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Supreme Court of Guam |
IN THE SUPREME COURT OF GUAM
PEOPLE OF GUAM, ) Supreme Court Case No. CRA96-004
) Superior Court Case No. CF0255-96
Plaintiff-Appellant, )
)
vs. )
)
JOSEPH GUMATAOTAO TUNCAP, ) OPINION
)
)
Defendant-Appellee. )
____________________________________)
Filed: July 20, 1998
Cite as 1998 Guam 13
Appeal from the Superior Court
of Guam
Argued and Submitted on August 18, 1997
Hagåtña,
Guam
Attorney
for Plaintiff-Appellant
Gerad Egan
Assistant Attorney
General
Office of the Attorney General
Prosecution Division
Suite
2-200E, Judicial Center Bldg.
120 West
O=Brien
Drive
Hagåtña, Guam
96910
Attorney for
Defendant-Appellee
Richard Parker Arens, Esq.
Cunliffe &
Cook
A Professional Corporation
Suite 200, 210 Archbishop Flores
Street
Hagåtña, Guam 96910
BEFORE: PETER C. SIGUENZA;
Chief Justice, JANET HEALY WEEKS, and JOAQUIN C. ARRIOLA, Sr., Associate
Justices.
SIGUENZA,
C.J.:
[1] The People of
Guam
(APeople@)
appeal the lower
court=s decision
dismissing this case with prejudice. It is asserted by the People that the
court=s discovery
orders were not violated. If a violation did occur, however, the People contend
the court=s remedy was
inappropriate. In opposition, Joseph Gumataotao Tuncap
(ATuncap@)
maintains the dismissal with prejudice was appropriate given the
People=s failure to
provide discovery pursuant to the
court=s orders. He
also asserts the failure to provide the discovery amounted to prosecutorial
misconduct allowing the court to dismiss
this matter through its supervisory
authority.
[2] Although we
share the trial
court=s frustration
with the prosecution=s
approach to discovery and concur that the conduct of
People=s counsel in
misleading both the court and the defendant would be sufficiently sanctionable,
our review indicates that the trial
court=s written order
dismissing the case cannot be supported in the record. The applicable statute
was not given consideration nor was
there an adequate factual finding as to the
undisclosed discovery. Consequently, we reverse the lower
court=s dismissal of
the action.
FACTUAL AND PROCEDURAL HISTORY
[3] Tuncap
was charged by the grand jury with possession of a controlled substance, theft,
and burglary. At his arraignment, Tuncap pleaded
not guilty and asserted his
right to a speedy trial. The trial court ordered discovery to be provided to
Tuncap; however, prior to
arraignment, the People had already provided the nine
different police reports which had formed the basis of the charges against
him.
[4] On June 19, 1996, the
People received two letters from
Tuncap=s counsel. The
first letter served as
Aa formal request to
inspect or copy all of the evidentiary materials referenced within the police
reports or grand jury transcripts
relevant to this
case.@ This letter
referenced several police reports and listed 68 items of physical evidence which
Tuncap wanted to inspect or otherwise
have made available to him. The second
letter requested additional police reports, statements, and other discovery
referencing 88
different items wanted by Tuncap. The People did not respond to
the letters nor was Tuncap provided with discovery. In spite of the
People=s failure to
respond, Tuncap did not file a formal motion with the court to compel
discovery.
[5] On July 2, 1996,
the parties appeared for trial setting.
Tuncap=s counsel
represented to the court that the items he requested were not provided. The
court advised the prosecutor to respond to the
letters by July 3, 1996 and
inform Tuncap as to the discoverable nature of these items. As ordered, the
People wrote a letter to
defense counsel and made a general representation that
most items would be provided as they were relevant to
Tuncap=s case. The
letter, however, disputed the disclosure of a few specific
items.
[6] On July 5, 1996, a
follow up hearing was held as to the discovery issues. The People indicated that
additional police reports were
being provided to Tuncap. Admissions were also
made that other items previously requested had yet to be provided, but were
forthcoming.
