UON\ ;-ii
a
IN TIIE SUPERIOR COURT OF GUAM '7
CRIMINAL CASE NO. CFO246.O8 J THE PEOPLE OF GUAM 10
11 vs. DECISION AI\D ORDER @efendant's Motion to Dismiss and for 12 Hearing on Competency of Minor Witnesses) 13 MANNIX FRANK SONGENI. I4 Defendant.
l_5
1,6
INTRODUCTION I1 This matter came before the Honorable Anita A. Sukola on April 24,2009, for a hearing 18
19 on Mannix Frank Songeni's ("Defendant") Motion to Dismiss and for Hearing on Competency
20 of Minor Witnesses. Attorney Pablo M. Aglubat appeared on behalf of Defendant. Attorney 27 Clyde Lemons appeared on behalf of the People of Guam ("the People"). Upon review of the 22 evidence, oral and written arguments, and legal authorities presented by both attomeys, the 23
court hereby issues this Decision and Order. 24
25 BACKGROUND 26 On June 5, 2008, the grand jury handed down an indictment charging the Defendant
21 with First Degree Criminal Conduct (As a First Degree Felony) in violation of 9 G.C.A. 2B 25.15(a) and Child Abuse (As a Misdemeanor). The charges arise from alleged events occurring
The People ofGuam vs. Mannix Frank Songeni, CF0246-08 Page I of6 Decision and Order - Motion to Dismiss and for Hearing on Competency of Minor Wibresses on August 9, 2008. Defendant allegedly caused his penis to enter A.M.'s ("the Victim") vagina. 1
2 The Victim was seven years old at the time of the alleged incident.
3 On August 9,2007, Healing Hearts conducted a forensic examination of the Victim that 4 neither confirming nor discrediting the allegations of a First Degree Criminal Sexual Conduct 5 was perpetrated by Defendant upon the Victim. 6
'7 On March 20, 2009, Defendant filed a Motion to Dismiss and for Hearing on
8 Competency of Minor Witnesses. On Apt''l 27, 2009, the People filed an Opposition to
Defendant's Motion. On April 24,2009, Defendant filed a Reply to the People's Opposition. 10 Defendant submitted in camera the Healing Hearts Rape Crisis Center forensic interview and 11 examination ("Report"). The Court now addresses Defendant's Motion to Dismiss and for 1,2
13 Hearing on Competency of Minor Witnesses.
I4 DISCUSSION 15 I. Motion to Dismiss 16 A. Lack of Evidence of the Elements of the Offense L'7 Defendant asked the Court to dismiss the indictment due to the People's failure to 18 evidence of an element of the offense in the indictrnent. Defendant's Motion at I (March 19
20 2009). Under Guam law, "[t]he gand jury shall find an indictment when from evi
2I presented there is reasonable cause to believe that an indictable offense has been committed
22 that the defendant committed it." 8 G.C.A. $ 50.540). 23 On June 5, 2008, Defendant was indicted for the crime of First Degree Criminal Sex 24
Conduct. lndictment at 1 (June 5, 2008). One of the elements of the crime of First 25
26 Criminal Sexual Conduct is that the Defendant "engages in sexual penetration with the victim.
21 9 G.C.A. $ 25.15(a). Defendant argued that the People failed to produce evidence to the 2B
The People ofGuam vs. Mannix Frank Songeni, CF0246-08 Page 2 of6 Decision and Order - Motion to Dismiss and for Hearing on Competency of Minor Witnesses jury showing that sexual penetration of the victim occurred. Defendant's Motion at2 (March 1
2 200e).
