People of Guam v Campos [2015] GUSC 11 (13 April 2015)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,
Plaintiff-Appellee,

v.

ANTHONY L.G. CAMPOS, JR.,
Defendant-Appellant.

OPINION
Filed: April 13, 2015
Cite as: 2015 Guam 11

Supreme Court Case No.: CRA14-005
Superior Court Case No.: CF0553-13

Appeal from the Superior Court of Guam
Argued and submitted on October 13, 2014
Hagåtña, Guam

Appearing for Defendant-Appellant: Joaquin C. Arriola, Jr., Esq. Zachary C. Taimanglo, Esq. Arriola, Cowan & Arriola 259 Martyr St., Ste. 201 Hagåtña, GU 96910

Appearing for Plaintiff-Appellee: Brian D. Gallagher, Esq. Assistant Attorney General Office of the Attorney General Prosecution Division 590 S. Marine Corps Dr., Ste. 706 Tamuning, GU 96913

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

TORRES, C.J.:

[1] Defendant-Appellant Anthony L.G. Campos ("Campos") appeals from a judgment of conviction following a jury trial. Campos initially was charged with one count of Second Degree Robbery, with a special allegation of Possession and Use of a Deadly Weapon in the Commission of a Felony, for a robbery taking place at Route 8 Mini-Mart in Barrigada. On the same day, in a separate indictment, Campos was charged with three additional counts of Second Degree Robbery, each with a special allegation of Possession and Use of a Deadly Weapon in the Commission of a Felony, for a robbery taking place outside Payless Sinajana. The day before the trials in the two separate cases were to commence, the People filed a superseding indictment consolidating the two cases into a single indictment. At the conclusion of trial, the jury convicted Campos of all four counts of Second Degree Robbery and the special allegations associated with them.

[2] On appeal Campos argues that (1) he was prejudiced by the consolidation of the cases on the eve of trial, (2) the trial court should have granted a mistrial because the People did not provide all discovery, (3) the trial court erred in not suppressing evidence of a photographic lineup used by the police, and (4) the trial court erred in not instructing the jury on a charge of Third Degree Robbery as a lesser included offense.

[3] For the reasons herein, we affirm.
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I. FACTUAL AND PROCEDURAL BACKGROUND
[4] On October 1, 2013, three men robbed three employees of Payless Supermarket in Sinajana as they were closing the store for the night. At least one of the men was armed with a pistol and fired shots into the air before robbing the employees of their personal effects. Although the robbers covered their faces during the crime, the victims were able to see the armed man's face.

[5] The next day, one man robbed the Route 8 Mini-Mart in Barrigada at gunpoint, stealing cash from the store's cash register. The man wore a mask during the crime, but it fell down at times, allowing the cashier to see his face. The crime was also caught on the store's security cameras.

[6] The police investigating the robberies used photographic lineups to determine the identity of the perpetrators. The victims of the Payless robbery were able to identify the armed man as Anthony Campos, Jr. using a photographic lineup. The cashier working during the Mini-Mart robbery identified the robber as Campos, as well.

[7] The police later executed a search warrant at Campos's residence. No evidence of either crime was recovered. On the same day, Campos was arrested. The grand jury charged Campos with three counts of second degree robbery, each with a special allegation of possession and use of a deadly weapon in the commission of a felony, for the Payless robbery. In a separate indictment issued on the same day, Campos was charged with an additional count of second degree robbery with a special allegation of possession and use of a deadly weapon in the commission of a felony for the Mini-Mart robbery.

[8] The day before the trials in both cases were to commence, the People resubmitted the matter to the grand jury, seeking to consolidate the two cases. Campos was charged with all previous counts related to both crimes in a single superseding indictment. He was then arraigned on the superseding indictment. Although Campos's counsel had previously indicated that he had "no objection . . . whatsoever" to the filing of the superseding indictment, Transcripts ("Tr.") at 4 (Pretrial Conf., Dec. 2, 2013), he raised an objection during arraignment proceedings on the ground that the consolidation of the two cases was prejudicial to his client. The objection was overruled.

[9] Following the commencement of trial, the People called the cashier who was working at the Mini-Mart at the time of the robbery. She testified that when identifying Campos she was shown two different photographic lineups by the police. She did not testify that Campos appeared in both lineups. The People also called the victims of the Payless robbery. One of the victims testified that the police showed her three different photographic lineups. She did not testify that Campos appeared in more than one lineup. Another victim testified that the police showed her a single black and white photograph before showing her a photographic lineup. She did not testify that the photograph was of Campos.

[10] Following the victim testimony, Campos moved for a mistrial. Campos's counsel explained that the People had disclosed only a single photographic lineup and that the defense was unaware of any additional lineups or photographs used by the police until they were mentioned during the witnesses' testimony. He argued that without disclosure of the additional identification materials shown to the witnesses, the defense could not know if they contained exculpatory evidence. Before ruling on the motion, the court asked the prosecution to confer with the detectives who had investigated the crimes and determine if additional material had been used and whether it could be produced. After doing so, the prosecutor reported to the court that the investigating detectives continued to maintain that only a single lineup had been used and that no additional identification material was in evidence. The court then denied the motion for a mistrial.

[11]