6 IN THE SUPERIOR COURT OF GUAM 7
8 ) CRIMINAL CASE NO. CF0246-08 9 THE PEOPLE OF GUAM 1 10 1 1 11 VS. 1 ) DECISION AND ORDER ) (Defendant's Motion to Exclude Testimony 12 ) and Compel Discovery) 13 I( MANNIX FRANK SONGENI, 1 ) 14 aka Frak Max, aka Mannix Songine, and aka 1 ) Max 1 15 1
INTRODUCTION Tins matter came before the Honorable Anita A. Sukola on October 20, 2009, for a
21 I1 hearing on Mannix Frank Songeni's ("Defendant") Motion to Exclude Testimony and Compel
22 23 I(11 Discovery. Attorney Pablo M. Aglubat appeared on behalf of Defendant. Attorney Sally Tobin
appeared on behalf of the People of Guam ("the People"). Upon review of the evidence, oral
25 I1 I1 and written arguments, and legal authorities presented by both attorneys, the court hereby issues
this Decision and Order.
The People of Guam vs. Mannix Frank Songeni, CF0246-08 Page 1 of 9 Decision and Order - Motion to Exclude and Compel Discovery BACKGROUND 1 On June 5, 2008, the grand jury handed down an indictment charging the Defendant 2
4 I/ 11 with First Degree Criminal Conduct (As a First Degree Felony) in violation of 9 G.C.A.
25.15(a) and Child Abuse (As a Misdemeanor). The charges arise from alleged events occurring 5 on August 9, 2007. Defendant allegedly caused his penis to enter A.M.'S ("the Victim") vagina. 6 The Victim was seven years old at the time of the alleged incident. 7
I1 On August 9, 2007, Healing Hearts Crisis Center (HHCC) conducted a forensic
lo 11( 1 examination of the Victim neither confirming nor discrediting the allegations of a First Degree
Criminal Sexual Conduct was perpetrated by Defendant upon the Victim. In addition, Leticia
Piper ("Piper"), a social worker at HHCC, interviewed the Victim, in whlch the Victim 12
13 I1 I identified Defendant had performed "nasty stuff' on her. Defendant's Declaration Exhibit A
,, / (September 28,2009).
l5 l6 I/11 On September 28,2009, Defendant filed a Motion to Exclude Testimony and to Compel
Discovery. On October 20, 2009, the People filed an Opposition to Defendant's Motion. On 17 October 20, 2009, the Court heard oral arguments from both Defendant and the People. The 18 Court now addresses Defendant's Motion to Exclude Testimony and to Compel Discovery. 19
2o DISCUSSION I. Motion to Exclude Testimony
22 11 Defendant argued that the Victim's statement to Piper was not made for the purposes of 2
medical diagnosis under the hearsay exception of Guam Rules of Evidence 803(4). Defendant': 24 Motion at 2 (September 28, 2009). The People argued that HHCC provides services to victims o: 25 sexual assault, and part of HHCC services is to determine the most appropriate assistance to thei 26
27 28 11 clients. The People's O~positionat 2 (October 20, 2009). The Guam Rules of Evidence definc
hearsay as "statement, other than one made by the declarant while testifyrng at the trial oi
The People of Guam vs. Mannix Frank Songeni, CF0246-08 Page 2 of 9 Decision and Order - Motion to Exclude and Compel Discovery hearing, offered in evidence to prove the truth of the matter asserted." Rule 801(c). "Hearsay is
I1 not admissible except as provided . . .by these rules . . . ." GRE Rule 802.
