People of Guam v Santos [2003] GUSC 1; 2003 Guam 01 (3 January 2003)

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IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,
Plaintiff-Appellee,

vs.

ANTHONY DUENAS SANTOS,
Defendant-Appellant.

Supreme Court Case No.: CRA00-006
Superior Court Case No.: CF0576-99

OPINION

Filed: January 3, 2003

Cite as: 2003 Guam 1

Appeal from the Superior Court of Guam
Argued and submitted on March 12, 2002
Hagåtña, Guam

Appearing for Plaintiff-Appellee:
Leonardo M. Rapadas
Assistant Attorney General
Office of the Attorney General
Prosecution Division
Ste. 2-200E, Guam Judicial Ctr.
120 W. O=Brien Dr.
Hagåtña, Guam 96910

Appearing for Defendant-Appellant:
David J. Highsmith, Esq.
The Law Office of David J. Highsmith, P.C.
Ste. 209, Union Bank of California Bldg.
194 Hernan Cortes Ave.
Hagåtña, Guam 96910

BEFORE: PETER C. SIGUENZA, JR., Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; FRANCES M. TYDINGCO-GATEWOOD, Associate Justice.

CARBULLIDO, J.:

[1] This appeal arises out of the disappearance of Herman August Pangelinan Santos (hereinafter AHermie@). In relation to Hermie=s disappearance, a jury convicted Defendant-Appellant Anthony Duenas Santos (hereinafter ASantos@) of two charges of Aggravated Murder and three charges of Special Allegation of possession and use of a deadly weapon in the commission of a felony. Santos enumerates the following arguments on appeal, to wit: (1) that the trial court erred in denying Santos= motion for the appointment of a forensic pathologist; (2) that the trial court erred in curtailing the cross-examination of a government witness and in not sua sponte providing the jury with an informer instruction; (3) that the trial court erred in admitting statements that Santos made to the police; and, (4) that the trial court erred in denying Santos= motion for a change of venue and in commenting to the jury about why they were being sequestered. We find that none of the enumerated arguments warrants a reversal. Accordingly, we affirm the convictions.

[2] On September 2, 1999, eleven year-old Hermie was reported missing. He was last seen playing around his residence located in Naki Street, Ordot around 4 P.M. that day. His bicycle was found near a water drainage about 20 feet from his home. Daisy Pangelinan (hereinafter APangelinan@), Hermie=s mother, testified at trial that she had last seen her son riding besides Santos in a gold pick-up truck that belonged to her father.[1] On or about September 3, 1999 through September 4, 1999, police questioned Santos about the missing person report at the Hagåtña precinct for approximately nineteen hours and thirty minutes. During one of the three interviews that Santos had with the officers, one of the special agents transcribed a nine-page statement from Santos.

[3] The police and family called out to the public for information on Hermie=s whereabouts and received tips that witnesses had seen the boy around the Dededo vicinity. On September 8, 1999, police found charred remains in a pit located on an abandoned ranch on remote Never Mind Road, Dededo. The police could not readily ascertain whether the remains were human or those of an animal. Consequently, Dr. Aurelio Espinola (hereinafter ADr. Espinola@), the Chief Medical Examiner, took possession of the remains for analysis.

[4] Santos= family owned a ranch within two miles from the area where the remains were found. Neighbors in the area said that, around September 6, 1999, they had seen, Asomeone . . . burning what they assumed was trash in the old ranch . . . .@ Appellant=s Excerpts of Record, tab B, Exhibit 5. Some of the witnesses were also able to positively identify Santos as the individual who they saw was burning Asomething.@ Santos did not deny burning Asomething@ in the pit; however, he claimed that he was burning chicken and dog bones that he found around the area.

[5] Police questioned a Joey Arnaiz (hereinafter AArnaiz@), a conservation officer and a nephew of Santos.[2] Transcript, vol. XII of XXV, pp. 26-27 (Trial, April 25, 2000). Initially, Arnaiz denied any involvement in the crime, but acknowledged on a police sketch that the area where the remains were found was owned by his family.[3] Arnaiz also admitted that Santos knew where the ranch was located.