3 During the grand jury proceeding, Guam Police Special Agent Jessica 4 testified that the victim reported to her that Defendant "put his ding-ding into my private and i 5 hurt." Grand Jury Proceedine at 10:58 a.m. - 10:59 a.m. (June 5, 2008). Special o
'7 Meyenburg further explained that "ding-ding" meant penis and "my private" meant vagina. Id
I The Court determines that the gand jury had sufficient evidence to demonstrate the element
9 "engag[ing] in sexual penetration with the victim" to support the indictment of the Crime of Fi 10 Degree Criminal Sexual Conduct. Therefore, the Court will deny Defendant's Motion 11 Dismiss. 1,2
13 B. Exculpatory Evidence
I4 Defendant asked the Court to dismiss the Indictnent of the indictment due to the People'
15 failure to present exculpatory evidence to the Grand Jury. Defendant's Motion at 2 (March 16 2009). 8 G.C.A $ 50.46 states as follows: "[t]he gand jury shall receive only evidence L1 to it by the prosecuting attorney, but the prosecuting attorney shall submit any evidence in 18
L9 possession which would tend to negate guilt." The standard for determining whether error in
20 grand jury proceedings justifies dismissal of the indicfinent prior to trial a court must
2I whether the defendant has been prejudiced by the error. 22 999 F.2d 397, 399 (9th Cir. 1993) (citing Bank of Nova Scotia v. United States, 487 U.S. 250 23
24 25, 108 S.Ct. 2369, 2373 (1988). Prejudice is present "if it is established that the violati
25 substantially influenced the gand jury's decision to indict, or if there is grave "doubt" that
26 decision to indict was free from substantial influence of such violations." 21 487 U.S. at 256, 108 S.Ct. at 2374. A Court may dismiss an indictment if the prosecutori 2B
The People ofGuam vs. Mannix Frank Songeni, CF0246-08 Page 3 of6 Decision and Order - Motion to Dismiss and for Hearing on Competency of Minor Witnesses conduct was "flagrant" and caused substantial prejudice to the defendant. U 1
2 855 F.2d 652, 655 (9th Cir. 1988). However, absent flagrant or prejudicial
3 misconduct, dismissal is an abuse of discretion. Id. at 65. The Court will deny Defendant' A
Motion to Dismiss. 5 Defendant argued the People failed to present the Report to the gand jury, and 6
'7 Healing Hearts Report contained exculpatory evidence. Defendant's Motion at 2 (March
I 2009). The People argued that the Report did not contain exculpatory evidence.
9 Opposition at 3 (April 2I,2009). The People also argued that the Report neither confirmed 10 denied that sexual penetration of the Victim occurred. Defendant submitted the Report in 11 for the Court to review. After reviewing the Report in camera, the Court determines that I2
13 Report contained no exculpatory evidence. Therefore, the Court will deny Defendant's Motion
74 Dismiss.
15 Assuming arguendo that the Report had contained exculpatory evidence, the 76 would have to allege flagrant prosecutorial misconduct by the People in withholding the Heali l1 Hearts Report, and caused substantial prejudice to the Defendant. Jacobs, 855 F.2d at 655. 18
19 Healing Hearts Report was not in the possession of the People at the time of the presentation
20 the grand jury. The People's Opposition at 3 (March 20,2009'). The Healing Hearts report 2T delivered to the People on June 12,2008 - a week after the gand jury proceedings held on J 22 5, 2008. Id. The Defendant has not offered any evidence that the People's failure to disclose 23
Report to the gand jury amounted to prosecutorial misconduct and caused substantial prejudi 24
25 Therefore, the Court will deny Defendant's Motion to Dismiss.
26 II. Motion for Ifearing on Competency of Minor Witnesses 21
2B
The People of Guam vs.
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UON\ ;-ii
a
IN TIIE SUPERIOR COURT OF GUAM '7
CRIMINAL CASE NO. CFO246.O8 J THE PEOPLE OF GUAM 10
11 vs. DECISION AI\D ORDER @efendant's Motion to Dismiss and for 12 Hearing on Competency of Minor Witnesses) 13 MANNIX FRANK SONGENI. I4 Defendant.
l_5
1,6
INTRODUCTION I1 This matter came before the Honorable Anita A. Sukola on April 24,2009, for a hearing 18
19 on Mannix Frank Songeni's ("Defendant") Motion to Dismiss and for Hearing on Competency
20 of Minor Witnesses. Attorney Pablo M. Aglubat appeared on behalf of Defendant. Attorney 27 Clyde Lemons appeared on behalf of the People of Guam ("the People"). Upon review of the 22 evidence, oral and written arguments, and legal authorities presented by both attomeys, the 23
court hereby issues this Decision and Order. 24
25 BACKGROUND 26 On June 5, 2008, the grand jury handed down an indictment charging the Defendant
21 with First Degree Criminal Conduct (As a First Degree Felony) in violation of 9 G.C.A. 2B 25.15(a) and Child Abuse (As a Misdemeanor). The charges arise from alleged events occurring
The People ofGuam vs. Mannix Frank Songeni, CF0246-08 Page I of6 Decision and Order - Motion to Dismiss and for Hearing on Competency of Minor Wibresses on August 9, 2008. Defendant allegedly caused his penis to enter A.M.'s ("the Victim") vagina. 1
