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Office of the Attorney General Elizabeth Barrett-Anderson Attorney General of Guam Prosecution Division 590 S. Marine Corps Drive, Suite 706 Tamuning, Guam 96913 • USA

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(671) 475-3406 • (671) 477-3390 (Fax)

www.guamag.org

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Attorney for the People of Guam

IN THE SUPERIOR COURT OF GUAM

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THE PEOPLE OF GUAM,

Criminal Case No.: CF-0421-15

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Plaintiff, 11 vs.

STATEMENT OF MATERIALITY

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MARK ANTHONY TORRE, JR. DOB: 08/ 18/1984

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Defendant.

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COMES NOW, the People of Guam, by and through the undersigned Chief Prosecutor, supplementing the record, which already contains some assertions of materiality, by providing additional

information as to materiality regarding Mark A. Torre, Sr. (hereinafter "Torre Sr.") and his expected testimony and cooperation in this case; and further stating as follows: Defendant, a former Guam Police Department ("GPD") police officer and SWAT team member was indicted on July 24, 2014 for murder, manslaughter, and aggravated assault as second and third degree felonies, each with special allegation that he used a deadly weapon, of Victim Elbert Piolo, a GPD officer at the time of his death. Defendant was afforded release on bail but ordered to have no contact with Torre Sr., who is his father, a Lieutenant with GPD, a SWAT team member, and a witness to the facts, circumstances and other, relevant evidence to the crime. Both reside at the same residence

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in Yigo, Guam. Torre Sr. took residence elsewhere so that Defendant could fulfill conditions of bail.

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Defendant then sought modification of bail conditions to allow his father to reside at home. The People

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opposed, citing Title 8 G.C.A. § 40.60(a)(1), arguing that communication between the two would pose

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risk to the orderly administration of justice because Torre Sr. inter alia communicated privately with the

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Defendant during the incident and for a time thereafter. At the September 24, 2015 hearing on the

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motion this court maintained that Torre Sr. and Defendant have no contact until the People have

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opportunity to interview Torre Sr. and are satisfied with his cooperation in the case. On December 23,

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2015 the court partially granted Defendant's motion to modify bail stating that it was supported by the

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People's inaction with respect to interviewing Torre Sr. or to further assert or explain Torre Sr.'s

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materiality as a witness. The People therefore assert or explain Torre Sr.'s materiality with the following:

i. ii.

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iii. iv. v.

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vi.

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vii. viii. ix. X.

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Tone Sr. accompanied Defendant to naval hospital and was in his company up until the time of Defendant's arrest. As also acknowledged in part by the defense, there is a voluminous amount of evidence in the case including 1200 pages of discovery, video recordings, audio recordings of which Torre Sr.'s testimony, much of which Torre Sr.'s testimony is expected to be probative and material.

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Sr.'s help. Tone Sr. is a percipient witness to the Victim in the throes of death. As father of the accused Tone Sr. would have a natural bias. Tone Sr. was the highest ranking police officer at the time that the police responded to the crime scene. Tone Sr. was the commander of the Dededo precinct officers who responded to the 911 call and crime scene. Tone Sr. was seen speaking to various officers and the Defendant in private as captured by the video of the body camera. Tone Sr. is a potential witness on Defendant's motion to suppress evidence taken by video recording.

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Torre Sr. was witness to the dying declarations of the Victim. Torre Sr. is a percipient witness to the 911 calls made by Victim wherein he besought Tone

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Torre Sr.'s testimony will be material to Defendant's actions, conduct and mental state before, during and after the incident as well as those of the Victim.

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Torre Sr.' s testimony is material for the points raised above. In addition to the foregoing,

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Attorney Thomas Fisher who represents Torre Sr. was contacted this week about whether his client

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would be available for interview in the first week of January 2016.

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Bail conditions should continue, including sequestering Torre Sr. from Defendant. In evaluating

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the risk the court may look to Guam Rule of Evidence 615, which is the codification of the common law 6 7

rule permitting sequestration as a means of discouraging and exposing fabrication, inaccuracy, and

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collusion. See U.S. v. Jackson, 60 F.3d 128 (2nd Cir. 1995). Sequestration goes back to common

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Germanic law and serves two purposes, an exercise of restraint on witnesses tailoring testimony to that

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of other witnesses; and an aid in detecting testimony that is less than candid. Geders v. United

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States, 425 U.S. 80, 87 (1976). In evaluating whether it is proper to continue sequestering Torre Sr. from Defendant, the court

may make the following inquiries:

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1. How critical the testimony in question is, that is, whether it will involve controverted and 2. 3. 4. 5. 6.

material facts; Whether the information is ordinarily subject to tailoring; To what extent the testimony of the witness in question is likely to encompass the same issues as that of other witnesses; The order in which the witnesses will testify; Any potential for bias that might motivate the witness to tailor his testimony; and If the court is considering exempting the witness from sequestration, whether the witness's presence is "essential" rather than simply desirable.

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US. v. Jackson, 60 F.3d at 135 (internal citations and parentheticals omitted). It is clear that review of

these factors against the material points raised above and in the record militates towards the court continuing to limit contact between Torre Sr. and Defendant.

The People submit this Statement as an aid to the court and for its assertion that the Torre Sr. is a material witness to the case. Page 3 of 4 Statement of Materiality - Mark Anthony Torre, Jr. Superior Court of Guam Case No. CF-0421-15 C:\Documents and Settings\jmcdonald\Local Settings\Temporary Internet Files \ C o nt e nt . O u t l o o k \ W E R V H P O 3 \ C F - 0 4 2 1 - 1 5 Statement of Materiality.docx

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Respectfully submitted December 24, 2015.

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TT - A N S IO - N, Attorney General of Guam

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HILLIPXI. TYDI

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Statement of Materiality - Mark Anthony Torre, Jr. Superior Court of Guam Case No. CF-0421-15 C:\Documents and Settings\jmcdonald\Local Settings\Temporary Internet Files\Content.Out look\WERVHPO3\CF-0421-15 Statement of Materiality.docx