The People, for the first time, stated the requests asked for items
irrelevant to the case. The prosecutor also asked the court to
review the items
and rule as to disclosure. The court initially agreed to the review but later
decided the People should review the
applicable discovery statutes to determine
its obligations and then comply accordingly. No ruling was made as to disclosure
of the
requested items. During the proceeding, the court also urged the People
to dismiss the case and re-indict when ready. The court warned
that a contempt
citation or dismissal with prejudice was forthcoming if the People did not
comply with discovery requests by the
next
hearing.
[7] The parties next
met on July 9, 1996 and, at different times, appeared before two different
judges. Again discovery matters were
discussed and argued. Consequently, based
on the conflicting representations of counsel, a motion to dismiss was scheduled
for hearing.
[8] The parties met
for the final time on July 11, 1996. Tuncap asked the court to dismiss the case
based on repeated and continued abuse
of the discovery process. Defense counsel
argued his ability to adequately prepare for trial was impaired given the
piecemeal discovery
and
Tuncap=s assertion of
his right to a speedy trial. The People admitted their responses were less than
adequate. However, they maintained
that Tuncap was asking for items not related
to the charges and consequently, most items were irrelevant to this particular
matter.
Out of the 156 requested items, they represented only seven were
arguably relevant to the charges. Finally, the People argued that
if
Guam=s discovery
statute were reviewed, the People would be found to have complied with its
requirements and no violation would have occurred.
[9] The court granted the
dismissal of the case with prejudice and issued a written order. The
court=s order
dismissing the case recites the following factual findings:
1. That the Government was ordered by this court to disclose material evidence to the Defendant.
2. That the Government failed to disclose said evidence despite repeated admonitions by the Court.
3. That there is reasonable probability that had the evidence been disclosed to the defense, that the result of the proceeding would be different.
4. That the Government=s repeated failure to disclose material evidence as ordered by the court and as stipulated to by the parties has prejudiced the defendant to his detriment.
5. That the Government=s conduct is not excusable neglect.
6. That the Government=s failure to disclose the material evidence, as ordered, is shocking and outrageous, amounting to prosecutorial misconduct violative of the fundamental sense of justice.
7. That the Defendant=s Motion to Dismiss the Indictment with Prejudice is hereby granted.
People
v. Tuncap, CF0255-96 (Super. Ct. Guam Aug. 22, 1996)(Order dismissing
indictment with
prejudice).
[10] The findings
set forth in the order generated by Tuncap was not approved as to form by
People=s counsel. They
disagreed with all findings except for the last. The order was signed by the
judge. The People filed a timely appeal
with this court.
ANALYSIS
[11] The
trial court=s
discovery orders are reviewed for an abuse of discretion.
United States v. Gonzalez-Ricon, 36
F.3d 859, 865 (9th Cir. 1994).
Likewise, sanctions imposed for a violation of a discovery order are reviewed
for an abuse of discretion. United States v.
Jennings, 960 F.2d 1488, 1490
(9th Cir. 1992). However, whether
the trial court had a legal basis for an imposition of a sanction is reviewed
de novo. Id.
[12] An abuse of
discretion has been defined as that
Aexercised to an end
not justified by the evidence, a judgment that is clearly against the logic and
effect of the facts as are
found.@
Int=l
Jensen, Inc. v. Metrosound U.S.A. , Inc., 4 F.3d 819, 822
(9th Cir. 1993). When using this
standard, a reviewing court does not substitute its judgment for that of the
trial court. Instead, we
must first have a definite and firm conviction the
trial court, after weighing relevant factors, committed clear error of judgment
in its conclusion. United States v.
Plainbull, 957 F.2d 724, 725
(9th Cir.
1992).
[13] An abuse of
discretion may occur in several ways. For example, a court abuses its discretion
by not applying the correct law. United
States v. Rahm, 993 F.2d 1405, 1410
(9th Cir. 1993). The standard is
also violated when the law is erroneously interpreted.
United States v. Beltran-Gutierrez, 19
F.3d 1287, 1289 (9th Cir. 1994).
Reliance upon a clearly erroneous assessment of the facts has also been
characterized as an abuse of discretion.
Rahm, 993 F.2d at 1410. Similarly,
when the record contains no evidence supporting a
court=s decision, the
standard is violated. United States v.
