People v. Taitano

Opinion

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201Q NOV I 7 Af1 I : 02

2

3

4

5 IN THE SUPERIOR COURT OF GUAM

6 THE PEOPLE OF GUAM, ) CRIMINAL CASE NO. CF0040-14 7 )

8 v. ) DECISION & ORDER ON ) PEOPLE'S MOTION IN LIMINE TO 9 FRANCIS JUDE TAITANO, ) EXCLUDE DEFENSE EXPERT 10 )

DEFENDANT. )

11 I.

12

13 Introduction

14 This matter came before the Honorable Maria T. Cenzon at a Motion Hearing on 15 August 19,2014 on the People of Guam's (the "People's") Motion In Limine to Exclude 16

17 Expert Report and Testimony ("Motion to Exclude"). The People were present and

18 represented by Assistant Attorney General Lisa Lorig. Francis Jude Taitano 19 ("Defendant") was present and represented by Attorney Mark E. Kondas. The Court 20

21 announced it would take the Motion to Exclude under advisement on the briefings and

22 now issues this Decision and Order GRANTING the People's Motion to Exclude. 23 II.

24 Factual and Procedural Background 25

26 Defendant was indicted on January 31, 2014 on one count of First Degree 27 Criminal Sexual Conduct (as a 1st Degree Felony) and two counts of Second Degree 28 PEOPLE v. TAITANO, CF0040-14, Decision & Order on People's Motion In Limine to Exclude Defense Expert Page 1 of8

Criminal Sexual Conduct. The People allege that at some time in May 2007, Defendant

2 intentionally engaged in sexual penetration with a minor under fourteen years of age 3 and twice intentionally engaged in sexual contact with the minor. Defendant waived 4 his statutory right to speedy trial on March 18, 2014 and Jury Selection and Trial is 5

6 scheduled for January 7, 2015. 7 In preparation for trial, Defendant engaged the services of Dr. Laura L. Post for 8 a psychiatric evaluation on March 15, 2014. Dr. Post's report diagnosed Defendant as 9

10 free of sexual dysfunctions, personality disorders, or any Serious Mental Illness (Axis I)

11 under the DSM-IV /DSM-IV-TR.

12 The People filed this instant Motion to Exclude on June 20, 2014 and Defendant 13

14 filed his Response to People's Motion to Exclude ("Defendant's Response") on June 27,

15 2014. As a related matter, Defendant also filed an Application for Order Authorizing 16 Court Appointed Counsel to Retain Services of an Expert at Court's Expense 17

18 ("Application for Court Appointed Expert") on July 14,2014.

19 The Court scheduled hearing on Defendant's Application for Court Appointed 20 Expert for August 5, 2014. At the hearing, the Court informed the Parties it would 21 entertain both motions together and ordered the Parties review United States v. Pires, 22

23 642 F.3d 1 (1st Cir. 2011) and submit supplemental briefings in response before the 24 August 19, 2014 Motion Hearing. Defendant filed his Supplemental Response on 25 August 13, 2014 and the People filed their Supplement on August 18, 2014. Having 26

27 been fully briefed, the Court now issues this Decision & Order. 28 PEOPLE v. TAITANO, CF0040-14, Decision & Order on People's Motion In Limine to Exclude Defense Expert Page2 o£8

III.

1

2 Law and Analysis 3 A. Admissibility of Expert Testimony on the Absence of Mental Disease Has 4 Not Been Addressed by the Guam Supreme Court.

5

6 The Guam Supreme Court has not considered the admissibility of evidence of a

7 defendant's absence of mental illness and lack of proclivity for sexual deviance in a 8 criminal sexual conduct case. However, absent binding precedent in Guam law, the 9 Guam Rules of Evidence ("GRE") are a near facsimile of the Federal Rules of Evidence 10

11 ("FRE") and the many cases in federal courts addressing this question are illustrative 12 and read as persuasive authority in Guam.l As the Guam Supreme Court stated in 13 People v. Jesus: "[t]he Guam Rules of Evidence are essentially identical to its like-

14

15 numbered The Guam Supreme Court counterparts in the Federal Rules of Evidence. 16 Therefore, interpretations of the Federal Rules of Evidence from other jurisdictions are 17 persuasive authority." 2009 Guam 2 1 32 n.8. On evidentiary issues similar to the 18

19 instant case, People v. Chinel, 2013 Guam 24 11 22-26 adopted the federal courts'

20 interpretation of FRE 413 when determining the admission, by the prosecution, of a 21 defendant's propensity to commit sexual crimes or for pedophilia under GRE 413.

