People v. Tedtaotao, Jonathan aka John Paul Arriola

Opinion

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2 zsls DEC 31 AH 5: is! 3

4 IN THE SUPERIOR COURTB6F GUAM 5 6 PEOPLE OF GUAM, ) CRlMH\IAL CASE NO. CF0415-19 ) 7 PLAINTIFF ) v. ) DECISION & ORDER RE: MOTION TO 8 ) SUPPRESS IDENTIFICATION AND LIMIT 9. JONATHAN TORRES TEDTAOTAO, ) . PROPOSED TESTIMONY aka JOHN PAUL ARRIOLA, ) aka JOHN CRUZ, ) 10 DOB: 04/25/1971 ) 11 ) DEFENDANT. ) 12 ) 13

14 Introduction

15 This matter came before the Honorable Maria T. Cenzon on the filing of a Motion to

16 Suppress Identification and Limit Proposed Testimony by Defendant Jonathan Tories Tedtaotao

17 ("Defendant") on September 9, 2019. Defendant is represented by John P. Morrison, of the

18 Alternate Public Defender Office. The People of Guam ("People") are represented by Chief

19 Prosecutor J. Basil O'Mallan, IH. The People filed an Opposition to the Motion on September

20 27, 2019. The Court held a hearing on the Motion on October 2, 2019, after which the Court took

21 the Motion under advisement pursuant to CVR 7.1(e)(6)(D) of the Local Rules of the Superior

22 Court of Guam. After reviewing all relevant filings and having heard oral argument by both

23 parties, the Court issues this DECISION and ORDER GRANTING Defendant's Motion in part,

24 and DENYING Defendant's Motion in part.

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People v. Tedtaotao; CF0415- 19 Decision & Order J Page l of 8 1 Background

2 Defendant is charged with Burglary (As a 2l'ld Degree Felony), Theft (As a 2nd Degree

3 Felony), Criminal Trespass (As a Misdemeanor), and Criminal Mischief (As a Misdemeanor).

4 Indictment (July 29, 2019). The People allege that on or about May 20, 2019, police reported to a

5 residence in Tamuning. Magistrate Complaint, at 5 (July 19, 2019). Young Pak ("Pak"), the

6 alleged victim, told police that someone had broken into his residence and stolen property valued

7 at over Twenty-Thousand Dollars ($20,000). Id. Pak informed police that a neighbor had video

8 footage of a suspicious person outside of the residence. Id. Pay was informed through a

9 Facebook post that a commenter believed the person in the footage was Defendant. Id. Pak also

10 told the police that a different video he observed purportedly showed Defendant carrying the

11 Pad<'s backpack while walking within the residence complex. Id.

12 At trial, the People intend to present testimony from Officer Anthony Morcilla, a

13 Probation Officer with the Superior Court of Guam, and Officer Ronald Santos, a Parole Officer

14 at the Department of Corrections ("DOC"). People's Witness List, at 2 (Oct. 4, 2019). Both men

15 claim that they were shown a photo extracted from the aforementioned video footage, and

16 identified the person in the video as Defendant. Minute Entry (Oct. 2, 2019).

17 Defendant claims in the above Motion that the proposed testimony from Morcilla and

18 Santos identifying Defendant from the video are inadmissible under Guam Rules of Evidence

19 701. Mot. to Suppress Identification and Limit Proposed Testimony, at 4-6 (Sep. 9, 2019).

20 Defendant asserts that their testimony would not be helpful to the jury in identifying Defendant,

21 due to their limited contacts with Defendant. Id.

22 Defendant further claims that if their testimony is admissible under 701, it must be

23 limited by the standards set by the Guam Supreme Court in People v. Tedtaotao. Id. at 6-8.

24 Defendant argues that reference by the Officers to their Profession, as well as reference to

25 Defendant's history of incarceration and probation, would qualify as prejudicial and inadmissible

26 evidence under GRE 404(b) and 403. Id.