2 The Victim was seven years old at the time of the alleged incident.
3 On August 9,2007, Healing Hearts conducted a forensic examination of the Victim that 4 neither confirming nor discrediting the allegations of a First Degree Criminal Sexual Conduct 5 was perpetrated by Defendant upon the Victim. 6
'7 On March 20, 2009, Defendant filed a Motion to Dismiss and for Hearing on
8 Competency of Minor Witnesses. On Apt''l 27, 2009, the People filed an Opposition to
Defendant's Motion. On April 24,2009, Defendant filed a Reply to the People's Opposition. 10 Defendant submitted in camera the Healing Hearts Rape Crisis Center forensic interview and 11 examination ("Report"). The Court now addresses Defendant's Motion to Dismiss and for 1,2
13 Hearing on Competency of Minor Witnesses.
I4 DISCUSSION 15 I. Motion to Dismiss 16 A. Lack of Evidence of the Elements of the Offense L'7 Defendant asked the Court to dismiss the indictment due to the People's failure to 18 evidence of an element of the offense in the indictrnent. Defendant's Motion at I (March 19
20 2009). Under Guam law, "[t]he gand jury shall find an indictment when from evi
2I presented there is reasonable cause to believe that an indictable offense has been committed
22 that the defendant committed it." 8 G.C.A. $ 50.540). 23 On June 5, 2008, Defendant was indicted for the crime of First Degree Criminal Sex 24
Conduct. lndictment at 1 (June 5, 2008). One of the elements of the crime of First 25
26 Criminal Sexual Conduct is that the Defendant "engages in sexual penetration with the victim.
21 9 G.C.A. $ 25.15(a). Defendant argued that the People failed to produce evidence to the 2B
The People ofGuam vs. Mannix Frank Songeni, CF0246-08 Page 2 of6 Decision and Order - Motion to Dismiss and for Hearing on Competency of Minor Witnesses jury showing that sexual penetration of the victim occurred. Defendant's Motion at2 (March 1
2 200e).
3 During the grand jury proceeding, Guam Police Special Agent Jessica 4 testified that the victim reported to her that Defendant "put his ding-ding into my private and i 5 hurt." Grand Jury Proceedine at 10:58 a.m. - 10:59 a.m. (June 5, 2008). Special o
'7 Meyenburg further explained that "ding-ding" meant penis and "my private" meant vagina. Id
I The Court determines that the gand jury had sufficient evidence to demonstrate the element
9 "engag[ing] in sexual penetration with the victim" to support the indictment of the Crime of Fi 10 Degree Criminal Sexual Conduct. Therefore, the Court will deny Defendant's Motion 11 Dismiss. 1,2
13 B. Exculpatory Evidence
I4 Defendant asked the Court to dismiss the Indictnent of the indictment due to the People'
15 failure to present exculpatory evidence to the Grand Jury. Defendant's Motion at 2 (March 16 2009). 8 G.C.A $ 50.46 states as follows: "[t]he gand jury shall receive only evidence L1 to it by the prosecuting attorney, but the prosecuting attorney shall submit any evidence in 18
L9 possession which would tend to negate guilt." The standard for determining whether error in
20 grand jury proceedings justifies dismissal of the indicfinent prior to trial a court must
2I whether the defendant has been prejudiced by the error. 22 999 F.2d 397, 399 (9th Cir. 1993) (citing Bank of Nova Scotia v. United States, 487 U.S. 250 23
24 25, 108 S.Ct. 2369, 2373 (1988). Prejudice is present "if it is established that the violati
25 substantially influenced the gand jury's decision to indict, or if there is grave "doubt" that
26 decision to indict was free from substantial influence of such violations." 21 487 U.S. at 256, 108 S.Ct. at 2374. A Court may dismiss an indictment if the prosecutori 2B
The People ofGuam vs. Mannix Frank Songeni, CF0246-08 Page 3 of6 Decision and Order - Motion to Dismiss and for Hearing on Competency of Minor Witnesses conduct was "flagrant" and caused substantial prejudice to the defendant. U 1
2 855 F.2d 652, 655 (9th Cir. 1988). However, absent flagrant or prejudicial
3 misconduct, dismissal is an abuse of discretion. Id. at 65. The Court will deny Defendant' A
Motion to Dismiss. 5 Defendant argued the People failed to present the Report to the gand jury, and 6
'7 Healing Hearts Report contained exculpatory evidence. Defendant's Motion at 2 (March
I 2009). The People argued that the Report did not contain exculpatory evidence.
