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IN THE SUPERIOR COURT OF GUAM 2 ~/ • i J:!i 3 THE PEOPLE OF GUAM )_~T ) CRIMINAL CASE NO. CF0428-94 4 vs. ) 5 ) DECISION AND ORDER MARK BAMBA ANGOCO, ) 6 ) Defendant. ) 7 -------------------------------) 8 INTRODUCTION 9 This matter came before the Honorable Katherine A. Maraman on the Defendant's six (6
10 motions to dismiss and motion for a bill of particulars, filed May 18, 2011. Oral arguments wer
II heard on January 18,2012. Attorneys David J. Lujan, Leilani V. Lujan, and Delia S.L. Wolf
12 represented the Defendant and Assistant Attorney General Gerald L. Henderson appeared 0
I3 behalf of the Government. Having considered the parties' briefs, oral arguments, and th
14 applicable law, the Court now issues the following Decision and Order.
15 BACKGROUND
16 On January 18, 1995, the Defendant was charged by the first superceding indictment wit
17 premeditated aggravated murder, felony aggravated murder, robbery, burglary, possession an
18 use of a deadly weapon in the commission of a felony, and other charges. The pertinent charg
19 of the first superceding indictment reads as follows:
20 Second Charge
21 On or about the 29th day of October, 1994, in the Territory of Guam, MARK BAMBA ANGOCO and JOHN JUNIOR PANGELINAN, with criminal 22 negligence, caused the death of another human being, that is, Darwin Datuin, 23 during the commission of the felony of robbery as alleged in the Third Charge below, an offense set forth under 9 G.C.A. Chapter 40, in violation of9 G.c.A. §§ 24 16.30(a)(2), 16.30(b) and 4.60. 25 On April 27, 1995, the jury found the Defendant guilty of the second charge supra an 26 acquitted him of the other offenses, including the underlying felony of robbery_ This verdict wa 27 upheld on appeal. People v. Angoco, Crim. No. 95-00094A, 1996 WL 875777 (D. Guam App. 28
Page 1 of6 Div. OCt. 16, 1996). The Ninth Circuit further upheld the conviction. People v. Angoco, 131 2 F.3d 147 (9th Cir. 1997). 3 Thereafter, the Defendant petitioned for the writ of habeas corpus on the basis of th 4 ineffective assistance of appellate counsel. On June 17, 1999, the Superior Court granted th 5 writ and ordered that the Defendant be either released or retried on the second charge supra. 6 Angoco v. Bitanga, SP0039-98 (Super. Ct. Guam Corpus June 17, 1999). The Supreme Cou 7 affirmed the writ on July 11,2001. Angoco v. Bitanga, 2001 Guam 17. 8 On February 6, 2003, the Court denied a motion to dismiss retrial of the second charge 0 9 the basis of double jeopardy. The Defendant appealed this decision, and the Supreme Cou 10 found that a retrial of the second charge of felony aggravated murder during the commission 0 11 robbery is not barred by the doctrine of collateral estoppel and does not offend the doctrine 0 12 double jeopardy. People v. Angoco, 2004 Guam 11. The Supreme Court specifically held that 13 "on retrial Angoco must be retried on the [second] charge as it is specified in the supercedin 14 indictment." Id at ~ 27. 15 On February 1, 2011, the Government fi led a second superceding indictment with eigh 16 (8) charges of felony aggravated murder for the death of Darwin Datuin on October 29, 1994. 17 The eight (8) charges accuse the Defendant of criminal homicide with four (4) different menta 18 states during the commission of robbery and during the commission of burglary. All eight (8 19 charges include the special allegation of the possession and use of a deadly weapon in th 20 commission of a felony. 21 On May 18, 2011, the Defendant filed a motion for a bill of particulars in addition to si 22 (6) motions to dismiss. The Defendant moves to dismiss the second superceding indictment 0 23 the grounds that it offends double jeopardy, is multiplicitous, is based upon undisclose 24 exculpatory evidence, offends felony murder principles, and takes an inconsistent and tactica 25 position which should be judicially estopped. The Defendant further moves to dismiss th 26 prosecution on the basis that John Junior Pangelinan, the co-defendant, was the sole cause of th 27 death of Darwin Datuin. 28 ///
