i*
4 F" s "l r !;,..EL . CGUR F "r G£5§£i"E 1 ZBWHUV 25 PH l2= 02 2 CLERK OF COURT 3 Eye 4
5 IN THE SUPERIOR COURT OF GUAM
8 PEOPLE OF GUAM, Criminal Case No. CF042l-15
9 Plaintiff,
10 vs. DECISION AND ORDER
11 MARK A. TORRE, JR.,
12 Defendant.
14 INTRODUCTION 15 This matter is before the Honorable Judge Michael J. Bordello on Defendant Mark A.
16 Torre, Jr.'s ("Torre") Motion to Dismiss the Amended Indictment. Torre is represented by
17 Attorney Joaquin C. Arriola, Jr. The People of Guam ("People") are represented by Assistant
18 Attorney General J. Basil O'Ma1lan HI. Having reviewed the record and the arguments
19 presented, the Court now issues the following Decision and Order DENYING Torre's Motion.
20 FACTS
21 l. On July 24, 2015, a grand jury returned an Indictment charging Torre with the
22 following: (1) Murder (as a First Degree Felony) with a Special Allegation of
23 Possession or Use of a Deadly Weapon in the Commission of a Felony, (2)
Page1 of 10 a i
1 Manslaughter (as a First Degree Felony) wih a Special Allegation of Possession or Use
2 of a Deadly Weapon in the Commission of a Felony, (3) Aggravated Assault (as a
3 Second Degree Felony) with a Special Allegation of Possession or Use of a Deadly
4 Weapon in the Commission of a Felony, and (4) Aggravated Assault (as a Third Degree
5 Felony) with a Special Allegation of Possession or Use of a Deadly Weapon in the
6 Commission of a Felony.
7 2. This matter went to jury trial on January 31, 2017. Prior to deliberations, the Court
8 instructed the jury that if they found Torre not guilty of Manslaughter (as a First Degree
9 Felony), they may consider the lesser included charge of Negligent Homicide (as a
10 Third Degree Felony).
11 3. The jury returned its verdicts on March 2, 2017. Torre was acquitted of Murder (as a
12 First Degree Felony), Manslaughter (as a First Degree Felony), and Aggravated Assault
13 (as a Second Degree Felony), together with all Special Allegations attached to those
14 counts. Torre was convicted of Negligent Homicide (as a Third Degree Felony) (as a
15 lesser included offense of Manslaughter), with Special Allegation of Possession or Use
16 of a Deadly Weapon in the Commission of a Felony, and Aggravated Assault (as a
17 Third Degree Felony), with Special Allegation of Possession or Use of a Deadly
18 Weapon in the Commission of a Felony.
19 4. Torre subsequently appealed his convictions and 011 July 31, 2019, the Supreme Court
20 of Guam issued an opinion in People v. Torre, 2019 Guam 9. In its opinion, the
21 Supreme Court held that this Court had improperly admitted certain evidence during
22 Torre's trial, and therefore vacated the Judgment of Conviction. Specifically, the
23 Supreme Court ruled that Torre was subject to a custodial interrogation without being
Page 2 of 10 v
I I
I
1 read his Miranda rights, and the trial court erred by admitting Torre's statements made
2 during the interrogation .
3 5. On August 7, 2019, the P eople filed a Motion to Amend Indictment along with a
4 proposed Amended Indictment, The People sought to remove the charges of which
5 Torre was acquitted (Murder (as a First Degree Felony), Mansiaughter (as a First
6 Degree Felony), and Aggravated Assault (was a Second Degree Felony)) and add the
7 charge of Negligent Homicide (as a Third Degree Felony), which was not included in
8 the initial Indictment but still considered by the jury as a lesser included offense of
9 Manslaughter. The Court granted the People's motion and the People subsequently tiled
10 an Amended Indictment on October 4, 2019.
