Guam – Former cop Mark Torre, Jr. is attempting to overturn his conviction in the negligent homicide of fellow police officer Elbert Piolo, arguing in the Supreme Court of GUam that he was compelled to be a witness against himself and that the trial court erred in its decisions.
The main argument posed by Mark Torre Jr.’s attorney, Anita Arriola, was that Torre’s fifth amendment right was violated when he was compelled to be a witness against himself.
Arriola stated that the trial court’s order submitting him to a mental examination by the prosecution’s expert witness Dr. Dennis Donovan was made in error. She called the examination a custodial interrogation used for fifth amendment purposes and Torre should have been advised of his miranda rights and that he had a right to remain silent.
Arriola further argues that the trial court reversed its decision on the limitations of the examination, allowing the examination to be unrestricted, thus creating many problems with the examination.
In addition, Arriola states that Torre’s legal counsel was ordered to not be present during the examination. She points out that Guam does not have a clear statue governing this type of examination despite this the trial court allegedly upholding that this was authorized by Guam statute.
Arriola argues that the statute used by the trial court to rule on the matter is not applicable for two reasons. First that Torre did not assert a mental disease or defect, denying criminal responsibility and secondly, the court was not authorized to allow such an examination by the prosecution’s expert. Arriola argued the court could only appoint an expert.
Because of the she stated, “Torre’s statements were not freely and voluntarily given because he was court ordered to be examined by Doctor Donovan.”
This makes the ruling a fundamental error as the self incriminating evidence would not have been entered except for Dr. Donovan’s testimony at trial providing the prosecution an advantage by providing access to Torre, said Arriola.
According to Arriola there was no confidentiality or prohibitions on what Dr. Donovan could discuss about the examination with the prosecution and that they were provided an unredacted version of the recorded interview. Those statements were allegedly used against Torre during the trial and closing aruguments.
The government, however, contends that the examination by Donovan was used for the purpose of rebuttal, further stating that it is implied that Miranda rights are waived in psychological evaluations.
In this case, the government states that Torre was trying to use an intoxication to negate mens rea, pointing out that there was a jury instruction to the effect of using an alcohol induced black out to a diminished responsibility analysis.
The prosecution further stated that the trial court could have offered remedy should Torre have not gone through with the examination.
The Supreme Court has taken the matter under advisement and will issue a written decision.