FILED SUPEOR COURT OF GUAM 1 2UI~ SEP 12 Pfi ~2 25 2 OLE Ri’~ OF~URT 3 B 4
5 IN THE SUPERIOR COURT OF GUAM 6
7 PEOPLE OF GUAM,
8 Plaintiff, Criminal Case No. CF0421-15
9 vs. DECISION AND ORDER 10 MARK A. TORRE, JR., Defendant. 11
13 INTRODUCTION
14 This matter is before the Honorable Judge Michael J. Bordallo. Defendant Mark A.
15 Tone Jr. (“Tone”) is represented by Attorney Joaquin C. Arriola. The People of Guam 16 (“People”) are represented by Assistant Attorney General Basil O’Mallan. 17 On August 19, 2019, Torre filed a Motion to Modify Conditions of Release. The People 18 did not file an opposition brief. The Court held a hearing on September 10, 2019, during which 19 defense counsel argued in favor of the motion. The People declined to offer any oral arguments 20 during the motion hearing. Having reviewed the arguments presented, the Court now issues the 21 following decision GRANTING Torre’s Motion to Modify Conditions of Release. 22
Page 1 of 6 FACTS 2 1. On July 14, 2015, the People, filed a Magistrate’s Complaint which charged Torre, a
Guam Police Department (“GPD”) Officer, with multiple offenses relating to the
shooting death of fellow GPD Officer Elbert G. Piolo. The charged offenses are as 5 follows: (1) Murder, as a First Degree Felony, with a Special Allegation of Possession 6 or Use of a Deadly Weapon in the Commission of a Felony; (2) Manslaughter, as a First 7 Degree Felony, with a Special Allegation of Possession or Use of a Deadly Weapon in 8 the Commission of a Felony; (3) Aggravated Assault, as a Second Degree Felony, with
a Special Allegation of Possession or Use of a Deadly Weapon in the Commission of a
11 Felony; and (4) Aggravated Assault, as a Third Degree Felony, with a Special
12 Allegation of Possession or Use of a Deadly Weapon in the Commission of a Felony.
13 2. On July 15, 2015, the Court issued an Order of Conditional Release and Appearance
14 Bond. Torre was released under the following conditions: (1) cash bail of, $165,000.00;
15 (2) order to appear at all further criminal trial proceedings; (3) order to stay away from
16 his father, GPD Lieutenant Mark Torre Sr. and all other potential witnesses; (4)
17 appointment of Third Party Custodians; (5) house arrest; (6) no firearms; (7) no alcohol
18 or drugs; (8) report to the Probation Office once per week in person; (9) no leaving 19 Guam/must turn in passport to the Probation Office; (10) must obey all federal and local 20 laws, as well as abide by all reasonable terms set by the Court or Probation Office. 21 ,
22 3. On July 16, 2015, the Court acknowledged the receipt of the Warranty Deed to the home
23 of Teresita B. Torre to satisfy the bail amount.
24’ 4. On July 24, 2015, a Grand Jury returned an Indictment charging Torre with all four
25 offenses listed in the Magistrate’s Complaint, complete with the special allegations.
Page 2 of 6 1 5. This matter went to trial on January 31, 2017.
2 6. The jury returned its verdicts on March 2, 2017. Tone was acquitted of Murder,
Manslaughter and Aggravated Assault (as a Second Degree Felony), together with all
Special Allegations attached to said counts. Tone was convicted of Negligent 5 Homicide, with Special Allegation, and Aggravated Assault (as a Third Degree Felony), 6 with Special Allegation. 7 7. On June 21, 2017, the Court sentenced Torre to. eight years imprisonment at the 8 Department of Corrections.
10 8. Tone subsequently appealed his conviction, and on July 14, 2017, the Court issued a
11 Decision and Order granting Tone’s Motion for Release on Bail Pending Appeal. The
12 Court ordered that Tone continue to be released on the same conditions to which he
13 was subject prior to the trial.
