FILED
5 IN THE SUPERIOR COURT OF GUAM 6
7 PEOPLE OF GUAM, CRIMINAL CASE NO. CM0330-06 ) 8 ) ) 9 vs. ) DECISION AND ORDER ) (Motion to Dismiss the Indictment) 10 ) ) 11 ) CARLO ALFRED TENORIO BORJA, ) 12 ) Defendant. ) 13 )
14 ---------------------------------) 15 INTRODUCTION 16 This matter came before the Honorable Anita A. Sukola on January 5, 2012, for a 17 motion to dismiss the indictment. Attorney Howard Trapp represented Carlo Alfred Borja 18 Tenorio ("Defendant"). Chief Prosecutor J. Basil O'Mallan III and Assistant Attorney General 19
20 David Rivera appeared on behalf of the People of Guam ("the People"). The Court took the
21 matter under advisement. Upon review of the evidence, written and oral arguments, and legal 22 authorities presented by both parties, the Court hereby issues this ruling. 23 BACKGROUND 24
25 On April 12, 2006, a Complaint was filed in the above-captioned case charging
26 Defendant with: (1) Indecent Exposure (As a Petty Misdemeanor). Complaint (Apr. 12,2006). 27 Consequently, Defendant was summoned to appear before the Honorable Alberto C. Lamorena 28 III, on May 10, 2006 at 10 a.m. Summons (Apr. 17, 2006). Defendant then moved the Court
People of Guam v. Carlo Alfred Tenorio Borja (CM330-06) Page I of 13 Decision and Order - Motion to Dismiss the Indictment for an order that no statement made by Defendant in the course of any examination conducted 1
2 under 9 GCA § 7.25, no testimony by the expert based on the statement, and no other fruits of
3 the statement may be admitted into evidence against Defendant in any criminal proceeding 4 except on an issue regarding mental condition on which Defendant has introduced evidence of 5 incompetency, evidence requiring a plea of not guilty under 9 GCA § 7.22 (b), or evidence 6
7 requiring notice under 9 GCA § (c). Defendant's Motion (Apr. 18,2006). Likewise, Defendant
8 through counsel filed notice pursuant to 9 GCA § 7.22 (d) that the mental condition of 9 Defendant may be in issue. l Notice (Apr. 18, 2006). Presiding Judge Lamorena granted 10 Defendant's Motion and issued a protective order. Order (May 8, 2006). 11 Defendant then filed a Request for Production of Exculpatory and Impeachment 12
13 Evidence; Request for Notice of Intent to Use Evidence (8 Guam Code Ann. § 62.25 (b)); and a
14 Motion for Discovery (Apr. 18, 2006). 15 The above entitled case was assigned to the Honorable Steven S. Unpingco on April 19, 16 2006. Notice (Apr. 19, 2006). In addition to the above captioned case, CM330-06, Defendant 17 was also charged in CF 124-06, CFI53-06, CFI54-06, CFI55-06, and CM329-06. On April 19, 18
19 2006, Defendant filed a Motion for Joint Trial of Separate Cases. Motion for Joint Trial of
20 Separate Cases (Apr. 19,2006). Thereafter, Criminal Cases CM330-06, CF 124-06, CFI53-06, 21 CFI54-06, CFI55-06, and CM329-06, were assigned to the Honorable Katherine A. Maraman. 22 Notice (Apr. 24, 2006). On April 25, 2006, the People submitted its response to Defendant's 23 motion for discovery and the People's request for discovery. The People's Response to 24
25 Defendant's Motion for Discovery and the People's Request for Discovery (Apr. 25, 2006). The
27 1 Delays for the purpose of determining the defendant's competence are weighed against the defendant, for 28 purposes of the "reason for the delay" factor in Barker v. Wingo analysis for determining whether a defendant's constitutional right to speedy trial has been violated. State v. Kanneh, 403 Md. 678,944 A.2d 516 (2008).
