People of Guam v Mendiola [1999] GUSC 8; 1999 Guam 08 (28 April 1999)

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Appeal from the Superior Court of Guam
Argued and Submitted on October 7, 1998
Hagåtña, Guam

Appearing for the Plaintiff-Appellee: Monica J. Hickey, Assistant Attorney General Office of the Attorney General Prosecution Division Suite 2-200E, Judicial Center Building 120 W. O’Brien Drive Hagåtña, Guam 96910	Appearing for the Defendant-Appellant: Ladd A. Baumann, Esq. Suite 903 Pacific News Building 238 Archbishop F.C. Flores St. Hagåtña, Guam 96910

BEFORE: PETER C. SIGUENZA, Chief Justice[1]; JANET HEALY WEEKS, and BENJAMIN J.F. CRUZ, Associate Justices.

CRUZ, J.:

[1] This is an appeal of the trial court’s denial of Appellant Jerry Castro Mendiola’s Motion to Dismiss for Prosecutorial Delay. Appellant also appeals his convictions for 1) Negligent Homicide (as a third degree felony) with a Special Allegation of Possession and Use of a Deadly Weapon in the Commission of a Felony; and 2) Possession of a Firearm Without an Identification Card based upon the denial of his Sixth Amendment right to a speedy trial. Upon review of the pertinent facts and analysis of the relevant legal authorities, we affirm the decision of the trial court and Appellant’s convictions for the reasons set forth below.

[2] On June 25, 1992, Appellant Mendiola (hereinafter AAppellant@) and his Astepfather@ Veta Feja Guerrero were attending a barbecue at Appellant’s residence. The evidence adduced at trial showed that an altercation occurred between the two men concerning Appellant’s plans to open his own business. Ultimately, this confrontation turned violent. Indeed, shortly after the barbecue concluded, Appellant shot Guerrero four to five times. Appellant, however, claimed he acted entirely in self-defense.

[3] In the early morning following this incident, the Guam Police Department (hereinafter AGPD@) placed Appellant under arrest and detained him. About two weeks after his release, Appellant made inquiries of GPD as to approximately one hundred dollars missing from his wallet from the time of the arrest. Appellant claims that GPD Internal Affairs investigators conducted a polygraph test regarding the money. Appellant contends that the investigators also questioned him regarding the homicide. As to that matter, Appellant maintains, that at the conclusion of the test, the investigators indicated that the results were in his favor and that he was telling the truth.

[4] Approximately one year after his arrest, Appellant moved to Rota, Commonwealth of the Northern Mariana Islands, in response to death threats allegedly made by Guerrero’s family. Prior to this move, Appellant claims that he notified both GPD and the Attorney General’s Office.

[5] On June 7, 1995, nearly three years after the actual incident, a grand jury convened and indicted Mendiola for: (1) Aggravated Murder; (2) Murder; (3) Manslaughter; and (4) Possession of a Firearm Without an Identification Card. Each charge included a Special Allegation of Possession and Use of a Deadly Weapon in the Commission of a Felony. On June 13, 1996, approximately one year after the indictment, an order for extradition was issued by the Superior Court for the Commonwealth of the Northern Mariana Islands, resulting in Appellant’s return to Guam.

[6] Appellant was arraigned on June 18, 1996. On this same date, he asserted his statutory and Constitutional right to a speedy trial for the first time. On June 27, 1996, Appellant waived his right to a speedy trial. Appellant later re-asserted his right to a speedy trial on October 16, 1996.

[7] The trial court heard pre-trial motions on November 21, 1996. Relevant to the instant appeal, Appellant brought the following motions in the court below: (1) a Motion to Dismiss the Indictment due to Prosecutorial Delay; and (2) a Motion to Compel Discovery. During the pre-trial hearing, the prosecutor disclosed that no record of the polygraph examination existed. The prosecution also filed a Notice of Lost Evidence concerning the t-shirt obtained from the decedent on the night of the incident. At this time, defense counsel advised the trial court of the unavailability of investigating officer Winnie B. Rojas, as well as three guests at the barbecue, Greg Castro, Chris Chambers, and Mattias Salvatierra.

[8] Appellant’s trial began on January 6, 1997. On January 17, 1997, the jury returned a guilty verdict for Negligent Homicide (as a Third Degree Felony) with a Special Allegation of Possession and Use of a Deadly Weapon in the Commission of a Felony, and for Possession of a Firearm Without an Identification Card. After sentencing on May 5, 1997, the trial court entered judgment on August 8, 1997. Appellant then filed the Notice of Appeal on August 13, 1997.

[9] This court has jurisdiction pursuant to 7 GCA '' 3107 and 3108 (1994).

A. Pre-indictment Delay

[10] The trial court’s decision on a defendant’s motion to dismiss charges for pre-indictment delay shall be reviewed for abuse of discretion. United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992). AFindings on the issue of prejudice are reviewed under the clearly erroneous standard, keeping in mind [Appellant’s] heavy burden,@ to prove such prejudice. United States v. Dudden, 65 F.3d 1461, 1466 (9th Cir. 1995).

