IN THE SUPERIOR COURT OF GUAM 2
3 THE PEOPLE OF GUAM, ) ) CRIMINAL CASE NO. CF0648-11 4 vs. ) 5 ) DECISION AND ORDER MASANORI SUGIYAMA, ) 6 ) Defendant. ) 7 ----------------------------) 8 INTRODUCTION 9 This matter came before the Honorable James L. Canto II on Defendant's motion to 10 dismiss, filed September 7, 2012. Oral arguments were heard on October 1, 2012. Assistant 11 Attorney General Jesse N. Nasis, Esq. appeared on behalf of the Government and Assistant 12 Public Defender Mikaela J. Silkey Henderson, Esq. represented the Defendant. Having 13 considered the parties' briefs, oral arguments, and the applicable law, the Court now issues the 14 following Decision and Order. 15 BACKGROUND 16 On May 22, 2012, Defendant was charged by superceding indictment with theft of a 17 motor vehicle and theft of property for allegedly stealing a Pepsi delivery truck and unloading 18 eighty-one (81) cases of Pepsi drink products. On September 7, 2012, Defendant moved 19 to dismiss the indictment, alleging a failure by Prosecution to submit exculpatory evidence to 20 the grand jury in violation of 8 GCA § 50.46. Defendant argues the prosecuting attorney failed 21 to submit inconsistent witness descriptions of Defendant's appearance that are contained in the 22 police report and which would tend to negate his guilt. 23 The police report states that an eyewitness watched a man start and drive off with the 24 Pepsi truck from Adrian Sanchez St. in Harmon at about 4:00 p.m. on November 21, 2011. 25 (Motion to Dismiss, "Exhibit A", 7-8, Sep. 7,2012.) The witness described the man as possibly 26 Micronesian, skinny, aged in his 50's and wearing jeans with a shirt and reflective-type vest. 27 ld. This description was broadcast over police radio channels along with multiple updates of 28 the Pepsi truck's location according to GPS satellite tracking information provided by the Pepsi
Page I of4 bottling company. Id. The search continued for almost two (2) hours until about 6:00 p.m. 2 when officers located the Pepsi delivery truck abandoned near Okkodo High School and Swamp 3 Road in Dededo. /d. at 10. 4 During the search, officers saw Defendant walking in the area surrounding Swamp Road 5 and noticed that he was a male Micronesian wearing jeans, a blue shirt and a reflective-type 6 vest. /d. at 9-10. Defendant's age is listed as 49 years old. /d. at 1. He was later detained and 7 positively identified by the eyewitness as the man who drove off with the Pepsi delivery truck. 8 Id. at 8-10. Officers also interviewed two (2) groups of witnesses in the Swamp Road area 9 during the search for the Pepsi delivery truck. Id. at 11-12. One group of witnesses saw the 10 truck speeding with the side and back doors open and driven by a heavy set man of light 11 complexion with a full beard. Id. at 11. Another group of witnesses saw the truck parked with 12 hazard lights on and operated by a slim, bald man with a moustache and beard wearing shades 13 and a grey shirt in addition to a passenger with a blue shirt. /d. at 12. 14 Defendant contends that the additional suspect descriptions during the search for the 15 Pepsi delivery truck tend to negate his guilt because they are inconsistent with the original 16 suspect description at the time the Pepsi delivery truck was stolen. The Government does not 17 dispute these facts in opposition and only urges the Court to follow the federal practice that 18 exculpatory evidence does not have to be presented to a grand jury. See Opposition, 1-2, Sep. 19 17,2012 (quoting Us. v. Syling, 553 F.Supp.2d 1187, 1190-1191 (D. Haw. 2008)). 20
