Supreme 17 Court of Guam has held that “a former criminal defendant is entitled to waive the protections of 18 expungement under 8 G.C.A. § 11.10 that was made for his or her benefit.” Allen v. Richardson, 19 2018 Guam 2 ¶ 16. “A person waives his right to the protections of expungement when he 20

21 places the prior prosecution at issue in subsequent or collateral litigation, and a valid waiver 22 does not require a separate order dissolving or modifying the original expungement order.” Id. 23 at ¶16. “A waiver may be express or implied.” Id. at ¶24. 24 Defendant has not provided evidence that the Co-Defendant and other government 25 witnesses have waived their protections under Guam’s expungement statute. Thus, even if 26

27 Defendant was entitled to the RAP sheets without first establishing materiality, any arrests 28 Page 8 of 12 contained within their RAP sheets which resulted in expunged charges are inadmissible at trial.

2 In any event, Defendant has not established the materiality of the RAP sheets, nor event that 3 RAP sheets exist; therefore, the Court denies the request for disclosure.

4. The People need not disclose the Co-Defendants’ or other government 5 witnesses’ juvenile records because they are not mandated under 8 G.C.A. § 70.10 and Defendant did not establish how they are material to the 6 preparation of his defense. 7

8 Like RAP sheets, juvenile records are not covered under 70.10(a). They are not, for ~ example, “criminal convictions” under 70. 10(a)(5). In fact, the Family Court Act specifically 10 states that “{n]o adjudication by the [Family] court of the status of any child shall be deemed a

conviction, nor shall any adjudication operate to impose any of the civil disabilities ordinarily

13 resulting from conviction.” 19 GCA § 5114. Consequently, juvenile records are not subject to 14 disclosure under Section 70.10, regardless of whether Defendant was able to establish 15 materiality. 16 5. Defendant is not entitled to juvenile records under 8 G.C.A. § 70.15 because 17 Defendant failed to establish how they are material to the preparation of his defense. 18

19 Although disclosure of the juvenile records is not required under 8 G.C.A. § 70.10, the 20 Court may have the discretion to order their disclosure under 8 G.C.A. § 70.15 upon a showing 21 of good cause and materiality to the preparation of the defendant’s defense. However, such 22 discretion is tempered by the confidential nature of juvenile records. See 19 GCA § 5122; 19 23

24 GCA § 13210. As a threshold matter, however, the Court need not rule on the question of 25 whether disclosure is prohibited or limited under the Family Court Act or other provisions 26 aimed at protecting the confidential nature of juvenile proceedings because the Defendant has

failed to demonstrate the materiality of juvenile records. As with RAP sheets, and as discussed

Page 9 of 12 1 above, it is insufficient for Defendant to advance this request based upon an unsubstantiated 2 blanket statement that these records are material to his defense. 3 Defendant attempts to rely upon the case of Davis v. Alaska, 415 U.S. 3080 (1974) in

support of his motion to compel the disclosure of juvenile records. However, that case is

distinguishable from the case at bar. While the Supreme Court held in Davis v. Alaska that 6

~ juvenile records can be admitted for impeachment purposes, the defendant in that case had 8 already demonstrated the record’s material value. Davis v. Alaska, 415 U.S. 308, 320 (1974). In ~ that case, the defendant sought to introduce juvenile records showing the witness’s active 10 probation status, to allege that fear of revocation of probation influenced the witness’s

testimony. Id. at 311. There is no such articulation here. Defendant is simply speculating that 12

13 the juvenile records of the Co-Defendant and any witnesses contain material value, but he’s 14 unable to articulate what that value is. Thus, the Court shall not compel the disclosure of the 15 juvenile records under 8 G.C.A. § 70.15. 16 6. The Court will not allow Defendant to inspect the government witnesses’ 17 juvenile records because Defendant has failed to demonstrate a legitimate interest behind his request or establish their sufficient materiality to his 18 defense. 19 Defendant attempts to review the juvenile records of the Co-Defendant and any other 20

21 government witnesses by invoking the provisions of the Family Court Act, which provides that 22 all juvenile court records “shall be opened to inspection only as provided by § 5123 or by order 23 of the judge to persons having a legitimate interest therein.” 19 G.C.A. § 5122. Otherwise, 24 these records “shall be privileged and shall not be disclosed directly, or indirectly to anyone 25 other than the judge or others entitled under this chapter to receive such information, except as 26

27 provided by § 5123.” Id. Although Section 5123 appears to allow the open inspection of 28 Page 10 of 12 1 juvenile records, this provision is tempered by sections 5122 and 5124 (the sealing and 2 destruction of records) and must be read in conjunction with the provisions of the Family Court 3 Act, within which this section is contained. The Family Court Act is replete with provisions 4 . . . . . . which encourage the adjudication of juveniles within the Family Court when a charged minor 5 would greatly benefit from being adjudicated in Family Court. See 19 GCA § 5106, 2015 Note. 6 As set forth herein, the Defendant has failed to establish a legitimate interest behind his

8 request for the juvenile records. Moreover, Defendant has not identified, with particularity any ~ witnesses whose juvenile record, if any, is available for disclosure or in camera inspection by 10 the Court. Moreover, Defendant has not established that any such records have not already been 11 sealed, destroyed or subject to limited disclosure to the juvenile, the court, or to law 12

13 enforcement agencies in the performance of their duties. 19 GCA § 5124. As such, the Court 14 denies Defendant’s motion to compel, by subpoena or order, the disclosure of such records. 15 7. The People have an ongoing obligation to turn over any exculpatory material 16 under 8 G.C.A. § 70.1O(a)(7) and Brady. 17 The People acknowledge throughout the proceedings that it has an ongoing obligation to 18 turn over any exculpatory information under 8 G.C.A. § 70.10(a)(7) and Brady. The Guam 19 Supreme Court has held “impeachment evidence relating to government witnesses” constitutes 20

21 potential Brady material. Fisher, 2001 Guam 2 ¶ 12. The People have represented during the 22 hearing of this matter that the requested RAP sheets, if any, do not contain any exculpatory 23 information that is subject to disclosure under either 8 G.C.A. § 70.10 or Brady, and that if any 24 . . . . such material existed, the acknowledge their duty to provide it to Defendant. Failure to comply 25 with these fundamental discovery mandates could result in the severe sanctions, not the least of 26

27 which include sanctions for violations of their duty of candor to the court, compliance with 28 Page 11 of 12 ethics rules, and, ultimately, a reversal of any conviction which might be had at trial.

2 D. CONCLUSION

3 For the reasons stated above, the Court DENIES Defendant’s Motion To Compel. 4 Notwithstanding the Court’s Decision and Order herein, the People are reminded of its 5 continuing obligation to comply with their discovery obligations under 8 G.C.A. § 70.10 and 6 Brady. 7

8 IT IS SO ORDERED this ~CV 152021 9

11 MARIA T. CENZON 12 Judge, Superior Court of Guam 13

22 SERVICE VIA E-MAIL 23 I acknowledge That an electronic copy of the original wa~s e-mailetto: 24

25 Date1~~~ ~ Time: 26 (~/~ Deputy Clerk, Superior Court of Guam 27

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