People of Guam v. Carlo Alfred Tenorio BOIja (CM330-06) Page 2 of 13 Decision and Order - Motion to Dismiss the Indictment People had no objections to Defendant's motion for joint trial of separate cases. The People's 1
2 Response to Defendant's Motion for Joint Trial of Separate Cases (Apr. 25, 2006).
3 A further proceedings was set on all cases for May 30, 2006 before Judge Katherine A. 4 Maraman. Notice of Hearing (Apr. 28,2006). In the meantime, a forensic evaluation order was 5 issued by Presiding Judge Alberto C. Lamorena, III, ordering that Defendant undergo a 6
7 psychological evaluation, and that Dr. James Kiffer is appointed to conduct said evaluation.
8 Forensic Evaluation Order (May 8, 2006).
9 On May 30, 2006, a further proceedings on all cases was held before Judge Katherine 10 A. Maraman. On June 27, 2006, another further proceedings was scheduled before Judge 11 Maraman. Defendant indicated that more time would be needed, so the Court scheduled the 12
13 parties to come back on August 10, 2006. Transcript JDKAMCRA (6/27/2006) at 10:48:35.
14 Judge Maraman signed an order granting Defendant's motion for discovery on July 26, 2006. 15 Order Granting Motion for Discovery (Jui. 26, 2006). At the August 10, 2006, further 16 proceedings, Defendant indicated that documents were requested in writing but have yet to be 17 received. Likewise, Defendant requested to continue the further proceedings noting that "we 18
19 can get documents at any time now." The Court then set a further proceeding for September 5,
20 2006. Transcript JDKAMCRA (8/10/2006) at 10:55:03. On September 5, 2006, the Court 21 continued a status hearing for September 19, 2006. In the meantime, Dr. Kiffer submitted to 22 Judge Maraman his forensic evaluation report relative to CF124-06, CF153-06, CF155-06, 23 CM329-06, and CM330-06. 2 Dr. Kiffer concluded that Defendant is competent to be proceeded 24
25 against and competent to be sentenced. Forensic Evaluation Report (Sept. 14, 2006) at 20-21.
27 2 Although CFIS4-06 was not included in the Forensic Evaluation reference caption, the Court notes that the 28 Forensic Evaluation Order was ordered on all six cases.
People of Guam v. Carlo Alfred Tenorio Borja (CM330-06) Page 3 of 13 Decision and Order - Motion to Dismiss the Indictment Defendant then filed a waiver of speedy trial on September 19, 2006. Waiver of Speedy Trial 1
2 (Sept. 19, 2006). On September 19, 2006, a further proceedings and status hearing took place
3 before Judge Katherine Maraman. At said hearing, it was represented to the Court that the 4 grand jury material and discovery were received. Transcript JDKAMCRA (9/19/2006) at 5 10:46:58. As a result, the Court issued its scheduling order, with jury selection to commence on 6 February 12, 2007. Scheduling Order (Sept. 27, 2006). The People submitted its proposed 7
8 verdict forms and proposed jury instructions on all cases on January 4, 2007. Likewise, the
9 People submitted its witness list on January 15, 2007. On January 18, 2007, Judge Maraman 10 disqualified herself on the cases due to the fact that Mental Health Court was assigned to 11 Presiding Judge Lamorena. Defendant submitted a request for jury instructions and notice of 12
13 defenses and witnesses on January 23, 2007. On that same day, a pre-trial conference was held
14 before Presiding Judge Alberto C. Lamorena III. Super. ct. of Guam Minute Entry (Jan. 23, 15 2007). 16 The cases were subsequently assigned to Presiding Judge Alberto C. Lamorena III, on 17 February 2, 2007. Following the pre-trial conference, Defendant filed an amended and 18
19 expanded request for jury instructions, an amended and expanded notice of defenses and
20 witnesses, and proposed verdict forms on February 14,2007. 21 A status hearing was held on February 23, 2007, before Presiding Judge Lamorena. 22 Further proceedings followed on March 13, 2007 and March 29, 2007. On March 29, 2007, 23 Presiding Judge Lamorena issued a Criminal Trial Scheduling Order relative to the above- 24
25 captioned case and jury selection was set for July 31, 2007. Criminal Trial Scheduling Order:
26 CF124-06 (Apr. 3, 2007). The jury selection date originally scheduled for July 31, 2007, was 27 rescheduled for August 13,2007 at 10 a.m. Notice of Hearing (Jui. 16,2007). On July 26, 2007, 28
People of Guam v. Carlo Alfred Tenorio BOlja (CM330-06) Page 4 of 13 Decision and Order - Motion to Dismiss the Indictment a pre-trial conference was held before Presiding Judge Lamorena where it was noted that the 1
2 court needed to research on jury demand, hence, continuing the matter for August 9, 2007.