Page 2 of6 '. '
DISCUSSION 2 I. The Second Superceding Indictment 3 Pursuant to the law of the case doctrine, "a court is generally precluded fro 4 reconsidering an issue that has already been decided by the same court, or a higher court in th 5 identical case." People v. Hualde, 1999 Guam 3 ~ 13 (citing Us. v. Alexander, 106 F.3d 874 6 876 (9th Cir. 1997)). The law of the case doctrine, "is more compelling on remand, where a 7 appellate court's prior ruling controls further proceedings in the trial court." People v. Rios 8 2011 Guam 6 ~ 22. However, "[a] court has the discretion to depart from the law of the cas 9 where: 1) the first decision was clearly erroneous; 2) an intervening change in the law ha 10 occurred; 3) the evidence on remand is substantially different; 4) other changed circumstance II exist; or 5) a manifest injustice would otherwise result." Hualde, 1999 Guam 3 ~ 13. 12 In this case, the Supreme Court of Guam previously considered a challenge to the retria 13 of the Defendant. In People v. Angoco, 2004 Guam 11, the Supreme Court decided that th 14 Defendant's retrial is limited to the second charge of the January 18, 1995 supercedin 15 indictment. Id. at ~ 25. The Court held, "that a retrial of Angoco after a reversal due to such tria 16 error does not offend the doctrine of double jeopardy and on retrial Angoco must be retried 0 17 the charge as it is specified in the superceding indictment. ... This matter is remanded for retria 18 consistent with this Opinion." Id. at ~ 27 (emphasis omitted). On remand, the law of the cas 19 doctrine is more compelling and the trial Court is precluded from reconsidering which charge 20 are allowed on retrial after the issue was decided by the Supreme Court in Angoco, 2004 Gua 21 11. For this reason, the Court is compelled to follow the mandate of the Supreme Court that th 22 Defendant must be retried on the second charge as it is specified in the January 18, 1995 23 superceding indictment. 24 Furthermore, the parties do not allege any judicial error, change in law, change il 25 evidence, change in circumstances or manifest injustice that would result from following th 26 mandate of Angoco, 2004 Guam 11. The Court CalIDOt find an exception to depart from the la 27 of the case doctrine, and it shall not exercise its discretion to do so. On this basis, the Court shal 28
Page 3 of6 follow the mandate of Angoco, 2004 Guam 11 and require that the Defendant be retried on th 2 second charge as it is specified supra. 3 The Government recently filed a second superceding indictment that includes eight (8 4 charges of felony aggravated murder with the special allegation of the possession and use of 5 deadly weapon. The new indictment does not cause the Defendant's retrial on the second charg 6 of the first superceding indictment. Each new charge indicts the Defendant with an offense tha 7 of which he was acquitted at trial. This offends the doctrines of double jeopardy and collatera 8 estoppel as they are discussed in Angoco, 2004 Guam 11. Pursuant to the law of Angoco, 200 9 Guam 11, the Court is precluded from reconsidering the issue of whether the Defendant may b 10 retried on any offense other than the second charge of the January 18, 1995 supercedin 11 indictment. The second superceding indictment does not follow the mandate of Angoco, 200 12 Guam 1 1, and on this basis it shall be dismissed.) 13 II.
