People v. Taitano

Opinion

2 PEOPLE OF GUAM, )

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3 DECISION AND ORDER vs. )

4 ) (Motion to Dismiss)

MICHAEL A. FEJERAN TAITANO, )

5 ) 6 Defendant. )

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8 The matter came before the HONORABLE ELIZABETH BARRETT -ANDERSON on 9 December 22, 2011 for Defendant's Motions to Dismiss (hereinafter referred to as "Motion"). 10 Defendant was not present, but was represented by Attorney Suresh Sampath. People were II represented by Assistant Attorney General James C. Collins. The Court having considered all 12 the oral arguments, briefs, and materials filed herein now renders the following decision. 13 Guam's Supreme Court held I : "that unless good cause is shown, a complaint shall be 14 dismissed where a defendant is not promptly arraigned within 60 days of the filing of the 15 complaint." People v: Rasauo, 2011 Guam 14 ~ 16. Defendant argues that pursuant to People v. 16 Rasauo, 2011 Guam 14 (hereinafter referred to as Rasauo IF'), this case should be dismissed 17 with prejudice because Defendant was not arraigned within sixty (60) days after the Complaint 18 was filed. See also 8 GCA § 60.10. People argue that the Court should find good cause exists for 19 the delay, and therefore, the dismissal would be inappropriate. As required by Rasauo II, this 20 Court will review the specific facts in this case to determine whether or not there was good 21 cause for the delay in arraigning Defendant beyond the sixty (60) days after the Complaint was

22 filed. Rasauo, 2011 Guam 14 ~~ 10, 14. 23 Defendant was arrested on April 9, 2010 and given a notice to appear (''NTA'') with a 24 date of March 30, 2011. On February 9, 2011, the Complaint was filed, but no summons was 25 issued 2 .Id. at ~ 7. The Magistrate Court appointed Defendant representation on March 30, 2011

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27 1 This holding is hereinafter referred to as the "60 day rule."

Rasauo II, the Court notes that a summons is now required to automatically be issued on all 2 Unlike the facts in 28 misdemeanors, upon a filed complaint and affidavit, even when the People do not request for a summons, after a probable ~ause determination is made. 8 GCA § 15.20(a). Also, currently, all persons arrested for DUI charge are

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and set the continued arraignment for May 5, 2011. Defendant was arraigned after eighty-five 2 (85) days had passed from the filing of the Complaint. 3 The Court notes that the People concede that there is no good cause for the delay 4 between the filing of the Complaint and the NTA date forty-nine (49) days later. This amount of 5 delay does not violate the 60 day rule announced in Rasauo II; thus the Court will review the 6 other delays to determine if the time after April 11, 2011 3 constitutes good cause or if this case 7 must be dismissed for the 60 day rule violation. s More specifically, the Court must first determine if the time the Court allows a defendant 9 to meet and confer with counsel prior to being arraigned is reasonable and constitutes good 10 cause. Title 8 Guam Code Annotated section 45.30(c) provides that the Court shall allow 11 reasonable time to a defendant to meet and confer with counsel prior to being arraigned. 12 Meeting with and discussing this with cOunsel allows a defendant to understand the significance 13 of the arraignment process as well as the defendant's rights, which are asserted or waived at 14 arraignment. Hamilton v. Alabama, 368 U.S. 52 (1961). It is critical for a defendant to have this 15 understanding at time of arraignment. See e.g. Huston v. Com., 171 S.W.3d 743, 744-45 (Ky. Ct. 16 App. 2005). Further, the concerns of Guam's Supreme Court in People v. Rasauo, 2011 Guam 17 1, are not present when a defendant is appointed counsel and the delay between the Complaint 18 and the arraignment is partially attributed to the time necessary for a defendant to meet and 19 confer with his appointed attorney_ 2011 Guam I ~ 53 (quoted by Rasauo, 2011 Guam 14 ~ 10). 20 In this case, Defendant argued that a reasonable amount of time· for a defendant to meet 21 and confer with an attorney prior to arraignment is no more than one (1) week. See e.g. Decl. of 22 PDSC Investigator Sea Aguon Cruz, CMlS0-11 (Dec. 19, 2011). The Office of the Attorney 23 General has argued in several cases that any delay of arraignment occasioned by a continuance 24 granted by the magistrate court should be· excused as good cause. The Court disagrees that a 25 bright line rule of any delay caused by a court's calendaring of a criminal matter is 26