[6] On September 13, 1999, in an unrelated drug case, police raided a business managed by Santos= brother, Ricky Duenas Santos, in Piti. Santos was present during the raid. Although the police planned to interview Santos at the Hagåtña precinct, Santos complained of physical ailments and was brought to the Guam Memorial Hospital. After receiving treatment, Santos was brought to the precinct for questioning. Santos was in the precinct for approximately thirty-five hours.

[7] On September 14, 1999, Dr. Espinola stated that, Ahe will never be able to say whether [the] charred skeletal human remains@ were that of Hermie=s. Dr. Espinola, however, concluded that the charred body was that of a pre-pubescent child between eight and fifteen years-old. Judging from the lack of new plant growth in the pit, Dr. Espinola also concluded that the burning occurred before September 8, 1999. Because the severity of the charring left no tissues or bone marrow, Dr. Espinola also determined that DNA testing and dental records analysis would not be possible. Although Dr. Espinola could not establish the sex of the burned body, he testified that the victim most likely died from two stab wounds to the chest area.

[8] On September 16, 1999 through September 17, 1999, police again questioned Santos. During that time, Santos participated in a video reenactment. In the reenactment, Santos explained the time when he was burning the chicken and dog bones in the Nevermind Road pit area. Moreover, Santos also expressed how he was freely participating in the reenactment. Santos was released around 3:30 A.M. on September 17, 1999. Later in the evening, around 8:30 P.M., Santos was formally arrested. He was magistrated in the late afternoon of September 18, 1999.

[9] On September 28, 2002, Santos was indicted on the following charges:

Special Allegation (Possession and Use of a Deadly Weapon in the Commission of a Felony)

Special Allegation (Possession and Use of a Deadly Weapon in the Commission of a Felony).

[10] Santos filed a motion with the trial court for the appointment of an independent forensic pathologist, which was denied.[4] Santos also filed a motion for a change of venue or in the alternative for the sequestration of the jury. The motion for a change of venue was denied, but the jury was eventually sequestered before deliberation. Additionally, Santos filed a motion to suppress the following statements:

After a hearing, the motion to suppress was denied on March 28, 2000.

[11] A jury trial was held and on May 23, 2000, the jury found Santos guilty of two charges of Aggravated Murder and three charges of the Special Allegation of possession and use of a deadly weapon in the commission of a felony. For the Aggravated Murder conviction, Santos was sentenced to life imprisonment without the possibility of parole and was fined $10,000.00. For the Special Allegation of possession and used of a deadly weapon in the commission of a felony, Santos was sentenced to an additional twenty-five years imprisonment and fined another $5,000.00.

[12] Santos filed a timely notice of appeal on September 8, 2000. In this appeal, Santos seeks a reversal of his conviction based on several grounds.

[13] We have jurisdiction over this appeal pursuant to Title 7 GCA '' 3107 and 3108 (1994) and Title 8 GCA ' 130.60 (1993).

[14] On appeal, Santos challenges his convictions by arguing that the trial court erred: (1) in denying his motion for the appointment of a forensic pathologist; (2) in curtailing the cross-examination of Arnaiz and in not sua sponte providing the jury with an informer instruction; (3) in admitting the statements he made to the police; and, (4) in denying his motion for a change of venue and in commenting to the jury about the reason why they were being sequestered.

[15] The first issue that we address is whether the trial court erred in denying Santos= motion for the appointment of a forensic pathologist. We review the denial of a Arequest for public funds to hire an expert@ for an abuse of discretion. United States. v. Labansat, 94 F.3d 527, 530 (9th Cir. 1996) (citations omitted). The defendant Amust show that the lack of an expert deprived him of effective assistance of counsel. . . . [by] demonstrat[ing] both that reasonably competent counsel would have required the assistance of the requested expert for a paying client, and that he was prejudiced by the lack of expert assistance.@ Labansat, 94 F.3d at 530 (citations omitted) (emphasis added). APrejudice must be shown by clear and convincing evidence.@ Id.