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,r 1 \.,~ , J
IN THE SUPERIOR COURT OF GUAM 2 ~/ • i J:!i 3 THE PEOPLE OF GUAM )_~T ) CRIMINAL CASE NO. CF0428-94 4 vs. ) 5 ) DECISION AND ORDER MARK BAMBA ANGOCO, ) 6 ) Defendant. ) 7 -------------------------------) 8 INTRODUCTION 9 This matter came before the Honorable Katherine A. Maraman on the Defendant's six (6
10 motions to dismiss and motion for a bill of particulars, filed May 18, 2011. Oral arguments wer
II heard on January 18,2012. Attorneys David J. Lujan, Leilani V. Lujan, and Delia S.L. Wolf
12 represented the Defendant and Assistant Attorney General Gerald L. Henderson appeared 0
I3 behalf of the Government. Having considered the parties' briefs, oral arguments, and th
14 applicable law, the Court now issues the following Decision and Order.
15 BACKGROUND
16 On January 18, 1995, the Defendant was charged by the first superceding indictment wit
17 premeditated aggravated murder, felony aggravated murder, robbery, burglary, possession an
18 use of a deadly weapon in the commission of a felony, and other charges. The pertinent charg
19 of the first superceding indictment reads as follows:
20 Second Charge
21 On or about the 29th day of October, 1994, in the Territory of Guam, MARK BAMBA ANGOCO and JOHN JUNIOR PANGELINAN, with criminal 22 negligence, caused the death of another human being, that is, Darwin Datuin, 23 during the commission of the felony of robbery as alleged in the Third Charge below, an offense set forth under 9 G.C.A. Chapter 40, in violation of9 G.c.A. §§ 24 16.30(a)(2), 16.30(b) and 4.60. 25 On April 27, 1995, the jury found the Defendant guilty of the second charge supra an 26 acquitted him of the other offenses, including the underlying felony of robbery_ This verdict wa 27 upheld on appeal. People v. Angoco, Crim. No. 95-00094A, 1996 WL 875777 (D. Guam App. 28
Page 1 of6 Div. OCt. 16, 1996). The Ninth Circuit further upheld the conviction. People v. Angoco, 131 2 F.3d 147 (9th Cir. 1997). 3 Thereafter, the Defendant petitioned for the writ of habeas corpus on the basis of th 4 ineffective assistance of appellate counsel. On June 17, 1999, the Superior Court granted th 5 writ and ordered that the Defendant be either released or retried on the second charge supra. 6 Angoco v. Bitanga, SP0039-98 (Super. Ct. Guam Corpus June 17, 1999). The Supreme Cou 7 affirmed the writ on July 11,2001. Angoco v. Bitanga, 2001 Guam 17. 8 On February 6, 2003, the Court denied a motion to dismiss retrial of the second charge 0 9 the basis of double jeopardy. The Defendant appealed this decision, and the Supreme Cou 10 found that a retrial of the second charge of felony aggravated murder during the commission 0 11 robbery is not barred by the doctrine of collateral estoppel and does not offend the doctrine 0 12 double jeopardy. People v. Angoco, 2004 Guam 11. The Supreme Court specifically held that 13 "on retrial Angoco must be retried on the [second] charge as it is specified in the supercedin 14 indictment." Id at ~ 27. 15 On February 1, 2011, the Government fi led a second superceding indictment with eigh 16 (8) charges of felony aggravated murder for the death of Darwin Datuin on October 29, 1994. 17 The eight (8) charges accuse the Defendant of criminal homicide with four (4) different menta 18 states during the commission of robbery and during the commission of burglary. All eight (8 19 charges include the special allegation of the possession and use of a deadly weapon in th 20 commission of a felony. 21 On May 18, 2011, the Defendant filed a motion for a bill of particulars in addition to si 22 (6) motions to dismiss. The Defendant moves to dismiss the second superceding indictment 0 23 the grounds that it offends double jeopardy, is multiplicitous, is based upon undisclose 24 exculpatory evidence, offends felony murder principles, and takes an inconsistent and tactica 25 position which should be judicially estopped. The Defendant further moves to dismiss th 26 prosecution on the basis that John Junior Pangelinan, the co-defendant, was the sole cause of th 27 death of Darwin Datuin. 28 ///
Page 2 of6 '. '