22

23

24 1 The highest appellate courts of some states have addressed this issue and generally found this type of evidenc 25 inadmissible. See e.g. Tungate v. Commonwealth, 901 S.W.2d 41 (Ky. 1995); State v. Hulbert, 481 N.W.2d 32 (Iowa 1992); State v. Friedrich, 135 Wis.2d 1 (1987); Delaware v. Floray, 715 A.2d 855 (Del. 1997); Louisiana v.

26 Hughes, 841 So.2d 718 (La. 2003). See also Kansas v. Price, 30 Kan.App.2d 569, 578-579 (Ct. App. 2002) (statin that in considering the "admissibility of defense-proffered expert testimony on a criminal defendant's propensity fo 27 molesting children ... [t]he weight of authority in other states and in the federal courts is resoundingly in favor o excluding such evidence.")

28 PEOPLE v. TAITANO, CF0040-14, Decision & Order on People's Motion In Limine to Exclude Defense Expert Page3of8

B. Defendant's Cited Authority Is Not Persuasive

2 Defendant cites People v. Stoll, 49 Cal.3d 1136, 1158 (1989) and US v. Morales, 108 3 F.3d 1031 (9th Cir. 1997)(en bane) for the admissibility of his proffered evidence.

4 However, these cases are distinguishable and not persuasive in their application to the 5

6 instant question. 7 Stoll applied§ 1102 of the California Evidence Code which has no corollary in 8 Guam law and is, in fact, contradictory to it. California explicitly permits evidence 9

10 "[o]ffered by the defendant to prove his conduct in conformity with such character or

11 trait of character" but GRE 404(a) states the opposite proposition and "[e]vidence of a 12 person's character or a trait of character is not admissible for the purpose of proving 13

14 action in conformity therewith on a particular occasion ... "(emphasis added).

15 Morales held that expert testimony from which the jury could infer the requisite 16 intent was admissible under FRE 704(b) and did not invade the domain of the jury.

17 However, the defendant in Morales was charged with a crime requiring a willful mens 18

19 rea, which "requires that an act be done knowing and intentionally, not through 20 ignorance, accident, or mistake." Morales at 1037. The predicate matter addressed by 21 the Morales expert was whether the defendant's state of mind was culpable as there 22

23 was no dispute that she actually did the acts in question. In contrast, Defendant urges 24 admission of his expert's testimony to assist the jury in determining "whether [he]

25 raped the alleged victim." Defendant's Response at 3. This purpose is plainly 26

27 inadmissible propensity evidence under the general rule of GRE 404(a) as quoted supra.

28 PEOPLE v. TAITANO, CF0040-14, Decision & Order on People's Motion In Limine to Exclude Defense Expert Page4of8

C. Defendant's Propensity for Sexual Deviance Is Not at Issue ·'

2 As required by GRE 413, the People have not disclosed any intention to present 3 evidence from which the jury may consider that Defendant's propensity to commit 4 criminal sexual conduct against minors makes it more probable he committed the 5

6 offenses charged in the Indictment. Consequently, Defendant's introduction of a 7 diagnosis for non-propensity is not relevant under GRE 401 when the jury is not tasked 8 with determining and weighing his alleged propensity as probative of his commission 9

10 of the charged offenses.

11 The Indictment charges Defendant with specific acts directed towards a single 12 individual in the course of one evening. Defendant's proffered evidence does not meet 13

14 the GRE 401 test of relevance without some permitted chain of inference that a

15 psychiatric diagnosis made seven years after the offenses charged in the Indictment 16 makes a fact charged in the Indictment "more probable or less probable." This 17 "circumstantial evidence" (Defendant's Response at 4 Gune 27, 2014)) is explicitly 18

19 prohibited under GRE 404(a) if the only inference the jury can make is "proving action 20 in conformity therewith on a particular occasion .... " Defendant has not suggested 21 another logical inference between this evidence and the charges filed by the People.

22

23 D. The Expert Report and Testimony are Inadmissible under GRE 403 1~ 24 A finding that Defendant's evidence is not relevant could change if or when 25 Defendant's propensity to commit the charged offenses is brought into issue, as it 26

27 would were the People to submit notice of an intent to introduce GRE 413 evidence.