28 People v. Tedtaotao; CF0415-19 Decision & Order v Page 2 of 8 I -ll_l11-ll1lllll I I I _ l

1 The Court held a Motion hearing on October 2, 2019, at which both Officers testified as

2 to their contacts with Defendant. Minute Entry (Oct. 2, 2019). Officer Morcilla testified that he

3 had actual, physical contact and communication with Defendant about four to five times. Motion

4 Hearing at 10:06:10 (Oct. 2, 2019). He also testified that he was about sixty percent (60%) sure

5 that the person in the photo he was shown was Defendant. Id. at l0:1l:10. He testified that he

6 had glanced at the photo for about five to ten seconds in passing. Id. at 10: 10:40.

7 Officer Santos testified that he had interacted with Defendant multiple times over the past

8 fifteen (15) years, both in his capacity as a DOC Officer and his current capacity as a Parole

9 Officer. Id. at 10:29:20. He testified that he would see Defendant often, sometimes four to five

10 times a week, at DOC, and would joke around and talk with him during their small interactions.

11 Id. at 10:36:50.

12 After all evidence was presented at the Motion Hearing, the Court took the issue under

13 advisement.

14 Discussion

15 This Court must address two issues in responding to this Motion. First, as to each

16 individual officer, whether lay witness identification testimony would be admissible under Guam

17 Rules of Evidence 701. Second, if either officer's testimony is relevant under GRE 701, whether

18 such testimony is substantially prejudicial to Defendant such that a GRE 404(b) or 403 issue is

19 triggered. The Court will address each question below.

20 A. Relevant testimony under GRE 701

21 GRE 701 states that a lay witness may give opinion testimony if the testimony is "(a)

22 rationally based on the perception of the witness, and (b) helpful to a clear understanding of the

23 witness' testimony or the determination of a fact in issue, and (c) not based on scientific,

24 technical, or other specialized knowledge within the scope of Rule 702." GRE 701. In US v.

25 LaPierre, the Ninth Circuit Court of Appeals held that a police officer's testimony identifying

26 the Defendant from surveillance footage was "of dubious value." US v. LaPierre, 998 F.2d 1460,

27 1465 (9th Cir. 1993). The Court therein averred that "the use of lay opinion identification by

People v. Tedtaotao; CF0415-19 Decision & Order Page 3 of 8 1 policeman or parole officers is not to be encouraged, and should be used only if no other

2 adequate identification testimony is available to the prosecution." Id., quoting United States v.

3 Butcher, 557 F.2d 666, 670 (9thcir.1977).

4 LaPierre lists two instances where this type of lay opinion identification may be

5 admissible: 1) where the lay witness has had substantial and sustained contact with the person in

6 the photograph, and 2) where the identification is being used to point out drastic differences

7 between the Defendant's appearance in Court and the appearance in the photograph. Id. LaPierre

8 noted that the officer testifying did not fall into the first exception, as he had never seen the

9 Defendant in person before his in-court identification. Id. He had only observed the Defendant

10 through photographs during his investigation. Id. Thus, his familiarity with Defendant's

ll appearance fell "far short of that required by [the Court's] cases and by Rule 701's requirement

12 of helpfulness." Id. The officer's testimony would have been just as effective as the jury

13 identifying the Defendant through comparison of photographs and the Defendant's in-court

14 appearance. Id. Thus, the officer's testimony was inadmissible. Id.

15 Guam has addressed this issue in People v. Tedtaotao, 2016 Guam 9. In that case, there

16 were a variety of evidentiary questions, including whether two parole officers could testify

17 directly that the man in the video footage of the incident was in fact the Defendant. Id. <]1q132-35.

18 The Supreme Court held that the lay testimony from these two officers was admissible based on

19 their "specialized familiarity" with Defendant due to extensive past interactions. Id. 'll 35. The

20 People laid the foundation that both officers had met with Defendant in person several times, in

21 their capacities as parole officers. Id.