Schlette, 842 F.2d 1574, 1577
(9th Cir. 1988),
amended by, 854 F.2d 359
(9th Cir. 1988);
see also United States v. Kramer, 827
F.2d 1174, 1179 (8th Cir.
1987).
[14] Based on these
articulated standards, we find dismissal of the indictment with prejudice for
discovery violations to be an abuse
of discretion by the trial court. First,
dismissal cannot be justified because consideration was not given to the
statutory provisions
governing discoverable information. Second, the record
lacks a showing supporting the characterization of evidence as described in
the
written dismissal order. Finally, an abuse occurred when the court failed to
consider the mandates of 8 GCA
' 70.45 (1993) and
case authority which addressed sanctions appropriate for discovery violations.
Consequently, dismissal based on
alleged discovery violations was inappropriate.
I.
[15] The
criminal discovery provisions of 8 GCA
''
70.10-70.45 (1993) set out an extensive list of discoverable items. In
particular, upon noticed motion, a prosecutor must disclose
or permit the
inspection or copy of the following material or information:
(1) the name and address of any person whom the prosecuting attorney intends to call as a witness at the trial, together with his relevant written or recorded statement;
(2) any written or recorded statement and the substance of any oral statement made by the defendant or made by a co-defendant if the trial is to be a joint one;
(3) any report or statement of an expert, made in connection with the case, including results of physical or mental examinations and of scientific tests, experiments or comparisons;
(4) any book, paper, document, photograph or tangible object, which the prosecuting attorney intends to use in the trial or which was obtained from or belonged to the defendant;
(5) any record of prior criminal convictions of persons whom the prosecuting attorney intends to call as witnesses at the trial;
(6) whether there has been an electronic surveillance of conversations to which the defendant was party or of his premises;
(7) any material or information which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce his punishment therefor.
8
GCA ' 70.10(a). The
prosecutor=s
obligations extend to material information controlled by his staff and those who
report to him regularly or in reference to a particular
case. 8 GCA
'
70.10(b).
[16] In situations
where discovery is not covered under section 70.10, the defendant may obtain
other discovery upon a showing: 1) of
materiality to the preparation of his
defense; and 2) the request is reasonable. 8 GCA
' 70.15 (1993). The
court possesses discretion to order the prosecuting attorney to disclose
relevant material and information not
covered by section 70.10.
Id. The court must weigh the
substantial risk of physical harm, intimidation, bribery, economic reprisals,
unnecessary annoyance or embarrassment
that may result to any person against the
usefulness of disclosure to the defense. 8 GCA
'
70.15(b).
[17] Guam=s
discovery statutes were based primarily on the ABA Model Standards for Criminal
Justice. These standards were promulgated with the
goal, among others, of
processing cases using expedited procedures. Thus, general delays associated
with motion practice and specific
disagreements as to the discoverability of a
particular item would be eliminated. At the same time, judicial supervision of
basic
discovery would be minimized. In order to achieve such goals,
Guam=s statutes
anticipate the disclosure of information and materials between prosecutors and
defense counsels to be approached in a cooperative
manner with the terms of the
statute given generous interpretations. This is especially important in light of
section 70.10(a)(7),
adopting the mandate originally articulated in
Brady v. Maryland, 373 U.S. 83, 87, 83
S.Ct. 1194, 1196-1197 (1963); requiring disclosure of material or information
which: 1) tends to negate the guilt of the defendant as to the
offense charged;
or 2) would tend to reduce his punishment therefor. 8 GCA
' 70.10(a)(7). Because
the Brady standard has been described
as Aimprecise,
@ the United States
Supreme Court commented
Athe prudent
prosecutor will resolve doubtful questions in favor of
disclosure.@
United States v. Agurs, 427 U.S. 97,
108, 96 S.Ct. 2392, 2399-2400 (1976).
[18] If a dispute should arise,
however, the specific requirements and limitations set forth throughout 8 GCA
' 70.10(a) and (b)
must be looked to for guidance. For example, 8 GCA.
' 70.10(b) imposes a
general materiality requirement upon items before
disclosure.[1]
Although this standard is not difficult to meet, this general limitation must be
considered prior to disclosure.