[16] Because this matter is one of first impression for our court, we comprehensively set out the principles surrounding this area. Our starting point is the Guam statutes, which address the appointment of an expert witness for an indigent defendant in Title 8 GCA ' 75.15 (1993). Section 75.15 provides in pertinent part:

8 GCA ' 75.15 (emphasis added). At the federal level, there is a parallel provision, Title 18 USC ' 3006A(e)(1) (2001), which addresses an indigent defendant=s right to a public funded expert witness. That provision provides in relevant part:

[17] The analytical framework that we extract from both the Guam and federal statutes is that in order for a defendant to have a right to an expert witness paid with public funds, the defendant must prove that he is (1) financially unable to obtain the witness, and (2) that the witness is necessary to the defendant=s representation or defense. Because Santos= indigent status is not in dispute, we confine our examination to the remaining issue of whether Santos= request for an expert pathologist was necessary for his defense. In this regard, we are aided by the seminal case of Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087 (1985), amply cited by both parties.

[18] In Ake, the United States Supreme Court held that Awhen a defendant demonstrates . . . that his sanity at the time of the offense is to be a significant factor at trial, the State must . . . assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.@ Ake, 470 U.S. at 83, 105 S. Ct. at 1096. In determining whether a defendant has established the necessity for the appointment of an expert, the Ake court focused on the following three factors:

Id. at 77, 105 S. Ct. at 1093 (emphasis added).

[19] Although Ake addressed a defendant=s access to a psychiatrist, Santos= brief correctly notes that the Ake analysis has been extended in subsequent cases, which have held that the defendant had the right to the appointment of other types of expert witnesses. However, there have also been several cases, which have similarly embraced the Ake analysis but have contrarily held that the trial court did not abuse its discretion when it denied the defendant=s request for an expert witness. See Hicks v. Commonwealth, 670 S.W.2d 837, 838 (Ky. 1984) (defendant was not prejudiced by the non-appointment of a defense serologist); Smith v. Commonwealth, 734 S.W.2d 437, 448 (Ky. 1987) (defendant was not entitled to a pathologist or ballistic expert); Simmons v. Commonwealth, 746 S.W.2d 393, 395 (Ky. 1988) (defendant was not entitled to the appointment of two independent psychiatrist, two independent psychologist, and one licensed clinical social worker); Moore v. Johnson, 225 F.3d 495, 502-03 (5th Cir. 2000) (defendant was not entitled to both a state-provided expert assistance in jury selection or in the development of the mitigation evidence). Additionally, there are also a number of cases where a trial court=s denial of a defendant=s request for an independent investigator were upheld. See United States v. Smith, 893 F.2d 1573, 1580-81 (9th Cir. 1990); Smith v. Enomoto, 615 F.2d 1251, 1252 (9th Cir. 1980); United States v. Davis, 582 F.2d 947, 951-52 (5th Cir. 1978); United States v. Mundt, 508 F.2d 904, 908 (10th Cir. 1974).

[20] In the case at bar, Santos requested a government-paid forensic pathologist. The trial court denied the request because it found that Santos did not make an adequate showing of reasonableness, necessity, and benefit to warrant the appointment of another forensic pathologist, especially when Santos= counsel was able to freely examine Dr. Espinola=s findings and question him during interviews and cross-examination. The trial court was also unconvinced by Santos= claim that Dr. Espinola should automatically be considered biased based on his status as a government employee. We agree with the trial court and hold that it did not abuse its discretion when it denied Santos= request. We base our holding on the following two rationales.

[21] First, Santos fails to demonstrate how Ahe was prejudiced by the lack of expert assistance.@ Labansat, 94 F.3d at 530 (citations omitted). In the Labansat case, repeatedly cited by Santos, the court upheld the trial court=s denial of a defendant=s motion for the appointment of an expert witness. The Labansat court not only held that the defendant must show Aby clear and convincing evidence that he was prejudiced by the lack of expert testimony,@ but also that the lack of the expert witness Adeprived [the defendant]. . . of effective assistance of counsel.@ Id. The record before us does not establish that the trial court=s denial of Santos= motion prejudiced Santos= case. Instead, we find that Santos= counsel was able to effectively challenge Dr. Espinola=s findings and conclusions without the appointment of another pathologist. See State v. Newton, 347 S.E.2d 81, 83-84 (N.C. Ct. App. 1986) (noting that A[t]here are usually other methods by which defense counsel himself, without the use of investigators or experts, can uncover information or educate himself regarding a particular scientific discipline.@). In fact, the record reflects that Santos= counsel was able to consult with other types of experts, who may have aided him in addressing issues that arise in the identification of charred remains. See Transcript, vol. I of XXV, p. 33 (Motions Hearing, February 29, 2000) (defense counsel noting consultation with other experts such as firefighters); Transcript, vol. I of XXV, p. 37 (Motions Hearing, February 29, 2000) (defense counsel noting, AWe=ve also consulted with other experts in this case and they don=t believe that that=s a proper identification.@).

