People of Guam v Kitano [2011] GUSC 10; Guam 11 2011 (29 July 2011)

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Appeal from the Superior Court of Guam
Argued and submitted on September 10, 2010
Hagåtña, Guam

Appearing for Defendant-Appellant:
Ladd A. Baumann, Esq.
Baumann, Kondas and Xu, LLC
DNA Bldg., Ste. 903
238 Archbishop Flores St.
Hagåtña, GU 96910

Appearing for Plaintiff-Appellee:
Marianne Woloschuk, Esq.
Assistant Attorney General
Office of the Attorney General
287 W. O’Brien Dr.
Hagåtña, GU 96910

BEFORE: ROBERT J. TORRES, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; KATHERINE A. MARAMAN, Associate Justice.[1]

[1] Defendant-Appellant Arnold Blanco Kitano appeals from a final judgment convicting him of one count of First Degree Criminal Sexual Conduct and one count of Second Degree Criminal Sexual Conduct (both First Degree Felonies). Kitano argues that the judgment should be vacated and the case remanded for a new trial because the trial court erred in rulings related to the government’s untimely disclosure of possible exculpatory material and failure to preserve certain evidence, and because the trial court denied him the right to testify in his own defense.

[3] Kitano was indicted by the grand jury for one count of First Degree Criminal Sexual Conduct (As a 1st Degree Felony) (“First Degree CSC”) and one count of Second Degree Criminal Sexual Conduct (As a 1st Degree Felony) (“Second Degree CSC”).

[4] The charges against Kitano stemmed from an alleged attack on C.L.[2] during the early morning hours of October 13, 2008. C.L. was at her place of business, a massage parlor in Tumon, on the night of the attack. A male individual entered the premises and asked for permission to use the restroom. Soon after, he cornered C.L. and forced her to engage in certain sexual acts. C.L. was eventually able to escape from her attacker and flag down a passing motorist for help. In the meantime, C.L.’s attacker fled the scene.

[5] Guam Police Department Officer Peter Tydingco was the first to arrive on the scene. Transcripts, (“Tr.”), vol. 2 at 14 (Cont. Jury Trial, Jan. 16, 2009). C.L. gave Officer Tydingco a description of the attacker that initially was vague as to age, height, and weight. C.L. eventually composed herself and provided Officer Tydingco a better description. C.L. described her attacker as being between late-30s and early 40s, wearing brown shorts and a t-shirt, having shoulder-length hair and a mustache, being possibly local, and having numerous tattoos on his arms and chest. C.L. specifically described one tattoo on the assailant’s chest that she was able to view when he removed his shirt during the attack. The tattoo was described as being on the center of his chest and depicting a female with long hair combed to the right.

[6] Officer Donny Tainatongo later arrived on the scene to take photographs. Officer Tainatongo’s field notes relating to the incident contained a brief description of the assailant. Kitano contends that this description was based on information relayed over the police radio by Officer Tydingco. Officer Tainatongo’s field notes described the suspect as male, possibly Guamanian, in his 30s-40s, height and weight unknown, with a mustache and numerous tattoos.

[7] On the evening of October 25, 2008, the police asked C.L. to come to the Tumon precinct for a follow-up interview. There, C.L. provided a more detailed description of her attacker, including his complexion, the color of his hair, and his build. C.L. also re-described the assailant’s chest tattoo, as well as drew a picture of the tattoo on the precinct whiteboard. Kitano was unaware of this drawing until the information was revealed at trial during the cross-examination of Officer Paul Tapao. Kitano learned during the same line of questioning that the drawing had been erased without it first being photographed or in some other way preserved.

[8] At approximately the same time as C.L.’s interview, the police apprehended Kitano and brought him to the Tumon precinct for questioning. The police asked Kitano to remove his shirt so that they could view his tattoos. After determining that a tattoo on Kitano’s chest matched the description of the tattoo on C.L.’s alleged attacker, the police arrested Kitano for the October 13 attack.