3 Super. Ct. of Guanl Minute Entry (July 26, 2007). Defendant then filed a Memorandum on Jury 4 of Six on August 8, 2007. Defs. Memo on Jury of Six (Aug. 8, 2007). The record does not 5 reflect if the jury of six matter was resolved from that date. Subsequently, the parties stipulated 6
7 that the pretrial conference set for August 9, 2007, be postponed and continued for
8 approximately three weeks. Stipulation and Order (August 22, 2007). Accordingly, the Court 9 came back for a continued pre-trial conference on September 12, 2007 where the matter was 10 continued for forty-five days. Super. Ct. of Guanl Minute Entry (Sept. 12, 2007). On October 11 31, 2007, a further proceedings hearing was held. Defendant was not present, but the People 12
13 indicated they were working on a resolution with Defense counsel and the Court scheduled the
14 parties to come back on January 30, 2008. 3 Super. Ct. of Guam Minute Entry (Oct. 31, 2007). 15 Consequently, at the January 30, 2008, further proceedings, it was represented to the Court that 16 Defendant was awaiting response from the People and a further proceedings was scheduled for 17 March 5, 2008. Super. Ct. of Guanl Minute Entry (Jan. 30, 2008). 18
19 Prior to the next further proceedings, on March 3,2008, Defendant requested the Court
20 for a settlement conference with the attorney for the government, with the assistance of a 21 settlement judge, and in line with General Order 400 of the United States District Court for the 22 Southern District of California. Defendant's Request for Settlement Conference (Mar. 3, 2008). 23 In line with Defendant's request for a settlement conference, Defendant filed a Memorandum in 24
25 Support of Request for Settlement Conference on the same day. Defendant's Memorandum in
26 Support of Request for Settlement Conference (Mar. 3, 2008). On March 5, 2008, before 27
28 3 Although Defendant was not present at this further proceedings, his attorney was there.