3 4 11 II The Confrontation Clause does not bar the use of all hearsay statements. Additionally
whether the Victim was unavailable is irrelevant for the purposes of the Clause. The supreme( 1 5 Court held in White v. Illinois, 502 U.S. 346, 112 S.Ct 736 (1992), that unavailability of th 6
II declarant is not constitutionally required. What the Constitution does require is that the hearsa
1111 statements "bear [I adequate 'indicia of reliability."' Idaho v. Wri&t, 497 U.S. 805, 815, 11
S.Ct 3139, 3146 (1990). The Wrid-~tCourt held that the reliability requirement can be met i 1 either two ways: "where the hearsay statement 'falls within a firmly rooted hearsay exception,"
or where it is supported by 'a showing of particularized guarantees of trustworthiness."' 497 U.S.
at 8 16, 110 S.Ct at 3 147. The Court determines that the Victim's statement to Piper "falls withir
a firmly rooted hearsay exception." Id. Therefore, the Court will deny Defendant's Motion to
Exclude Testimony.
a. Piper's Interview with the Victim is Admissible under Rule 803(4)
Defendant argued that the Victim's statement to Piper was not made for the purposes of a
11 medical diagnosis under the hearsay exception of Guam Rules of Evidence 803(4). Defendant' Motion at 2 (September 28,2009). The Guam Rule of Evidence Rule 803 provides exceptions + the exclusion of hearsay evidence. Under Rule 803(4), "[s]tatements for the purposes of medic
diagnosis or treatment and describing medical history, or past or present symptoms, pain,
j4 II sensations, or the inception or general character of the cause or external source thereof insofar a
25 11 reasonably pertinent to diagnosis or treatment."
26 11 In Williamson v. Haviland, a social worker from the Department of Children and Famil 1 Services conducted an interview and hstory report with the victim sexual assault. 2006
The People of Guam vs. Mannix Frank Songeni, CF0246-08 Decision and Order - Motion to Exclude and Compel Discovexy Page 3 of 9 I/ 287991, * 4 (N. D. Ohio 2006). The social worker then used the information obtained to refer th
u. The physician examined the victim and used the information gathere I i victim to a physician.
by the social worker in his assessment. Id. The Court in Williamson determined that the socia
worker statements were admissible under the medical treatment hearsay exception.
"[Sltatements made for the purpose of medical diagnosis or treatment fall within a firmly roote 4 hearsay exception." a.(citing White, 502 U.S. at 355 n. 8, 112 S.Ct. 736).
In the instant case, Piper is a social worker for HHCC. Defendant's Declaration Exhibit A
(September 28, 2009). Piper interviewed the Victim and compiled the Victim's responses under
the heading "INTAKE COMMENTS." a. Piper did not ask leading questions. See Id. The
Victim was able to state that she was sexually assaulted and who had sexually assaulted her. a.
Piper made recommendations of what types of services the Victim needed as a result of the
interview. Piper determined that the Victim needed to "undergo an acute examination due to
skin-to-skin contact of clt's vaginal area." Id. The Court determines that the interview Piper
conducted with the Victim was used for the purpose of medical diagnosis or treatment, and falls
firmly within the hearsay exception of Rule 803(4). See Wri&t, 502 U.S. at 355 n. 8, 112 S.Ct.
736. Therefore, the Court will deny Defendant's Motion to Exclude Testimony.
b. The Victim's Identification of Defendant as Perpetrator to Piper and Nurse i Admissible under Rule 803(4)
Defendant argued that the Victim's Identification of him to Piper is inadmissible, even i
Rule 803(4) were applicable, because statements of the identity of the perpetrator are irrelevant 4 to the medical diagnosis and treatment. Defendant's Motion at 3 (September 28, 2009).
Statements of fault would not ordinarily be admissible under the medical examination exception.
U.S. v. George, 960 F.2d 97,99 (9th Cir. 1992). Nevertheless, there are circumstances to allow
victim's identification of a sexual abuser under Rule 803(4). Id. The proper question to ask i
The People of Guam vs. Mannix Frank Songeni, CF0246-08 Page 4 of 9 Decision and Order - Motion to Exclude and Compel Discovery "whether the statements are 'made for purposes of medical diagnosis or treatment' and are
'reasonably pertinent to diagnosis or treatment."' Id. (citing Fed. R. Evid. 803(4)).