22 In US v. Contreras, the Court of Appeals for the Tenth Circuit upheld the trial court

23 .determination admitting a probation officer's testimony identifying defendant as the robber after

24 viewing surveillance video. 536 F.3d 1167 (10th Cir. 2008). The Court in Contreras held, "[The

25 officer's] familiarity with Contreras offered the jury a more sophisticated identification than they

26 could make on their own." Id. at 1170. Thus, the officer's testimony fell within the lay testimony

27 bounds of FRE 701. Id. See also United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005)

28 People v. Tedtaotao; CF0415-19 Decision & Order Page 4 of 8 1 (finding a probation officer's testimony identifying defendant as the robber depicted in bank

2 surveillance photo was rationally based and sufficiently helpful to be admissible as lay opinion

3 testimony, where officer had met with defendant on four occasions over a two-month period),

4 United States v. Farnsworth, 729 F.2d 1158, 1160-61 (8th Cir. 1984) (finding parole officers'

5 opinions concerning identity of a person depicted in a surveillance photograph admissible under

6 FRE 701, since there is some basis for concluding that the witness Was more likely to correctly

7 identify the defendant from the photograph than was the jury).

8 1. Morcilla's Testimony

9 Based on testimony given by Officer Anthony Morcilla at the October 2, 2019, his

10 proposed identification testimony is not so specialized that it would meet the relevancy threshold

11 under GRE 701 set by Tedtaotao and LaPierre. Officer Morcilla indicated that he had seen

12 Defendant in person about four to five times. He further indicated that he had looked at the

13 photo, which allegedly depicted Defendant, only in passing for about five to ten seconds during a

14 brief interaction. He noted on the stand that he was about sixty percent (60%) sure that the man

15 in the photo was Defendant. Officer Morcilla's knowledge of Defendant's appearance and brief

16 interaction with the alleged photo of Defendant would not constitute "substantial contact" with

17 Defendant such that his identification would be helpful to a jury. Officer Morcilla's interaction

18 with Defendant is different than the Officers' interactions in Tedtaotao. There, all testifying

19 officers had "specialized familiarity" with the Defendant based on their contacts. Based on the

20 evidence presented to this Court, Officer Morcilla does not have such "specialized familiarity"

21 when it comes to Defendant. Thus, his lay opinion testimony is not admissible under 701,

22 pursuant to the holding in Tedtaotao. Subsequently, this Court GRANTS Defendant's Motion to

23 Suppress Identification testimony given by Officer Morcilla.

24 2. Santos's Testimony

25 Officer Ronald Santos testified on October 2, 2019, that he has interacted with Defendant

26 multiple times. First, during Officer Santos's time as an Officer at the DOC, he interacted with

27 Defendant, who was residing there, at a rate of four to five times per week. Officer Santos

28 People v. Tedtaotao; CF0415-19 Decision & Order Page 5 of 8 11-1111 I'll-ll II I H I l l l

1 testified that when he would report to DOC, he would see Defendant often, either walling to get

2 food, pick up medicine, or just in passing. Officer Santos testified that he and Defendant would

3 sometimes talk and joke around in these interactions. He also testified that he was ninety-nine

4 percent (99%) certain that the person in the photograph he was asked to identify was Defendant.

5 This Court finds that the People have satisfied the burden of proof under GRE 701 regarding

6 Officer Santos's identification of the Defendant. Therefore, Defendant's Motion to Suppress

7 Identification Testimony regarding Officer Santos is DENIED.

8 B. Prejudicial Nature of the Proposed Testimony

9 This Court must now address the prejudicial nature of the proposed testimony if elicited

10 through Officer Santos.

11 GRE 404(b) states: "Evidence of other crimes, wrongs, or acts is not admissible to prove

12 the character of a person in order to show that he acted in conformity therewith." GRE 404(b).

13 Additionally, relevant evidence may still be inadmissible under GRE 403 if its probative value is

14 substantially outweighed by the danger of unfair prejudice or confusion of the issues.GRE 403 .

15 In People v. Tedtaotao, the Court pondered whether the lay identification by the parole

16 officers discussed above was admissible under 404(b). 2016 Guam 9 '}I'][ 39-42. The Court

17 considered two factors: 1) whether the witness's mere status as parole officers made their

18 identification inadmissible under 404(b), and 2) whether the witness's identifying themselves as

19 parole officers in order to establish their familiarity with Defendant was inadmissible under

20 404(b). Id. 'll 39.

21 In sum, the Court held that the testimony of theofficers identifying Defendant, as well as

22 their statements regarding their frequency of contact With him and degree of certainty in their

23 recognition of him, were relevant to establish their contacts with Defendant and familiarity with

24 his appearance. Id.