People of Guam v. Carlo Alfred Tenorio Borja (CM330-06) Page 5 of 13 Decision and Order - Motion to Dismiss the Indictment Presiding Judge Lamorena, the parties agreed and had no issues movmg forward with a 1
2 settlement conference. Presiding Judge Lamorena requested Defendant to prepare the Order
3 and that Chief Justice Robert Torres would assign a settlement judge. Transcript JDACLCRB 4 (3/5/2008) at 4:49:00. The Order granting Defendant's request for settlement conference was 5 signed on November 9, 2009 and November 13, 2009. Pursuant to the November 9th and 13th 6
7 orders, Presiding Judge Alberto C. Lamorena III remains the trial judge and Judge Steven
8 Unpingco is assigned the settlement judge in which the settlement judge will conduct the
9 settlement conference only. Memorandum from Clerk of Court to Judge Unpingco (Sept 23, 10 2010). Accordingly, a settlement conference before Judge Steven Unpingco was scheduled for 11 April 4, 2011. Notice of Hearing (Jan. 26,2011). The Court was unavailable and rescheduled 12
13 the settlement conference for April 18, 2011. Notice of Hearing (Feb. 9, 2011). The parties
14 were present for a settlement conference before Judge Unpingco on April 18,2011. Defendant 15 articulated to the settlement judge that "[settlement judge's] role would be to keep us on track 16 and have periodic meetings. The government without conceding anything is pretty much in 17 agreement." Transcript JDSSUCRA (4/18/2011) at 2:43:23. The next settlement conference 18
19 was scheduled for July 26,2011. Notice of Hearing (June 13,2011). The continued settlement
20 conference was rescheduled for August 16,2011. Notice of Hearing (Jul. 19,2011). 21 On October 28, 2011, the case was given to Judge Anita A. Sukola for reVIew. 22 Subsequently, Defendant filed a motion to dismiss the indictment with prejudice on October 31, 23 2011. Defendant's Motion to Dismiss Indictment4 (Oct. 31, 2011). Accordingly, this Court set 24
25 a further proceeding on November 15, 2011. At that hearing, this Court informed Defendant
27 4 The Court notes that a Motion to Dismiss Indictment was filed relative to all cases involving Defendant. In thi
misdemeanor case, no indictment was filed considering its classification is not a felony. "In Guam, a complaint 28 rather than an indictment, is sufficient to charge a defendant accused of committing a misdemeanor." Peo Ie v Stephen, 2009 Guam 8 ~ 12.
People of Guam v. Carlo Alfred Tenorio BOIja (CM330-06) Page 6 of 13 Decision and Order - Motion to Dismiss the Indictment that it will set the motion to be heard on December 14, 2011. Defendant asked the Court to "set 1
2 it in a way where government would brief it." Transcript JDAASCRA (11/15/2011) at 2:53:56.
3 On that same date, the People filed its opposition to Defendant's motion to dismiss prior to the 4 hearing. People's Opposition to Defendant's Motion to Dismiss (Dec. 14, 2011). Defendant's 5 attorney advised the Court that he did not receive a copy and needed time to file a response. As 6
7 a result, the Court set the matter for a further proceedings for December 23, 2011. On
8 December 27, 2011, the People filed a supplemental opposition to Defendant's motion to
9 dismiss indictments. People's Supplemental Opposition to Defendant's Motion to Dismiss 10 Indictments (Dec. 27, 2011). Similarly, Defendant filed a response to Government's opposition 11 and supplemental opposition to Defendant's motion to dismiss and Defendant's Declaration on 12
13 December 29, 2011. Defendant's Response to Government's Opposition and Supplemental
14 Opposition to Defendant's Motions to Dismiss & Defendant's Declaration (Dec. 29, 2011). On 15 January 5, 2011, this Court held a hearing on Defendant's motion on all cases. The matter was 16 taken under advisement and this Decision and Order follows. 17 DISCUSSION 18
19 Defendant moves this Court to dismiss the indictment with prejudice pursuant to 8 GCA
20 § 80.70 (b). Defendant argues that the Court has failed to hear and determine the proceedings in 21 this criminal case and together with the prosecutors has failed to expedite the proceedings in 22 this criminal case in violation of 8 GCA § 80.50. Defendant's Motion to Dismiss the 23 Indictment (Oct. 31, 2011). 8 GCA § 80.70 (b) provides the court permissive authority on its 24
25 own motion to dismiss an indictment if there is unnecessary delay in bringing defendant to trial.
26 § 80.70. When Prosecutor, Defendant, Court May Dismiss. 27 (b) If there is unnecessary delay in bringing a defendant to trial, the court on its own motion, may dismiss the indictment, information or complaint. The 28 reasons for the dismissal shall be set forth in an order entered upon the
People ofGuarn v. Carlo Alfred Tenorio Borja (CM330-06) Page 7 of 13 Decision and Order - Motion to Dismiss the Indictment minutes. 1
2 8 GCA 80. 70 (b) (20 12) (emphasis added).
