People of Guam v Martinez [2017] GUSC 23 (28 December 2017)

	Home \| Databases \| WorldLII \| Search \| Feedback Supreme Court of Guam

Appeal from the Superior Court of Guam
Argued and submitted on July 20, 2016
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:
Joseph B. McDonald, 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.^[1]

[1] Defendant-Appellant Shaun Eric Martinez appeals his judgment of conviction for Theft of Property (as a Second Degree Felony), Conspiracy to Commit Robbery (as a Second Degree Felony), Robbery (as a Third Degree Felony), and one count of Assault (as a Misdemeanor). On appeal, Martinez argues that the trial court erred in admitting fingerprint evidence and improperly submitting the issue of a felon on felony release to the jury.
[2] For the reasons stated below, we affirm.

[3] The two victims in this case, Young Sul Kim (“Young Sul”), and his wife, Ok Ja Kim (“Ok Ja”), testified that on the night of July 12, 2014, they noticed that a sedan followed them to their residence in Barrigada. When the couple parked their vehicle, two men from the sedan approached them. The man who approached Young Sul claimed to be a police officer. The other man approached Ok Ja, sprayed a substance on her, and forcibly took her purse. Both men fled the scene in the same sedan.

[4] When the police arrived, they noticed there were security cameras around the residence. Officer Jasen M. Dodd reviewed the surveillance video, which captured the assault and showed that one of the assailants placed his hands on the victims’ car. After reviewing the video, Officer Dodd contacted a Crime Scene Investigation (“CSI”) unit to test the vehicle for fingerprints. CSI lifted a fingerprint from the victims’ vehicle and found that the lifted fingerprints belonged to Martinez. Detectives Joseph Aguon and Joel Terlaje located Martinez and informed him that the police were investigating a robbery that happened in Barrigada. Martinez was then taken to the Guam Police Department’s (“GPD”) Tiyan office, where he was read his Miranda rights and interviewed by Detective Terlaje.

[5] During the interview, Martinez confessed to the crime and provided significant detail in describing his and his co-defendants’ actions. Detective Terlaje testified that Martinez confessed to meeting up with his two co-defendants, that co-defendant Johnny Atalig informed them that “they were going to rob some Koreans,” and confessed to following the victims from a bar in Harmon to their residence in Barrigada. Transcript (“Tr.”) at 42-44 (Jury Trial, Dec. 30, 2014). Martinez also confessed that he and Atalig approached the two victims as they were still inside their vehicle parked at their residence. Further, he confessed that he sprayed mace on Ok Ja, chased her to the front of the vehicle, grabbed her purse, and fled the area with Atalig. Martinez added that, during their escape, he threw the canister of mace into the jungle and received a share of the contents of the stolen purse.

[6] In addition to his confession, Martinez agreed to assist the police in their search for the mace canister—which was ultimately unsuccessful—and turned over his clothing worn during the robbery. After the interview, the police asked Martinez if he was willing to do a video reenactment of the robbery. Martinez agreed, and that video was played for the jury at his trial.

[7] Before Martinez’s trial began, he served a discovery request upon the Office of the Attorney General (“OAG”). Two days later, the People transmitted discovery consisting of 78 pages of documents and two compact discs containing electronic files. Included in this discovery was some indication that fingerprints were obtained during the investigation. See Excerpts of Record (“ER”) at 56 (indicating that officer “received information . . . that Finger Print Analyst PO III Gilbert J. Mondia informed [another officer] that the latent print lifted from the vehicle matched the fingerprint” from Martinez).^[2] But, no report regarding an analysis of those fingerprints was contained in this initial discovery.

[8] Jury selection began on December 3, 2014, but a superseding indictment was returned adding an additional charge of theft. Further discovery was provided to Martinez on December 10, 2014, which included additional materials regarding the fingerprint evidence the People intended to use at trial. At a conference the next day, Martinez moved to exclude this newly-produced evidence based upon the People’s failure to disclose it in a timely fashion and because he had “been apprised of no expert testimony, no expert report, [and] no one is designated as an expert on the fingerprints on the Government’s witness list.” Tr. at 6 (Pretrial Conference, Dec. 11, 2014). Martinez argued that the People’s actions were a “clear discovery violation.” Id. at 7-8. In response, the People acknowledged that Martinez submitted a discovery request for any expert report regarding fingerprints, but stated that no such report existed. Rather, the People claimed that GPD only provided the OAG with copies of the file print and latent print for comparison, which the People provided to Martinez in discovery. The trial court made no definitive ruling on the record that a discovery violation occurred, but it stated that it would not “deny completely” the use of the fingerprint evidence and gave Martinez’s counsel five days to prepare to address it. Id. at 9.