In George, the appellant in that case argued that statements identifying an assailant do not
fall within the medical examination exception. a. The Court determined that sexual abuse
involved not only physical injury, but also emotional and psychological injuries, and in order fo
a medical provider to properly treat the victim, the medical provider often requires the identity o
the abuser. Id.(citing United States v. Renville, 779 F.2d 430,437 (8th Cir. 1985). Depending o
the nature of the sexual assault, the identity of the abuser may be pertinent to the diagnosis an
treatment of sexually transmitted diseases. George, 960 F.2d, 99.
The Victim was interviewed Piper. Defendant's Declaration Exhibit A (September 28
2009). During the course of the interview, the Victim identified the Defendant as the perpetrator.
- Id. The Court determined that the interview is admissible under Rule 803(4). The Court furthe
determines that the Victim's identification of Defendant as the perpetrator is pertinent to th
diagnosis and treatment of the Victim as a result of the sexual assault. George, 960 F.2d, 99. Th
Court finds that the Victim's identification aids HHCC to determine what types of services th
are needed, for example, testing sexually transmitted diseases; and is admissible under Rul
803(4). Therefore, the Court will deny Defendant's Motion to Exclude Testimony.
c. Nurse's Notations on the Records not Vouching for the Victim's Credibility
Defendant argued that the nurse should not be allowed to give her opinion in any aspec
whether sexual abuse occurred. Defendant's Motion at 3-4 (September 28, 2009). A witnes
qualified as an expert may testify on the basis of "scientific, technical, or other specialize
knowledge" if the testimony "will assist the trier of fact to understand the evidence of t
determine a fact issue.'' GRE Rule 702. The admission of scientific testimony involves tw
The People of Guam vs. Mannix Frank Songeni, CF0246-08 Page 5 of 9 Decision and Order - Motion to Exclude and Compel Discovery 11 is derived has garnered general acceptance in the relevant scientific community under the( 3 standard in Frve v. United States. 293 F. 1013, 1014 (D.C. Cir. 1923). The second inquiry i 4 whether the expert testimony is properly admissible under Guam Rules of Evidence Rule 5 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). Testimon
is only allowed by properly qualified experts if the testimony is "the product of reliabl
principles and methods . . . applied the principles and methods reliably to the facts of the case.'
GRE 702.
An expert's opinion on an ultimate issue of fact that is "based solely on the expert'
perception of the witness' truthfulness" is unfairly prejudicial and thus inadmissible because i
takes an ultimate issue of fact from the jury. State v. Alexander, 64 Wash.App. 147, 154, 82
P.2d 1250 (Wash. App. 1992). "An expert may not go so far as to usurp the exclusive function t
the jury to weigh the evidence and determine credibility." State v. Fitz~erald,39 Wash-App. 652
657,694 P.2d 1117 (Wash. App. 1985).
In State v. Carlson, a medical expert examined the child; the medical expert testified th
there were no physical findings from which to conclude the child had been sexually abused; an
nevertheless the medical expert testified that the child had been sexually abused based on th
child's statements in the assessment interview. 80 Wash.App. 116, 118, 120-122, 906 P.2d 99
(Wash. App. 1999). The court in Carlson noted the obvious that the State offered the expert'
opinion not to prove the child's credibility, but to prove the child had been sexually abused. a.a
123, 906 P.2d 999. The Court concluded the requirements of had not been met and th
opinion was inadmissible. a.at 125,906 P.2d 999.
The People of Guam vs. Mannix Frank Songeni, CF0246-08 Page 6 of 9 Decision and Order - Motion to Exclude and Compel Discovery The People have not stated they planned on calling HHCC's nurse - who performed the
physical examination of the Victim - as an expert witness. In addition, the Pediatric Referral
Form did not contain an opinion from HHCC's nurse concluding that the Victim was sexually
assaulted. See Defendant's Declaration Exhibit C (September 28, 2009). The Pediatric Referral
Form contains a section titled "HISTORY OBTAINED," and under that title a check mark was
next to "Positive for sexual abuse." a.Defendant argued that this indicates the HHCC's nurse's opinion that the Victim was sexually assaulted, and thus, should be excluded. Defendant's
Motion at 3-4 (September 28, 2009). The Court disagrees. The Pediatric Referral Form contains
a section titled "PHYSICAL FINDINGS," and under that title a check mark was next to
"Negative physical findings." Defendant's Declaration Exhibit C (September 28, 2009). But
more importantly, the Pediatric Referral Form further reads that "a normal genital exam can
neither confirm nor negate sexual [I abuse." a.The Court determines that the Pediatric Referral Form prepared by HHCC's nurse did not contain an opinion that the Victim was sexual1
assaulted. Therefore, the Court will deny Defendant's Motion to Exclude Testimony.