DISCUSSION 2 I. The Second Superceding Indictment 3 Pursuant to the law of the case doctrine, "a court is generally precluded fro 4 reconsidering an issue that has already been decided by the same court, or a higher court in th 5 identical case." People v. Hualde, 1999 Guam 3 ~ 13 (citing Us. v. Alexander, 106 F.3d 874 6 876 (9th Cir. 1997)). The law of the case doctrine, "is more compelling on remand, where a 7 appellate court's prior ruling controls further proceedings in the trial court." People v. Rios 8 2011 Guam 6 ~ 22. However, "[a] court has the discretion to depart from the law of the cas 9 where: 1) the first decision was clearly erroneous; 2) an intervening change in the law ha 10 occurred; 3) the evidence on remand is substantially different; 4) other changed circumstance II exist; or 5) a manifest injustice would otherwise result." Hualde, 1999 Guam 3 ~ 13. 12 In this case, the Supreme Court of Guam previously considered a challenge to the retria 13 of the Defendant. In People v. Angoco, 2004 Guam 11, the Supreme Court decided that th 14 Defendant's retrial is limited to the second charge of the January 18, 1995 supercedin 15 indictment. Id. at ~ 25. The Court held, "that a retrial of Angoco after a reversal due to such tria 16 error does not offend the doctrine of double jeopardy and on retrial Angoco must be retried 0 17 the charge as it is specified in the superceding indictment. ... This matter is remanded for retria 18 consistent with this Opinion." Id. at ~ 27 (emphasis omitted). On remand, the law of the cas 19 doctrine is more compelling and the trial Court is precluded from reconsidering which charge 20 are allowed on retrial after the issue was decided by the Supreme Court in Angoco, 2004 Gua 21 11. For this reason, the Court is compelled to follow the mandate of the Supreme Court that th 22 Defendant must be retried on the second charge as it is specified in the January 18, 1995 23 superceding indictment. 24 Furthermore, the parties do not allege any judicial error, change in law, change il 25 evidence, change in circumstances or manifest injustice that would result from following th 26 mandate of Angoco, 2004 Guam 11. The Court CalIDOt find an exception to depart from the la 27 of the case doctrine, and it shall not exercise its discretion to do so. On this basis, the Court shal 28
Page 3 of6 follow the mandate of Angoco, 2004 Guam 11 and require that the Defendant be retried on th 2 second charge as it is specified supra. 3 The Government recently filed a second superceding indictment that includes eight (8 4 charges of felony aggravated murder with the special allegation of the possession and use of 5 deadly weapon. The new indictment does not cause the Defendant's retrial on the second charg 6 of the first superceding indictment. Each new charge indicts the Defendant with an offense tha 7 of which he was acquitted at trial. This offends the doctrines of double jeopardy and collatera 8 estoppel as they are discussed in Angoco, 2004 Guam 11. Pursuant to the law of Angoco, 200 9 Guam 11, the Court is precluded from reconsidering the issue of whether the Defendant may b 10 retried on any offense other than the second charge of the January 18, 1995 supercedin 11 indictment. The second superceding indictment does not follow the mandate of Angoco, 200 12 Guam 1 1, and on this basis it shall be dismissed.) 13 II. Dismissal for Lack of Causation 14 Title 9 GCA § 7.67 provides that, 15 The court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it 16 finds that the defendant's conduct: 17 (b) Did not actually cause or threaten the harm or evil sought to be prevented by 18 the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction. 19 Section 7.67 gives a court the discretion to dismiss an inappropriate prosecution of a de minimis 20 offense and thereby, "prevent absurd applications," of the criminal law. 9 GCA § 7.67 cmt. Se 21
22 also People v. Perez, 2004 Guam 4 ~ 8 et seq. In this case, the Defendant asserts that he cannot be prosecuted for the mental state 0 23 criminal negligence or for the robbery because he was acquitted of those olTenses. On this basis 24
the Defendant contends that the prosecution must be dismissed pursuant to Section 7.67 becaus 25 it is impossible to find that he caused the death of Darwin Datuin. The Court does not agree. 26
IBecause the second superceding indictment is dismissed on the basis of Angoco, 2004 Guam 11. the Court shal 28 decline to address the Defendant's motion for a bill of particulars and his motions to dismiss the indictment fo double jeopardy, multiplicity, exculpatory evidence, judicial estoppel, and the felony murder rule.
