People v. Tedtaotao

Opinion

i l "

IN THE SUPERIOR COURT OF GUAMEf<'.

PEOPLE OF GUAM, CRIMINAL CASE NO. CF051S-11 ) vs. ) DECISION & ORDER RE: PEOPLE 'S MOTION AND RAYMOND TORRES TEDTAOTAO, ORDER FOR DISMISSAL

Defendant. )

I.

INTRODUCTION I0 This matter came before the Honorable Maria T. Cenzon for a Motion Hearing on it

12 February 19, 2014. Assistant Attorney General Jesse Nasis represented the People of Guam

(the 'People"). Attorney Samuel Teker represented Defendant Raymond Torres Tedtaotao

('Defendant") who was present. The Court took the matter under advisement and now issues

this written Decision and Order.

After reviewing the People' s Motion and Order for Dismissal ( "Motion") filed on Feb. 17

18 18, 2014, hearing oral argument f r o m th e People and Defendant' s non-opposition, and

19 reviewing the applicable statutes and case law, this court finds that dismissal of the case would 20 be manifestly contrary to the public interest and not in the interest of justice. The Court 21 therefore fords that the Motion was brought in bad faith and is hereby DENIED for the reasons 22

23 discussed below.

26 27

28 People v. Tedtaotao, CFQ515-11, Decision & Order RE: People' s Motion and Order for Dismissal Page 1 of s II .

PROCEDURAL BACKGROUND

Defendant was indicted on September 28, 2011 on charges of Attempted Burglary (as a

2nd Degree Felony)'; Identity Theft (as a 3rd Degree Felony); Theft of Property (as a

Misdemeanor); and two counts of Fraudulent Use of a Credit Card (as a Misdemeanor).

Defendant was also given notice in the Indictment that he was subject, if convicted, to an

8 enhanced sentence under 9 GCA § 80.37.5 for the commission of a felony while on felony

9 release. 10 Pursuant to a Stipulation and Order filed January 2, 2014, the Court scheduled a Pre- 11 Trial Conference and Hearing on All Motions for February 11, 2014 and Jury Selection and 12

13 Trial for February 19, 2014. One week after the Pre-Trial Conference and Hearing on All

14 Motions, the instant Motion was untimely filed on February 18, 2014. The Court set a hearing 15 on the matter expeditiously for 10:00 AM on February 19, 2014, three hours before Jury 16 Selection and Trial was scheduled to commence. 17 At the Motion Hearing, Defendant did not oppose the Motion. However, as discussed 18

19 below, Defendant's non-opposition is not dispositive, as a granting of the Motion requires leave

20 of Court under statutory law and our case law is clear that "the proper administration of the 21 criminal law cannot be left merely to the stipulation of parties." People v. Riocne, 2012 Guam 5

16 (quoting People v. Yingling, 2009 Guam 11113 (quoting Young v. United States, 315 US

257, 259 (1942))).

' The People moved to dismiss the charge of Attempted Burglary on January 4. 2012 and the Honorable Jmig� Elizabeth Barren-Anderson granted the motion on January 13, 2012. Motion and Order of Dismissal (Jan. 13 2012). 27

28 People v. Tedtmmo,CP0515-11, Decision& Order RE: People' s Motion andOrder for Dismissal Page2 of8 III.

LAW AND ANALYSIS

A. Dismissal of this Matter Requires Leave of Court

Title 8 GCA § 80.70(a) outlines the procedure under which the People's Motion is brought:

The prosecuting attorney may with leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant. The prosecuting attorney shall file a statement of his reasons for seeking dismissal when he applies for leave to file a dismissal and where leave is granted the court's order shall set forth the reasons for granting such leave.

10 This section clearly establishes that " [b]ecause leave of court is required, the dismissal under

11 section 80.70(a) is an act of the court." People v. Gutierrez, 2005 Guam 19 131. T his nde

12 marks a change from the common law rule of nolle prosequi which has been abandoned in 13 Guam pursuant to 8 GCA § 80.802 and which was a power once vested in the prosecuting 14 attorney to dismiss a criminal case in his or her sole discretion. See Gutierrez 128 n. 3; People 15

16 v. Rios, 2008 Guam 22 Y 21; and People v. Flores, 2009 Gu am 22 123. Consequently, this

17 Court is duty bound to examine the grounds of the instant Motion and rule on its merit. 18 B. The Court Presumes Good Faith by the People in Bringing the Motion 19 Although the People of Guam no longer have the unfettered discretion to dismiss a case 20 under its common law power of wile prosequi, Guam law analogizes 8 GCA § 80.70(a)

motions to those brought under Rule 48(a) of the Federal Rules of Criminal Procedure

(Gutierrez 148) and Guam adopts the federal presumption that the prosecutor brings the motion

2 "The entry of a nolle prosequi is abolished, and a prosecuting attorney cannot discontinue or abandon a pmsecutio for any offense, except as provided in§ 80.70." 27

