3 . /..Jd I
4 IN THE SUPERIOR COURT 5 OF GUAM
6 THE PEOPLE OF GUAM, ) Criminal Case No.: CF0268-13 7 ) v. ) 8 ) PAULA L.A. TEDTAOTAO, DECISION AND ORDER ) 9 ANTHONY M.T. GUMATATAO and CANDERLARIA M. PEREZ, ) 10 ) Defendant. ) II ) 12
13 INTRODUCTION 14 This matter is before the Honorable Judge Michael J. Bordallo. Pursuant to Rule 7.1 of 15 • the Local Rules of the Superior Court of Guam, Defendant Gumataotao's motion to sever, 16
17 suppress evidence, for discovery and for visitation was taken under advisement on March 4, 18 2014. The People are represented by Assistant Attorney General James L.G. Stake. Defendant 19 is represented by attorney Anthony R. Camacho. Having reviewed the motion, memorandum 20 and papers presented, the Court now issues the following decision granting in part Defendant's 21
22 motions.
23 BACKGROUND 24 On May 23, 2013, Defendants Tedtaotao, Gumataotao and Perez were indicted upon the 25 following charges and counts: 1) Burglary, as a 2nd Degree felony, two counts; 2) Theft of 26
27 Property as a 2nd Degree Felony; 3) Theft of Property, as a Misdemeanor, four counts. Within
Page 1 of6 the same indictment Defendant Tedtaotao was also charged with: 1) Intimidation of Witness by 2 Extortion, as a 3rd Degree Felony; and 2) Child Abuse, as a Misdemeanor. 3 On January 17, 2014, Defendant Gurnataotao filed a paper entitled, Motion to Sever, 4 Motion to Suppress Evidence, Motion for Discovery, and Motion for Visitation. In it he argues 5
6 and asserts that pursuant to 8 GCA § 63.35 (sic) he is entitled to a separate prosecution because
7 his right to confront and cross-examine will be violated by the statements and confessions of 8 non-testifying Co-Defendants Tedtaotao and Perez. Defendant Gumataotao further requests 9 that any statements that he gave to the Guam Police Department be suppressed. In support of 10
II this request he asserts that despite requesting to speak with an attorney and not waiving his
12 rights, police officers continued to question him. 13 He asserts that as a result of their continued questioning he made incriminating 14 statements and gave them a tour of various alleged crime scenes. Upon the same basis, 15 Defendant Gumataotao also argues that any evidence seized from his residence located at # 113 16
17 Bilibiines Court, Liguan Terrace, Dededo on or about May 15, 2013 should be suppressed.
18 Defendant Gumataotao's motion also contains a request for specific discovery and requests 19 visitation with co-defendant Paula Tedtaotao, his biological mother. 20 On February 24, 2014, the People filled their response to Defendant's motions. In its 21 opposition to Defendant's motion to sever the People, citing the U.S. Supreme Court argue that 22
23 redaction of all mention of the name of a co-defendant from the statement is sufficient to
24 protect defendants' rights in a joint trial. The people assert that here the statements may be so 25 redacted to protect the rights of the Defendant. 26 As to the Defendant Gumataotao' s motion to suppress the People argue and assert that 27
28 the circumstances of the case reveal that after requesting an attorney and invoking his rights,
Page 2 of6 Defendant subsequently waived his rights. The People assert that upon invoking his rights the 2 Police and the Defendant tried to contact Defendant's attorney and after being unsuccessful 3 Defendant waived his rights and agreed to co-operate. 4 The People generally respond to Defendant's discovery request by asserting that: they 5
6 will supply all evidence in the time permitted by Guam Law; they have already provided all
7 their discovery material; and that Defendant's request is too broad and as such impermissible. 8 The People do not oppose Defendant's request for visitation. 9 Defendant did not file a reply. 10
II DISCUSSION
12 I. Severance 13 Section 65.35 ofTitle 8 ofthe Guam Code regulates when a criminal trial of multiple 14 co-defendants must be severed. 8 GCA § 65.35. It provides, 15 If it appears that a defendant or the government is prejudiced by a joinder of 16 offenses or of defendants in an indictment or information or by such joinder for 17 trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. 18 !d. This section has yet to be interpreted by the Guam Supreme Court. On its face Section 19
