Mark Torre Jr. appealing conviction - KUAM.com-KUAM News: On Air. Online. On Demand.

Mark Torre Jr. appealing conviction

Posted: May 18, 2018 4:55 PM Updated:

Former GPD officer Mark Torre Jr. is appealing his negligent homicide and aggravated assault conviction. This comes nearly one year since Torre was sentenced for the 2015 shooting death of fellow police officer Elbert Piolo.

Torre Jr. was sentenced to eight years in prison. He has been under house arrest pending the appeal.

His attorney Jay Arriola confirmed Torre filed his opening brief today in the Supreme Court. 

Torre contends the trial court made significant, reversible errors at trial, including the court's admission of the body cam video, interrogation of Torre, and the court's Order permitting the prosecution "expert witness" to examine and question Torre when he never asserted a mental illness defense. The defense arguing his convictions must be reversed due to what they call “clear errors.”

STATEMENT OF ISSUES PRESENTED FOR REVIEW:
I. Was Torre in custody when police interrogated and videotaped him at his home in a police–dominated environment?
II. Did the trial court have any authority to order a mental examination of Torre by the People's retained expert witness Dennis Donovan, Ph.D.?
III. Did the trial court's order requiring Torre to submit to a mental examination by Dr. Donovan violate Torre's Fifth Amendment rights?
IV. Should the trial court have excluded Dr. Donovan's testimony and opinions, which did not comport with the requirements of an expert witness?
V. Did the trial court err in failing to give limiting instructions after Dr. Donovan's testimony, as it had done for Torre's expert Dr. Pablo Stewart?

SUMMARY OF ARGUMENT:
This appeal raises several issues of first impression. Torre was seated on the tailgate of a pickup truck in his driveway in a small confined space where he was subjected to almost fifty minutes of questioning by officers in a police–dominated environment. Torre was in custody and the police body camera videos and Torre's statements were obtained without Miranda warnings, in violation of his Fifth Amendment rights.

9 G.C.A. § 7.25(b), relied upon by the trial court, did not authorize an order compelling Torre to submit to a mental examination by Dr. Donovan. Further, Dr. Donovan's mental examination of Torre is a form of discovery giving the People access to evidence from Torre that is not permitted under Guam's criminal discovery statutes, 8 G.C.A. §§ 70.10–70.45. Even if the order for mental examination is upheld, Dr. Donovan's opinion should have been excluded for failure to give Miranda warnings, since the examination of a defendant by a psychologist re–tained by the People constitutes a custodial interrogation for Fifth Amendment purposes and must be preceded by Miranda warnings. None were given here.

Dr. Donovan, the People's witness, had no experience in, or knowledge of, alcohol–induced blackouts or PTSD and was therefore unqualified to render any opinion about the topics. Dr. Donovan merely summarized studies he had read on the subject of alcohol–induced blackouts and attempted to apply them to Torre. His opinion consisted of speculative and unsupported assertions. His report and testimony should have been excluded. The trial court failed to give a limiting instruction after Dr. Donovan's testimony, as it had done with Dr. Stewart. This failure severely prejudiced Torre, as Dr. Donovan gave several unsubstantiated opinions which the jury was free to consider for any purpose, including the crucial issue of guilt.

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