11 6. On October 8, 2019, Torre filed a Motion to Dismiss the Amended Indictment. The
12 People filed an Opposition on October 21, 2019. On October 29, 2019, Torre filed a
13 Reply.
14 ISSUES
15 l. Whether the grand jury's 2015 initial finding of probable cause is invalid because the
16 grand jury was presented with Torre's statements which have since been suppressed by
17 the Guam Supreme Court on Fifth Amendment grounds.
18 2. Whether the People failed to present exculpatory evidence to the grand jury related to
19 the charge of Negligent Homicide.
20 PRINCIPLES OF LAW
21 "A felony prosecution requires an indictment upon a probable cause determination by a
22 grand jury." People v. Villapando. el al., 1999 Guam 31 '][ 36. If based on all evidence presented
23 at the proceeding, there is reasonable cause to believe that a defendant committed an indictable
Page 3 of10 J \
\
1 offense, the grand jury shall find an indictment 8 G.C.A. § 50.54(b). Dismissal of an
2 indictment due to defects in grand jury proceedings is "the most drastic remedy, and thus is
3 rarely used." United States v. Dylan, 739 F.2d 762, 768 (Zd Cir.1984), cert. denied (1985).
4 A. A grand jury's reliance on evidence later found to be inadmissible under the Fifth
5 Amendment
6 Guam law provides that "[t]he grand jury shall receive only competent evidence but the
7 fact that evidence which is incompetent was received by the grand jury does not render the
8 indictment void where sufficient competent evidence to support the indictment was received by
9 the grand jury." 8 G.C.A. § 50.42.
10 The United States Supreme Court has consistently held that an indictment is not invalid
11 simply because it was secured using evidence obtained in violation of the Fifth Amendment.
12 "The grand jury's sources of information are widely drawn, and the validity of an indictment is
13 not affected by the character of the evidence considered. Thus, an indictment valid on its face is
14 not subject to challenge on the ground that the grand jury acted on the basis of inadequate or
15 incompetent evidence, or even on the basis of information obtained in violation of a defendant's
16 Fifth Amendment privilege against self-incrimination ..." United States v. Calarzdra, 414 U.S.
17 338, 344-45 (1974) (internal citations omitted). "[A]ithough the grand jury may not force a
18 witness to answer questions in violation of [the Fifth Amendment's] constitutional guarantee
19 against self-incrimination, our cases suggest that an indictment obtained through the use of
20 evidence previously obtained in violation of the privilege against self-incrimination is
21 nevertheless valid." United States v. Williams, 504 U.S. 36, 49 (1992) (internal quotations and
22 citations omitted). See also Lawn v. United States, 355 U.S. 339, 349 (1958) (noting that a
23 grand jury indictment, if valid on its face, will not be dismissed even if possibly based on
Page 4 of10 I
1 evidence taken in violation of a defendant's Fifth Amendment right against self-incrimination),
2 Holt v. United States, 218 U.S. 245, 247-48 (1911)) (upholding indictment which was based
3 partially on incompetent evidence of admissions made by defendant). When statements are
Free access — add to your briefcase to read the full text and ask questions with AI
i*
4 F" s "l r !;,..EL . CGUR F "r G£5§£i"E 1 ZBWHUV 25 PH l2= 02 2 CLERK OF COURT 3 Eye 4
5 IN THE SUPERIOR COURT OF GUAM
8 PEOPLE OF GUAM, Criminal Case No. CF042l-15
9 Plaintiff,
10 vs. DECISION AND ORDER
11 MARK A. TORRE, JR.,
12 Defendant.
14 INTRODUCTION 15 This matter is before the Honorable Judge Michael J. Bordello on Defendant Mark A.
16 Torre, Jr.'s ("Torre") Motion to Dismiss the Amended Indictment. Torre is represented by
17 Attorney Joaquin C. Arriola, Jr. The People of Guam ("People") are represented by Assistant
18 Attorney General J. Basil O'Ma1lan HI. Having reviewed the record and the arguments
19 presented, the Court now issues the following Decision and Order DENYING Torre's Motion.
