People v. Torres

• Court: Superior Court of Guam
• Decided: June 25, 2012
• Docket: CF0253-12
• Status: Unknown

Opinion

4 IN THE SUPERIOR COURT OF GUAM 5

6 PEOPLE OF GUAM ) CRIMINAL CASE NO. CF2S3-12 ) 7 ) ) 8 vs. ) DECISION AND ORDER ) (Defendant's Motion to Dismiss & Motion 9 ) to Prohibit Use of Evidence in Violation of ) Confrontation Clause Provision of the 10 ) Sixth Amendment) JUAN JOSE TORRES, ) 11 ) DOB: 08/27/1966 ) 12 Defendant. ) 13 -----------------------------)

14 INTRODUCTION 15 This matter carne before the Honorable Anita A. Sukola on Defendant's Motion to 16 Dismiss and Motion to Prohibit Use of Evidence in Violation of Confrontation Clause Provision 17

8 of the Sixth Amendment. Oral arguments were heard on May 16, 2012. Attorney F. Randall

9 Cunliffe represented Juan Jose Torres ("Defendant") and Assistant Attorney General Elizabeth

S. Vasiliades appeared on behalf of the Government. Having considered the parties' briefs, oral

arguments, and the applicable law, the Court now issues the following Decision and Order. 22 BACKGROUND 23

24 On April 18, 2012, Defendant was indicted on the following charges: (l) Third Degree

25 Criminal Sexual Conduct (As a 2nd Degree Felony) 4 counts (2) Assault with Intent to Commit 26 Criminal Sexual Conduct (As a 3rd Degree Felony) 2 counts and (3) Felonious Restraint (As a 27 3rd Degree Felony) 2 counts. A Warrant of Arrest was issued on the same day along with bail 28

People of Guam v. Juan Jose Torres (CF253-12) Page I of9 Decision and Order Defendant's Motion to Dismiss & Motion to Prohibit Use of Evidence in Violation of Confrontation Claus Provision of the Sixth Amendment affixed at $75,000. Defendant was committed to the Department of Corrections pending the 1

2 posting of bail.

3 On April 25, 2012, Defendant was arraigned where he plead not guilty. Defendant 4 asserted his right to a speedy trial and requested for a jury of twelve persons. Assertion or 5 Waiver of Speedy Trial (Apr. 26, 2012) and Request for Jury of Twelve (12) Persons (May 2, 6 2012). Accordingly, the Court scheduled a Criminal Trial Setting for April 30, 2012 and 7

8 subsequently issued a Scheduling Order setting jury selection and trial date for 2 p.m. on June 4,

9 2012. Scheduling Order (May 2, 2012). 10 As per the deadlines set out in the Scheduling Order, Defendant filed two motions on 11 May 2, 2012. The Government also filed a notice of intent to introduce prior bad acts pursuant 12 to 6 GCA § 413. 1 On May 9, 2012, the Government filed its Opposition to Defense Motion in 13

14 Limine to Exclude Statements2 • The Government also filed its Opposition to Defense's Motion

15 to Dismiss. Defendant filed his reply to relative to the Government's opposition to both 16 motions on May 14, 2012. 17 On May 16,2012, oral arguments on Defendant's motions were heard. The Court took 18

19 the matter under advisement and now issues this Decision and Order.

20 DISCUSSION 21 Motion to Dismiss 22 Defendant moves the Court to dismiss the Indictment contending that the Government 23 did not act in good faith when it moved to dismiss CF529-10. In CF529-10, Defendant was 24 rd 25 indicted on September 14, 2010, charged with the following: (1) Family Violence (As a 3

26 I The 2006 Guam Rules of Evidence were adopted by the Supreme Court of Guam in Promulgation Order No. 06-

27 001 on January 6, 2006. The old rules were repealed by P.L. 28-138 on July 11,2006. 2 Although the Government labels its opposition an Opposition to Defense Motion in Limine, the Court notes that 28 Defendant's second motion is not a motion in limine. Rather, it was timely filed pursuant to the Scheduling Order and is deemed a substantive motion as Defendant lab led it. People of Guam v. Juan Jose Torres (CF253-12) Page 2 of9 Decision and Order Defendant's Motion to Dismiss & Motion to Prohibit Use of Evidence in Violation of Confrontation Claus Provision of the Sixth Amendment Degree Felony) 2 counts (2) Family Violence (As a 3rd Degree Felony) 2 counts (3) Assault 1