14 9. On July 31, 2019, the Supreme Court of Guam issued an opinion in People v. Torre,
15 2019 Guam 9~ In its opinion, the Supreme Court found that this Court had improperly
16 admitted certain evidence during Tone’s trial, and therefore vacated the Judgment of
17 Conviction. .
18 10. Tone is presently charged with Negligent Homicide, with Special~ Allegation, and 19 . . ..
Aggravated Assault (as a Third Degree Felony), with Special Allegation. 20 11. Tone continues to be released on the same conditions required prior, to the Supreme 21 Court’s reversal of his conviction. 22 . .
23 12. To date, the Probation Office has not filed any violation reports against Torre.
26 . , . .
Page 3 of 6 1 ISSUE
2. 1. Whether Torre’ s pre-trial release conditions should be modified in light of the Guam
Supreme Court’s reversal of his convictions.
PRINCIPLES OF LAW 5 When deciding whether to confine a criminal defendant, the Court must decide whether 6 he is likely to appear in court later and whether he will pose a danger to others if he is released. 7 The Supreme Court of Guam requires the Court to release a defendant “unless the judge 8 determines, in his discretion, on the basis of available information, that such a release will not 9
10 reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.” Guam v. Song, 2011 Guam 19, (j[ 10 (quoting 8 GCA §
12 40.15(b)) (emphasis in original). Guam law requires the court to impose the least onerous
13 conditions necessary to ensure the person appears in court and to keep the community safe. 8
14 G.C.A. § 40.20; see Guam v. Song, 2011 Guam 19 ¶ 11. In deciding the matter, the Court must
15 consider the nature Of the offense charged, the apparent possibility of conviction, and the likely
16 sentence. 8 GCA § 40.15(c)(1). The court must also consider a series of other factors, such as
17 . . . . . the history and characteristics of the person charged, his reputation and character, his prior 18 criminal record, any records of prior release on recognizance or on bail, and any other factors 19 which bear on the risk of willful failure to appear or the danger the person would pose to the 20 community or any member of the community. Id. at (c)(2)-(6). -
21 ANALYSIS 22
23 Torre faced much more serious crimes when the Court first determined his conditions of
24 release. While Torre is still charged with two. severe violent crimes (Negligent Homicide and
25 Aggravated Assault (as a Third Degree Felony)), he is no longer charged with Murder,
Page 4of6 1 Manslaughter, or Aggravated Assault (as a Second .Degree Felony). Importantly, Torre is no
2 longer charged with any First or Second Degree Felonies, but only with Third Degree Felànies.
~ Therefore, Tone is now facing a significantly less severe punishment if convicted, compared to
the potential punishment if he had been convicted of Murder or Manslaughter. As the 5 seriousness of the charges is an important factor for the Court to consider when determining a 6 defendant’s release conditions, it follows that the Court’s analysis should now change in favor 7 of imposing less stringent conditions. 8 Additionally, the Court notes Tone’s history of complying with COurt orders. Torre has
10 now been on supervised release for over four years and the Probation Office has not filed a
~ single violation report against him. Tone’s willingness and ability to abide by Court orders
12 weighs in favor of the Court modifying his release conditions.
13 In its Decision and Order releasing Tone on bail pending appeal, the Court noted that
14 there is no evidence that Tone is a flight risk or poses a danger to the community. Decision and
15 Order at 3 (July 14, 2017). The Court has no reason to reconsider its prior position on these
16. issues.
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FILED SUPEOR COURT OF GUAM 1 2UI~ SEP 12 Pfi ~2 25 2 OLE Ri’~ OF~URT 3 B 4