28 People v. Tedarorao, CF0515-l1, Decision & Order RE: People's Motion and Order for Dismissal Page 3 of 8 in good faith. Gutierrez 152 ("The circuit courts have universally held that the prosecution is

entitled to a presumption of good faith when bringing a Rule 48(a) motion and the motion

should generally be granted as a matter of course."). The presumption, however, is not

absolute, and "is rebutted upon a showing of a lack of good faith." Gutierrez 1 53 (citing

United States v. Salinas, 693 F.2d 348, 352 (5th Cit. 1982)). This good faith presumption may

be rebutted by a fording of considerations "clearly contrary to the public interest" (Gutierrez 3

8 54 (quoting Salinas at 351)) or if the dismissal "would be clearly contrary to manifest public 9 interest...". Gutierrez154 (quoting United States v. Rush, 240 F.3d 729, 730 (8th Cir. 2001). 10 C. The Court Finds Dismissal Would Be Contrary to the Public Interest 11 The People' s moving papers requested dismissal on the ground that "Defendant was 12

13 previously sentenced to two (2) life sentences in [People of Guam v. Raymond Torres

14 Tedtaotao,] Guam Superior Court Criminal Case No. CF 218 -13-01, and thus it would be in the

15 best interest of justice to dismiss this case." Motion at 1 (Feb. 18, 2014). During the hearing on 16 the Motion, the Court found that this statement barely complied with the requirement of 8 GCA 17 § 80.70(a) th at th e " prosecuting attorney shall file a statement of his reasons for seeking 18

19 dismissal when he applies for leave to file a dismissal.. ." and the People failed to provide any

20 other articulable reason to support a dismissal of the charges. The Court now considers whether 21 the imposition of two life sentences upon the Defendant in Criminal Case No. CF 0218-13-01 is 22 sufficient grounds for the dismissal 3 23

25 3 It is noteworthy to mention that the Court subsequently considered the dismissal of People of Guam v. Raymond T. Tedmotao, Criminal Case No. CF0289-13. CF0289-13, like the instant case, was also trailing the final 26 adjudication of CF0218-13-01. In CF0289-13, Defendant was charged with Burglary (As a 2nd Degree Felony) and Theft of Property (As a 2nd Degree Felony), which are of similar more and degree to the charges in this case. 27

28 & � rder RE: People' s Motion and Order for Dismissal People v. Tedtaotao, CF0515-11, Decision ry�O Page 4 of a As a preliminary matter, the stated reason upon which dismissal was based is no longer true.

Defendant's sentence in CF0218-13-01 has since been amended to fifty-five (55) years by this

Court on May 21, 2014, and a Notice of Appeal was filed on May 27, 2014. Although the

details were not known to the People at the time of this Motion, they should have been well

aware that the imposition of two life sentences was subject to change given that Judgment in

CF0218-13-01 had not issued; that the matter was appealable once the Judgment had issued; 7

8 and the sentence imposed on January 22, 2014 was still subject to a motion to reduce within 120 9 days under 8 GCA § 120.46. As the People's stated reason for dismissal remains subject to 10 modification or being vacated, this Court can give little to no reliance upon this justification. It More importantly, however, is that any sentence imposed upon the Defendant in a separate 12

13 criminal matter does not address the consideration of any redress on behalf of the victim of

14 Defendant's crime in this case. Indeed, the record in this matter presents multiple, significant 15 interests implicating the public interest. A brief review of the factual and procedural history of 16 this matter reveals the following: 17 1. A victim who allegedly suffered damages of several hundred dollars and theft of her is

19 identity. Furthermore, the People have failed to show the Court that the victim was

20 properly notified of a potential dismissal of the action, as required by the Basic Bill of 21 Rights for Victims, 8 GCA § 160.50(k) ("In cases charged and pled to as a felony, 22

23 The Court dismissed CF0289-13 without oreiudice (above the objection of the People) for procedural reasons on 24 February 24, 2014- within a week of hearing the People's motion for dismissal in the instant case. The People have since appealed the dismissal of CF0289-13 in Supreme Court Case No. CRA14-003. The Court finds 25 something inherently askew in the administration ofjustice when the prosecution of a criminal matter against the same defendant in several crimes and involving similar charges is left solely to the seemingly arbitrary assignment 26 of the prosecutor to the case, especially when, as hue, the grounds advanced by the People for dismissal are based on a sentence that Defendant has received in a yet another wholly unrelated case. 27

28 People v. Tedtaotao, CF0515-11, Decision& Order RE: People's Motion and Order for Dismissal Page 5 of 8 [victims shall have the right] to be informed by the prosecutor, by telephone, facsimile

or mail, of all trials, changes of pleas, sentencing and other major developments at least

three (3) working days in advance.")(emphasis added).

2. The litigation of this case has consumed a large amount of wholly public funds4 and

time, encompassing at least ten (10) written motions, and over twenty (20) hearings.

The expenditure of these public monies is itself evidence of the public interest in

resolving the matter through the faithful discharge of the prosecutor's duties.

3. Defendant's interest in closure and certainty. The People's requested remedy of 10 dismissal without prejudice leaves the possibility that Defendant can be re-charged and 11 re-indicted. The need for certainty is even greater when, as here, Defendant was only 12

13 hours from commencing trial.'