20 65.35 requires that a movant make a showing of an appearance of prejudice that may not be
21 cured by other just relief. !d. Defendant has not met the requisite standard for review under this 22 statue. 23 In this case Defendant generally asserts that there are incriminating statements made by 24 his co-defendants which reference him and would violate his rights to confrontation. Mot. at 1- 25
26 2. In his motion Defendant fails to provide these the incriminating statements or argue how
27 redaction is insufficient. The incriminating co-defendant statements are neither provided nor 28 specifically described. The Court is therefore unable to begin an analysis of those statements
Page 3 of6 and their possible prejudice. see, Lamb v. Hoffman, 2008 Guam 2 ~~ 34-36. Absent some 2 further showing by the Defendant under the above standard the Court is not persuaded that the 3 above matters should be severed. !d. 4
5 II. Suppression
6 In 2007 the Guam Supreme Court explained, "[t]estimonial evidence that is a product of
7 custodial interrogation is inadmissible unless a defendant waived the privilege against self- 8 incrimination." People ofGuam v. Farata, 2007 Guam 8 ~ 46. Waivers must be voluntary and 9 made after a knowledge of the rights waived. !d. Whether a wavier was voluntary is reviewed 10
II under a totality of the circumstances test. !d. As explained by various U.S. Federal Circuit
12 Courts of Appeal, in a motion to suppress, a defendant carries the initial burden of showing 13 illegality. US. v. Benoit, 730 F.3d 280, 288 (3rd Cir. 2013); see, Lamb v. Hoffman, 2008 Guam 14 2, ~~ 34-36. 15 After this initial burden of sufficiency is met the burden falls upon the people to show 16
17 legality. Colorado v. Connelly, 479 U.S. 157, 168 (1986). The U.S. Supreme Court in 1986 and
18 subsequent Federal Circuit Courts of Appeal have subsequently and consistently held that, 19 "[w]henever the State bears the burden of proof in a motion to suppress a statement that the 20 defendant claims was obtained in violation of our Miranda doctrine, the State need prove waiver 21 only by a preponderance of the evidence." !d.; US. v. Capers, 627 F.3d 470, 480 (2nd Cir. 22
23 2010).
24 Although in this case the People concede sufficient facts to support a finding of illegality 25 under the Defendant's burden, each of the Parties fail to submit sufficiently verifiable facts for 26 the Court to find that either Parties' burden has been met. Moreover because there are disputed 27
28 issues of material fact concerning the knowledge and possible waiver of Defendant's rights, this
Page 4 of6 matter requires the presentation and consideration of testimonial evidence. Accordingly this 2 matter shall be set for an evidentiary hearing were each Party shall be provided adequate 3 opportunity under the above standard. 4
5 III. Discovery
6 Section 70.10 of Title 8 of the Guam Code generally regulates matters of discovery in
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3 . /..Jd I
4 IN THE SUPERIOR COURT 5 OF GUAM
6 THE PEOPLE OF GUAM, ) Criminal Case No.: CF0268-13 7 ) v. ) 8 ) PAULA L.A. TEDTAOTAO, DECISION AND ORDER ) 9 ANTHONY M.T. GUMATATAO and CANDERLARIA M. PEREZ, ) 10 ) Defendant. ) II ) 12
13 INTRODUCTION 14 This matter is before the Honorable Judge Michael J. Bordallo. Pursuant to Rule 7.1 of 15 • the Local Rules of the Superior Court of Guam, Defendant Gumataotao's motion to sever, 16
17 suppress evidence, for discovery and for visitation was taken under advisement on March 4, 18 2014. The People are represented by Assistant Attorney General James L.G. Stake. Defendant 19 is represented by attorney Anthony R. Camacho. Having reviewed the motion, memorandum 20 and papers presented, the Court now issues the following decision granting in part Defendant's 21
22 motions.