[11] Pre-indictment delay violates due process only if the defendant meets a two-part test. United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992). First, Athe defendant must prove actual, non-speculative prejudice from the delay.@ Id. If the defendant meets this burden, the second part of the test shall then be employed. To meet the second step, the defendant must prove that, Athe length of the delay, when balanced against the reason for the delay, [offends] those fundamental conceptions of justice which lie at the base of our civil and political institutions.@ Id. citing United States v. Sherlock, 962 F.2d 1349, 1353-4 (9th Cir. 1992).

[12] Demonstrating the actual prejudice necessary to invoke the second part of the test requires Appellant to show more than the mere loss of testimony, which generally is protected against by the statute of limitations. United States v. Dudden, 65 F.3d 1461, 1466 (9th Cir. 1995). Appellant must show Aby definite and non-speculative evidence how the loss of a witness or evidence is prejudicial to the defendant’s case.@ Id.

[13] Illustrative of the burden of establishing Aactual prejudice,@ the court in Huntley remarked, A[t]he task of establishing the requisite prejudice for a possible due process violation is >so heavy’ that we have found only two cases since 1975 in which any circuit has upheld a due process claim.@ Id. (citations omitted). In the two cases that did find actual prejudice as a result of pre-indictment delay, evidence of non-speculative and non-cumulative nature existed to buttress the claim of actual prejudice. See, United States v. Barket, 530 F.2d 189 (8th Cir. 1976); Howell v. Barker, 904 F.2d 889 (4th Cir. 1990).

[14] In the first of these two cases, the appellate court in Barket considered several factors in determining that the defendant did incur actual prejudice as a result of the pre-trial delay. Barket, 530 F.2d at 192. Among these factors were: 1) the passage of forty-seven (47) months for which the defendant was not responsible; 2) the failure of the prosecution to exercise prosecutorial discretion concerning evidence adduced during a pre-trial hearing; and 3) the loss of material testimony from six witnesses that died during the delay as well as from others with faded memories who would have provided testimony material to the defense. Id. Notably, as to the third factor, the court held that the loss of the witnesses Aundoubtedly impaired@ the defendant’s ability to defend himself. Id.

[15] In the second case involving actual prejudice, Howell v. Baker, 904 F.2d 889 (4th Cir. 1990) the actual prejudice necessary to Aripen a due process claim for adjudication@ was assumed and conceded by both the court and the parties. Howell, 904 F.2d at 895. This assumption was made solely to allow the court to reach an entirely different issue, to wit, whether a defendant must also prove prosecutorial misconduct. Id.

[16] The aforementioned cases in which prejudice was deemed to exist are distinguishable from the case at bar. In Barket, the relevant time period of forty-seven months is substantially longer than the pre-indictment period of approximately thirty-six months in this case. The record before this court is also devoid of evidence of prosecutorial indiscretion involving the handling of evidence. As for the last factor, once again, the record fails to demonstrate how the loss of testimony, if any, Aundoubtedly impaired@ Appellant’s case. The Howell case is similarly distinguishable. No such assumption or concession relating to the existence of actual prejudice has been made in this case by either the parties or the trial court. Likewise, this court will neither assume, nor concede, the existence of actual prejudice.[2]

[17] Appellant Mendiola argues that the pre-indictment delay in his case resulted in Athe loss of witnesses, loss of evidence, and faded memories.@ However, in order to base the claim of actual prejudice on Alost@ witnesses and Adiminished memories,@ Appellant Amust show that the loss of testimony meaningfully has impaired his ability to defend himself’ using only Adefinite and non-speculative evidence.@ Huntley, 976 F.2d at 1290. Here, Appellant attempts to establish the impact of the absence of the lost witnesses’ testimony by contending that the jury was not able to appreciate the victim’s demeanor. In addition, Appellant claims that some witnesses even refused to testify solely because the passage of time had faded their memories of the incident.

[18] The trial court found that the majority of the alleged prejudice alleged by the Defendant was Apersonal in nature@ and did not Arelate to the defense of this case.@ We agree. Nothing in the record supports Appellant’s claim that the testimony of witnesses would be non-cumulative or non-speculative. The trial court further found that the Appellant Adid not offer any specifics as to how his defense will be impaired except for the fact that one or two witnesses may not be able to testify or that such witnesses’ memories may have faded.@ Recognizing that these allegations may have been true, the court nevertheless concluded that, Asuch factors do not constitute sufficient prejudice as to warrant dismissal of this case.@[3] We agree. Although Appellant asserts that witnesses’ memories of the victim’s demeanor Ahad faded@ and that most were Aunwilling to testify,@ the unwillingness of witnesses to testify, though possibly detrimental to Appellant’s case, is hardly evidence of actual prejudice. Even if we assume that their refusal to testify stems from their faded memories, these allegations, however plausible, are simply not definite and non-speculative evidence.

[19] As to the loss of the victim’s t-shirt and the polygraph-related records, Appellant argues, Athe issue is not whether the loss of evidence itself is in violation of his Constitutional right to a fair trial, but a symptom of the cause, pre-indictment delay.@

Supreme Court of Guam

People of Guam v Mendiola [1999] GUSC 8; 1999 Guam 08 (28 April 1999)