3 The People oppose Defendant's motion to dismiss stating that "it appears that the delay 4 is not solely the fault of the prosecution or the court." The People further argued that "the 5 prosecution proceeded expeditiously with this matter in its early stage. In short, this delay is the 6 result of circumstances that were beyond the control of the court or the prosecution." People's 7
8 Opposition to Defendant's Motion to Dismiss at 2-3 (Dec. 14, 2011). The People argue that
9 "[w]here § 80.60 is not at issue the Supreme Court of Guam has adopted a four-part balancing 10 test to determine if a defendant's speedy trial rights under the sixth amendment of the 11 Constitution has been violated. People v. Flores, 2009 Guam 22." People's Supplemental 12
13 Opposition to Defendant's Motion to Dismiss Indictments (Dec. 27, 2011).
14 Defendant responds that his motions are not made on the ground that he has been denied 15 his right to a speedy trial in violation of the Sixth Amendment to the Constitution or the 16 construction of the Sixth Amendment in Barker v. Wingo, 407 U.S. 514 (1972), or the 17 application of Barker in People v. Flores, 2009 Guam 22. Rather, Defendant contends that his 18
19 motions are "made ... on the ground that the court has failed to hear and determine the
20 proceedings in this criminal case and together with the prosecutors has failed to expedite the 21 proceedings in this criminal case in violation of 8 Guam Codes Ann. § 80.50." Defendant's 22 Response to Government's Opposition and Supplemental Opposition to Defendant's Motions to 23 Dismiss (Dec. 29, 2011). Defendant further argues that "Section 80.60 oftitle 9 of Guam Codes 24
25 Annotated, the Sixth Amendment to the Constitution of the United States, People v. Flores,
26 2009 Guam 22, and Barker v. Wingo,407 U.S. 514 (1972) are all inapposite. 27
People of Guam v. Carlo Alfred Tenorio BOIja (CM330-06) Page 8 of 13 Decision and Order - Motion to Dismiss the Indictment Contrary to Defendant's argument that Section 80.60 is inapposite, he cited to Nicholso 1
2 v. Super. Ct of Guam, 2007 Guam 9, which hinges on said statutory section. Transcri
3 JDAASCRA (11512012) at 10:38:34. Nicholson is distinguished with the case at bar because th 4 former asserted his right to a speedy trial. Here, there is nothing in the record reflecting tha 5 Defendant ever asserted. 6 Guam law provides the following relative to Defendant's grounds for dismissal: 7
8 §80.S0. Criminal Trials Expedited; Precedence. (a) The welfare of the people of the territory of Guam requIres that all 9 proceedings in crinlinal cases shall be set for trial and heard and determined at the earliest possible time, and it shall be the duty of all 10 courts and judicial officers and of all prosecuting attorneys to expedite 11 such proceedings to the greatest degree that is consistent with the ends of justice. 12 (b) In accordance with the policy stated in Subsection (a), a criminal cases shall 13 be given precedence over, and set for trial and heard without regard to the pendency of, any civil matters or proceedings. No continuance of a trial shall 14 be granted except upon affirmative proof in open court, upon reasonable notice, that the ends of justice require a continuance. No continuance shall be 15 granted for any longer time that it is affirmatively proved the ends of justice 16 require. Whenever any continuance is granted, the court shall enter in its minutes the facts proved which require the continuance. 17 8 GCA § 80.50 (a) and (b) (2012) (emphasis added). 18
19 While Defendant contends that his motion is not made on the statutory speedy trial
20 assertion pursuant to Section 80.60, the Court notes that Section 80.50, which Defendant 21 5 bases his motion, is supplemented by the specific time limits provided by Section 80.60. 22 In view of this, the Court employs the Barker four-part balancing test in evaluating a claime 23 violation. "Under the Barker test, the following factors are considered: (1) length of the delay' 24