25 the officers's identification of their profession andrevelation that Defendant was previously on

26 parole and incarcerated. Id. This served only the impermissible purpose of highlighting the

27 Defendant's propensity for criminality, and was not probative to its purpose as testimony: to

28 People v. T edtaotao; CF0415-19 D ec is ion & O r der Page 6 of 8 1 establish the witness' ability to identify Defendant in Court. Id. Thus, while the officers could

2 testify that they were familiar with Defendant, evidence revealing Defendant's history with

3 incarceration and parole was inadmissible under 404(b). Id.

4 The Court in Tedtaotao applied a similar analysis under 403 of the lay testimony

5 compared to their 404(b) analysis. Id. <1[q[ 43-48. The Court cited US v. Pace, where the Fifth

6 Circuit Court of Appeals concluded that while officer testimony of identification is not

7 inherently prejudicial, admission of the officer's profession in Court was unduly prejudicial in

8 the context of the purpose of the testimony. 10 F.3d 1106, 1115 (5th Cir. 1993). Pace held that

9 allowing this evidence could lead the jury to infer that the Defendant was on probation or had

10 past involvement in criminal conduct, malting it inadmissible under 403. Id. See also United

11 States v. Fortenberry, 860 F.2d 628, 632 (5th Cir. 1988); United States v. Poston, 430 F.2d 706,

12 709 (6th Cir. 1970).

13 Following the logic in Pace, the Court in Tedtaotao held that while the officers could

14 testify to the identity of Defendant in video footage, the People Could not introduce evidence of

15 their profession and the details of their relationship with Defendant. 2016 Guam 9 'i[ 48. Those

16 facts are not necessary and are unduly prejudicial. Id.

17 The Court is bound by the precedent in Tedtaotao. Thus, any proposed testimony from

18 Officer Santos revealing Defendant's history of incarceration and parole is inadmissible under

19 GRE 404(b). Further, this type of testimony has a high risk of prejudicing the jury. The People

20 must follow the guidelines set for this type of testimony in Tedtaotao.1

21 This Court will not make a ruling on whether all of Officer Santos's proposed testimony

22 is inadmissible under 404(b) or 403. While Officer Santos's contacts with the Defendant rise

23 from his work as a Corrections Officer and now Parole Officer, his interactions with Defendant

24 themselves do not inherently implicate Defendant's history of incarceration. Officer Santos

25 testified that the two men would joke around, say hello to each other, and see each other in

26 1 The Court finds that Tedtaotao would prohibit, for example, questions regarding Officer Santos's employment at 27 the Department of Corrections and may limit his testimony with respect to the nature of the WhatsApp chat as a law enforcement chat. This information, if presented to the jury, could run afoul of Tedtaotao. 28 People v. Tedtaotao; CF0415-19 Decision & Order Page 7 of 8 v 1 passing. The Court in T e d t a o t a o held that the fact that the witnesses were parole officers did not

2 automatically exclude their testimony as prejudicial. Thus, this Court will not do so either, and

3 will allow Officer Santos to testify as a lay witness identifying Defendant. However, if the

4 testimony presented at trial triggers a 404(b) or 403 issue, this Court will rule on the evidence,

5 and exclude such testimony. If the People wish to enter evidence that is likely to trigger a 404(b)

6 issue, they can file a notice of 404(b) evidence with this Court before trial. Nothing in this

7 decision inhibits the People's ability to file such a notice of 404(b) evidence.

8 Conclusion

9 For the foregoing reasons, the Defendant's Motion to Suppress is GRANTED with

10 regards to Officer Morcilla, but DENIED with regards to Officer Santos.

ll

12 SO ORDERED this 05c 312m9

15 \ HO LE MARIA T. CENZON 16 JUDGE, SUPERIOR COURT OF GUAM 17

23 I acknowledge that a copy of the 24 original hereto was placed in the court box 0 2 25 AL AND 26 Date\L\"ll9 W me \ 1.

27 Deputy Clerk, Superscr Court of Guam

28 People v. Tedtaotao; CF0415-19 Decision & Order Page 8 of 8