5 IN THE SUPERIOR COURT OF GUAM 6
7 PEOPLE OF GUAM,
8 Plaintiff, Criminal Case No. CF0421-15
9 vs. DECISION AND ORDER 10 MARK A. TORRE, JR., Defendant. 11
13 INTRODUCTION
14 This matter is before the Honorable Judge Michael J. Bordallo. Defendant Mark A.
15 Tone Jr. (“Tone”) is represented by Attorney Joaquin C. Arriola. The People of Guam 16 (“People”) are represented by Assistant Attorney General Basil O’Mallan. 17 On August 19, 2019, Torre filed a Motion to Modify Conditions of Release. The People 18 did not file an opposition brief. The Court held a hearing on September 10, 2019, during which 19 defense counsel argued in favor of the motion. The People declined to offer any oral arguments 20 during the motion hearing. Having reviewed the arguments presented, the Court now issues the 21 following decision GRANTING Torre’s Motion to Modify Conditions of Release. 22
Page 1 of 6 FACTS 2 1. On July 14, 2015, the People, filed a Magistrate’s Complaint which charged Torre, a
Guam Police Department (“GPD”) Officer, with multiple offenses relating to the
shooting death of fellow GPD Officer Elbert G. Piolo. The charged offenses are as 5 follows: (1) Murder, as a First Degree Felony, with a Special Allegation of Possession 6 or Use of a Deadly Weapon in the Commission of a Felony; (2) Manslaughter, as a First 7 Degree Felony, with a Special Allegation of Possession or Use of a Deadly Weapon in 8 the Commission of a Felony; (3) Aggravated Assault, as a Second Degree Felony, with
a Special Allegation of Possession or Use of a Deadly Weapon in the Commission of a
11 Felony; and (4) Aggravated Assault, as a Third Degree Felony, with a Special
12 Allegation of Possession or Use of a Deadly Weapon in the Commission of a Felony.
13 2. On July 15, 2015, the Court issued an Order of Conditional Release and Appearance
14 Bond. Torre was released under the following conditions: (1) cash bail of, $165,000.00;
15 (2) order to appear at all further criminal trial proceedings; (3) order to stay away from
16 his father, GPD Lieutenant Mark Torre Sr. and all other potential witnesses; (4)
17 appointment of Third Party Custodians; (5) house arrest; (6) no firearms; (7) no alcohol
18 or drugs; (8) report to the Probation Office once per week in person; (9) no leaving 19 Guam/must turn in passport to the Probation Office; (10) must obey all federal and local 20 laws, as well as abide by all reasonable terms set by the Court or Probation Office. 21 ,
22 3. On July 16, 2015, the Court acknowledged the receipt of the Warranty Deed to the home
23 of Teresita B. Torre to satisfy the bail amount.
24’ 4. On July 24, 2015, a Grand Jury returned an Indictment charging Torre with all four
25 offenses listed in the Magistrate’s Complaint, complete with the special allegations.
Page 2 of 6 1 5. This matter went to trial on January 31, 2017.
2 6. The jury returned its verdicts on March 2, 2017. Tone was acquitted of Murder,
Manslaughter and Aggravated Assault (as a Second Degree Felony), together with all
Special Allegations attached to said counts. Tone was convicted of Negligent 5 Homicide, with Special Allegation, and Aggravated Assault (as a Third Degree Felony), 6 with Special Allegation. 7 7. On June 21, 2017, the Court sentenced Torre to. eight years imprisonment at the 8 Department of Corrections.
10 8. Tone subsequently appealed his conviction, and on July 14, 2017, the Court issued a
11 Decision and Order granting Tone’s Motion for Release on Bail Pending Appeal. The
12 Court ordered that Tone continue to be released on the same conditions to which he
13 was subject prior to the trial.
14 9. On July 31, 2019, the Supreme Court of Guam issued an opinion in People v. Torre,
15 2019 Guam 9~ In its opinion, the Supreme Court found that this Court had improperly
16 admitted certain evidence during Tone’s trial, and therefore vacated the Judgment of
17 Conviction. .
18 10. Tone is presently charged with Negligent Homicide, with Special~ Allegation, and 19 . . ..
Aggravated Assault (as a Third Degree Felony), with Special Allegation. 20 11. Tone continues to be released on the same conditions required prior, to the Supreme 21 Court’s reversal of his conviction. 22 . .
23 12. To date, the Probation Office has not filed any violation reports against Torre.
26 . , . .
Page 3 of 6 1 ISSUE
2. 1. Whether Torre’ s pre-trial release conditions should be modified in light of the Guam
Supreme Court’s reversal of his convictions.