9 Opposition at 3 (April 2I,2009). The People also argued that the Report neither confirmed 10 denied that sexual penetration of the Victim occurred. Defendant submitted the Report in 11 for the Court to review. After reviewing the Report in camera, the Court determines that I2
13 Report contained no exculpatory evidence. Therefore, the Court will deny Defendant's Motion
74 Dismiss.
15 Assuming arguendo that the Report had contained exculpatory evidence, the 76 would have to allege flagrant prosecutorial misconduct by the People in withholding the Heali l1 Hearts Report, and caused substantial prejudice to the Defendant. Jacobs, 855 F.2d at 655. 18
19 Healing Hearts Report was not in the possession of the People at the time of the presentation
20 the grand jury. The People's Opposition at 3 (March 20,2009'). The Healing Hearts report 2T delivered to the People on June 12,2008 - a week after the gand jury proceedings held on J 22 5, 2008. Id. The Defendant has not offered any evidence that the People's failure to disclose 23
Report to the gand jury amounted to prosecutorial misconduct and caused substantial prejudi 24
25 Therefore, the Court will deny Defendant's Motion to Dismiss.
26 II. Motion for Ifearing on Competency of Minor Witnesses 21
2B
The People of Guam vs. Mannix Frank Songeni, CF0246-08 Page 4 of6 Decision and Order - Motion to Dismiss and for Hearing on Competency of Minor Witnesses Defendant asked Court to hold a pre-trial competency hearing to determine 1
a competency of the minor witnesses. Defendant's Motion at 4 (March 20,2009). Under 6 G.C.
3 $ 601, every person is presumed competent to be a witness unless otherwise provided under 4 rules. A child witness is presumed competent, and there are not mental qualifications 5 witnesses. Fed. R. Evid. 601, advisory committee's note. Children are competent witnesses i 6
they "appreciate the difference between truth and falsehood" and possess the "required 1
8 for observation, recollection and communication." Pocatello v. United States,395 F.2d 115, l1
9 (9th Cir. 1968). The competency of a witness is really to be determined, not by his age, but 10 the degree or extent of his understanding and knowledge. 11 465 (Cal. 1915). 72
13 Defendant argued that because the Victim is nine years old the Court should hold a
I4 trial hearing to determine if A.M. is a competent witress. Defendant's Motion at 3 (March 20 15 2009). The Defendant also argued that the Court should hold a pre-trial hearing to determine I6 competency of an unnamed minor child, who was nine at the time of the incident. Id. This 71 Defendant's only reason for challenging the Victim's competency as a witness. Age alone is 18
1,9 a sufficient reason to raise the issue of competency of a minor witness. Dunlop, 27 Cal.App.
20 465. The Court determines that Defendant has failed to produce evidence that shows that 27 potential minor witnesses are unable to "appreciate the difference between truth and 22 and have the "required capacity for observation, recollection and communication." 23 395 F.2d at 116. The Court also determines that a pre-trial hearing to determine the competenc 24
25 of the minor witnesses is unnecessary. The Court and the Defendant, will have the opportunity
26 assess the minor witness' ability to "appreciate the difference between truth and falsehood" a1 have the "required capacity for observation, recollection and communication," Pocatello, 3 2B
The People of Guam vs. Mannix Frank Songeni, CF0246-08 Page 5 of6 Decision and Order - Motion to Dismiss and for Hearing on Competency of Minor Witnesses F.2d at 116, if and when the minors are called to the witness stand. Therefore, the Court will 1
2 deny Defendant's Motion for Hearing on Competency of Minor Witnesses.
3 CONCLUSION 4 By preponderance of the evidence and based on the foregoing reasons, the Court 5 DENIES Defendant's Motion to Dismiss and Motion for Hearing on Competency of Minor o Witnesses. '7
so oRDERED this l" a^v t ( ,J,/ ,2oos. I 9
C ,a ' 11
I2
13 HONORABLE ANITA A. SUKOLA T4 Judge, Superior Court of Guam
1B
2I 22
21 ffi JtjL i /, ',iJJ
The People ofGuam vs. Mannix Frank Songeni, CF0246-08 Page 6 of6 Decision and Order - Motion to Dismiss and for Hearing on Competency of Minor Witnesses