2 (As a Misdemeanor) 2 counts (4) First Degree Criminal Sexual Conduct (As a 1st Degree

3 Felony) (5) Second Degree Criminal Sexual Conduct (As a 1st Degree Felony) (6) Third Degree 4 Criminal Sexual Conduct (As a 2nd Degree Felony) (7) Attempted Criminal Sexual Conduct (As 5 a 2nd Degree Felony) and (8) Assault with Intent to Commit Criminal Sexual Conduct (As a 3rd 6

7 Degree Felony) 2 counts. Defendant asserted on December 16, 2010 and that case was

8 eventually dismissed at the request of the Government on January 27, 2011, "so it can get

9 evidence tested." Defs Memo of Law in Support of Motion to Dismiss at 3 (May 2, 2012). On 10 that basis, Defendant argues that his trial in the case at hand should have begun within three 11 days of his arraignment on April 25, 2012. Id. at 4 (May 2,2012). 12

13 Conversely, the Government argues that in the instant case, as in People v. Flores, 2009

14 Guam 22, "the first indictment is different than the second indictment in the crimes charged." 15 Further, the Government contends that a new indictment containing new charges is different 6 than a superseding indictment and that Guam statutory law does not contemplate the same l7

tolling, starting, and stopping of the trial clock as the federal statutory scheme with a different 18

19 statutory analysis. People's Opposition to Defense Motion to Dismiss at 6 (May 9,2012).

20 The prosecuting attorney may with leave of court file a dismissal of an indictment, 21 information or complaint and the prosecution shall thereupon terminate. Such a dismissal may 22 not be filed during the trial without the consent of the defendant. The prosecuting attorney shall 23 file a statement of his reasons for seeking dismissal when he applies for leave to file a dismissal 24

25 and where leave is granted the court's order shall set forth the reasons for granting such leave."

26 People v. Rios, 2008 Guam 22 ~ 24 (citing 8 GCA §80.70). 27

People of Guam v. Juan Jose Torres (CF253-12) Page 3 01'9 Decision and Order Defendant's Motion to Dismiss & Motion to Prohibit Use of Evidence in Violation of Confrontation Claus Provision of the Sixth Amendment The Supreme Court of Guam enunciated in Flores that Guam's statutory nolle prosequi 1

2 power under section 80.70 was formerly found in section 1385 of the Guam Penal Code,

3 adopted directly from California. The California courts have held that the statutory time period 4 for speedy trial restarts when a new indictment is filed. Flores, 2009 Guam 22 ~ 27. 5 Moreover, the Supreme Court of Guam "find[s] that where an indictment is dismissed 6

nolle prosequi under section 80.70, and a defendant is reindicted for the same charges, the 7

8 period for starting a trial as prescribed under section 80.60 restarts when the subsequent

9 indictment is filed." Id. ~ 28. In view of this, the Supreme Court went on to say that "[t]he 10 prosecutor must act in 'good faith' or in a manner that neither evades nor circumvents the 11 requirements of the statute or rule setting a deadline for trial." Id. "What constitutes good 12

13 cause for the delay of a criminal trial is a matter that lies within the discretion of the trial court."

14 Id. at ~ 32 (citing People v. Johnson, 606 P.2d 738, 746 (Cal. 1980». "[Delay] arising from 15 unforeseen circumstances, such as unexpected illness or unavailability of counselor witness 16 constitutes good cause to avoid dismissal." Id. 17 In the instant case, Defendant asserted his right to a speedy trial in CF529-10 on 18

19 December 16, 2010. That case was dismissed on January 27, 2011, at the request of the

20 Government. The time between Defendant's assertion and the dismissal amounted to a total of 21 forty-two days. Absent good cause for the earlier dismissal, Defendant would have had three 22 days remaining. However, as pronounced in the Flores case, the period for starting a trial as 23 prescribed under section 80.60 restarts when the subsequent indictment is filed. Likewise, 24

25 because a new indictment was handed down, the statutory right to a speedy trial clock begins

26 anew upon Defendant's assertion in the new case. Consequently, Defendant was arraigned in 27 the case at bar on April 25, 2012 where he asserted his right to a speedy trial. In light of 28

People of Guam v. Juan Jose Torres (CF253-12) Page 4 of9 Decision and Order Defendant's Motion to Dismiss & Motion to Prohibit Use of Evidence in Violation of Confrontation Claus Provision of the Sixth Amendment Defendant's incarceration, he should be brought to trial within the prescribed forty five days 1