23 BACKGROUND 24 On May 23, 2013, Defendants Tedtaotao, Gumataotao and Perez were indicted upon the 25 following charges and counts: 1) Burglary, as a 2nd Degree felony, two counts; 2) Theft of 26
27 Property as a 2nd Degree Felony; 3) Theft of Property, as a Misdemeanor, four counts. Within
Page 1 of6 the same indictment Defendant Tedtaotao was also charged with: 1) Intimidation of Witness by 2 Extortion, as a 3rd Degree Felony; and 2) Child Abuse, as a Misdemeanor. 3 On January 17, 2014, Defendant Gurnataotao filed a paper entitled, Motion to Sever, 4 Motion to Suppress Evidence, Motion for Discovery, and Motion for Visitation. In it he argues 5
6 and asserts that pursuant to 8 GCA § 63.35 (sic) he is entitled to a separate prosecution because
7 his right to confront and cross-examine will be violated by the statements and confessions of 8 non-testifying Co-Defendants Tedtaotao and Perez. Defendant Gumataotao further requests 9 that any statements that he gave to the Guam Police Department be suppressed. In support of 10
II this request he asserts that despite requesting to speak with an attorney and not waiving his
12 rights, police officers continued to question him. 13 He asserts that as a result of their continued questioning he made incriminating 14 statements and gave them a tour of various alleged crime scenes. Upon the same basis, 15 Defendant Gumataotao also argues that any evidence seized from his residence located at # 113 16
17 Bilibiines Court, Liguan Terrace, Dededo on or about May 15, 2013 should be suppressed.
18 Defendant Gumataotao's motion also contains a request for specific discovery and requests 19 visitation with co-defendant Paula Tedtaotao, his biological mother. 20 On February 24, 2014, the People filled their response to Defendant's motions. In its 21 opposition to Defendant's motion to sever the People, citing the U.S. Supreme Court argue that 22
23 redaction of all mention of the name of a co-defendant from the statement is sufficient to
24 protect defendants' rights in a joint trial. The people assert that here the statements may be so 25 redacted to protect the rights of the Defendant. 26 As to the Defendant Gumataotao' s motion to suppress the People argue and assert that 27
28 the circumstances of the case reveal that after requesting an attorney and invoking his rights,
Page 2 of6 Defendant subsequently waived his rights. The People assert that upon invoking his rights the 2 Police and the Defendant tried to contact Defendant's attorney and after being unsuccessful 3 Defendant waived his rights and agreed to co-operate. 4 The People generally respond to Defendant's discovery request by asserting that: they 5
6 will supply all evidence in the time permitted by Guam Law; they have already provided all
7 their discovery material; and that Defendant's request is too broad and as such impermissible. 8 The People do not oppose Defendant's request for visitation. 9 Defendant did not file a reply. 10
II DISCUSSION
12 I. Severance 13 Section 65.35 ofTitle 8 ofthe Guam Code regulates when a criminal trial of multiple 14 co-defendants must be severed. 8 GCA § 65.35. It provides, 15 If it appears that a defendant or the government is prejudiced by a joinder of 16 offenses or of defendants in an indictment or information or by such joinder for 17 trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. 18 !d. This section has yet to be interpreted by the Guam Supreme Court. On its face Section 19
20 65.35 requires that a movant make a showing of an appearance of prejudice that may not be
21 cured by other just relief. !d. Defendant has not met the requisite standard for review under this 22 statue. 23 In this case Defendant generally asserts that there are incriminating statements made by 24 his co-defendants which reference him and would violate his rights to confrontation. Mot. at 1- 25
26 2. In his motion Defendant fails to provide these the incriminating statements or argue how
27 redaction is insufficient. The incriminating co-defendant statements are neither provided nor 28 specifically described. The Court is therefore unable to begin an analysis of those statements
Page 3 of6 and their possible prejudice. see, Lamb v. Hoffman, 2008 Guam 2 ~~ 34-36. Absent some 2 further showing by the Defendant under the above standard the Court is not persuaded that the 3 above matters should be severed. !d. 4
5 II. Suppression
6 In 2007 the Guam Supreme Court explained, "[t]estimonial evidence that is a product of
7 custodial interrogation is inadmissible unless a defendant waived the privilege against self- 8 incrimination." People ofGuam v. Farata, 2007 Guam 8 ~ 46. Waivers must be voluntary and 9 made after a knowledge of the rights waived. !d. Whether a wavier was voluntary is reviewed 10
II under a totality of the circumstances test. !d. As explained by various U.S. Federal Circuit
12 Courts of Appeal, in a motion to suppress, a defendant carries the initial burden of showing 13 illegality. US. v. Benoit, 730 F.3d 280, 288 (3rd Cir. 2013); see, Lamb v. Hoffman, 2008 Guam 14 2, ~~ 34-36. 15 After this initial burden of sufficiency is met the burden falls upon the people to show 16
17 legality. Colorado v. Connelly, 479 U.S. 157, 168 (1986). The U.S. Supreme Court in 1986 and
18 subsequent Federal Circuit Courts of Appeal have subsequently and consistently held that, 19 "[w]henever the State bears the burden of proof in a motion to suppress a statement that the 20 defendant claims was obtained in violation of our Miranda doctrine, the State need prove waiver 21 only by a preponderance of the evidence." !d.; US. v. Capers, 627 F.3d 470, 480 (2nd Cir. 22
23 2010).
