People v. Akoma

Opinion

r-\r~ s;...;- L) 3UraRlu§j <8@uFlT QF

2U?'lF?P2 lg $236 CLERK CLERK UF OF COURT' COURT'

I IN THE THE SUPERIOR SUPERIOR COURT COURT OF OF GUAM GUAM BY:.,._"""-~----·" M

PEOPLE OF GUAM GUAM Criminal Case No. CM0363-22 GPD GPD Report Report No. No. 21-26405 21-26405 vs.

UGOCHUKWU E. AKOMA, DECISION DECISION AND ORDER (Motion (Motion for for Mistrial) Mistrial) Defendant. \

isbefore This matter is before the theHonorable HonorableAlberto Alberto E. Tolentino Tolentino upon upon the jury jury trial trial of of Ugochukwu

E. Akoma ("Defendant"). Attorney Joaquin Joaquin cC. Arriola, Jr. Jr. represents Defendant. Assistant represents Defendant. Assistant

Attorneys General Attorneys General Randall Randall Winston Winston B. B. Albright, Albright,Grant GrantA. A.Olan, Olan,and and Steven StevenJ. J. Coaty Coaty have have appeared appeared

on behalf of the People of Guam ("People"). ("People"). On OnApril April15, 15,2024, 2024,outside outsidethe the presence presence of of the jury,

Defendant made an oral oralmotion motion for for a mistrial. mistrial. After Afterhearing hearingargument argument from from both both parties, parties, the Court

orally GRANTED the mistrial, mistrial, and andnow now issues issuesthe thefollowing following Decision Decision and Order Order to to memorialize memorialize

its ruling. ruling.

BACKGROUND

In In 2022, the People 2022, the People charged Defendant Defendant with with two counts of of Fourth Degree Degree Criminal Sexual

Conduct (As a Misdemeanor) Conduct (As againstone Misdemeanor) against onevictim. victim. Magistrate's. Magistrate's. Con pl. (Oct. 20, 2022). Compl. 2022). Jury Jury

selection selection in in this case began and and concluded concludedon onApril April 8, 2024, and trial 2024, and trial proceeded proceeded on on April April 9, 10, 10,

11, 11, 12, and and 15. 15. Throughout Throughout the trial, evidentiary issues issues have been litigated and relitigated. See, See,

e.g., People's People's Notice Notice of ofIntent Intent to to Use Use 404(b) 404(b) Evidence at Trial (Apr. 8, 8, 2024), 2024); People's Mot. in

Limine to Limit Limit Void Voir Dire Dire and and Exclude Evidence (Apr. 8, 8, 2024), People's Mot. 2024); People's Mot. Reconsideration Reconsideration

1 of Order of Order Excluding Excluding People's People's Exhibit Exhibit44and andTestimony Testimony... (Apr. 15, ... (Apr. 15, 2024), 2024); People's People's Mot.

Reconsideration of of Order Order Excluding ExcludingTestimony Testimonyof of Sergeant SergeantRoy RoyHenricksen Henricksen... (Apr. 15, ... (Apr. 15, 2024), 2024);

see also Entry at also Min. Entry at 4:27:34 4:27:34 PM (Jury (Jury Trial, April April 10, 10, 2024) 2024) (evidentiary (evidentiary chain chain of ofcustody custody

issues); Min. Entry at 10:49:44 issues), 10:49:44 AM (Jury Trial, AM (Jury Trial, April April11, 11,2024) 2024)(unlisted (unlisted witness witness and and witness- witness-

ordering issues) ordering issues)..

On April On 9, 2024, April 9, 2024, the the People People of ofGuam Guam made made an an oral oral motion motion for for aa mistrial mistrial based based on the

Court's Court's evidentiary evidentiary rulings, rulings, which Defendant objected to to and and the theCourt Courtultimately ultimatelydenied. denied. Min.

Entry at 1:22:41 PM (Jury :22:41 PM (JuryTrial, Trial, April April 9, 2024). 2024).

On On April April 15, 15, 2024, madean 2024, Defendant made anoral oralmotion motionfor foraamistrial. mistrial. CitingPeople People v. v. Aguon,

2020 Guam Guam24, 24,Defendant Defendantargued arguedthat thathe thecumulative cumulativeeffect effectof ofthe thePeople's People's evidentiary evidentiary errors errors had

confused and tainted confused tainted the thejury, jury, and andthat thatunder underthe circumstances,the thecircumstances, the Court Court cannot cannot "in-ringthe "un-ring thebell" bell"

of ofthe the evidentiary issues with a curative curativeinstruction. instruction. Min. Min. Entry Entry at at 10:47:00 10:47:00AM AM (Jury (JuryTrial, Trial, Apr. Apr.

15, 2024). In 15, 2024). Inresponse, response, the the People People argued argued they had already already elicited elicited sufficient testimony to meet

the essential essential elements of the charges and and advocated advocated for for a curative curative instruction. instruction. Id. at at 10:51 :36AM. 10:51 :36 AM.