25 (2) the reason for the delay: (3) the defendant's assertion of his right to a speedy trial; and (4) th
27 5 NOTE: Section 80.50 combines the substance offormer §§ 681 and 1050. See also former Rule 50; § 1.11 (a) (right to speedy trial). See generally B. Witkin, California Criminal Procedure Trial §§ 278-290 (1963, Supp. 1973), 28 (procedure and grounds for continuance). The section is supplemented by the specific time limits provided by § 80.60. Note for 8 GCA § 80.50
People of Guam v. Carlo Alfred Tenorio BOlja (CM330-06) Page 9 of 13 Decision and Order - Motion to Dismiss the Indictment presence or absence of prejudice resulting from the delay." People v. Flores, 2009 Guam 22 ~ 4 1
2 (citing Barker v. Wingo, 407 U.S. 514, 530 (1972). None of these factors are dispositive an
3 they must be considered together and balanced in relation to all of the relevant circumstances 0 4 the delay in bringing the defendant to trial. Id. (citing Barker, 407 U.S. at 533). 5 a. Length of Delay 6 A constitutional right to a speedy trial cannot "be quantified into a specified number of days 7
8 or months" Id. at ~ 43. Rather, a balancing test weighing the conduct of both the prosecution
9 and the defendant is necessary, and the length of the delay is measured from the time of the 10 indictment or arrest to the time of trial. Id. The more serious or complex the charge, the greater 11 the length of delay that will be tolerated. Id. 12 Defendant was indicted on March 29, 2006. Consequently, the period of time that has 13
14 passed since the filing of the indictment is nearly six years. "Under the Barker analysis, '[u]ntil 15 there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the 16 other factors that go into the balance. Id. at ~ 44. In Flores, the Supreme Court of Guam held 17 that a delay of almost six year was presumptively prejudicial. Therefore, we proceed to 18
19 examine the remaining Barker criteria.
20 b. Reason for Delay 21 Barker identifies three types of reasons for delay: (1) deliberate delay, (2) negligent delay, 22 and (3) justified delay. Barker, 407 U.S. at 531. Deliberate delay which includes an "attempt to 23 delay the trial in order to hamper the defense," or "to gain some tactical advantage over 24
25 (defendants) or to harass them" is weighted heavily against the government. Flores, at ~ 45.
26 Negligent delay is weighted less heavily against the government than is deliberate delay "but 27 nevertheless should be considered since the ultimate responsibility for such circumstances must 28
People of Guam v. Carlo Alfred Tenorio BOIja (CM330-06) Page 10 of 13 Decision and Order - Motion to Dismiss the Indictment rest with the government rather than with the defendant. Id. Lastly, justified delay, which 1
2 includes such occurrences as missing witnesses or delay for which a defendant is primarily
3 responsible is not weighted against the government. Id. 4 Based on the record, this case was first set for trial on February 12,2007 by Judge Katherine 5 A. Maraman. Scheduling Order (Sept. 27, 2006). However, the case was reassigned after 6
7 Judge Maraman disqualified herself on the matter on January 18, 2007. A new trial schedule
8 was set by Presiding Judge Alberto C. Lamorena III, for July 31, 2007. Criminal Trial 9 Scheduling Order: CF124-06 (Apr. 3,2007). Despite a new trial set, the People argue that "the 10 defendant's mental state again caused delays since either a stipulation concerning competency 11 had to be agreed upon or, alternatively, a competency would have to be scheduled." People's 12
13 Supplemental Opposition to Defendant's Motion to Dismiss Indictments (Dec. 27, 2011). On
14 March 3, 2008, Defendant requested for a settlement conference. Up until that point, the 15 previous trial courts assigned to this matter moved accordingly with the two trial schedules set. 16 Presiding Judge Lamorena eventually approved the request and the order issued granted either 17 party the ability to request a settlement conference. Hence, there is nothing in the record to 18