20 FACTS
21 l. On July 24, 2015, a grand jury returned an Indictment charging Torre with the
22 following: (1) Murder (as a First Degree Felony) with a Special Allegation of
23 Possession or Use of a Deadly Weapon in the Commission of a Felony, (2)
Page1 of 10 a i
1 Manslaughter (as a First Degree Felony) wih a Special Allegation of Possession or Use
2 of a Deadly Weapon in the Commission of a Felony, (3) Aggravated Assault (as a
3 Second Degree Felony) with a Special Allegation of Possession or Use of a Deadly
4 Weapon in the Commission of a Felony, and (4) Aggravated Assault (as a Third Degree
5 Felony) with a Special Allegation of Possession or Use of a Deadly Weapon in the
6 Commission of a Felony.
7 2. This matter went to jury trial on January 31, 2017. Prior to deliberations, the Court
8 instructed the jury that if they found Torre not guilty of Manslaughter (as a First Degree
9 Felony), they may consider the lesser included charge of Negligent Homicide (as a
10 Third Degree Felony).
11 3. The jury returned its verdicts on March 2, 2017. Torre was acquitted of Murder (as a
12 First Degree Felony), Manslaughter (as a First Degree Felony), and Aggravated Assault
13 (as a Second Degree Felony), together with all Special Allegations attached to those
14 counts. Torre was convicted of Negligent Homicide (as a Third Degree Felony) (as a
15 lesser included offense of Manslaughter), with Special Allegation of Possession or Use
16 of a Deadly Weapon in the Commission of a Felony, and Aggravated Assault (as a
17 Third Degree Felony), with Special Allegation of Possession or Use of a Deadly
18 Weapon in the Commission of a Felony.
19 4. Torre subsequently appealed his convictions and 011 July 31, 2019, the Supreme Court
20 of Guam issued an opinion in People v. Torre, 2019 Guam 9. In its opinion, the
21 Supreme Court held that this Court had improperly admitted certain evidence during
22 Torre's trial, and therefore vacated the Judgment of Conviction. Specifically, the
23 Supreme Court ruled that Torre was subject to a custodial interrogation without being
Page 2 of 10 v
I I
I
1 read his Miranda rights, and the trial court erred by admitting Torre's statements made
2 during the interrogation .
3 5. On August 7, 2019, the P eople filed a Motion to Amend Indictment along with a
4 proposed Amended Indictment, The People sought to remove the charges of which
5 Torre was acquitted (Murder (as a First Degree Felony), Mansiaughter (as a First
6 Degree Felony), and Aggravated Assault (was a Second Degree Felony)) and add the
7 charge of Negligent Homicide (as a Third Degree Felony), which was not included in
8 the initial Indictment but still considered by the jury as a lesser included offense of
9 Manslaughter. The Court granted the People's motion and the People subsequently tiled
10 an Amended Indictment on October 4, 2019.
11 6. On October 8, 2019, Torre filed a Motion to Dismiss the Amended Indictment. The
12 People filed an Opposition on October 21, 2019. On October 29, 2019, Torre filed a
13 Reply.
14 ISSUES
15 l. Whether the grand jury's 2015 initial finding of probable cause is invalid because the
16 grand jury was presented with Torre's statements which have since been suppressed by
17 the Guam Supreme Court on Fifth Amendment grounds.
18 2. Whether the People failed to present exculpatory evidence to the grand jury related to
19 the charge of Negligent Homicide.
20 PRINCIPLES OF LAW
21 "A felony prosecution requires an indictment upon a probable cause determination by a
22 grand jury." People v. Villapando. el al., 1999 Guam 31 '][ 36. If based on all evidence presented
23 at the proceeding, there is reasonable cause to believe that a defendant committed an indictable
Page 3 of10 J \
\
1 offense, the grand jury shall find an indictment 8 G.C.A. § 50.54(b). Dismissal of an
2 indictment due to defects in grand jury proceedings is "the most drastic remedy, and thus is
3 rarely used." United States v. Dylan, 739 F.2d 762, 768 (Zd Cir.1984), cert. denied (1985).