21 DISCUSSION 22 As a preliminary matter, the Court shall not adopt the Government's proposal to follow 23 the federal grand jury practice because it is contrary to the express language of 8 GCA § 50.46, 24 which is based upon California law. See e.g. 8 GCA § 50.46, NOTE; People v. Sablan, Crim. 25 No. 85-0024A, 1986 WL 68900, at *3 (D. Guam App. Div. 1986). The Government opposition 26 is not warranted by existing Guam law and it provides no argument to reverse existing Guam 27 law. For this reason, the Court shall not consider the Government's opposition. See Local R. 28
Page 2 of4 Super. Ct. Guam Rule CVR 7.1(k).i 2 Title 8 GCA § 50.46 provides: "The grand jury shall receive only evidence presented to 3 it by the prosecuting attorney but the prosecuting attorney shall submit any evidence in his 4 possession which would tend to negate guilt and the grand jury shall weigh all the evidence 5 submitted." The duty to present exculpatory evidence to the grand jury was adopted from 6 California law, "due to the particularly unilateral role of a prosecutor in the nonadversary 7 context of grand jury proceedings." Sablan, 1986 WL 68900, at *3 (citing Johnson v. Superior 8 Court, 15 Cal.3d 248 (1975)). 9 Under 8 GCA § 50.46, "[t]he prosecutor's duty consists of fairly presenting all the 10 evidence available," but, "[a] reviewing court should uphold an indictment 'if there is some 11 rational ground for assuming the possibility that an offense has been committed and the accused 12 is guilty of it. '" People v. Grajo, No. 86-00002, 1987 WL 109393, at *2 (D. Guam App. Div. I3 1987) (emphasis in original) (quoting People v. Ketchel, 59 Cal.2d 503, 532, 30 Cal.Rptr. 538, 14 553,381 P.2d 394, 409 (1963), vacated on other grounds, 63 Ca1.2d 859, 48 Cal.Rptr. 614,409 15 P.2d 694 (1966)); see also 8 GCA § 50.54(b). 16 Furthermore, the failure to present exculpatory evidence to a grand jury is grounds to 17 dismiss an indictment prior to the conclusion of trial only, "if it is established that the violation 18 substantially influenced the grand jury's decision to indict, or if there is grave doubt that the 19 decision to indict was free from substantial influence of such violations." People v. Muna, 999 20 F.2d 397, 399 (9th Cir. 1993) (internal quotations omitted) (quoting Bank of Nova Scotia v. 21 United States, 487 U.S. 250,256, 108 S.Ct. 2369, 2374, 101 L.Ed.2d 228 (1988)). 22 In this case, the Defendant argues the indictment must be dismissed after the prosecuting 23 attorney failed to present inconsistent suspect descriptions contained in the police report. While 24 the prosecuting attorney may have failed to fairly present all of the available evidence to the 25
26 1 Indeed, this Court is dismayed that the Office of the Attorney General, a principal entity responsible for enforcing 27 Guam law, urged the Court to flatly ignore a Guam statute, especially where that law mandates prosecutors to maintain a certain ethical standard to provide for the rights of criminal defendants. Further, the Attorney General 28 made no effort to challenge the constitutionality of the statute, but simply moved the Court to summarily disregard it. This fact troubles this Court and could cause one to hope the prosecutors of the Office of the Attorney General are actually complying with this law in practice.
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grand jury, the Court is not convinced that dismissal is warranted. The only witness who saw 2 Defendant drive off from Hannon with the Pepsi delivery truck full of drinks positively 3 identified him after police found him in Dededo two (2) hours later. The other witnesses saw 4 the Pepsi delivery truck operated by a different person or persons in Dededo during the lengthy 5 search for the missing truck in the Swamp Road area. The descriptions of whoever operated the 6 truck in Dededo conflict with the description of whom allegedly operated the truck in Hannon 7 two (2) hours earlier. However, the only salient point is that the description of the individual 8 who allegedly initially stole the truck matches Defendant's description.