24 Although in this case the People concede sufficient facts to support a finding of illegality 25 under the Defendant's burden, each of the Parties fail to submit sufficiently verifiable facts for 26 the Court to find that either Parties' burden has been met. Moreover because there are disputed 27
28 issues of material fact concerning the knowledge and possible waiver of Defendant's rights, this
Page 4 of6 matter requires the presentation and consideration of testimonial evidence. Accordingly this 2 matter shall be set for an evidentiary hearing were each Party shall be provided adequate 3 opportunity under the above standard. 4
5 III. Discovery
6 Section 70.10 of Title 8 of the Guam Code generally regulates matters of discovery in
7 criminal actions brought before the Court. 8 GCA § 70.10 (2013). It provides, 8 (a) Except as otherwise provided by §§ 70.20 and 70.30, at any time after the first 9 appearance upon noticed motion by the defendant, the court shall order the prosecuting attorney to disclose to the defendant's attorney or permit the 10 defendant's attorney to inspect and copy the following material and information II within his possession or control, the existence of which is known, or by the exercise of due diligence may become known to the prosecuting attorney: 12 (1) the name and address of any person whom the prosecuting attorney intends to call as a witness at the trial, together with his relevant written or recorded 13 statement; 14 (2) any written or recorded statement and the substance of any oral statement made by the defendant or made by a co-defendant if the trial is to be a joint 15 one; (3) any report or statement of an expert, made in connection with the case, 16 including results of physical or mental examinations and of scientific tests, 17 experiments or comparisons; (4) any book, paper, document, photograph or tangible object, which the 18 prosecuting attorney intends to use in the trial or which was obtained from or belonged to the defendant; 19 (5) any record of prior criminal convictions of persons whom the prosecuting 20 attorney intends to call as witnesses at the trial; (6) whether there has been an electronic surveillance of conversations to which 21 the defendant was party or of his premises; (7) any material or information which tends to negate the guilt of the defendant 22 as to the offense charged or would tend to reduce his punishment therefor. 23 (b) The prosecuting attorney's obligations under this Section extend to any material information in the possession or control of members of his staff and any 24 other persons who have participated in the investigation or evaluation of the case and who either regularly report or with reference to this case have reported to his 25 office. 26 /d. In addition to specifically requesting information indicated in subpart (a)(5) of this section, 27
28 Defendant also request that the Court order that he be provided with: 1) any plea agreements
Page 5 of6 wherein any of the Defendant's co-defendants have agreed to cooperate with the Government's 2 prosecution of him; and 2) any and all juvenile records of two of the minor children of co- 3 defendant Paula Tedataotao. Mot. at 3-4. 4 Defendant fails to assert or argue the necessity or relevance of this information or cite 5
6 any authority or law requiring its discovery. The People, also without any citation to or analysis
7 of any rule or law, generally respond by asserting that they have provided all the relevant 8 material in their possession and objecting that the Defendant's request is overly broad. Absent 9 some assertion and analysis of the necessity and relevance of identification of Defendant's third 10
11 request the Court is not persuaded that it falls within the scope of discoverable material.
12 IV. Visitation 13 The People to not oppose Defendants request to visit his biological mother Paula 14 Tedtaotao. Accordingly this request is granted. 15 CONCLUSION 16
17 Based upon the foregoing Defendant's request to sever is denied. Parts one and two of
18 Defendant's motion for discovery are hereby granted and the People ordered to provide them to 19 Defendant expeditiously. Absent some other administrative rule or decision disallowing 20 visitation between Defendant and Paula Tedtaotao, he is hereby allowed to visitation with her. 21 An evidentiary suppression hearing is hereby set for ~ i (pf 22
25 SO ORDERED this zt1Ldayof d L'-7-t. 2014.
26 SERVICE VIA COURT BOX 27
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