[9] Prior to trial, Kitano moved to exclude evidence of prior bad acts, as well as photo line-up identification and any in-court identification of Kitano by C.L. on the grounds of suggestive identification. Kitano claimed that C.L. was allowed to view him on the Tumon precinct’s closed-circuit television monitors while he was being questioned on October 25. The trial court granted Kitano’s motion to exclude evidence of prior bad acts, but denied Kitano’s motion to suppress suggestive identification, finding that there was no evidence of a suggestive identification.

[10] On November 25, 2008, Kitano made an 8 GCA §§ 70.10 and 70.15 motion to compel discovery, requesting production by the government of discoverable material, including any Laxamana field notes from the police as well as any Brady exculpatory evidence. On January 6, 2009, three weeks after the discovery motion and nine days before opening statements, Plaintiff-Appellee People of Guam (“the People”) filed a Supplemental Witness List and turned over parts of a report prepared by Officer Tainatongo, including several photographs taken the night of the alleged attack. The following day, Kitano moved to dismiss the case or, in the alternative, to exclude these materials, including Officer Tainatongo’s testimony, citing to the delayed disclosure. After a hearing on the motion, the trial court granted Kitano’s motion to exclude the evidence, finding that the delayed disclosure caused prejudice to Kitano, but that the delay was not so serious as to warrant dismissal.

[11] During trial, however, Kitano asked the court to allow the limited testimony of Officer Tainatongo. Kitano wanted to question Officer Tainatongo about the description of the assailant he received on the night of the attack, but did not want Officer Tainatongo to be able to testify about Kitano’s prior bad acts, which had been previously excluded at Kitano’s request. The trial court denied Kitano’s motion, ruling that if it allowed Officer Tainatongo to testify, then his entire police report and photographs would be admissible.[3]

[12] At trial, the issue was raised of whether Kitano would testify in his own defense. Kitano chose not to testify.

[13] The jury returned a verdict of guilty as to all charges. Kitano was sentenced to life imprisonment without the possibility of parole as to the First Degree CSC charge, and to fifteen (15) years imprisonment as to the Second Degree CSC charge, both sentences to run concurrently.

[14] Judgment was entered and Kitano timely filed his Second Amended Notice of Appeal.

[15] This court has jurisdiction over appeals from final judgments pursuant to 48 U.S.C.A. § 1424-1(a)(2) (Westlaw current through Pub. L. 112-23 (2011)); 7 GCA §§ 3105, 3107(b), and 3108(a) (2005); and 8 GCA §§ 130.10 and 130.15(a) (2005).

[16] We review the trial court’s evidentiary rulings for an abuse of discretion. People v. Fisher, 2001 Guam 2 ¶ 7 (quoting J.J. Moving Serv., Inc. v. Sanko Bussan (GUAM) Co., 1998 Guam 19 ¶ 31). “Alleged Brady violations are reviewed de novo.” Id. ¶ 12 (quoting United States v. Alvarez, 86 F.3d 901, 903 (9th Cir. 1996)). Whether a Brady violation warrants a new trial is reviewed for an abuse of discretion. People v. Flores, 2009 Guam 22 ¶ 59 (quoting State v. Wilson, 200 P.3d 1283, 1292 (Kan. Ct. App. 2008)).

[17] We review matters concerning the Confrontation Clause de novo. People v. Salas, 2000 Guam 2 ¶ 11 (citing United States v. George, 960 F.2d 97, 99 (9th Cir. 1992)). Whether the trial court infringed on the defendant’s constitutional right to testify is a mixed question of law and fact reviewed de novo. See United States v. Stark, 507 F.3d 512, 515 (7th Cir. 2007) (“We review de novo the question whether an evidentiary ruling infringed upon a defendant’s constitutional right to testify.” (citations omitted)); United States v. Gordon, 290 F.3d 539, 546 (3d Cir. 2002) (“We review de novo ‘claims of constitutional violations, such as the denial of the right to testify.’” (quoting United States v. Leggett, 162 F.3d 237, 245 (3d Cir. 1998))).

[18] Kitano argues that the People’s delay in disclosing Officer Tainatongo’s field notes as well as its failure to preserve C.L.’s drawing of her assailant’s tattoo violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963).