[19] At
the same time, the statutes impose more specific conditions on material or
physical evidence. Consideration of the terms set forth
in section
70.10(a)(1)-(7) requires disclosure for certain types of information only after
these requirements are met. This necessitates
both a determination as to the
type of materials in dispute and an examination of the
statute=s
specifications. For example, the language of 8 GCA
' 70.10(a)(1) requires
a determination that the material sought is indeed a statement of the witness
that the prosecution intends to
call at trial. Furthermore, section 70.10(a)(1)
imposes a relevancy requirement upon such statement before disclosure.
Consequently,
when disputes arise,
Guam=s discovery
statutes must be considered and the articulated requirements be met before
disclosure is required. A simple request for
discovery does not automatically
make the information material for purposes of the statute and thus requiring
disclosure.
[20] The dismissal
order in this matter cannot be justified because the criminal discovery statutes
were never applied specifically to
the materials in dispute. We cannot find
support, either in the written order or by review of the record, that the
statutory requirements
listed in 8 GCA
' 70.10 were given
proper consideration. In addition, discussion was never entertained addressing
the standards of the statute and
where the undisclosed materials may fit within
that statutory scheme.
[21] The
record also lacks the necessary analysis supporting the
court=s
characterization of the disputed discovery. The
court=s order
indicates the evidence was in fact material and of the sort that could change
results of a proceeding. However, the record
only reveals discovery was
requested by the defendant, disclosure of which was initially agreed to by the
prosecutor but later disputed.
The record also shows the vast majority of items
were not discussed in any manner. In the few instances where specific materials
and information were actually addressed, the showing was never meaningful or
complete. More importantly, the court never ruled whether
the items should be
disclosed. Finally, we note that a recitation of the facts supporting the
adverse effect upon the defense is
absent. Therefore, a finding of prejudice to
the defendant=s
detriment cannot be justified from the
record.
[22] Instead of
considering the nature of the evidence and the requirements of the discovery
statute, the record shows the court dismissed
the case based on the inaction of
the prosecutor. While we understand the
court=s frustration
with the People=s
cavalier attitude toward discovery, the
order=s recitations as
to the undisclosed items are merely conclusory statements unsupported by the
record.
II.
[23] Assuming
that a valid court order was violated, the court must determine whether the
sanction employed to remedy the infraction was
appropriate. Guam law
specifically states:
If at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an order issued pursuant to this Chapter, the court may order such party to comply with the prior order, grant a continuance, or issue such other order as it deems just under the circumstances.
8
GCA ' 70.45. Comment
to this provision states
Ait seems better
policy for the court
>to apply sanctions
which affect the evidence at trial and the merits of the case as little as
possible=.@
See Note to 8 GCA
'70.45 (citation
omitted).
[24] Although the
appropriateness of a sanction rests in the trial
judge=s sound
discretion, United States v. Gee, 695
F.2d 1165, 1168 (9th Cir.
1983)(interpreting similar Federal Rule of Criminal Procedure 16), the sanction
chosen must be proportionate to the misconduct.
Id. at 1169. The phrase
Ait deems just under
the circumstances,@
present in the statutes of both Guam and the United States, has been interpreted
to mean that Athe
court should impose the least severe sanction that will accomplish the desired
result prompt and full compliance with the
court=s discovery
orders.@
United States v. Sarcinelli, 667 F.2d
5, 7 (5th Cir.
1982).
[25] In deciding the
appropriateness of a sanction,
Sarcinelli set out the following
factors: 1) reasons why the disclosure was not made; 2) the extent of the
prejudice, if any, to the opposing
party; 3) the feasibility of rectifying that
prejudice by a continuance, and 4) any other relevant circumstances.
Id.
[26] The
sanction of dismissal is a disfavored remedy.
People v. Marada, Crim. No. CR94-00070A, 1995 WL 604365 (D.Guam App. Div.
Sept. 18, 1995)(citing United States v.
Rogers, 751 F.2d 1074, 1076-77
(9th Cir. 1985)).
AIndictments are
rarely dismissed for alleged government misconduct which occurs outside the
indictment process because such misconduct
must be
>grossly shocking
and so outrageous as to violate the universal sense of
justice.=@
Id. (citations omitted).