11. Motion to Compel
Defendant argued that the Court should order the People to turn over any results of an
forensic examinations on swabs, suspected semen and control swabs, and if there are 1 whether the government intends to have them tested and what the nature and purpose of an
forensic tests that will be conducted. Defendant's Motion at 4 (September 28, 2009). The Peopl
state they cannot produce any forensic examination results because none have been conducted on
these samples. The People's Ov~ositionat 4 (October 20,2009). Under Guam law, a prosecuting
attorney must disclose to the defendant's attorney "any report or statement of an expert, made in
connection with the case, including results of physical or mental examinations and of scientific
The People of Guam vs. Mannix Frank Songeni, CF0246-08 Page 7 of 9 Decision and Order - Motion to Exclude and Compel Discovery test, experiments or comparisons . . . ." 8 G.C.A. § 70.10(a)(3). The prosecuting attorney must 1
tender any material and information within her "possession or control, the existence of which is
3 11 known, or by existence of due diligence may become known to the prosecuting attorney." 81 4 G.C.A. 8 70.10(a). 5
6 1) The People have stated to Defendant and to the Court that no forensic examinations hav
been conducted on the swabs, suspected semen, and control swabs. The People's Opposition at
(October 20, 2009); Motion at 3 5 9 p.m. (October 20, 2009). The People argued tha
11 forensic examinations cannot be completed due to the fact that a reference sample was no9 10 obtained from Defendant. The People's Opposition at 4 (October 20, 2009); Motion Hearing 11 4:01 p.m. (October 20,2009). The Court determines that the People have not conducted any test 12
on the swabs, suspected semen and control swabs; thus, there are no test results to disclose t
l5 11 Defendant also argued the People must disclose what are the exact contents of the GP
Sexual Assault Kit #689. Defendant's Motion at 4 (September 28,2009); Motion Hearing at 4:03 4 17
l8 l9 II p.m. (October 20, 2009). The GPD Sexual Assault Kit #689 contains physical examinatio
evidence. Defendant's Declaration Exhibit E (September 28, 2009). The physical 1 20 evidence contained in the GPD Sexual Assault Kit #689 was collected 21 August 9, 2007. Id. The Guam Police Department EvidenceProperty Custody 22 describes what is contained in the GPD Sexual Assault Kit #689 as 23
24 examination evidence," but a tape-seal envelope - listed immediately after
26 1I Assault Kit #689 - inventories the contents as being "two (2) labeled cards containing bloo 4.I samples." Id. The Court determines that clarification is needed as to what exactly is contained i
The People of Guam vs. Mannix Frank Songeni, CF0246-08 Page 8 of 9 Decision and Order - Motion to Exclude and Compel Discovery Compel regarding the contents of the GPD Sexual Assault Kit #689.
CONCLUSION By preponderance of the evidence and based on the foregoing reasons, the Court
DENIES Defendant's Motion to Exclude Testimony, but GRANTS Defendant's Motion to
Compel Discovery regarding the contents of the GPD Sexual Assault Kit #689.
SO ORDERED this 2? day of 0 ~, 2009.
HONORABLE ANITA A. SUKOLA Judge, Superior Court of Guam
I do hewby certlfy that the foregoing is a full true and correct copy of the original on file in the o f f ~ eof the clerk of the Superior Court of Guam Dated at Hagatna, Guam
@' Enriquc E Afluguc, Jr. Deputy Ckrk Superiir Court of Guam
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