[19] In Brady, the Supreme Court held that “the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment . . . .” Brady, 373 U.S. at 87. A similar requirement is found under Guam’s discovery statute, which requires the prosecuting attorney to disclose “any material or information which tends to negate the guilt of the defendant as to the offense charged . . . .” 8 GCA § 70.10(a)(7) (2005).

[20] “‘[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is probability sufficient to undermine confidence in the outcome.’” Fisher, 2001 Guam 2 ¶ 13 (quoting United States v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988)).

[21] There are three components of a Brady violation. Flores, 2009 Guam 22 ¶ 61; Strickler v. Greene, 527 U.S. 263, 281-82 (1999). “First, the evidence at issue must be favorable to the accused,” either because it is exculpatory or because it is impeaching. Flores, 2009 Guam 22 ¶ 61 (citing United States v. Bagley, 473 U.S. 667, 676 (1985)). “Second, the evidence must have been suppressed by the government, either willfully or inadvertently.” Id. (citing United States v. Agurs, 427 U.S. 97, 110 (1976)). Third, prejudice must have ensued, i.e., the defendant must have been deprived a fair trial. Id. (citing Bagley, 473 U.S. at 676-78). “[S]trictly speaking, there is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.” Strickler, 527 U.S. at 281. This is because Brady’s “‘overriding concern [is] with the justice of the finding of guilt,’ not with the accused’s ability to prepare for trial.” Norris v. Schotten, 146 F.3d 314, 334 (6th Cir. 1998) (quoting Agurs, 427 U.S. at 113 & n.20).

[22] Generally, the principles announced in Brady do not apply to a tardy disclosure of exculpatory evidence, but rather to a complete failure to disclose. United States v. Word, 806 F.2d 658, 665 (6th Cir. 1986) (citing United States v. Holloway, 740 F.2d 1373, 1381 (6th Cir. 1984), cert. denied, 469 U.S. 1021 (1984)). If previously undisclosed evidence was eventually disclosed during trial, a Brady violation did not occur unless the defendant was prejudiced by the delay. Flores, 2009 Guam 22 ¶ 62 (citing Word, 806 F.2d at 665); see also Madsen v. Dormire, 137 F.3d 602, 605 (8th Cir. 1998) (“This is so because ‘[t]here is no general constitutional right to discovery in a criminal case, and Brady did not create one.’” (quoting Weatherford v. Bursey, 429 U.S. 545, 559 (1977))). The appropriate consideration in that situation is whether the disclosure came so late as to prevent the defendant from receiving a fair trial. Id. (citing Bagley, 473 U.S. at 674-78). If a defendant received “exculpatory evidence ‘in time to make effective use of it,’ a new trial is, in most cases, not warranted.” Id. (quoting United States v. Paxson, 861 F.2d 730, 737 (D.C. Cir. 1988)).

[23] Kitano argues that the People’s delayed disclosure of Officer Tainatongo’s field notes violated Kitano’s rights under Brady. Kitano contends that the notes contained C.L.’s initial description of her alleged attacker to Officer Tydingco, who then relayed the information to Officer Tainatongo via police radio. Kitano essentially argues that the notes were material because they did not mention any prominent tattoos on the assailant’s chest, which demonstrates discrepancies in C.L.’s descriptions and could have been used to impeach the testimony of C.L. and Officer Tydingco. Thus, had the information been timely disclosed to the defense, the result of the trial would have been different because Kitano would have been able to prepare a more aggressive argument against C.L.’s ability to accurately identify her attacker, which would have created greater reasonable doubt of Kitano’s guilt.

[24] In response, the People argue that Officer Tainatongo’s field notes are not Brady material because they do not contain any exculpatory or impeachment information; rather, the field notes are consistent with the description given to Officer Tydingco by C.L. and transmitted over the police radio, the only difference being that the description in Officer Tainatongo’s field notes is less complete. The People contend that “[t]his makes sense, given that Officer Tydingco had the role of first responder on the day of the attack and had direct contact with the victim, while Officer Tainatongo arrived later to take photographs.” Appellee’s Br. at 12 (Aug. 13, 2010).

