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Territ1 rial Law Library 2 IN THE SUPERIOR COURT OF GUAM 3 ) PEOPLE OF GUAM ) CRIMINAL CASE NO. CF459-10 4 ) 5 vs. ) ) DECISION AND ORDER ON 6 STANLEY SONY ) DEFENDANT'S SECOND AMENDED ) MOTION TO DISMISS INDICTMENT 7 Defendant. ) 8 ----------------------------) 10 This matter came before the Honorable Alberto C. Lamorena, III, on November 30,2011 11 on Defendant Sony's Motion to Dismiss. Attorney Maria G. Fitzpatrick represented Defendant 12 Stanley Sony. Assistant Attorney General Nicolas B. Barrett appeared on behalf of the People 0 13 Guam. The People failed to file an opposition to the defendant's motion despite the fact that thi 14 Court previously granted the People an extension to file their arguments. Notwithstanding th 15 People's failure to oppose the motion, this Court has a duty to render a decision only afte 16 analyzing the merits of the motion. Petition of Quitugua v. Flores, 2004 Guam 19 ~ 28. Havin 17 given due consideration to the defendant's arguments and the applicable law, the Court no 18 issues its Decision and Order. 19 FACTUAL BACKGROUND 20 In August, 2010, a grand jury returned an indictment charging defendant with thre 21 counts of Aggravated Assault (As a 3rd Degree Felony). Each charge included a Specia 22 Allegation of Possession and Use of a Deadly Weapon in the Commission of a Felony. Thes 23 charges stemmed from an incident in which Defendant allegedly attacked a security guar 24 ("victim") by punching the victim, then stabbing the victim in the rib area and arm with a bal 25 point pen, and finally striking the victim on the wrist with a rock. Nothing in the record indicate 26 that the actual injuries sustained by the victim were serious or required medical attention. 27 The original indictment contained allegations that Defendant recklessly caused seriou 28 bodily injury to the victim. Following the return of the indictment, Defendant filed a motion t
-1- dismiss in which he asserted a number of flaws in the grand jury proceedings, including that th 2 prosecution failed to present any evidence that the victim had sustained serious bodily injury. 3 Defendant then filed an Amended Motion to Dismiss. Before a hearing could be held 0 4 Defendant's amended motion, the prosecution filed a superseding indictment charging th 5 defendant with merely attempting to cause bodily injury rather than actually causing seriou 6 bodily injury as alleged in the original indictment. On September 20, 2011, before a hearing w 7 held on the amended motion, the defendant filed a Second Amended Motion to Dismiss. Thou 8 the People opposed in writing Defendant's Amended Motion to Dismiss, the People failed t 9 oppose the Second Amended Motion and at the hearing on November 30, 2011 this Court too 10 the matter under advisement. 12 In his motion Defendant raises four arguments, each of which he contends constitute 13 grounds for dismissal of the indictment with prejudice. First, Defendant asserts that th 14 prosecution failed to present any evidence to the grand jury that a pen is a deadly weapon and h 15 therefore argues the evidence cannot support the charges. Second, Defendant contends that th 16 people failed to provide any evidence of serious bodily injury to support the allegation 0 17 aggravated assault. Third, he argues that the indictment must be dismissed because the witnes 18 testimony was not competent. Finally, Defendant asserts that dismissal is appropriate because th 19 prosecution failed to present exculpatory evidence to the grand jury. 20 /. A Pen May QualifY as a Deadly Weapon Under Certain Circumstances 21 Defendant first argues that the first and second counts of the indictment - both grounde 22 upon on the allegation that the defendant used a deadly weapon, namely a ball point pen, t 23 cause and attempt to cause bodily injury to another - must be dismissed because a pen is not 24 deadly weapon. Defendant cites two Florida cases and a Washington case in which the respectiv 25 appellate courts held that various items, none of which are inherently dangerous, do no 26 constitute deadly weapons. See e.g., State v. Florida, 249 So.2d 452, 455 (Fla. App. 1971 27 (holding that a shoe is not deadly weapon absent proof to the contrary); State v. Skenandore, 99 28 P.2d 291, 293-95 (spear made of rolled paper and golf pencil was not a deadly weapon wher