27 brought before a magistrate for a probable cause determination prior to being released; therefore, a NTA is not issued.

28 3 The sixtieth day falls on Sunday, April 10, 2011; thus pursuant to 8 GCA § 1.25(a), the sixtieth day becomes April 11,2011.

automatically good cause under the 60 day rule. Guam's Supreme Court makes it clear that it

2 intended the court and its officers to be subject to the prompt arraignment rule put forth in

3 Rasauo II. Rasauo, 2011 Guam 14, 12; S GCA § SO.SO(a)("It shall be the duty of all courts and 4 judicial officers ... to expedite such proceedings to the greatest degree that is consistent with the

5 ends of justice"). See also People v. Ilemeiong, CF1SO-I0 (Super. Ct. Guam Jan. 13,2012).

6 Further, the Court rejects the contention that any length of delays caused by the time

7 provided to a defendant to meet and confer with an attorney is automatically good cause. The

8 Court fmds that a reasonable amount of delay attributed to the time a defendant needs to meet

9 and confer with an attorney is good cause for purposes of the 60 day rule. Cf Flores, 2009

10 Guam 22 , 3S. Since the onus is on all judicial officers and the prosecuting attorneys to ensure

11 that a defendant is promptly arraigned, the Court holds that reasonable time, in the context of a 12 continued arraignment after a defendant is appointed counsel, means no more than thirty (30)

13 days4. S GCA § SO.SO(a). Therefore, the Court fmds that thirty-six (36) days is an excessive

14 amount of time for a court to provide a defendant to meet and confer with his attorney prior to 15 being arraigned. Thus, the delay in this case is due to allowing Defendant time to meet and 16 confer with counsel prior to arraignment is unreasonable and does not constitute good cause.

17 For the foregoing reasons, this case is dismissed for violation of the 60 day rule. 18 Lastly, the Court must determine if the dismissal should be with or without prejudice.

19 The Court is persuaded by the People's argumentS that the dismissal should be without

20 prejudice. Guam's Supreme Court declined to hold that all violations of the 60 day rule requires

21 a dismissal with prejudice. Rasauo, 2011 Guam 14, 16("The issue of whether or not the case

22 should be dismissed with or without prejudice should be decided in the first instance by the trial

23 court."). This is in contrast to other criminal cases Guam's Supreme Court has addressed, where

24 the case was dismissed with prejudice based upon a finding that there was a statutory bar to re-

25 prosecution of the defendants in those cases. People v. Villapondo, 1999 Guam 31; People v.

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27 4 The Court encourages the arraignment judge to consider only granting continuances for a defendant to meet with appointed counsel of two (2) weeks or less in light of the Rasauo lJ decision; however, the Court accepts that up to 28 thirty (30) days is reasonable.

5 This issue was raised orally, not in the written opposition.

Palomo, 1998 Guam 12. The People correctly assert that in this circumstance, there is not a 2 statutory bar to re-prosecution, instead the 60 day rule is explicitly dependent on statutory 3 interpretation. Rasauo, 2011 Guam 14 ~ 13; People v. Stephen, 2009 Guam 8 ~ 35-36. 4 Therefore, the Court considers "a showing of prejudice or any other factors" to 5 determine if dismissal with prejudice is appropriate. Palomo, 1998 Guam 12 n.8(quoted by 6 Villapondo, 1999 Guam 31 ~ 52). Cf 18 V.S.c. § 3162(a)(2). Defendant does not make a 7 showing of prejudice, rather argues that dismissal without prejudice renders the meaning of 8 Rasauo meaningless if the People can re-indict him in the future. But see Stephen, 2009 Guam 8 9 ~ 11. Therefore, as there is not a showing of prejudice, the Court will look at other factors used