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IN THE SUPERIOR COURT OF GUAM 2
3 THE PEOPLE OF GUAM, ) ) CRIMINAL CASE NO. CF0648-11 4 vs. ) 5 ) DECISION AND ORDER MASANORI SUGIYAMA, ) 6 ) Defendant. ) 7 ----------------------------) 8 INTRODUCTION 9 This matter came before the Honorable James L. Canto II on Defendant's motion to 10 dismiss, filed September 7, 2012. Oral arguments were heard on October 1, 2012. Assistant 11 Attorney General Jesse N. Nasis, Esq. appeared on behalf of the Government and Assistant 12 Public Defender Mikaela J. Silkey Henderson, Esq. represented the Defendant. Having 13 considered the parties' briefs, oral arguments, and the applicable law, the Court now issues the 14 following Decision and Order. 15 BACKGROUND 16 On May 22, 2012, Defendant was charged by superceding indictment with theft of a 17 motor vehicle and theft of property for allegedly stealing a Pepsi delivery truck and unloading 18 eighty-one (81) cases of Pepsi drink products. On September 7, 2012, Defendant moved 19 to dismiss the indictment, alleging a failure by Prosecution to submit exculpatory evidence to 20 the grand jury in violation of 8 GCA § 50.46. Defendant argues the prosecuting attorney failed 21 to submit inconsistent witness descriptions of Defendant's appearance that are contained in the 22 police report and which would tend to negate his guilt. 23 The police report states that an eyewitness watched a man start and drive off with the 24 Pepsi truck from Adrian Sanchez St. in Harmon at about 4:00 p.m. on November 21, 2011. 25 (Motion to Dismiss, "Exhibit A", 7-8, Sep. 7,2012.) The witness described the man as possibly 26 Micronesian, skinny, aged in his 50's and wearing jeans with a shirt and reflective-type vest. 27 ld. This description was broadcast over police radio channels along with multiple updates of 28 the Pepsi truck's location according to GPS satellite tracking information provided by the Pepsi
Page I of4 bottling company. Id. The search continued for almost two (2) hours until about 6:00 p.m. 2 when officers located the Pepsi delivery truck abandoned near Okkodo High School and Swamp 3 Road in Dededo. /d. at 10. 4 During the search, officers saw Defendant walking in the area surrounding Swamp Road 5 and noticed that he was a male Micronesian wearing jeans, a blue shirt and a reflective-type 6 vest. /d. at 9-10. Defendant's age is listed as 49 years old. /d. at 1. He was later detained and 7 positively identified by the eyewitness as the man who drove off with the Pepsi delivery truck. 8 Id. at 8-10. Officers also interviewed two (2) groups of witnesses in the Swamp Road area 9 during the search for the Pepsi delivery truck. Id. at 11-12. One group of witnesses saw the 10 truck speeding with the side and back doors open and driven by a heavy set man of light 11 complexion with a full beard. Id. at 11. Another group of witnesses saw the truck parked with 12 hazard lights on and operated by a slim, bald man with a moustache and beard wearing shades 13 and a grey shirt in addition to a passenger with a blue shirt. /d. at 12. 14 Defendant contends that the additional suspect descriptions during the search for the 15 Pepsi delivery truck tend to negate his guilt because they are inconsistent with the original 16 suspect description at the time the Pepsi delivery truck was stolen. The Government does not 17 dispute these facts in opposition and only urges the Court to follow the federal practice that 18 exculpatory evidence does not have to be presented to a grand jury. See Opposition, 1-2, Sep. 19 17,2012 (quoting Us. v. Syling, 553 F.Supp.2d 1187, 1190-1191 (D. Haw. 2008)). 20
21 DISCUSSION 22 As a preliminary matter, the Court shall not adopt the Government's proposal to follow 23 the federal grand jury practice because it is contrary to the express language of 8 GCA § 50.46, 24 which is based upon California law. See e.g. 8 GCA § 50.46, NOTE; People v. Sablan, Crim. 25 No. 85-0024A, 1986 WL 68900, at *3 (D. Guam App. Div. 1986). The Government opposition 26 is not warranted by existing Guam law and it provides no argument to reverse existing Guam 27 law. For this reason, the Court shall not consider the Government's opposition. See Local R. 28