-2- wielding prisoner had no room to maneuver the weapon and was only able to inflict mino 2 damage); Rogan v. State, 203 So. 2d 24, 25-26 (Fla. App. 1967) (flower pot thrown at victi 3 was not a deadly weapon). However, the holdings in each of those cases were dependent on ver 4 specific facts of each case and the particular manner in which the defendant used the object. Th 5 facts of the present case are distinguishable from those cited by Defendant. 6 Although Defendant is correct that in many instances a pen may not be characterized as 7 deadly weapon, this Court recognizes that under certain circumstances a pen may, in fact, qualif 8 as a deadly weapon. See, e.g., In re Smith, 142 Ohio App. 2d 16, 24 (ball point pen may be 9 deadly weapon if wielded with sufficient force and intent). Title 9, section 16.10(d) of the Gu 10 Code defines the term "deadly weapon" to mean "any firearm or other weapon devic 11 instrument, material or substance whether animate or inanimate which in the manner it is used 0 12 is intended to be used is known to the defendant to be capable of producing death or seriou 13 bodily injury." A determination of whether an item constitutes a deadly weapon is generally 14 question of fact for the jury, United States v. Riggins, 40 F.3d 1055, 1057 (9th Cir. 1994 15 (citing United States v. Moore, 846 F.2d 1163, 1166 (8th Cir.1988), though in some instances 16 court may find the evidence insufficient as a matter of law to support a finding that the ite 17 constitutes a deadly weapon. United States v. Rocha, 598 F.3d 1144, 1153 (9th Cir. 2010 18 (citations omitted). 19 In the present case Defendant essentially requests that this Court find as a matter of la 20 that there was insufficient evidence presented to the grand jury to establish that the pen used b 21 Defendant qualifies as a deadly weapon. Defendant has not met his burden of proving that th 22 evidence did not support the grand jury's finding. Although Defendant provided this Court wit 23 a copy of the transcript of the first grand jury proceedings, he did not provide a transcript of th 24 second grand jury proceedings. This Court cannot simply rely on Defendant's assertions that n 25 evidence was presented in support of the superseding indictment. See United States v. Levera 26 Funding Sys., Inc., 637 F.2d 645, 649 (9th Cir. 1980) (absent proof to the contrary, the cou 27 must presume that evidence was sufficient to support the indictment). 28
-3- Even so, this Court does acknowledge the prosecution's statement that the evidenc 2 presented to the second grand jury consisted mainly of a recording of the proceedings before th 3 first grand jury. A review of the evidence presented at the original proceeding supports th 4 charges within superseding indictment relating to the use of a pen as a deadly weapon. 5 Testimony before the original grand jury clearly indicated that Defendant used the pen in 6 stabbing manner to attack the victim and to cause injury to the victim's rib area and one of th 7 victim's arms. (Motion to Dismiss Indictment Insufficient EvidencelFailure to Present Evidence 8 June 3, 2011, Exh. 1, Reporter's Transcript of Proceedings, p. 8). Defendant offers no argumen 9 that contrary evidence was produced at the later proceedings.