2 from April 25, 2012, pursuant to 8 GCA § 80.60 (a)(2). That provision in the Criminal

3 Procedure Code reads: 4 (a) Except as otherwise provided in Subsection (b), the court shall dismiss a 5 criminal action if: (2) The trial of a defendant, who is in custody at the time of his arraignment, 6 has not commenced within forty-five (45) days after his arraignment; 7 8 GCA § 80.60 (a)(2). 8 The remaining issue for the Court to consider is whether the dismissal in CF529-l 0 was 9 grounded on good cause from the prosecution. As articulated above, "[ w]hat constitutes good 10

11 cause for the delay of a criminal trial is a matter that lies within the discretion of the trial court."

12 Flores, 2009 Guam 22 ~ 32. Defendant cites to State v. Price, 868 A. 2d 252 (2005), which 13 "found that the dismissal just days before trial because DNA testing were not back was not a 14 dismissal done in good faith but was, in fact, action that was intended to evade the requirements 15

16 of the rule or statute setting a deadline for trial." Defs Memo of Law in Support of Motion to

17 Dismiss at 1-2 (May 2, 2012). Defendant cites to another Maryland Court of Appeals case, 18 Ross v. State, 700 A.2d 282 (1997), which involved laboratory test results not being available as 19 the grounds for a dismissal. In that case, the Court of Special Appeals of Maryland found that 20 the re-filing did not start a new speedy trial clock. 21

22 The Government responds to Defendant's citations stating: "[w]hile Maryland Courts

23 may have interesting case law they are not the law of Guam." People's Opposition to Defense 24 Motion to Dismiss at 6 (May 9, 2012). 25 The Court recognizes the holding in Flores which expresses in pertinent part: where an 26 indictment is dismissed nolle prosequi under section 80.70, and a defendant is reindicted for the 27

28 same charges, the period for starting a trial as prescribed under section 80.60 restarts when the

People of Guam v. Juan Jose Torres (CF253-12) Page 5 01'9 Decision and Order Defendant's Motion to Dismiss & Motion to Prohibit Use of Evidenee in Violation of Confrontation Claus Provision of the Sixth Amendment subsequent indictment is filed." Flores, 2009 Guam 22 ~ 28. Furthermore, the Court 1

2 recognizes that "[t]he prosecutor must act in 'good faith' or in a manner that neither evades nor

3 circumvents the requirements of the statute or rule setting a deadline for trial." Id. 4 This Court notes that CF529-10 was dismissed without prejudice by the Family 5 Violence Court at the request of the Government on January 27, 2011. While Defendant 6 contends that the pendency of DNA results does not constitute good cause for delay as cited in 7

8 the two Maryland cases, "[the determination of] what constitutes good cause for delaying a

9 criminal trial is a matter that lies within the trial court's discretion. Flores, 2009 Guam 22 at ~ 10 32 (citing People v. Johnson, 606 P.2d 738, 746 (Cal. 1980). 11 In People v. Atoigue, the court held that the "delay became necessary when Guam 12

13 discovered that the FBI would be unable to perform DNA tests, thereby making it necessary to

14 hire an alternate laboratory." There was no evidence in that case to suggest that the

15 Government acted in bad faith or without due diligence. Id. People v. Atoigue, No. CR91- 16 00095A-BHM, 1994 WL 477518, at *3 (9 th Cir. 1994). "Other jurisdictions similarly have 17 accepted some delay in order to ensure the most accurate judgment scientifically possible, 18

19 specifically with respect to DNA evidence. See State v. Stroud, 459 N.W. 2d 332, 335 (1990)

20 (holding that a delay to obtain DNA testing meets the good cause standard when the reason for 21 the delay was outside the state's control, the DNA evidence was essential to the State's case, 22 and the defendant failed to prove that he would suffer legally recognizable prejudice by the 23 delay)." Glover v. State, 792 A. 2d 1160, 1169 (Md. 2002). In short, Glover articulated that 24

25 "while minor delays in obtaining DNA evidence will not be weighed heavily against the State,

26 nor against a defendant seeking his or her own DNA analysis, delays likely will not be tolerated 27 upon clear demonstrations of a failure to monitor or aggressively pursue the attainment of these 28

