Judge denies habitual offender’s motion for mistrial

Superior Court Associate Judge Joseph N. Camacho has denied a motion by habitual offender Peter Koichi Lemei to declare a mistrial in his case that charged him with stealing a woman’s purse.

Camacho ruled that a continuance of the bench trial and recall of witnesses will cure the law enforcement officer’s failure to provide exculpatory evidence.

Exculpatory evidence refers to evidence favorable to the defendant in a criminal case that tends to exonerate the defendant of guilt.

Camacho acknowledged that a number of witnesses have already testified and concluded that an appropriate remedy is required.

The judge said he will allow the recall of any witnesses who have already testified in the case so that Lemei may cross-examine them about the government’s witness non-identification of the defendant in photographs shown by a police officer.

In his motion for mistrial, Lemei, through assistant public defender Tillman Clark, asserted that the government suppressed evidence when a witness testified that a police detective showed her a photo lineup, but the detective denied it.

Clark argued that to allow the bench trial to proceed would sacrifice Lemei’s right to due process, right to present a defense, right to a fair trial, and right to effective assistance of counsel.

It was already in the middle of a bench trial last Aug. 16 when Clark moved for mistrial for violation of his due process rights under Brady. This prompted Camacho, who presided over the trial, to suspend the proceedings to hear the issue on Sept. 14. The bench trial was to continue yesterday, Monday.

Brady material refers to a piece of evidence known to the prosecution that is important for establishing the innocence or reducing the punishment of a defendant.

Assistant attorney general Heather Barcinas, counsel for the government, argued that since the witness is not an identification witness, her non-identification is not Brady material.

Clark argued that any non-identification by the witness could be used to impeach police detective Andrew Taimanao.

Taimanao testified that he did not remember showing the witness any photographs, and that he was surprised to learn that the witness testified that she had been shown photographs.

In denying the motion, Camacho said although the disclosure occurred during trial, the trial has been continued for over two months as a result.

Camacho said Lemei has been prejudiced by not receiving information regarding the non-identification.

Camacho said although some prejudice has been cured by the two-month continuance of the trial, the court acknowledges that two witnesses have already testified for the government, and the witness who stated she was shown photos is still on the stand, as the bench trial has been continued.

Camacho said Lemei argues that allowing the trial to proceed would require him to quickly change his trial strategy, which the court acknowledges would be difficult with multiple witnesses having already testified.

Camacho said he finds the testimony of the witness to be credible.

The judge said Taimanao does not remember showing the witness the photos.

Camacho said Taimanao failed to note the witness’ non-identification in his police report, nor did he have her sign off on the photo lineup, nor did he turn this information over to the prosecutor.

Based on these facts, Camacho said, the non-identification was suppressed by the state.

Based on Taimanao’s testimony, Camacho concluded that any suppression by Taimanao was inadvertent.

“Although this suppression is inadvertent, any suppression of Brady materials is a violation, regardless of whether it was inadvertent,” Camacho said.

Camacho said the non-identification could be used to potentially impeach witnesses at the bench trial.

He said Brady material includes “materials that, whatever their other characteristics, may be used to impeach a witness.”

Thus, Camacho said, the non-identification involving the photo line-up is Brady material and must be provided to Lemei.

The Office of the Attorney General charged Lemei with misdemeanor theft for allegedly stealing a purse from a woman while she was sitting in a friend’s garage playing cards on April 10, 2016.