Page 2 of4 Super. Ct. Guam Rule CVR 7.1(k).i 2 Title 8 GCA § 50.46 provides: "The grand jury shall receive only evidence presented to 3 it by the prosecuting attorney but the prosecuting attorney shall submit any evidence in his 4 possession which would tend to negate guilt and the grand jury shall weigh all the evidence 5 submitted." The duty to present exculpatory evidence to the grand jury was adopted from 6 California law, "due to the particularly unilateral role of a prosecutor in the nonadversary 7 context of grand jury proceedings." Sablan, 1986 WL 68900, at *3 (citing Johnson v. Superior 8 Court, 15 Cal.3d 248 (1975)). 9 Under 8 GCA § 50.46, "[t]he prosecutor's duty consists of fairly presenting all the 10 evidence available," but, "[a] reviewing court should uphold an indictment 'if there is some 11 rational ground for assuming the possibility that an offense has been committed and the accused 12 is guilty of it. '" People v. Grajo, No. 86-00002, 1987 WL 109393, at *2 (D. Guam App. Div. I3 1987) (emphasis in original) (quoting People v. Ketchel, 59 Cal.2d 503, 532, 30 Cal.Rptr. 538, 14 553,381 P.2d 394, 409 (1963), vacated on other grounds, 63 Ca1.2d 859, 48 Cal.Rptr. 614,409 15 P.2d 694 (1966)); see also 8 GCA § 50.54(b). 16 Furthermore, the failure to present exculpatory evidence to a grand jury is grounds to 17 dismiss an indictment prior to the conclusion of trial only, "if it is established that the violation 18 substantially influenced the grand jury's decision to indict, or if there is grave doubt that the 19 decision to indict was free from substantial influence of such violations." People v. Muna, 999 20 F.2d 397, 399 (9th Cir. 1993) (internal quotations omitted) (quoting Bank of Nova Scotia v. 21 United States, 487 U.S. 250,256, 108 S.Ct. 2369, 2374, 101 L.Ed.2d 228 (1988)). 22 In this case, the Defendant argues the indictment must be dismissed after the prosecuting 23 attorney failed to present inconsistent suspect descriptions contained in the police report. While 24 the prosecuting attorney may have failed to fairly present all of the available evidence to the 25
26 1 Indeed, this Court is dismayed that the Office of the Attorney General, a principal entity responsible for enforcing 27 Guam law, urged the Court to flatly ignore a Guam statute, especially where that law mandates prosecutors to maintain a certain ethical standard to provide for the rights of criminal defendants. Further, the Attorney General 28 made no effort to challenge the constitutionality of the statute, but simply moved the Court to summarily disregard it. This fact troubles this Court and could cause one to hope the prosecutors of the Office of the Attorney General are actually complying with this law in practice.
Page 3 of 4 ...
grand jury, the Court is not convinced that dismissal is warranted. The only witness who saw 2 Defendant drive off from Hannon with the Pepsi delivery truck full of drinks positively 3 identified him after police found him in Dededo two (2) hours later. The other witnesses saw 4 the Pepsi delivery truck operated by a different person or persons in Dededo during the lengthy 5 search for the missing truck in the Swamp Road area. The descriptions of whoever operated the 6 truck in Dededo conflict with the description of whom allegedly operated the truck in Hannon 7 two (2) hours earlier. However, the only salient point is that the description of the individual 8 who allegedly initially stole the truck matches Defendant's description. 9 On these facts, there are rational grounds for the possibility that Defendant stole the 10 Pepsi delivery truck and unloaded its contents at some point in time before it was operated by a 11 different person or persons in Dededo during the two (2) hour search. This rational possibility 12 further removes any grave doubt the Court may have that the decision to indict was 13 substantially influenced by the failure to present descriptions of the different person or people 14 who drove the Pepsi truck in Dededo at different times during the two (2) hour search. For 15 these reasons, the Court shall uphold the indictment and not dismiss it. 16 III 17 1/1 18 /II 19 CONCLUSION 20 Based upon the foregoing. the Defendant's motion to dismiss is hereby DENIED. 21
22 SO ORDERED this ~ay of October, 2012. 23
26 BON. JAMES L. CANTO II ""'" Judge, Superior Court of Guam , 27
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