[9] The next day, Martinez filed a written motion asserting the same arguments. In response, the People submitted an amended witness list designating Officer Mondia as an expert witness. A continued conference was held on December 17, 2014. Although no transcript of these proceedings exists, both parties agree that at this conference the court effectively denied Martinez’s motion by permitting the People to use the late-disclosed evidence during trial.

[10] During Martinez’s jury trial, the parties stipulated to the fact that Martinez was still on felony pretrial release during the date in question. After the People rested their case, Martinez moved for a mistrial or, alternatively, to strike all reference to fingerprint evidence found at the scene of the incident. The trial court denied Martinez’s motion.
[11] At the charging conference, the parties discussed the jury instruction regarding felony pretrial release. During that conference, Martinez objected to any reference to the issue in the jury instructions and verdict forms. The court overruled Martinez’s objection. The jury ultimately returned guilty verdicts on four counts. Martinez was sentenced to fifteen years’ imprisonment. He timely filed a notice of appeal.

[12] This court has jurisdiction over this appeal pursuant to 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 115-90 (2017)); 7 GCA §§ 3107(b) and 3108(a) (2005); and 8 GCA §§ 130.10 and 130.15(a) (2005).
//
//

[13] Martinez first argues on appeal that the trial court erred in allowing the People to introduce fingerprint evidence despite the People’s failure to disclose it in a timely manner. Appellant’s Br. at 13 (Oct. 26, 2015). In particular, he asserts that the trial court abused its discretion when it failed to consider the four factors used to determine the appropriate sanction for discovery violations as set forth in our prior decision in People v. Tuncap, 1998 Guam 13 ¶ 25. See Appellant’s Br. at 15 (citing Tuncap, 1998 Guam 13 ¶ 25). In response, the People admit that a discovery violation occurred. Appellee’s Br. at 10 (Nov. 25, 2015). They contend, however, that our decision in People v. Naich “characterizes the four [Tuncap] factors as appropriate for appellate review but does not direct trial courts to apply all four factors for each violation.” Appellee’s Br. at 10. Moreover, the People assert that the trial court’s decision to grant a five-day continuance was sufficient to rectify any discovery violation. Id. “We review . . . sanctions imposed for violations of discovery orders, for an abuse of discretion.” People v. Naich, 2013 Guam 7 ¶ 22.
[14] Where a discovery violation occurs, “the court must determine whether the sanction employed to remedy the infraction was appropriate.” Tuncap, 1998 Guam 13 ¶ 23. “[T]he sanction chosen must be proportionate to the misconduct.” Id. ¶ 24 (citation omitted). Generally speaking, “[t]he sanction of dismissal is a disfavored remedy.” Id. ¶ 26 (citing People v. Marada, No. CR94-00070A, 1995 WL 604365 (D. Guam App. Div. Sept. 18, 1995)). Indeed, “dismissal of an indictment is inappropriate ‘absent flagrant and prejudicial prosecutorial misconduct.’” Naich, 2013 Guam 7 ¶ 33 (quoting United States v. Jacobs, 855 F.2d 652, 655 (9th Cir. 1988)). We have found it better policy to apply sanctions that “affect the evidence at trial and the merits of the case as little as possible.” Tuncap, 1998 Guam 13 ¶ 23 (citation and internal quotation marks omitted); see also Naich, 2013 Guam 7 ¶¶ 31-32 (“[T]he goal of sanctions [is] ‘to get prompt and full compliance with the discovery order,’” and dismissing a case “d[oes] not achieve that end.” (citation omitted)). This usually requires that the court “impose the least severe sanction that will accomplish the desired result [of] prompt and full compliance with the” parties’ discovery obligations. Tuncap, 1998 Guam 13 ¶ 24 (quoting United States v. Sarcinelli, 667 F.2d 5, 7 (5th Cir. 1982)).
[15] We address the appropriateness of imposed sanctions for discovery violations using the factors set out by the Fifth Circuit in Sarcinelli. See Naich, 2013 Guam 7 ¶ 31; see also Tuncap, 1998 Guam 13 ¶¶ 25-29. The relevant factors for courts to consider in imposing a sanction are: (1) the reasons why the disclosure was not made; (2) the extent of prejudice, if any, to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant circumstances. See Naich, 2013 Guam 7 ¶ 31.
[16] Although the trial court below did not specifically analyze each of these factors, we do not find that dispositive for purposes of this appeal. In Tuncap, we found that because the trial court made no meaningful inquiry into the underlying specific items of discovery, most of the Sarcinelli factors could not be analyzed. See Tuncap, 1998 Guam 13 ¶ 29. That is not the case here. The trial court inquired about specific items of discovery that the People initially failed to produce and heard arguments as to why specific fingerprint reports requested in follow-up discovery were not produced. See Tr. at 6-9, 12 (Pretrial Conference); see also Tr. at 18-23 (Jury Trial, Jan. 2, 2015). Once that material was produced, the trial court granted a five-day continuance so that Martinez could properly prepare to address this late-produced evidence. Upon a review of the Sarcinelli factors, as articulated in Tuncap, we find that the trial court did not abuse its discretion in denying Martinez’s request to exclude the fingerprint evidence in its entirety and granting a five-day continuance to allow Martinez time to prepare to address the new evidence.