People of Guam v. Juan Jose Torres (CF253-12) Page 6 01'9 Decision and Order Defendant's Motion to Dismiss & Motion to Prohibit Use of Evidence in Violation of Confrontation Claus Provision of the Sixth Amendment results. Id. Upon review of this case, the Court does not second-guess the Family Violence 1

2 Court's dismissal of CF529-1 0 at the request of the Government and finds that good cause was

3 shown. 4 For these reasons, the Court DENIES Defendant's Motion to Dismiss. 5 Motion to Prohibit Use of Evidence in Violation of Confrontation Clause Provision 6

7 of the Sixth Amendment

8 Defendant moves the Court to prohibit the testimony of any witness regarding

9 statements allegedly made by the victim, Chantal Torres, until after Ms. Torres has testified. 10 Defs Memo of Law in Support of Motion to Prohibit use of Evidence in Violation of 11 Confrontation Clause Provision of the Sixth Amendment at 4 (May 2, 2012). Conversely, the 12

13 Government argues that "the note left at the family home, statements (victim made) to her

14 younger sister, statements made to Guam Police Department officers, statements made to 15 medical personnel during the Healing Hearts examination, and statements made to (victim's) 16 pastor before her departure involuntarily from Guam are non-testimonial statements and are l7

admissible pursuant to Crawford, Davis and subsequent cases" People's Opposition to Defense 18

19 Motion in Limine to Exclude Statements at 6 (May 9, 2012). The Government further argues

20 that "even if the statements are found to be testimonial by the trial court, the current case law 21 from Crawford, Davis, and Giles does not prohibit a finding of forfeiture by wrongdoing 22 exception to the Confrontation Clause of the Sixth Amendment. Id. at 8. 23 The Court agrees with Defendant that the Sixth Amendment of the United States 24

25 Constitution provides the accused the right to be confronted with the witnesses against him. In

26 view of this, out-of-court statements by witnesses that are testimonial are barred, under the 27 Confrontation Clause, unless witnesses are unavailable and defendants had prior opportunity to 28

People of Guam v. Juan Jose Torres (CF253-12) Page 7 01'9 Decision and Order Defendant's Motion to Dismiss & Motion to Prohibit Use of Evidence in Violation of Confrontation Claus Provision of the Sixth Amendment cross-examine witnesses, regardless of whether such statements are deemed reliable by court; 1

2 where testimonial statements are at issue, only indicium of reliability sufficient to satisfy

3 constitutional demands is the one the Constitution actually prescribes. Crawford v. Washington, 4 541 U.S. 36 (2004). 5 In the Court's review of the victim's note left at the horne, statements she made to her 6 younger sister, statements made to Guam Police Department officers, statements made to 7

8 Healing Hearts, and statements made to her pastor, the Court is concerned that these statements

9 are primarily out of court statements used for the truth of the matter asserted. Given there are 10 exceptions which could allow such evidence to corne in, the Court is not convinced at this time 11 that any exception is relevant. Until such time that the Government can produce the victim in 12

13 order to allow Defendant the opportunity to cross-examine her, and in conformity with the

14 Confrontation Clause, such statements will be prohibited. The aforementioned witnesses can

15 still take the stand, however, their statements will be limited in the sense that they do not speak 16 directly on what the victim had said to them. 17 Accordingly, the Court Grants Defendant's Motion to Prohibit the Use of Evidence in 18

19 Violation of Confrontation Clause of the Sixth Amendment.

20 1/1 21 /II 22 1/1 23 11/ 24

25 /II

26 11/ 27 1/1 28

People of Guam v. Juan Jose Torres (CF253-12) Page 8 of9 Decision and Order Defendant's Motion to Dismiss & Motion to Prohibit Use of Evidence in Violation of Confrontation Claus Provision of the Sixth Amendment CONCLUSION 1

2 By a preponderance of the evidence and based on the foregoing reasons, the Court

3 Denies Defendant's Motion to Dismiss and Grants Defendant's Motion to Prohibit the Use of 4 Evidence in Violation of Confrontation Clause of the Sixth Amendment. 5

6 SO ORDERED this rv5 day of June, 2012. 7

8 A Further Proceedings is set for June 26, 2012, at 9 a.m. 9

11 HONORABLE ANITA A. SUKOLA 12 Judge, Superior Court of Guam 13

People of Guam v. Juan Jose Torres (CF253-12) Page 9 of9 Decision and Order Defendant's Motion to Dismiss & Motion to Prohibit Use of Evidence in Violation of Confrontation Claus Provision of the Sixth Amendment