28 PEOPLE v. TAITANO, CF0040-14, Decision & Order on People's Motion In Limine to Exclude Defense Expert Page 5 of8

However, even then, GRE 403 states that relevant, evidence "may be excluded if its

2 probative value is substantially outweighed by danger of unfair prejudice, confusion of 3 the issues, or misleading the jury .... " On this issue, and assuming Defendant's 4 evidence is relevant, the risk of confusion of the issues and misleading the jury 5

6 substantially outweighs its probative value. 7 The key question for the jury in this matter is the alleged sexual contact and 8 penetration of the victim by Defendant in 2007 and is an issue that is distinctly 9

10 different from determining if Defendant has "personality disorders, mental illness,

11 and/or sexual dysfunctions." Defendant's Response at 1 (June 27, 2014). The two 12 questions are sufficiently removed from and unrelated to each other such that 13

14 presenting evidence of the latter is "likely to confuse the jury and divert its attention

15 away from the central question in the case." Pires at 11. Although the age of the alleged 16 Victim and a diagnosis of pedophilia are arguably related, Defendant's propensity to 17

18 commit the alleged offense has not been raised in any legally cognizable way that

19 would result in anything but prohibited uses of the evidence by the jury, as discussed 20 in Section III. C. supra.

21 The Court is also cautious of the dangers of expert testimony pointed out in 22

23 Pires that since "such testimony can carry with it an unwarranted aura of special 24 reliability and trustworthiness, courts must guard against letting it intrude in areas 25 that jurors, by dint of common experience, are uniquely competent to judge without 26

27 the aid of experts." Id. at 12. Although the jury is instructed not to assign additional 28 PEOPLE v. TAITANO, CF0040-14, Decision & Order on People's Motion In Limine to Exclude Defense Expert Page 6of8 weight to the testimony of an expert, there is always a risk "such testimony can carry 1

2 with it an unwarranted 'aura of special reliability and trustworthiness'." Id. (quoting 3 US v. Fosher, 590 F2d 381, 383 (1st Cir. 1979)).

4 In considering the above, the Court finds that introduction of evidence removed 5

6 from the scope of their charge presents a significant risk of confusing the jury in this 7 matter or would result in impermissible inferences under GRE 404(a). The introduction 8 of this evidence through an expert magnifies these risks such that they would 9

10 outweigh any probative value for the jury.

11 Defendant's proffered evidence should not be presented as a matter of right 12 when it is well-settled that the United States Constitution as incorporated by the 13

14 Organic Act of Guam do not guarantee "an unfettered right to offer testimony that is

15 incompetent, privileged, or otherwise inadmissible under standard rules of evidence." 16 Taylor v. Illinois, 484 US 400, 410 (1988)(emphasis added). The exercise of Defendant's 17

18 fundamental rights "must comply with established rules of procedure and evidence

19 designed to assure both fairness and reliability in the ascertainment of guilt and 20 innocence." Chambers v. Mississippi, 410 US 284, 302 (1973).

21 E. Defendant's Application for Court Appointment of Dr. Post is Moot 22

23 As the Court finds the testimony of Dr. Post inadmissible under GRE 403, the 24 Court need not to address the evidentiary question of qualifying her as an expert and 25

26

27

28 PEOPLE v. TAITANO, CF0040-14, Decision & Order on People's Motion In Limine to Exclude Defense Expert Page 7 o£8 will not undertake the resources required to hold a Daubert hearing2 which would

2 require the court compensate Dr. Post's time for attendance. Defendant's Application 3 for Court Appointed Expert (July 14, 2014) is therefore moot and the Court does not 4 rule on that motion.

5

6 IV.

7 Conclusion

8 For the reasons discussed above, the People's Motion In Limine to Exclude 9

10 Expert Report and Testimony is GRANTED. Defendant's Application for Order

11 Authorizing Court Appointed Counsel to Retain Services of an Expert at Court's 12 Expense is now MOOT and the Court does not rule on the motion.

13

14 A Status Hearing in this matter is scheduled for November 18 at 2:30PM.

15 SO ORDERED this 17th day of November, 2014. 16

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20 ~ Honorable Maria T. Cenzon JUDGE, SUPERIOR COURT OF GUAM --""""- - - - - ;

SERVICE VIA COURT BOX I acknowledge that a copy the 21 original hereto was placed in the

22 co4~o~~ M·f<ottd<M:!

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23 11/ t1/ f¥ . {J: b-'S-cu;.. 24 Da(;U(C;:ir;J> Deputy Clerk, Superior Court of Guam

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26 2 As taken from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993), which created a two-par 27 test for evaluating the admissibility of scientific evidence. See also People of Guam v. Superior Court o Guam. 1998 Guam 24 <JI 10.

28 PEOPLE v. TAITANO, CF0040-14, Decision & Order on People's Motion In Limine to Exclude Defense Expert Page8of8