Page 4 of6 , '
In Angoco, 2004 Guam 11 ~ 15, the Supreme Court found that the Defendant's state 0 2 criminal negligence was not necessarily decided by the jury because of an inconsistent verdict 3 inter alia. Furthermore, the Supreme Court found that the Defendant's acquittal of robbery doe 4 not bar a retrial of aggravated murder during the commission of robbery because, 5 [T]he completion of the underlying felony is not an essential clement of felony murder. The two crimes are 'substantively and generically entirely separate and 6 disconnected offenses' so that an acquittal of the underlying felony is not 7 inconsistent with a conviction of felony murder.
8 Id. at ~ 23 (citing People v. Murray, 92 A.D.2d 617, 617 (N.Y. App. Div. 1983). On thes
9 grounds, the Supreme Court mandated retrial on the specific offense of aggravated murder b
10 criminal negligence during the commission of robbery. Id. at ~ 27. This specific retrial is no
11 precluded by his acquittals, and the Court shall not dismiss the prosecution as de minimis on thi
12 basis.
13 The Defendant also argues on a single bullet theory that the co-defendant, John Junio
14 Pangelinan, must be the sole cause of the homicide because he was convicted of aggravate
15 murder with a deadly weapon. On this basis, the Defendant contends that the prosecution mus
16 be dismissed pursuant to 9 GCA § 7.67 because it is impossible to find that he caused the deat
17 of Darwin Datuin. The Court does not agree.
18 Under Guam law, "[a] person is guilty of criminal homicide if he causes the death 0
19 another human being ... by criminal negligence." 9 GCA § 16.20(a)(5). Homicide caused b
20 criminal negligence constitutes aggravated murder when it occurs during the commission of
21 felony. 9 GCA § 16.30(a)(2); see also People v. Mikel, No. 92-00114A, 1993 WL 470410, a
22 *2-3 (D. Guam App. Div. ] 993). A person acts with criminal negligence when he, "should b
23 aware of a substantial and unjustifiable risk that circumstances exist or that his conduct wil
24 cause the result and his failure to be aware of the risk constitutes a gross deviation" from th
25 reasonable standard of care in that situation. 9 GCA § 4.30( d).
26 In this case, pursuant to Angoco, 2004 Guam 11 and the second charge of the firs
27 superceding indictment, the prosecution must prove beyond reasonable doubt that the Defendan
28 failed to be aware of the risk of death under the circumstances or by his conduct and in gros deviation from reasonable care. The single bullet theory does not preclude a finding that th
Page 5 of6 Defendant acted with criminal negligence and thereby caused the death of Darwin Datuin durin 2 the commission of robbery. For this reason, the Court shall not dismiss the prosecution as d 3 minimis and the Defendant's motion shall be denied. 4 III 5 III 6 III 7 CONCLUSION 8 Based upon the foregoing, the second superceding indictment, filed February 1, 2011, i 9 hereby DISMISSED. Pursuant to People v. Angoco, 2004 Guam 11 ~ 27 and Angoco v. Bitanga 10 SP0039-98 (Super. Ct. Guam Corpus June 17, 1999), the Defendant must be released or retrie 11 on the second charge as it appears in the first superceding indictment, filed January 18, 1995. 12 Furthermore, the Defendant's motion to dismiss for a lack of causation is hereb 13 DENIED. 14
15 - ii, SO ORDERED this 2..-. day of April, 2012. 16
17 ~'/ 18 l ,;' .~/y ItY1Ll~L//h.j /J liJ/ [,t ;1 ~" f"(/l'lli rVl 11-//,,' i \ 19 HONORABLE KATHERINE A. MARAMAN Judge, Superior Court of Guam 20
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