People v. Sipenuk

• Court: Superior Court of Guam
• Decided: May 28, 2009
• Docket: CF0373-07
• Status: Unknown

Opinion

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i'l al; i.l r'i I IN THE SUPERIOR COURT OF GUAM ..!. .,: 2 ') "'ll.. .;' n7 "' PEOPLE OF GUAM. a J cRrMrNAr cesE ii6. cFo373-07 4

5 vs. DECISION AI\D ORDER 6

7 ANDE SIPENUK.

8 Defendant. 9

t0 INTRODUCTION 1l This matter came before the Honorable Arthur R. Barcinas on the 18ft day of February, t2 2009, for hearing on the Deferidant's Motion to Dismiss. Assistant Attorney General Basil J. 13 O'Mallan, III, represented the People, and Attomey Anthony Toves represented the Defendant. t4 The court now issues the following Decision and order on the matter. 15 DISCUSSION t6 On August 16,2007, a case against the Defendant was presented to the Grand Jury, who l7 l8 indicted the Defendant on one count of Terrorizing, two counts of First Degree Criminal Sexual

l9 Conduct, and one count of Second Degree Criminal Sexual Conduct. At the Grand Jury

20 proceeding, Guam Police Officer Verango was the sole witness. On December 23,2008, 2l Defendant filed this Motion to Dismiss Grand Jury Indictment for Grand Jury Inegularities. 22 Specifically, the Defendant objects to the following Grand Jury testimony, arguing that it is 23 inadmissible under the Guam Rules of Evidence: 24

25 (A) that the complaining witness had been a virgin prior to engaging in sexual relations

26 with the Defendant;

(B) Officer Verango improperly vouched for the credibility of the complaining witness People vs. Sipenuk; CF373-07 DECISION AND ORDER

I by describing her demeanor during the interview; 2 a (C) Defendant had allegedly previously watched the complaining witness while she J

4 showered;

5 (D) Defendant allegedly masturbated while viewing complaining witness showering;

6 (E) Defendant allegedly drank alcohol while driving with the complaining witness on the

7 day of the alleged assault; 8 (F) Defendant allegedly drove, with complaining witness in the vehicle, to a secluded 9 section ofjungle to look for marijuana that he allegedly planted; and l0 ll (G) evidence that complaining witness had bruises on her arm when she reported the

12 alleged assault but no link between the Defendant and any bruises was presented.

l3 DISCUSSION T4 Dismissing an indictment is considered a drastic step and generally disfavored as a l5 remedy. Peoplev.Tuncap, 1998Guam13;cccordU.S.v.Rodgers,75lF.2d,1074,1076-77(9th t6 Cir. 1985); People v. Muna,999F.2d397 (gthCir. 1993). Defendant incorrectly states that the t7 t8 standard requires that "this Court simply evaluate the information presented and ask itself: could

l9 the decision to indict have been influenced by the improper testimony presented." Def.'s Reply

20 to the People's Opp'n to Def.'s Mot. to Dismiss, filed Jan. 5, 2009,atp.6. The People argue that

2l the indictment should not be dismissed if this Court finds there was sufficient evidence presented 22 tograndjurors. People'sOpp'ntoDef.'sMot.toDismissIndictment.filedDec.3l,2009,atp.3. 23 the Government further argues that even if the provision of unnecessary information to the gand 24

25 jury constitutes an error in the proceedings, the error was harmless because it did not confuse the

26 grand jury, and the Defendant has failed to show that he was prejudiced by the error.

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I Guam has adopted a statutory standard as to when an indictment must be dismissed for 2 errors in the grand jury proceedings. Title 8 GCA 3 $ 50.42 provides in relevant part;

4 The grand jury shall receive only competent evidence but the fact that evidence which is incompetent was received by the grand jury does not render the 5 indictment void where sufficient competent evidence to support the indictment was received by the grand jury. 6 Under this standard, as argued by the Government, an indictment is proper so long as it 7

8 is supported by suffrcient competent evidence to show probable cause that the Defendant

9 committed the crimes charged.

