Opinion
Criminal Case No. 92-179
September 28, 1998, Submitted . July 19, 2001, Decided
Counsel for Appellant: Douglas F. Cushnie, Saipan, MP.
Counsel for Appellee: Kevin A. Lynch, Office of the Attorney General, Saipan, MP.
WHITE, Special Judge:
This is an appeal of a criminal conviction jury trial. Defendant Mario M. Reyes ("Reyes") was tried together with a co-defendant, Joseph A. Bowie ("Bowie"). The Superior Court granted a directed verdict in favor of both defendants on charges of felony murder and robbery, and dismissed those charges. The jury found both of the defendants guilty of kidnaping and first degree murder, and both defendants appealed. We have jurisdiction pursuant to 1 CMC § 3101.
Oral argument was heard by this Court on September 28, 1998. On September 7, 1999, we issued a Decision, affirming Reyes' conviction, and indicating that we would issue our reasoning and analysis at a subsequent date. For the reasons set forth in Commonwealth of the Northern Mariana Islands v. Bowie, 236 F.3d 1083 [(9]th Cir. 2001), reh'g denied, - F.3d - (March 23, 2001), we VACATE the Decision of September 7, 1999, REVERSE the conviction of Defendant Reyes, and REMAND the case to the Superior Court for a new trial.
The Order further provided that "the time for reconsideration or further appeal, if permissible, shall not start to run until the reasoning and analysis memorandum is entered and filed."
ANALYSIS
This case involves the kidnapping of Nib Rivera and Eladio Laude, and the subsequent murder of Laude. The full facts of this case are set forth at Bowie, 236 F.3d at 1085-1097. The essential factual and procedural background for the essence of this appeal are abbreviated below. On November 5, 1992, Bowie and Reyes became embroiled in an alcohol-fueled dispute with Rivera and Laude over a near collision between their automobiles. Rivera and Laude were beaten at Reyes' house by the Reyes brothers, Mario and Efrain, and Bowie's friends, most of whom were related. The attackers tied their victims' wrists and deposited them in the trunk of Laude's car. Rivera escaped, but Laude's body was found the next morning along the side of the road and his abandoned burned car was recovered at another location.
During the criminal investigation, most of Laude's and Rivera's assailants and kidnappers were given favorable plea agreements in return for their full cooperation and truthful testimony against Bowie and Reyes.
While Reyes was incarcerated, an unsigned letter was found in his cell. The controversy surrounding the letter and its subsequent handling by the Attorney General's office is the principal basis for the Ninth Circuit's decision in Bowie. The trial testimony showed that the Attorney General candidly admitted, and the record plainly demonstrated, that the Attorney General told the Sergeant "to do nothing with the letter," and that the Sergeant followed the Attorney General's "terse instructions as delivered." Bowie, 236 F.3d at 1086.
The authorship of the letter is unknown. Shortly after Mario's arrest, Sergeant Pedro Camacho San Nicolas routinely checked him in his cell. During this process, Sergeant San Nicolas saw Mario holding a piece of yellow writing paper in his hand, when Mario saw Sergeant San Nicolas, he crumpled the paper and put it in the trash. Sergeant San Nicolas eventually retrieved the paper and turned it over to Sergeant Joseph Aldan, one of the chief Investigators in this case. Sergeant San Nicolas could not shed any light on whether Mario had written the letter, or merely received it from someone else. Bowie, 236 F.3d at 1086.
Upon reading the letter, Sergeant Aldan took it immediately to Assistant Attorney General Ron Hammett, the Chief of the Criminal Division in the Attorney General's Office who was in charge of this case. Sergeant Aldan was seeking guidance from Mr. Hammett as to how to follow up on the information in the letter. Id.
At trial, the Sergeant's testimony reveals that:
(1) his department purposefully did not conduct an investigation as to who wrote the unsigned letter, (2) that the letter was not given for analysis to a handwriting expert, (3) that no one outside the focus of the investigation was consulted about the letter as to its origins or its contents, and (4) that no other experts, such as a polygraph examiner, were used to determine the identity of the author.
Bowie, 236 F.3d at 1088.
The Ninth Circuit held that "the plain language in the letter would alert anyone.., to the strong possibility that the witnesses m this case had agreed to testify falsely against Bowie in order to extract the writer of the letter from the center of blame for Laude's death." Bowie, 236 F.3d at 1090.
Nonetheless, the Ninth Circuit's Opinion leads to the inescapable conclusion that the use of the letter at trial, as evidence against Reyes, was just as much reversible error as was its use against Bowie.
Counsel for Mario Reyes maintained throughout the trial that the letter was not written by his client. In fact, he introduced testimony from another Reyes brother that Efrain Reyes gave him a folded yellow document that appeared to be the letter, and that he then delivered it as requested to Mario Reyes. Moreover, counsel claimed that he had a handwriting expert who was prepared to say that the letter was not written by Mario Reyes, but the court at the insistence of Bowie's counsel and the prosecutor--refused to admit this evidence because the witness was not on the witness list. We note that as soon as defense counsel mentioned a handwriting expert, the government joined in the motion and requested time to conduct its own examination. The prosecutor's request at this juncture of the trial gives new meaning to the phrase, "too little, too late." 236 F.3d at 1090, f. 3.
Faced with this information, the prosecutor's clear duty under our Constitution was to do exactly the opposite of what he did. The law in place when the letter was found on November 17, 1992, left no room for doubt that the immediate constitutional obligation of the State and its representatives to collect potentially exculpatory evidence, to prevent fraud upon the court, and to elicit the truth was promptly to investigate the letter and to interrogate their witnesses about it. Let us be clear about this: The prosecutor's duty to protect the criminal justice system was not discharged in this case simply by ignoring the content of the letter and by turning it over to the defense, especially in the light of a scheduled joint trial where one defendant, Bowie, was certain to attempt to use it as evidence against his co-defendant, Mario Reyes. Failing to do anything about the content of this letter was at least the equivalent of knowingly sitting quietly by while a person called as your witness lies on the stand.
The Ninth Circuit was struck "by the government's insistence on a joint trial knowing full well that Bowie could not fail to introduce this letter in an attempt to exculpate himself by fingering his co-defendant. This ploy allowed the prosecution indirectly to use the uninvestigated letter against Mario Reyes without having to authenticate it and to introduce it themselves, and without having to risk further challenge and damage to the credibility of their own accomplice witnesses." Bowie, 236 F.3d at 1094-1095.
The Court concluded that the use of the letter at trial was "[a] fatal due process error committed by the Office of the Attorney General of the Commonwealth of the Northern Mariana Islands" which "fatally contaminated everything that followed." Bowie, 236 F.3d at 1095. "The Attorney General's fatal decision and calculated course of non-action in this case deprived Bowie of the fair process that was his due under our constitution before he could be deprived of his liberty." Bowie, 236 F.3d at 1097. "A prosecutor cannot avoid [the] obligation [to elicit the truth] by refusing to search for the truth and remaining willfully ignorant of the facts." Bowie, 263 F.3d at 1090-91. The Ninth Circuit found there was no doubt that the letter affected the jury's judgment. We hold the same to be true for Reyes.
CONCLUSION
or the reasons stated above the September 7, 1999 Decision in this case is VACATED and this case is REVERSED and REMANDED for a new trial. Dated this_19th of_July, 2001.
/s/ Michael A. White
MICHAEL A. WHITE
Special Judge
/s/ Virginia Sablan-Onerheim
VIRGINIA SABLAN-ONERHEIM
Justice Pro Tempore
/s/ Juan T. Lizama
JUAN T. LIZAMA
Justice Pro Tempore