19 suggest any attempt by the trial court or prosecution to delay this matter since the parties were
20 between a settlement judge at Defendant's request. Good cause for the delay must be apparent 21 from the face of the record. Quinata v. Super. Ct., 2010 Guam 8 ~ 37. The reasons for the delay 22 are primarily attributable to the Defendant for the Defendant's benefit which should make this 23 factor weigh heavily in favor of the People. See Flores, 2009 Guam 22 ~ 46. 24
25 c. Assertion of Speedy Trial 26 In review of this case, the Court does not see any affirmative assertion of the right to speedy 27
People of Guam v. Carlo Alfred Tenorio Borja (CM330-06) Page II of 13 Decision and Order - Motion to Dismiss the Indictment trial by the defendant. With the consolidation of the instant case and subsequent cases 1
2 Defendant was charged in, the record reflects that a written waiver of the right to a speedy trial
3 was filed herein. Waiver of Speedy Trial (Sept. 19, 2006). Therefore, this factor weighs 4 heavily in favor of the People. 5 d. Prejudice Resulting from Delay 6 Lastly, Defendant has not indicated how the delay was unduly burdensome or oppressive to 7
8 him. Even assuming arguendo that Defendant's pre-trial incarceration is the bases for prejudice,
9 it is not by itself an adequate ground for the relief sought. Evidence of a lengthy pre-trial 10 incarceration, standing alone, is insufficient to establish that a defendant's right to a speedy trial 11 has been violated. Flores, 2009 Guam 22 , 50 (citing State v. Spivey, 579 S.E.2d 251, 255 12
13 (N.C. 2003).
14 In People v. Mendiol~ 1999 Guam 8, the Supreme Court of Guam held that a four and one- 15 half year delay in bringing a defendant to trial was counter balanced by the defendant's inability 16 to prove actual prejudice, coupled with justifiable reasons for the delay. Defendant could have 17 asserted at any time. In the instant case, Defendant waived his right to a speedy trial since 18
19 September 19, 2006. Waiver of Speedy Trial (Sept. 19, 2006). A defendant has the
20 "responsibility to assert a speedy trial claim." Mendiola, 1999 Guam 8 , 29 (citing Barker v. 21 Wingo, 407 U.S. at 529, 92 S.Ct. at 2191). "The strength of his efforts will be affected by the 22 length of delay, to some extent by the reason for the delay, and most particularly by the personal 23 prejudice, which is not always readily identifiable, that he experiences. The more serious the 24
25 deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy
26 trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is 27 being deprived of the right." Barker, 407 U.S. at 531-532,92 S.Ct. at 2192-2193. The Barker 28
People of Guam v. Carlo Alfred Tenorio Borja (CM330-06) Page 12 of \3 Decision and Order - Motion to Dismiss the Indictment Court emphasized that failure to assert the right will make it difficult for a defendant to prove 1
2 that he was denied a speedy trial. Id.
3 Unless the first three Barker factors all weigh heavily in favor of a defendant, the defendant 4 must demonstrate actual prejudice. Flores, 2009 Guam 22 ~ 52. Because the other factors weigh 5 strongly for the People and no actual prejudice was shown, the relief requested by Defendant is 6
7 denied.
8 CONCLUSION
9 By a preponderance of the evidence and based on the foregoing reasons, the Court 10 DENIES Defendant's Motion to Dismiss Indictment. 11
12 SO ORDERED this ,.baayof JI/l{J.A VA ,2012. 13
14 r!hY ~ This matter is set for a trial setting on -.!....~--=----J~~~----,2012 . .ffi ~~ ~ {~ • /i'V' . 1_
17 ,i2IMu HONORABLE ANITA A. SUKOLA Judge, Superior Court of Guam 18
People of Guam v. Carlo Alfred Tenorio BOIja (CM330-06) Page 13 of 13 Decision and Order - Motion to Dismiss the Indictment