4 A. A grand jury's reliance on evidence later found to be inadmissible under the Fifth
5 Amendment
6 Guam law provides that "[t]he grand jury shall receive only competent evidence but the
7 fact that evidence which is incompetent was received by the grand jury does not render the
8 indictment void where sufficient competent evidence to support the indictment was received by
9 the grand jury." 8 G.C.A. § 50.42.
10 The United States Supreme Court has consistently held that an indictment is not invalid
11 simply because it was secured using evidence obtained in violation of the Fifth Amendment.
12 "The grand jury's sources of information are widely drawn, and the validity of an indictment is
13 not affected by the character of the evidence considered. Thus, an indictment valid on its face is
14 not subject to challenge on the ground that the grand jury acted on the basis of inadequate or
15 incompetent evidence, or even on the basis of information obtained in violation of a defendant's
16 Fifth Amendment privilege against self-incrimination ..." United States v. Calarzdra, 414 U.S.
17 338, 344-45 (1974) (internal citations omitted). "[A]ithough the grand jury may not force a
18 witness to answer questions in violation of [the Fifth Amendment's] constitutional guarantee
19 against self-incrimination, our cases suggest that an indictment obtained through the use of
20 evidence previously obtained in violation of the privilege against self-incrimination is
21 nevertheless valid." United States v. Williams, 504 U.S. 36, 49 (1992) (internal quotations and
22 citations omitted). See also Lawn v. United States, 355 U.S. 339, 349 (1958) (noting that a
23 grand jury indictment, if valid on its face, will not be dismissed even if possibly based on
Page 4 of10 I
1 evidence taken in violation of a defendant's Fifth Amendment right against self-incrimination),
2 Holt v. United States, 218 U.S. 245, 247-48 (1911)) (upholding indictment which was based
3 partially on incompetent evidence of admissions made by defendant). When statements are
4 involuntarily taken from a defendant, "[t]he exclusion of unwarned statements" at trial "is a
5 complete and sufficient remedy for any perceived Miranda violation." United States v. Pzztane,
6 542 U.S. 641, 642 (quoting Chavez v. Martinez, 538 U.S. 760, 790 (2003)).
7 B. The People's obligation to present exculpatory evidence in grand jury proceedings
8 Under Guam law, a prosecuting attorney has the affirmative duty to submit "any
9 evidence in his possession which would tend ro negate guilt" at a grand jury proceeding. 8
10 G.C.A. § 50.46, see also People v. Serbian, D.C. Crum. No. 85-0024A, 1986 WL68900 a *3 (D.
11 Guam App. Div. Oct. 24, 1986). However, an indictment will be dismissed only if the People's
12 failure to disclose exculpatory evidence "results in substantial prejudice." People v. Becerra,
13 165 Cal. App. 4th 1064, 1070 (2008). The prosecution is not required to present exculpatory
14 evidence to the grand jury unless that evidence is clearly exculpatory. State v. Bell, 60 Haw.
15 241, 242 (1978). When a defendant challenges a grand jury indictment before trial, the court
16 must determine whether a reasonable probability exists that "a properly informed jury would
17 have declined to find probable cause to indict had it known of the omitted evidence." Berardi v.
18 Superior Court, 149 Cal. App. 4th 476, 495 (2007). Further, courts are not required to hold a
19 "preliminary trial to determine the competency and the adequacy of the evidence before the
20 grand jury." Costello v. United States, 350 U.S. 359, 363 (1956).
21 In Williams, 504 U.S. 36, 55, the United States Supreme Coup held that under no
22 circumstances could a federal court dismiss an indictment on the ground that the prosecutor had
23 failed to present exculpatory evidence to the grand jury. This holding has not, however, been
Page 5 of 10 J \
1 universally adopted by state courts when interpreting state laws regarding prosecutorial conduct
2 at grand jury proceedings. Stare v. Hogan, 676 A.2d 533, 540 (N.J. 1996), Berardi, 149 Cal.