14 In determining that a granting of the People's Motion would not be in the public interest, 15 this Court is mindful of a distinction between a Rule 48(a) motion and the instant 8 GCA § 16 80.70(a) Motion highlighted in Gutierrez $ 49: Rule 48(a) motions, as a component of federal 17

19 4 Defendant was found indigent and represented by court-appointed private counsel who is reimbursed from public 20 funds at $90 per hour. ' Motion to Suppress Photo Line Up (Oct. 26, 2011); Motion to Dismiss Based Upon Photo Line Up (Oct. 26, 21 2011); Motion to Suppress Latent Fingerprint (Oct 26, 2011); Motion to Dismiss Based Upon Latent Fingerprint 22 (Oct. 26, 2011); Motion to Dismiss Based Upon Lack of Probable Cause (Oct. 26, 2011); Motion to Appoint an Expert Witness (Nov. 14, 2011); Motion for Leave to File Motion Greater Than 20 Pages (Nov. 14, 2011); Motion 23 to Exclude Testimony of Video Identification (Nov. 14, 2011); Motion to Exclude Testimony of Fingerprint Examiner (Nov. 14, 2011); People's Motion to Dismiss Count One of the Indictment (Jan. 4. 2012); Motion to 24 Modify Bail (Feb. 7, 2012). s The public has an interest in "[being] secure from crime through the regular enforcement of the criminal laws." 25 Gutierrez168 (quoting State v. Braunsdorf,297 N.W.2d 808, 816 (Wis. 1980)). r One purpose of the requirement for leave of court is to "prevent harassment of a defendant by a prosecutor's 26 charging, dismissing, and recharging the defendant with a crime." Gutierrez166 (quoting United States v. Den , 726 F.2d 617, 619 (10th Ch. 1984). 27

28 People v. Tedtaotao, CF0515-11, Decision & Order RE: People' s Motion and Order for Dismissal Page 6 of 8 practice are frequently decided in the context of the Federal Government's Petite policy.'

Where this is no prior prosecution for the same acts and federal action appears unlikely, this

3 Court fords that the people of Guam have an even stronger manifest public interest in the 4 prosecution of crimes by their elected Attorney General. The absence of a faithful discharge of 5 the prosecutor's duty renders the provisions of 9 GCA a nullity. 6 D. The Timing of the Motion is a Failure of Counsel of the Duty Owed to the Court

8 The Court finds the timing of the People's Motion questionable as the proffered reason for 9 dismissal was known to the People for almost a month prior to the bringing of the Motion to (Defendant was sentenced in CF0218-13-01 on Jan. 22, 2014 and the instant Motion was filed 11 Feb. 18, 2014), and the instant Motion was filed one day before the trial was scheduled to 12

3 commence, argued three hours before trial was scheduled to begin, and one week after the first

4 pre-trial conference in this matter. The People have disregarded any of the markers of 15 timeliness or diligence in filing this Motion. 16 The Court cannot determine from the record if this pattern of tardiness is a product of 7 `inadvertence, mistake, or error of judgment" (People v. Manibnsan, 1998 Guam 22 111 (citing 18

19 Zambrano v. City of Tustin, 885 F.2d 1473, 1480 (9th Cit. 1989) or is "'an intentional departure

20 from proper conduct, or a [...] a reckless disregard of duty owed by counsel to the court"' (Id 2 (quoting United States v. Ross, 535 F.2d 346, 349 (6th Cir. 1976)), justifying the imposition of 22 monetary sanctions.

25 s "As stated by the Department of Justice, under that policy a federal trial following a state prosecution of the same 26 act or acts is barred, 'unless the reasons are compelling. "' Rinaldi v. United States, 434 U.S. 22, 24 n. 5 (1977); see also Petite v. United States, 361 U.S. 529 (1960). 27

28 People v. Tedtnotao, CF0515-11, Decision & Order RE: People's Motion and Order for Dismissal Page 7 of 8 Since the Court has found that the presumption of good faith ascribed to the People's I

Motion has been rebutted, as discussed in sections III. B. and C. of this Decision and Order,

supra, the Court believes further fact-finding on the issue of timeliness is necessary and will

consider issuing an Order to Show Cause upon the prosecuting attorney in this matter to

determine if sanctions aside from public chastisement as set forth herein are warranted. See

People v. Tuncap, 1998 Guam 13 ¶ 24 ("Although the appropriateness of a sanction rests in the

8 trial judges sound discretion, the sanction chosen must be proportionate to the misconduct."

9 (citing United Sates v. Gee, 695 F2d 1165, 1168-1169 (9th Cit. 1983))). 10 Iv. II CONCLUSION 12 For the above reasons, IT IS HEREBY ORDERED that the People's Motion and Order 13

14 for Dismissal is DENIED.

15 The Court will issue a new Criminal Trial Scheduling Order in this matter and will

consider issuing an Order to Show Cause upon the People. SO ORDERED this JUN 0 2 2014 day of May, 2014.

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28111 People v. Tedtaotao, CF0515-I1, Decision & Order RE: People's Motion and Order for Dismissal

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