After aa short After short recess recess to to consider consider the the issue, issue, the the Court Court first first asked asked Defendant Defendant whether whether he

consented to to his counsel's request for a mistrial; mistrial, Defendant indicated his consent. consent. Id. at at 11:26:09 11 :26:09

AM. AM. The TheCourt Courthen thengave gaveboth bothparties partiesan an opportunity opportunity to to suggest suggest feasible alternatives mistrial, alternatives to mistrial;

neither did so. Thereafter, Thereafter,the theCourt Courtannounced announced it it would would grant grant the motion motion for for the reasons explained

below. Id. Id. at at 11:27:07 AM. 11 :27:07 AM.

DISCUSSION

The power power to to declare declare aa mistrial mistrial is is committed committed to to the the discretion discretion of ofthe the trial trial court, court, as as the trial

court "is "is in in the the best best position position to decide" decide" whether whether aa mistrial mistrial is is warranted. warranted. People People v. v. Aguon, 2020

24 ,r1]22 Guam 24 (quoting UnitedStates 22 (quoting States v.v.Nace, Nice, 561 763,768 561 F.2d 763, 768(9th (9thCir. Cir.1984)). 1984)). Mistrial is "an

2 extraordinary measure extraordinary measurereserved reservedfor for'plain 'plainand andobvious obviouscases."' cases."' Id. ,r (quoting United Id. 1]27 United States States v.

732 F.2d Gann, 732 714, 725 F.2d 714, 725 (9th Cir. Cir. 1984)). 1984)). Further, Further, "[a] "[a]mistrial mistrial is is appropriate appropriate only where where aa

cautionary instruction cautionary instructionisisunlikely unlikelyto to cure curethe theprejudicial prejudicialimpact impactof ofthe theerror." error." Id. ,r (quoting Id. 1122

Gann, 732 F.2d Gann, 732 F.2d at at 725). 725). The The Court believes this Court believes this is is aa "plain "plainand and obvious" obvious" case, case, one one where where aa

cautionary instruction cautionary instructionwill will not cure the the prejudicial prejudicial impact of the evidentiary errors.

Allcriminal All criminaltrials trialsin inthe theSuperior Superior Court Court of ofGuam Guammust must be be conducted conducted in in accordance accordance with

the Guam Rules the Guam Rules of of Evidence. Evidence. This Thisensures ensures a fair fair trial trial for for Defendant Defendant and and for the People alike. alike.

However, at at several several points points in in the trial, trial, the the People People ~ave have not not complied with these theserules. rules. After After six. six

days of oftrial, trial,much much courtroom courtroom time timehas has been been spent spent addressing addressing and readdressing the and readdressing the admissibility admissibility

of ofevidence, evidence, and and accordingly the jury has the jury has been beenseated seatedfor forrelatively relativelyfew few hours. hours. And what little

evidence the jury evidence the jury has has received received has hasbeen beenfurther filrtherdiminished diminishedby by valid valid objections objections to to admissibility. admissibility.

This has compromised the the integrity integrity of of the the case. case.

A significant significant percentage-in percentage-inDefendant's Defendant'sestimation, estimation, more than thanhalf--of half-of all allthe the testimony testimony

to date date has has been stricken. stricken. See See Min. Entry Entry at at 2:32:31 2:32:31 PM PM (Jury (Jury Trial, April 9, 9, 2024) 2024) (striking (striking

victim's testimony); victim's testimony); id. id. at 2:37:23 2:37:23 PM PM (same), (same); Min. Entry 3:23:36 PM Entry at 3:23:36 PM (Jury Trial, Apr. 11, (Jury Trial,

2024) 2024) (striking Sgt. Henricksen's testimony); testimony), Min. Entry at at4:56:42 PM (Jury Trial, Apr. 12, 2024) 12, 2024)

(striking (striking victim's victim's testimony). testimony). Several Several evidentiary exhibits offered evidentiary exhibits offered by the the People People have have been been

excluded or stricken. stricken. See See Min. Min. Entry Entry at at3:05:36 3:05:36PM PM (Jury (JuryTrial, Trial,Apr. Apr. 11, 11,2024) 2024)(People's (People's Exhibit

2); id id at at 3:10:58 3:10:58 PM (People's (People's Exhibit 1); 1); Min. Min. Entry Entry at at 4:51:10 4:51 :10 PM PM (Jury (Jury Triad, Trial, Apr. 12, 12, 2024) 2024)

(People's (People'sExhibits Exhibits4A-41). 4A-4I).The TheCourt Courthas hasalso alsoheard, heard,and and denied, denied, motions motions for for reconsideration reconsideration on

these and other these and otherevidentiary evidentiaryissues. issues.See SeeMin. Min.Entry Entryatat 11:07:40 AM (Jury :07:40 AM (Jury Trial, Trial, Apt,} APP 9, 2024) 2024)

(exclusion (exclusion of ofaudio audio recording), recording); Min. Min. Entry Entry at at 10:08:16 AM (Jury Trial, Apr. 15, 10:08:16 AM 15, 2024) 2024) (exclusion

3 of ofSgt. Sgt. Henricksen's Henricksen's testimony), testimony); id. at 10:43:53 10:43:53AM AM (exclusion of People's People's Exhibits Exhibits 11 and 2); 2), id.

at 10:46:27 10:46:27AM AM (exclusion of Guam R. Evid Guam R. Evid 404(b) 404(b) evidence).