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Territ1 rial Law Library 2 IN THE SUPERIOR COURT OF GUAM 3 ) PEOPLE OF GUAM ) CRIMINAL CASE NO. CF459-10 4 ) 5 vs. ) ) DECISION AND ORDER ON 6 STANLEY SONY ) DEFENDANT'S SECOND AMENDED ) MOTION TO DISMISS INDICTMENT 7 Defendant. ) 8 ----------------------------) 10 This matter came before the Honorable Alberto C. Lamorena, III, on November 30,2011 11 on Defendant Sony's Motion to Dismiss. Attorney Maria G. Fitzpatrick represented Defendant 12 Stanley Sony. Assistant Attorney General Nicolas B. Barrett appeared on behalf of the People 0 13 Guam. The People failed to file an opposition to the defendant's motion despite the fact that thi 14 Court previously granted the People an extension to file their arguments. Notwithstanding th 15 People's failure to oppose the motion, this Court has a duty to render a decision only afte 16 analyzing the merits of the motion. Petition of Quitugua v. Flores, 2004 Guam 19 ~ 28. Havin 17 given due consideration to the defendant's arguments and the applicable law, the Court no 18 issues its Decision and Order. 19 FACTUAL BACKGROUND 20 In August, 2010, a grand jury returned an indictment charging defendant with thre 21 counts of Aggravated Assault (As a 3rd Degree Felony). Each charge included a Specia 22 Allegation of Possession and Use of a Deadly Weapon in the Commission of a Felony. Thes 23 charges stemmed from an incident in which Defendant allegedly attacked a security guar 24 ("victim") by punching the victim, then stabbing the victim in the rib area and arm with a bal 25 point pen, and finally striking the victim on the wrist with a rock. Nothing in the record indicate 26 that the actual injuries sustained by the victim were serious or required medical attention. 27 The original indictment contained allegations that Defendant recklessly caused seriou 28 bodily injury to the victim. Following the return of the indictment, Defendant filed a motion t
-1- dismiss in which he asserted a number of flaws in the grand jury proceedings, including that th 2 prosecution failed to present any evidence that the victim had sustained serious bodily injury. 3 Defendant then filed an Amended Motion to Dismiss. Before a hearing could be held 0 4 Defendant's amended motion, the prosecution filed a superseding indictment charging th 5 defendant with merely attempting to cause bodily injury rather than actually causing seriou 6 bodily injury as alleged in the original indictment. On September 20, 2011, before a hearing w 7 held on the amended motion, the defendant filed a Second Amended Motion to Dismiss. Thou 8 the People opposed in writing Defendant's Amended Motion to Dismiss, the People failed t 9 oppose the Second Amended Motion and at the hearing on November 30, 2011 this Court too 10 the matter under advisement. 12 In his motion Defendant raises four arguments, each of which he contends constitute 13 grounds for dismissal of the indictment with prejudice. First, Defendant asserts that th 14 prosecution failed to present any evidence to the grand jury that a pen is a deadly weapon and h 15 therefore argues the evidence cannot support the charges. Second, Defendant contends that th 16 people failed to provide any evidence of serious bodily injury to support the allegation 0 17 aggravated assault. Third, he argues that the indictment must be dismissed because the witnes 18 testimony was not competent. Finally, Defendant asserts that dismissal is appropriate because th 19 prosecution failed to present exculpatory evidence to the grand jury. 20 /. A Pen May QualifY as a Deadly Weapon Under Certain Circumstances 21 Defendant first argues that the first and second counts of the indictment - both grounde 22 upon on the allegation that the defendant used a deadly weapon, namely a ball point pen, t 23 cause and attempt to cause bodily injury to another - must be dismissed because a pen is not 24 deadly weapon. Defendant cites two Florida cases and a Washington case in which the respectiv 25 appellate courts held that various items, none of which are inherently dangerous, do no 26 constitute deadly weapons. See e.g., State v. Florida, 249 So.2d 452, 455 (Fla. App. 1971 27 (holding that a shoe is not deadly weapon absent proof to the contrary); State v. Skenandore, 99 28 P.2d 291, 293-95 (spear made of rolled paper and golf pencil was not a deadly weapon wher