l0 The Court first addresses the Defendant's contentions (C), (D),(E), (F), and (G), as listed n by the Court, claiming that statements that the Defendant had allegedlypreviously watched the t2 complaining witness while she showered; Defendant allegedly masturbated while viewing l3 complaining witness showering; Defendant allegedly drank alcohol while driving with the t4 l5 complaining witness on the day of the alleged assault; Defendant allegedly drove, with

t6 complaining witness in the vehicle, to a secluded section ofjungle to look for marijuana that he

r7 allegedly planted; and evidence that complaining witness had bruises on her arm when she 18 reported the alleged assault but no link between the Defendant and anybruises was presented are t9 all inadmissible under the Guam Rules of Evidence and therefore, should not have been provided 20 to the grand jury. 2l 22 Despite the Defendant's claims that all of this evidence is inadmissible under the Guam

23 Rules of Evidence, the Court finds that statements (C), (D), (E), and (F) would all be admissible

24 at trial as admissions by a party opponent under GRE Rule 801 (dX2XA). These statements are 25 all statements alleged to have been made by the Defendant directly to the victim and to an 26

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1 interviewing police officer. Grand Jury Tr.. August 16,2007, p.9, lines l1-16, p. p. 1g, lines 2 11-19. The Court further finds, despite Defendant's contention to the contrary, that Statement a J (G) concerning bruises on the victim's arms was linked to the actions of the Defendant during the 4 Grand JuryProceedings whentestimonywas presented that the Defendant grabbedherbythe arm 5

6 and the victim struggled with the Defendant to free herself from his hold. Id. at p. 9, lines 23-27 .

7 Next, the Court finds that statement (B) concerning Officer Verango's description of the 8 demeanor of the victim during an interview did not constitute improper vouching as claimed by 9 the Defendant. In considering allegations of improper vouching, the Court applies four factors: l0 "(1) the form of the vouching; (2) the extent of the personal opinion asserted; (3) the extent to 1l t2 which aprosecutor's statements exhibited extrarecordknowledge supporting awitness'veracity;

13 and (a) the testimony's import viewed in the context of the case as a whole." People v. Evaristo,

t4 1999Guam22,n32 (quotingPeoplev.Ueki,lggg Guam 4,1V4). Inthiscase,theformofthe 15 vouching is alleged to be Officer Verango's physical description of the victim and her demeanor t6 during the interview. As in the Evaristo case, Officer Verango, as the agent of the govemment, t7 did not express a personal opinion as to the credibility of the victim, and did not intimate that he 18

r9 had extra knowledge of the truthfulness or untruthfulness of her statements. Id at !f!f32-33. No

20 personal belief of the truthfulness of the victim was presented to the Grand Jury, therefore, the

2T Court frnds that statement (B) did not constitute improper vouching. 22 As such, statements (B) through (G) are all admissibleunderthe Guam Rules ofEvidence, 23 and the Defendant's arguments that the indictment in this case is fatally flawed by inadmissible 24 evidence are incorrect. Because all of these statements constifute admissible evidence, upon a 25

26 review of the grand jury transcripts, the Court finds that the indictment returned against the

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I Defendant was based upon sufficient competent evidence presented to the grand jury. 2 The single remaining statement that does not appear to comport with the Guam Rules of a J Evidence, is statement (A), concerning evidence of the victim's virginity. However, the Court 4 does not find that the presentation of this evidence to the grand juryrenders the indictment void. 5

6 While Defendant presents the argument that providing the grand jury with evidence that

7 does not conform to the rules of evidence requires dismissal of an indictment, this argument

8 stands in stark contrast to the plain language of 8 GCA $ 50.42, which clearly states that the fact 9 that incompetent evidence was received will not void an indictment so long as it is supported by t0 sufficient competent evidence, and the Defendant fails to support his assertions with authority or 11

12 citations to the contrary.

13 As noted by the Govemment, the case law referenced by Defendant does not stand for the

t4 proposition that providing a grand jury with incompetent or inadmissible evidence mandates t5 dismissal of an indictment. Rather, the cases cited by the Defendant uniformly stand for the t6 proposition that the prosecution cannot present evidence in violation of the rules of evidence at t7 rrral. Fletcher v. People, 179 P.3d 969 (Sup.Ct.Colo.2007); State v. Harris, 521 N.W.2d 348 l8 l9 (sup.ct.Minn.l994); and state v. Gavigan, 330 N.w.2d 57r (Sup.ct.wis.1983).