[17] To begin our analysis, we first inquire into the reasons why disclosure was not made. See Naich, 2013 Guam 7 ¶ 35. In Naich, we agreed with the trial court’s finding that the errors were not made in bad faith but rather resulted from a series of mistakes. Id. ¶¶ 35-36. That appears to be the case here as well. The trial court expressly addressed this issue, finding that “[i]f there [are] faults, it doesn’t appear that it lies with the Government. They seemed to exercise diligence in trying to acquire the discovery.” Tr. at 19 (Jury Trial, Jan. 2, 2015). The initial discovery transmitted on August 8, 2014, referenced the fingerprint analysis report. In other words, Martinez was made aware of the fingerprint reports at issue; we cannot find that the People purposefully hid materials from Martinez. Moreover, it is undisputed that the prosecution turned over further discovery nearly as soon as they received it and, as the People note, “it’s not really standard to get copies of the cards or anything from the crime lab . . . unless and until trial is proceeding.” Tr. at 7 (Pretrial Conference). Although we have cautioned that “the People be more diligent in seeking to comply with discovery requests and orders, even if this requires proactive efforts,” see Naich, 2013 Guam 7 ¶ 36, the shortcomings here cannot be attributable to bad faith or misconduct.
[18] The next factor we consider in our analysis is the extent of any prejudice to the opposing party. See Naich, 2013 Guam 7 ¶ 37. The prejudice referred to in analyzing this factor is “prejudice to the defendants’ substantial rights, that is, injury to their right to a fair trial, and that prejudice does not encompass putting trial preparation into minor disarray.” United States v. Garrett, 238 F.3d 293, 299 (5th Cir. 2000) (citations omitted).^[3] If the defendant had time to put the newly disclosed discovery to use, then there should be no finding of prejudice. See id. “Whether some extra effort was required by the defense counsel” is irrelevant to our consideration of this factor. See id. In Naich, this court found that having fifteen days from receipt of the discovery until the trial began was sufficient time to prepare to use the late-produced material. 2013 Guam 7 ¶¶ 37-39; see also Tuncap, 1998 Guam 13 ¶ 29 (finding that eight days was likely sufficient time to cure prejudice). Moreover, the defendant in Naich did “not suggest[] any different strategic actions he might have taken had he had more time to prepare and utilize the delayed discovery material.” Naich, 2013 Guam 7 ¶ 38. The same is true here.
[19] In contemplation of Martinez’s initial motion at the December 11th pretrial conference, the trial court granted the parties a five-day continuance. See Tr. at 9-12 (Pretrial Conference). Moreover, the alleged report in dispute was turned over on December 10, but Martinez’s trial did not commence until December 19, thus suggesting defense counsel had nine days to prepare for the presentation of the fingerprint evidence during the trial.^[4] Cf. Tuncap, 1998 Guam 13 ¶ 29 (noting that “the trial was not scheduled to begin for another eight days,” and “[t]hus, time was still available to remedy the actual prejudice, if any, suffered by the defendant”). On this basis, the trial court found that “there was sufficient time for preparation.” Tr. at 75 (Jury Trial, Dec. 31, 2014). Although Martinez notes that he was unable to secure an expert witness in this short time frame, see Appellant’s Br. at 6, like the defendant in Naich, he has not indicated what “different strategic actions he might have taken” or “what he would have done differently had he received the information earlier,” Naich, 2013 Guam 7 ¶¶ 38-39. In People v. Quinata, we rejected a defendant’s argument that the late disclosure of expert evidence prejudiced his defense where the defendant on appeal “d[id] not actually question the integrity of the evidence.” 2010 Guam 17 ¶ 47. Here, Martinez makes only the cursory argument that the evidence “was material to the jury’s consideration and subsequent guilty verdicts.” Appellant’s Br. at 16. He articulates no specific arguments why the fingerprint evidence was unreliable or otherwise lacked integrity. On the other hand, substantial evidence other than the fingerprints linked Martinez to the crime, including, among other things, his oral confession detailing the facts as shown by the video evidence, the clothing he gave to police that was used during the robbery, the fact that he took the police to the victims’ residence, and the video reenactment of the robbery. See, e.g.,

Supreme Court of Guam

People of Guam v Martinez [2017] GUSC 23 (28 December 2017)