[25] Furthermore, the People assert, even if Officer Tainatongo’s field notes contained exculpatory evidence, it could not be characterized as material because had the trial court permitted Kitano to present the evidence to the jury, “there is no likelihood that this would have had any effect on the guilty verdicts, because Officer Tainatongo’s information is a wholly contained subset of Officer Tydingco’s information, rather than a different set of data altogether.” Id. at 12-13.

[26] We agree with the People. Ultimately, Kitano’s Brady argument fails because the information contained in Officer Tainatongo’s field notes is not material as there is not a reasonable probability that had the evidence been disclosed sooner – or been introduced at trial – it would have produced a different verdict. Both C.L. and Officer Tydingco testified at length as to C.L.’s description of the assailant on the night of the alleged attack. Even if Kitano had been able to offer Officer Tainatongo’s testimony regarding the description he received over the police radio in order to suggest to the jury that C.L.’s initial description of her alleged attacker was inconsistent with her later descriptions, it is unlikely that this would have swayed the jury into finding Kitano not guilty of the attack. The description of the suspect contained in Officer Tainatongo’s notes, though lacking in detail, is not inconsistent with the description C.L. purportedly gave Officer Tydingco on the night of the attack.

[27] Moreover, assuming arguendo that the field notes contained exculpatory or impeachment evidence, the fact that Kitano did not move for a continuance in order to be afforded an opportunity to better assess the new evidence hurts any argument that he suffered prejudice by the delay. Because there is not a reasonable probability that a more timely disclosure of Officer Tainatongo’s field notes would have turned the case in Kitano’s favor, the delay did not amount to a Brady violation.

[28] Kitano argues that the government violated his right to due process by failing to preserve C.L.’s drawing of her alleged attacker’s chest tattoo on the precinct’s whiteboard.

[29] Under the federal constitution, the government’s failure to provide evidence within its control to a criminal defendant may violate the defendant’s right to due process of law in two situations.

[30] The first situation concerns a violation of the defendant’s Brady rights through the withholding of exculpatory evidence. In that situation, the Supreme Court has held that when the government suppresses or fails to disclose material exculpatory evidence, the good or bad faith of the prosecution is irrelevant. See Brady, 373 U.S. at 87 (“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violate s due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (emphasis added)).

[31] The second situation concerns the failure of the police to preserve evidence that might be useful to the accused. In that situation, by contrast, the Court recognized that the Due Process Clause “requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it . . . might have exonerated the defendant.” Arizona v. Youngblood, 488 U.S. 51, 57 (1988) (emphasis added). The Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”[4] Id. at 58. Although the Court did not precisely define “bad faith,” it did hold that the “presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” Id. at 56 n. *.

[32] We find C.L.’s drawing to be the sort of “potentially useful evidence” referred to in Youngblood, not the material exculpatory evidence addressed in Brady. At best, C.L.’s drawing was so different from Kitano’s actual tattoo that had the jury been able to see the drawing, it would have found C.L. and Officer Tydingco’s testimonies to completely lack credibility.

[33] The People assert that the failure to preserve C.L.’s drawing did not violate Kitano’s right to due process under Youngblood because Kitano has not shown that the police erased the drawing in bad faith. We agree. Kitano has not even alleged that the police acted in bad faith when they erased the drawing before preserving it in some way.[5] Indeed, at oral argument, counsel for Kitano conceded that the trial record is consistent with the government’s position that there was no bad faith on the part of the police in erasing the drawing. Digital Recording at 2:07:36 (Oral Argument, Sept. 10, 2010). Kitano has failed to establish a due process violation under Youngblood. Thus, there was no error.

[34] Kitano contends that the trial court infringed upon his constitutional right to confrontation under Crawford v. Washington, 541 U.S. 36 (2004), when it ruled that if Kitano elicited any testimony from Officer Tainatongo, all other evidence from Officer Tainatongo, including testimony regarding Kitano’s prior bad acts that had been previously suppressed at Kitano’s motion, would be admissible.[6] Appellant’s Br. at 15-17 (July 13, 2010).

[35] The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI.

Supreme Court of Guam

People of Guam v Kitano [2011] GUSC 10; Guam 11 2011 (29 July 2011)