-2- wielding prisoner had no room to maneuver the weapon and was only able to inflict mino 2 damage); Rogan v. State, 203 So. 2d 24, 25-26 (Fla. App. 1967) (flower pot thrown at victi 3 was not a deadly weapon). However, the holdings in each of those cases were dependent on ver 4 specific facts of each case and the particular manner in which the defendant used the object. Th 5 facts of the present case are distinguishable from those cited by Defendant. 6 Although Defendant is correct that in many instances a pen may not be characterized as 7 deadly weapon, this Court recognizes that under certain circumstances a pen may, in fact, qualif 8 as a deadly weapon. See, e.g., In re Smith, 142 Ohio App. 2d 16, 24 (ball point pen may be 9 deadly weapon if wielded with sufficient force and intent). Title 9, section 16.10(d) of the Gu 10 Code defines the term "deadly weapon" to mean "any firearm or other weapon devic 11 instrument, material or substance whether animate or inanimate which in the manner it is used 0 12 is intended to be used is known to the defendant to be capable of producing death or seriou 13 bodily injury." A determination of whether an item constitutes a deadly weapon is generally 14 question of fact for the jury, United States v. Riggins, 40 F.3d 1055, 1057 (9th Cir. 1994 15 (citing United States v. Moore, 846 F.2d 1163, 1166 (8th Cir.1988), though in some instances 16 court may find the evidence insufficient as a matter of law to support a finding that the ite 17 constitutes a deadly weapon. United States v. Rocha, 598 F.3d 1144, 1153 (9th Cir. 2010 18 (citations omitted). 19 In the present case Defendant essentially requests that this Court find as a matter of la 20 that there was insufficient evidence presented to the grand jury to establish that the pen used b 21 Defendant qualifies as a deadly weapon. Defendant has not met his burden of proving that th 22 evidence did not support the grand jury's finding. Although Defendant provided this Court wit 23 a copy of the transcript of the first grand jury proceedings, he did not provide a transcript of th 24 second grand jury proceedings. This Court cannot simply rely on Defendant's assertions that n 25 evidence was presented in support of the superseding indictment. See United States v. Levera 26 Funding Sys., Inc., 637 F.2d 645, 649 (9th Cir. 1980) (absent proof to the contrary, the cou 27 must presume that evidence was sufficient to support the indictment). 28
-3- Even so, this Court does acknowledge the prosecution's statement that the evidenc 2 presented to the second grand jury consisted mainly of a recording of the proceedings before th 3 first grand jury. A review of the evidence presented at the original proceeding supports th 4 charges within superseding indictment relating to the use of a pen as a deadly weapon. 5 Testimony before the original grand jury clearly indicated that Defendant used the pen in 6 stabbing manner to attack the victim and to cause injury to the victim's rib area and one of th 7 victim's arms. (Motion to Dismiss Indictment Insufficient EvidencelFailure to Present Evidence 8 June 3, 2011, Exh. 1, Reporter's Transcript of Proceedings, p. 8). Defendant offers no argumen 9 that contrary evidence was produced at the later proceedings. Although the alleged attack did no 10 result serious bodily injury, there was sufficient evidence at the original proceedings to suppo 11 finding by the grand jury that Defendant used the pen in manner capable of producing seriou 12 bodily injury and that the pen was a deadly weapon and this Court declines Defendant' 13 invitation to rule as a matter of law that a pen is not a weapon. 14 II. The Prosecution Was Not Required to Present Evidence of Serious Bodily Injury 15 In his second argument, Defendant contends that the prosecution failed to present an 16 evidence that the victim suffered serious bodily injury. This argument also appeared i 17 Defendant's initial motion to dismiss, which was filed before the prosecution issued th 18 superseding indictment in this matter. The original indictment charged Defendant wit 19 Aggravated Assault for recklessly causing serious bodily injury to the victim. However, th 20 superseding indictment includes only the allegation that Defendant recklessly caused 0 21 attempted to cause bodily injury. The superseding indictment thus removes the allegation tha 22 Defendant caused serious bodily injury. Therefore, the prosecution was nto required to presen 23 evidence of serious bodily injury to the grand jury in order to support the charges. Defendant' 24 motion here fails to address the amended language within the superseding indictment and hi 25 argument relating to a lack of evidence establishing serious bodily injury is therefore moot. 26 III. The Grand Jury Received Competent Evidence 27 Under title 8, section 50.42 of the Guam Code the prosecution must present competen 28 evidence to the grand jury. Section 50.42 provides:
-4- [t]he 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 2 indictment void where sufficient competent evidence to support the indictment 3 was received by the grand jury.