10 to determine if dismissal with prejudice is required here. 11 "Dismissal of an indictment is a disfavored remedy.... Indictments are rarely dismissed 12 for alleged government misconduct which occurs outside the Complaint process because such 13 misconduct must be "grossly shocking and so outrageous as to violate the universal sense of 14 justice.'" People v. Marada, 1995 WL 604365, *1 (D. Guam App. Div. Sep. 18, 1995)(intemal 15 citations omitted). See also Stephens, 2009 Guam 8 ~ 21 (discussing dismissal for unnecessary 16 delay should occur "only in extreme circumstances"); People v. Gutierrez, 2005 Guam 19 ~~ 61- 17 70( discussing dismissal based on finding the People acted in bad faith). In this case, there is no 18 alleged government misconduct or bad faith on the part of the People6 . Instead, there is a 19 violation of the 60 day rule, which was recently announced in Rasauo II, which requires 20 dismissal, but not necessarily dismissal with prejudice. 21 Additionally, dismissal with prejudice is sometimes used by Courts to send a strong 22 message to prosecutors who have consistently violated defendants' rights and force them to 23 reduce pretrial delays in general. Us. v. Perez, 2011 WL 2294194, *3 (D. Ct. Guam Jun. 8, 24 2011). Stephens, 2009 Guam 8 ~ 21 ("If a court is to apply the harsh rule of dismissing a 25 criminal case with prejudice ... it must either establish local rules ... or warn the prosecution 26 that further delay could jeopardize the case."). However, the violation of a defendant's prompt 27

28 6 All of the procedural facts of this case occurred before the promulgation of Rasauo II, therefore, there can be no finding that the People intentionally violated the 60 day rule.

arraignment right is not an issue this Court has been asked to address in relation to arraignments 2 that occurred after Rasauo II was issued. Instead, this Court is merely addressing motions to 3 dismiss based on delays that occurred before the 60 day rule was announced, leading this Court 4 to believe that the People do not require a strong message from this Court to ensure that they are 5 now respecting a defendant's right to prompt arraignment. This factor weighs in favor of

6 dismissal without prejudice. 7 Further, in this circumstance, dismissal without prejudice can not be seen as condoning 8 the People's behavior, because neither the People nor the Court were aware of the 60 day rule at 9 the time of the delay of the Defendant's prompt arraignment. !d. This factor weighs in favor of

10 dismissal without prejudice. 11 In this scenario, Defendant's constitutional rights are not implicated, thus the Court 12 should weigh the violation of Defendant's right to a prompt arraignment with the competing 13 interest "of society to be secure from crime through the regular enforcement of the criminal 14 laws." Gutierrez, 2005 Guam 19 ~ 68(intemal citation and quotation omitted). Upon balancing 15 these factors as well as taking into consideration of lack of showing of prejudice the Court

16 determines that dismissal without prejudice is most appropriate.

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There are eighty-five (85) days between the filing of the Complaint and Defendant's 2 arraignment. As indicated above, the thirty-five (35) days between Defendant's first appearance 3 and Defendant's his actual arraignment is an umeasonable delay and is not good cause. Since 4 there is not good cause shown for the entire duration of the violation of the 60 day rule, 5 Defendant's Motion is GRANTED in part. Rasauo, 2011 Guam 14 ~ 16. The Court fmds that 6 Defendant was not promptly arraigned pursuant to 8 GCA § 60.1O(a); therefore, the Court is

7 DISMISSING this case without prejudice.

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9 IT IS SO ORDERED this _ of February, 2012.

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12 HONORABLE ELIZABETH BARRETT-ANDERSON Judge, Superior Court of Guam 13

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