3 App. 4th at 493 ("Because the right to disclosure of exculpatory evidence at grand jury
4 proceedings is derived from state law, there is no basis to apply the stricter federal constitutional
5 standard for prejudice.")
6 AN AL Y SIS
7 A. The grand jury's finding of probable cause is valid despite the subsequent suppression
8 of Torre's incriminating statements.
9 1. A _finding of probable cause is valid despite being based upon evidence obtained in
10 violation ofthe Fifth Amendment.
11 Torre argues that the grand jury's finding of probable cause is invalid because it was
12 based upon incriminating statements which have since been suppressed. The Supreme Court of
13 Guam held that Torre was subject to a custodial interrogation without being read his Miranda
14 rights. Certain incriminating statements made by Torre during that interrogation were admitted
15 against him during his initial trial, violating his Fifth Amendment rights. Those same statements
16 had previously been presented to the grand jury in securing the Indictment against Torre, who
17 now argues that the grand jury's finding of probable cause is therefore unsupported by
18 competent evidence.
19 The precedent set by the United States Supreme Court makes clear that a grand jury may
20 rely upon evidence which was obtained in violation of a defendant's Fifth Amendment rights.
21 The Court therefore holds that the Indictment against Torre is valid despite the fact that
22 statements subsequently suppressed on Fifth Amendment grounds were presented to the grand
23 jutY~
Page 6 of 10 \
1 2. The grand jury would have _found probable cfzuse without the suppressed statements.
2 Although the Court holds that that the grand jury may rely on evidence obtained in
3 violation of the Fifth Amendment, the Court will nonetheless entertain Torre's argument that
4 "[w]ithout the suppressed statements ... the Grand Jury's 2015 initial finding of probable cause
5 is otherwise unsupported by competent evidence." Mot. Lo Dismiss at 1 (Oct. 8, 2019). The
6 Court disagrees.
7 Torre cites to People v. Sherwin, 98 Cal, Rptr. ad 888 (Cal. Cr. App. 2000) to support
8 his argument that a charge must be dismissed if it was brought pursuant to the presentment of
9 evidence which was later suppressed. The Sherwin court held that where a defendant has been
10 indicted based on evidence which is ruled to have been illegally, the defendant must have an
11 opportunity to receive a determination whether the indictment rests upon competent, legally
12 obtained evidence. Id. at 892. The Sherwin Court did not reach the issue of whether an
13 indictment is valid if based upon both competent and incompetent evidence. Torre further cites
14 to United States v. Hubertus, 637 F.2d 630, 639 (9th Cir. l980). However, the Huberto court
15 reviewed a complete transcript of the grand jury proceeding and found that that no suppressed
16 evidence was presented. Id. at 639. The court therefore did not reach the issue of whether the
17 indictment would have been dismissed had suppressed evidence been considered by the grand
18 jury. Id.
19 Other cases from the California Supreme Court suggest that subsequent suppression of
20 evidence can constitute grounds for dismissal of an indictment only if a grand jury relied solely
21 on the suppressed evidence when finding probable cause. "If the illegally obtained evidence is
22 the sole basis of an indictment or information, defendant is held without reasonable or probable
23 cause, his motion to set aside the accusatory pleading should be granted by the court...." People
Page 7 of10 J \
1 v. Valens, 49 Ca1.2d at p. 203, 316 P.2d 633 (emphasis added). See also People v. Govea, 235
2 Cal. App. ad 285, 305 (Ct. App. 1965) ("All of the evidence introduced against defendant
3 Corona Macias was the product of the initial illegal arrest and search ... Where 110 competent
4 evidence has been presented to the grand jury to support a reasonable belief that the defendant
5 is guilty of the offense charged, the indictment must be set aside on appropriate motion ...")
6 (internal citations omitted) (emphasis added).