4 Defendant argues that Investigator BIas, the sole witness to testify before the grand jury, 5 lacked personal knowledge of the events forming the basis of his testimony and thus his 6 testimony does not constitute competent evidence sufficient to support the charges. In 7 support of his argument, Defendant cites Rule 602 of the Guam Rules of Evidence', 8 which provides: 9
10 602. Lack of Personal Knowledge A witness may not testify to a matter unless evidence is introduced 11 sufficient to support a finding that he has personal knowledge of the matter. 12 Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.... 13 In attempting to argue that Rule 602 renders certain testimony at proceedings before a grand ju 14 incompetent, the defendant fails to acknowledge Evidence Rule 1101 governing the applicabilit 15
16 and scope of the rules of evidence. That rule states: (c) Rules inapplicable. The Rules (other than with respect to privileges) do no 17
18 apply in the following situations:
20 (2) Grand jury. Proceedings held before grand juries.
21 ER 1101 (c)(2). Defendant thus basis his legal argument on an evidentiary rule that explicitl
22 does not apply to the grand jury proceedings at issue here. Indeed, the United States Suprem
23 Court has recognized that "In grand jury proceedings, the ordinary rules of evidence do no
24 apply. Leading questions and multiple hearsay are permitted and cornmon." McKethan v. Unite
26 I Defendant actually cites title 6, section 602 of the Guam Code in support of his argument
However, this Court notes that title 6 of the Guam Code was superseded in 2006 by Suprem 27 Court of Guam Promulgation Order No. 06-001 in which the Court adopted the Guam Rules 0 Evidence. Because Rule 602 of the Guam Rules of Evidence contains identical language to titl 28 6, section 602, this Court's analysis here is unaffected by Defendant's failure to cite the curren rule.
-5- States, 439 U.S. 936, 938, 99 S.Ct. 333,335 (1978). Defendant offers no other legal authority fo 2 the proposition that a witness lacking personal knowledge of certain facts is not competent t 3 testify before a grand jury, nor could this Court find any such precedent. Given the loos 4 evidentiary standards that attach to grand jury proceedings, this Court finds that hearsa 5 testimony relating to a police report that has been examined by the testifying witness constitute 6 sufficient competent evidence. This finding comports with this Court's recent ruling in Peo Ie v. 7 Reselap, Criminal Case No. CF536-08, Decision and Order on Motion to Dismiss (August 31 8 2011), in which this court was presented with nearly identical facts and arguments by defens 9 counsel. 10 IV. The Prosecution Did Not Fail to Present Exculpatory Evidence II Finally, Defendant argues that the prosecution should have presented to the grand ju 12 photographs in its possession that depict what appear to be relatively minor injuries inflicte 13 upon the victim. Defendant, who appears to have based his contentions on the language of th 14 original indictment, argues that because his charges contain allegations that he inflicted seriou IS bodily injury, the photographs constitute exculpatory evidence that the prosecution was require 16 to present to the grand jury. As discussed above, the superseding indictment removed th 17 allegations that Defendant caused or attempted to cause serious bodily injury and thu 18 Defendant's arguments here are inapplicable. 19 CONCLUSION 20
21 Based on the foregoing, Defendant's Second Amended Motion to Dismiss the Indictmen
22 is hereby DENIED. A trial setting will be held on Ap .
23 It is SO ORDERED, this 13 th day of March, 201 .
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