PRINCIPLES OF LAW 5 When deciding whether to confine a criminal defendant, the Court must decide whether 6 he is likely to appear in court later and whether he will pose a danger to others if he is released. 7 The Supreme Court of Guam requires the Court to release a defendant “unless the judge 8 determines, in his discretion, on the basis of available information, that such a release will not 9
10 reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.” Guam v. Song, 2011 Guam 19, (j[ 10 (quoting 8 GCA §
12 40.15(b)) (emphasis in original). Guam law requires the court to impose the least onerous
13 conditions necessary to ensure the person appears in court and to keep the community safe. 8
14 G.C.A. § 40.20; see Guam v. Song, 2011 Guam 19 ¶ 11. In deciding the matter, the Court must
15 consider the nature Of the offense charged, the apparent possibility of conviction, and the likely
16 sentence. 8 GCA § 40.15(c)(1). The court must also consider a series of other factors, such as
17 . . . . . the history and characteristics of the person charged, his reputation and character, his prior 18 criminal record, any records of prior release on recognizance or on bail, and any other factors 19 which bear on the risk of willful failure to appear or the danger the person would pose to the 20 community or any member of the community. Id. at (c)(2)-(6). -
21 ANALYSIS 22
23 Torre faced much more serious crimes when the Court first determined his conditions of
24 release. While Torre is still charged with two. severe violent crimes (Negligent Homicide and
25 Aggravated Assault (as a Third Degree Felony)), he is no longer charged with Murder,
Page 4of6 1 Manslaughter, or Aggravated Assault (as a Second .Degree Felony). Importantly, Torre is no
2 longer charged with any First or Second Degree Felonies, but only with Third Degree Felànies.
~ Therefore, Tone is now facing a significantly less severe punishment if convicted, compared to
the potential punishment if he had been convicted of Murder or Manslaughter. As the 5 seriousness of the charges is an important factor for the Court to consider when determining a 6 defendant’s release conditions, it follows that the Court’s analysis should now change in favor 7 of imposing less stringent conditions. 8 Additionally, the Court notes Tone’s history of complying with COurt orders. Torre has
10 now been on supervised release for over four years and the Probation Office has not filed a
~ single violation report against him. Tone’s willingness and ability to abide by Court orders
12 weighs in favor of the Court modifying his release conditions.
13 In its Decision and Order releasing Tone on bail pending appeal, the Court noted that
14 there is no evidence that Tone is a flight risk or poses a danger to the community. Decision and
15 Order at 3 (July 14, 2017). The Court has no reason to reconsider its prior position on these
16. issues.
17 Notwithstanding the less serious nature of the cunent charges and his prior compliance
18 with Court orders, Torre continues to face very serious charges and was previously sentenced to 19 .
eight years imprisonment for these charges. Torre will remain On house anest and continue to 20 face restrictions regarding firearms, alcohol, and travelling, and will continue to report to the 21 . .
Probation Office on a weekly basis. 22 .
23 . .
26 Page 5 of 6 1 CONCLUSION AND ORDER
2 For the above reasons, the Court GRANTS Torre’ s Motion to Modify Conditions of
~ Release. Torre will be subject to all of his prior release conditions with the following
amendments: 5 a. While Torre will remain on house arrest, the Third Party Custodians no longer 6 need to supervise Torre at all times when he is confined within his home. The 7 Third Party Custodians only need to remain with Torre at times when he leaves 8 his home for the limited purposes of court appearances, meeting with defense
10 counsel or Probation Officers, attending religious services, or emergency
11 medical treatment.
12 b. The $165,000 bail requirement is vacated and title to the property furnished to
13 satisfy such bail will be returned.
14 c. Bail is set at $10,000 unsecured bond.
17 SO ORDERED, this // day of________________ 2019
SERVICE VIA COURT ~X I acknowledge that a copy ~tl~e 22 origin~I hereto was placedinihe. HON~ABLE\M~CHAEi J BORDALLO courtbox f .‘
23 _______________ Jud e, Superior Cou~t of Guam
24 qate9~i~2’~2~
25 D~CIerk, Superior Cou~ of Güim
26 V
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