20 The Supreme Court of the United States has long established that grand juryproceedings

2l are not subject to restrictions such as the rules of evidence or other procedural limitations that

22 govem jury trials. In outlining the grand jury's freedom from such constraints, the nation's 23 highest court explained: 24 Traditionally the gand jury has been accorded wide latitude to inquire into 25 violations of criminal law. No judge presides to monitor its proceedings. It 26 deliberates in secret and may determine alone the course of its inquiry. The grand

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1 jury may compel the production of evidence or the testimony of witnesses as it 2 considers appropriate , and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials. 'lt is a J a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowlyby questions ofpropriety or forecasts 4 of the probable result of the investigation, or by doubts whether any particular 5 individual will be found properly subject to an accusation of crime.'

6 United States v. Calandra, 414 U.S. 338,343 (I974) (quoting Blair v. United States, 250 U.S.

7 27 3, 282 (1 9 I 9)(emphasis added).

8 ln finding that a gand jury may consider incompetent evidence, so long as the evidence 9 doesn't violate a constitutional right or privilege, the United States Supreme Court further stated: l0 The grand jury's sources of information are widely drawn, and the validity of an 11 indictment is not affected by the character of the evidence considered. Thus, an l2 indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence) or even on 13 the basis of information obtained in violation of a defendant's Fifth Amendment privilege against self-incrimination. l4 Id. at345-346 (citing Costello v. United States, 350 U.S. 359,362 (1956); Holt v. United States, l5 T6 218 U.S. 245 (1910); and Lawn v. United States, 355 U.S. 339 (1958))(emphasis added).

I7 "lncompetent" evidence, as termed in the statute, is not specifically defined by Title 8

18 GCA $50.42. However, considering the guidance provided by the Supreme Court of the United I9 States, the statute itself, note cases interpreting the statute, and its comments, it seems clear that 20 the statute's lack of specificity was designed to include many tlpes of information received by 2l the grand jury which would be inadmissible at trial, such as hearsay evidence, circumstantial 22

23 evidence, and foundationally flawed exhibits. See Title 8 GCA $50.42, Court Decisions and

24 Note.

25 Accordingly, at most, statement (A) was merely a piece of incompetent evidence, which, 26

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I although possibly inadmissible at trial, cannot operate to void the indictment under g GCA $50.42 2 or the precedent set forth by the Supreme court of the United States. 5 As a further finding, the Court notes that even if the Court had found that all 4 of the evidence to which the Defendant objects was inadmissible pursuant 5 to the Guam Rules of 6 evidence, this Court can find no reason why the all of the statements (A) through (G), as 7 presented, would not qualiSr as incompetent evidence presented to the grand jury, and as such, 8 could not void the indictment under Guam law, because sufficient competent law and evidence 9 supported the indictment in this case. The Defendant fails to cite a single case dismissing an t0 indictment because information which violated rules of evidence was presented ll to a gand jury.

t2 No case law or authority supports the arguments made in the Defendant's Motion to Dismiss.

l3 Accordingly, the Court finds there was no error in providing more information than is minimally t4 necessary to the gand jury and the indictment was properly presented and found. l5 CONCLUSION t6 t7 After hearing arguments on the motion and considering all of the filings and evidence

l8 presented' the Court finds that all of the statements that the Defendant finds objectionable, r9 excepting evidence of the victim's prior sexual history would be admissible at trial. Accordingly, 20 there is no basis upon which to dismiss the indictment for the presentation of this information to 2l the grand jury. More importantly, the Court finds that an indictment cannot be dismissed on the 22 basis that evidence that does not comport with the Guam Rules of Evidence was presented 23 to the

24 grand jury, so long as an indictment is supported by sufficient competent evidence. In this case, 25 the indictment was supported by sufficient competent evidence. Based upon the foregoing, the 26

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1 Motion to Dismiss the Indictment is DENIED. 2

4 SO ORDERED, this HAY 2 I ?ti0g 5

7 Judge, Superior Court of Guam 8

t2 l3 14

l5 t6 t7 18

t9 I do hereby cerlify that the foregoing 20 is a full true and correct coPy of the original on lile in lhe office of the clerk of the Suoerlor Court of Guam. 2l 22

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