[22] Moreover, we find this case factually distinguishable from Sommers v. Commonwealth, 843 S.W.2d 879 (Ky. 1992), cited by Santos, wherein the defendant was bombarded by the state=s six expert witnesses, who were uncooperative towards the defendant. Id. at 884-85. In the instant case, the government=s expert witness with respect to this issue was the Chief Medical Examiner of Guam, whom Santos was able to freely question and interview, as he would his own witness. Neither the transcripts below, nor Santos= brief indicates that Dr. Espinola was uncooperative during any interview or cross-examination. See State v. Swallow, 405 N.W.2d 29, 42 (S.D. 1987) (A[Defendant] does not cite a single example where his cross-examination was inhibited by a failure to consult with an expert.@).

[23] Second, Santos has not established that he was deprived of an effective defense. Santos= defense counsel=s extensive cross-examination of Dr. Espinola regarding his findings and how they were derived demonstrates that the non-appointment of another pathologist did not deprive Santos of an effective defense. The defense counsel=s effectiveness was illustrated with Dr. Espinola=s admission during cross-examination that he was unable to determine that the body was really Hermie=s. Transcript, vol. XX of XXV, p. 102 (Trial, May 8, 2000); see also Woodard v. State, 743 P.2d 662, 664 (Okla. Crim. App. 1987) (finding that defendant was not deprived of the Abasic tools@ of his defense because defense counsel was able to effectively attack the expert=s conclusions during the extensive cross-examination).

[24] Additionally, although Santos contends that the purpose of the appointment of another pathologist was to establish the existence of chicken and dog bones, the record reveals that such an issue was closely explored during trial by the government counsel. Transcript, vol. XX of XXV, pp. 28-41, 49-59 (Trial, May 8, 2000). The government counsel consistently scrutinized Dr. Espinola about the existence of dog or chicken bones, or the bones of perhaps another person in the pit. Consequently, Santos was not precluded from developing this specific defense theory during trial. In this respect, we find the case cited by Santos, State v. Pierce, 488 S.E.2d 576 (N.C. 1997), dispositive, where the court affirmed the trial court=s denial of defendant=s request for an independent psychiatrist, independent pathologist, and medical expert in a child abuse murder case. In Pierce, the defendant requested that the court appoint an independent pathologist to review the state=s pathologist report, to inform defense counsel of Aany possible defenses,@ and to assist counsel in determining how the victim=s injuries were inflicted. Pierce, 488 S.E.2d at 583. In affirming the trial court=s denial, the court reasoned that:

Id. at 583-84 (alteration in original) (internal quotations and citations omitted) (emphasis added).

[25] In view of the above, Santos has failed to demonstrate that the trial court abused its discretion when it denied his motion for the appointment of another forensic pathologist. Santos has not proffered any evidence that his defense counsel could not effectively challenge Dr. Espinola=s findings through effective interview or cross-examination. See Moore, 225 F.3d at 503 (A[A] defendant cannot expect the state to provide him a most-sophisticated defense; rather, he is entitled to >access to the raw materials integral to the building of an effective defense.= Most of those raw materials come . . . in the form of his court-appointed lawyer--in his expert knowledge about how to negotiate the rules of court, how to mount an effective defense, and so forth.@). Accordingly, we hold that the trial court did not abuse its discretion when it denied Santos= request for the appointment of a forensic pathologist.

Supreme Court of Guam

People of Guam v Santos [2003] GUSC 1; 2003 Guam 01 (3 January 2003)