7 Torre seems to ignore the numerous pieces of evidence presented to the grand jury
8 which could independently justify a finding of probable cause. The grand jury heard testimony
9 from Guam Police Officer Mary Jane Raval, who testified that her investigation had revealed
10 that Torre and the victim left a bar together at some time between 1:30 a.m. and 2:00 a.m. in the
11 victim's truck. Grand Jury Proceedings at 10:42:40 .-. 10:43:00 (July 24, 2015). Between 2:00
12 am. and 2:30 a.rn., Torre and the victim were seen alone together at Torre's residence. Id. at
13 10:43:10 - 10:43:35. At 2:16 a.m., the victim called 911 for help. Id. Ar 10:43:25 - 10:43:35.
14 Between 2:30 a.m. and 3:00 a.m., officers arrived to the scene and at 3:22 a.m. the victim was
15 pronounced dead from a gunshot wound. Id. at 10:43:38 .- 10:44:05. Investigator Anthony
16 Vince Camacho of Prosecution Division read a transcript of the 911 calls made by the victim, in
17 which he first stated, "I was shot," and later stated "I'm dying, I'm dying. He shot me, he shot
18 me." Id. at 3:31:10 - 3:31:15, 3:36:04-3136: 15. The grand jury then heard a recording of the 911
19 calls. Id. at 3:40: 16 - 3:50:04.
20 Based upon the entire record of evidence heard by the grand jury, the Court finds that
21 even if Torre were correct in asserting that his suppressed statements could not be considered by
22 the grand jury, the competent evidence heard by the grand jury was sufficient to independently
23 support a finding of probable cause that Torre negligently caused the death of another person.
Page 8 of 10 1 B. The People did not fail to present exculpatory evidence to the grand jury.
2 Next, Ton'e argues that evidence presented 'at trial during his case-in-chief constitutes
3 exculpatory evidence which was not been presented to a grand jury. In particular, Torre
4 identifies the testimony from forensic pathologist Dr. Joseph Cohen, psychiatrist Dr. Pablo
5 Steward, and defense investigator Agnes Bias.
6 Under Guam law, a prosecutor has the affirmative duty to submit "any evidence in leis
7 possession which would tend to negate guilt" at a grand jury proceeding. 8 G.C.A. § 50.46
8 (emphasis added). The evidence which Torre argues is exculpatory is evidence which was
9 produced at trial, and therefore was not in the People's possession during the grand jury
10 proceedings. Torre argues that allowing the People ro amend the Indictment without going
11 before another grand jury excused the People from presenting this exculpatory evidence related
12 to the charge of Negligent Homicide, which was not explicitly charged in the initial Indictment.
13 The Court has previously determined that Negligent Homicide is a lesser-included
14 offense of Murder and Manslaughter. Dec. and Order at 5-6 (Sep. 26, 2019). When the grand
15 jury indicted Torre for Murder and Manslaughter, it implicitly indicted him for the lesser-
16 included charge of Negligent Homicide. Id. at 7. The People are not being excused from
17 presenting exculpatory evidence related to the Negligent Homicide charge, but were instead
18 required to present any such evidence at the time Torre was charged with Murder and
19 Manslaughter. Torre has not argued that the People failed to present exculpatory evidence in
20 their possession at the time of the initial grand jury proceedings, but instead argues that the
21 People must go before a grand jury a second time and present the exculpatory evidence which
22 was introduced at trial. The adoption of Torre's position would lead to the untenable result in
23 which every post-trial remand of a criminal charge would require the defendant to be re-indicted
Page 9 of 10 J I \
1 by a grand jury presented with all of the evidence which was produced at trial on behalf of the
2 defendant. I
3 CONCLUSION AND ORDER
4 For the above reasons, the Court DENIES Torre's Motion to Dismiss the Amended
5 Indictment.
8 SO ORDERED, this day of W 2019.
11 ABLE MICHAEL J. BORD 12 Qc, Superior Court of Guam
SERVICE .1`.x u.ouraT lm... 19 I acknowledge that a copy of the original hereto_wls placed in (he 20
21 WWw ra.-:g 22 oepufycceml owldGuam
24 Page 10 of 10 J