[27] It appears the sanction of
dismissal was inappropriate and unjust under the circumstances. The goal of the
court was to get prompt
and full compliance with the discovery order. In the
court=s words
A. . . I keep trying
to figure out how to get you guys to understand, when they ask for discovery,
provide it . . . [Y]ou guys have
got to provide it to them, and I
don=t know how to be
able to get this to you
guys.@ Transcript at
61-62 (Motion to Dismiss, July 11, 1996). Assuming the materials were
discoverable, dismissal would not accomplish
the goal of compliance. Instead,
dismissal prevented the case from going forward on its
merits.
[28] Less harsh
sanctions could have been imposed. This includes holding the attorney in
contempt and punishment by personal fines. At
one time this particular sanction
was suggested by the court. Other alternatives include holding the Chief
Prosecutor or Attorney
General in contempt and levying fines, initiating
disciplinary action by reference to the bar, or chastising counsel in a public
opinion.
[29] As discussed
earlier, the trial court made no inquiry into the specific items of discovery.
Thus, most of the factors set forth in
Sarcinelli cannot be analyzed. Neither
the reason for non-disclosure nor the extent of the
defendant=s prejudice,
if any, are known. While continuance of the trial was not feasible as the
defendant had asserted his right to a speedy
trial,[2]
we note the trial was not scheduled to begin for another eight days. Thus, time
was still available to remedy the actual prejudice,
if any, suffered by the
defendant.
III.
[30] Although
we find dismissal with prejudice unsupportable, we feel compelled to sanction
People=s counsel by
commenting on his actions. The prosecutor handling this matter chose to be
unresponsive at first and later, evasive as
to the discoverable nature of the
requested information. This conduct occurred although he was well aware that
numerous items of
discovery were being sought by the defendant and the speedy
trial clock was running.
[31] We believe
People=s counsel
misled both the defense counsel and the trial court. In the response mandated by
court order, the People agreed that most
of the items requested would be
disclosed. This was further confirmed at a court hearing when additional reports
were turned over
and assurances made that further discovery was forthcoming.
Only later, without notification or warning, did the People take the
position
that they were in compliance with the discovery statutes and that most of the
information would not be disclosed. This happened
after both the defense and the
court relied upon the
People=s assertion
that no issues surrounding discovery existed. Disclosure of the information
suddenly became an untimely issue.
[32] As we discussed above, our
statutes were developed with the goal of expediting cases through elimination of
judicial supervision.
The discovery statutes require a
prosecutor=s diligent
review of the discovery and both timely responses and complete admissions as to
whether information will or will not voluntarily
be disclosed. This is
especially true when discovery requests are made that specifically identify the
items sought.
[33] While the
prosecutor may very well be correct in his legal position, he neither timely nor
clearly communicated this view of the
undisclosed information. This failure to
properly communicate is contrary to the goals of
Guam=s statutes. It
appeared that the prosecutor had reviewed the materials and agreed to make them
available to the defendant. This initial
response was not timely and only made
due to court order. The prosecutor was not candid when he first indicated most
items would
be disclosed and then later, conditioned disclosure upon a showing
of relevance.
[34] We are
especially troubled because notice of the new condition was never given to the
defense. Only later in open court did the prosecutor
reveal his position
regarding nondisclosure. This type of
Ahide the
ball@ gamesmanship is
contrary to the
statute=s goals and is
neither warranted nor welcomed in this jurisdiction.
CONCLUSION
[35] Based
on the foregoing, the court hereby
REVERSES the decision and
REMANDS the matter back to the trial
court.
PETER C. SIGUENZA JANET
HEALY WEEKS
Chief Justice Associate Justice
JOAQUIN C. ARRIOLA,
SR.
Associate Justice
[1]Bill 662 was submitted by the Thirteenth Guam Legislature and became effective via Public Law 13-186 when signed by the Governor. The Bill, submitted and signed into law, deviated from the ABA Standards and imposed the materiality requirement now set forth in 8 GCA ' 70.10(b). As previously stated, we will respect the boundaries between the respective branches of government and will not tread on their ground.
[2]Another issue arises as to the application of the speedy trial clock. Specifically, whether the shorter, 45 day time period applies when the defendant is held pursuant to federal order versus an order of the local courts. We do not address this issue and consequently, this opinion should not be read to affirm a reading of the statute in this matter.
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