The Court Court has has observed observed the the jurors jurors throughout throughout the trial and and has been impressed with their

attentiveness anddiligence. attentiveness and diligence. Many of ofthese takendetailed these jurors have taken detailednotes-and notes-and have have scrambled scrambled

to amend time the amend their notes each time the Court has hasinformed informed them them that thatthe theevidence evidencethey've they've just been

exposed to to must play no must play no role in their deliberations. deliberations. This This isis particularly particularly troubling troubling to the the Court Court

because the evidence because the evidence in in question appearedtoto be question appeared be relevant relevant and and probative, probative,yet yet itit needed needed to to be

excluded under technical rules under technical rules such suchas asGuam GuamR. R. Evid. Evid. 802 802 (hearsay) (hearsay) and and Guam Guam R. R. Evid Evid 1002 1002

(requirement of original recordings). recordings). Thus, Thus,the the jurors jurors have have been been exposed exposed repeatedly to evidence repeatedly to

which may be important important to the case case but which they cannot cannot consider, consider, for reasons reasons they may not

understand. understand. This is ultimately prejudicial prejudicial to to Defendant, Defendant, as as there is a distinct possibility that that some

or all of ofthis this stricken stricken evidence evidence may may continue continue to impact the jury. jury.

If Ifthere there were were only only one one instance of evidentiary instance of evidentiary error, error, aa curative curative instruction could potentially

ameliorate the issue. issue. See See Aguon, Aguon, 2020 2020 Guam ,r 29; United States v.v. Charmley, 764 F.2d 675, Guam 241129,

677 (9th Cir. 1985). But But here here there there have been multiple instances, acrossaashort instances, across shorttime time:frame. frame. With With

deepest respect respect to to the the jurors, jurors, the theCourt Courtdoes doesnot notbelieve believe a curative instruction would would be be sufficient

to ''un-ring "in-ring the thebell" bell"ofofthe theexcluded excluded evidence. evidence. See State v.v.Ayotte, See State Ayotte,776 A.2d715, 715, 718 (N.H. 2001), 2001);

see also also Ulloa v. MeMillin McMillin Real Real Estate & Mortgage, Mortgage, Inc., 149 149 Cal. App. 4th 333 333 (Cal. (Cal. App. 2007) 2007)

(noting (noting the the purpose of aa motion purpose of motion in liming limine is "to "to avoid avoid the the obviously obviously futile futile attempt attempt to to

'unrig 'unringthe thebell' bell'ininthe theevent eventaamotion motionto tostrike strike is is granted granted in the the proceedings proceedingsbefore beforethe thejury."). jury."). It

is not fair fair to to the the jurors jurors to to require require them them to to sift siftthrough through such such aa fractured :fractured evidentiary evidentiary record to

determine what what they they may may consider, consider, and andititisisnot not fair fair for Defendant to to face a jury forced forced into into that that

4 untenable position. Under the untenable position. the circumstances, continuingwith circumstances, continuing with the the trial trial would be be incurably incurably

prejudicial to Defendant, Defendant, and so there and so there is is a manifest manifest necessity necessity for for a mistrial. mistrial.

CONCLUSION

Everyone Everyone involved involvedin inthis this trial trial isis entitled entitled to to aa fair fairtrial trial consistent consistent with with all all applicable applicable court court

rules. rules. Unfortunately, Unfortunately, neither neither the parties parties nor northe thejury juryhave havereceived received that thatkind kindof oftrial. trial. There is no

curative instruction the the Court Courtcan cangive give to to remedy remedy the the situation; situation,the thebell bellcannot cannotbe beun-rung. in-rung. Under

these circumstances, the Court finds manifest necessity circumstances, the necessity and and thus thus GRANTS Defendant's Defendant's request request

for mistrial.11 for aa mistriaL

SO ORDERED ORDEREDthis this APR APR 1 9 2024

e__---~c;;:=------=::~=--J--=~==- < \ 11 J l

HONORABLE HONORABLE ALBERTO ALBERTO E. TOLENTINO E. TOLENTINO Judge, Judge, Superior Court of Guam

$&IVI¢£ SERVICEvIA VIA£*F..5'.k E-MAIL I 1cknowled1e that an elemonlc

'Ji6°~itrii7ui 'Fm °"2i'¢'i"n3"d.IFi

.¢(ha[14 ( %=w-5

lllule1n.1 nw-n

11 The The parties parties have have already already made oral arguments as to whether whether thethe declaration declaration of ofmistrial mistrial requires requires dismissal dismissal of of the case with prejudice, and the issue issue is is now now under advisement withwith the the Court. Court. See See Min. Min. Entry Entry atat 2:13:09 2: 13 :09 PM PM _- 2:55:57 PM (Jury (Jury Trial, Trial, April 15, 2024). 2024). The The Court Court will will decide decide that that in aa separate and Order. separate Decision and Order.

r