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4 IN THE SUPERIOR COURT OF GUAM 5 PEOPLE OF GUAM, ) CRIMINAL CASE no. CM0387-17 6 )
7 PLAINTIFF, )
v. ) DECISION & ORDER RE: MOTION TO 8 ) DISMISS FOR DOUBLE JEOPARDY MARK c. CHARFAUROS 7 )
9 )
DEFENDANT. )
10 )
11 )
)
12 ) 13
14 Introduction
15 On August 29, 2019, Defendant Mark C. Charfauros ("Defendant"), through his attorney
16 F. Randall Cunliffe, Esq., of the Law Offices of Cunliffe and Cook, tiled a Motion to Dismiss for
17 Double Jeopardy. The People of Guam, represented by Assistant Attorney General Peter J.
18 Santos, filed an Opposition to the Motion and the matter was heard before the Honorable Maria
2; T. Cenzon on September 25, 2019. At the conclusion of the hearing, the Court took the matter
21 Under Advisement pursuant to CVR 7.1 of the Local Rules of the Superior Court of Guam.
22 Having reviewed the record, the relevant law, and considering the parties' arguments at the
23 hearing on the motion, the Court now issues this DECISION and ORDER. 24 Background
25 Defendant is charged with Qbstmcting Governmental Function (As a Misdemeanor), 26 27 Official Misconduct (As a Misdemeanor), and Official Misconduct (As .a Misdemeanor).
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People v. Charfauros; CM0387-17 Decision & Order: Motion to Dismiss For Double Jeopardy Page 1of 10 1-1 I'll llll\l I II II
1 Amended Complaint (Sep. 8, 2017). Jury aid of the matter commenced on November 7, 2018.
2 Minute Entry (Nov. 7, 2018). During the direct examination of the People's first witness, the
3 Prosecutor elicited testimony attempting to make a connection between the Defendant and the
4
Agat Blood Town Gang ("ABT"). Id. Defendant raised multiple objections to this testimony,
5
asserting that it was more prejudicial than probative, and if it had any probative value, was
6
7 subject to scrutiny under Guam Rules of Evidence 404(b) and, therefore, it is inadmissible. Id. At
8 the time of trial, Defendant moved for a mistrial, claiming that the People were intentionally
9 trying to slander Defendant. Id.
10
On December 17, 2018, the Court issued its Decision and Order Granting Defendant's
11
Mot. for a Mistrial (Dec. 17, 2018), finding that the People did not properly elicit the testimony
12
13 of the witness with respect to Defendant's alleged affiliation with the ABT Gang and failed to
14 comply with the mandates of Rule 404(b) of the Guam Rules of Evidence, resulting in an
15 incurable prejudice to the Defendant. Id. Based upon the prejudice to the Defendant which
16 resulted from the People's failure to comply with a basic and fundamental rule of evidence, the
17 Court declared a mistrial. Id. The subsequent jury triad of this matter was scheduled to
18
commence on October 14, 2019, but was vacated during the pendency of the instant Motion.
19
In this Motion to Dismiss, Defendant acknowledges that the Double Jeopardy Clause of
20
21 the Fifth Amendment to the United States Constitution does not apply generally when a mistrial
22 is declared upon Defendant's motion. Id. at 4. However, Defendant proffers that, due to the
23 blatant and intentional introduction of inadmissible character evidence at the trial, the People
24
acted in bad faith during trial. Id. at 6-8. Specifically, the Defendant argues that People did not
25
file a Notice of 404(b) evidence indicating an intent to introduce the defendant's purported
26
27 propensity to engage in criminal behavior and, because this failure was intentional, Double
28
People v. Charfauros, CM0387-17 Decision & Order: Motion to Dismiss For Double Jeopardy
I llluu ll l l l
1 Jeopardy must apply to bar a retrial. Id. at 7-8. In support of his motion, Defendant cites to
2 numerous cases from several jurisdictions which apply the protections of the Double Jeopardy
3 Clause in similar situations. Id. at 5, see Commonwealth v. Daidone, 453 Pa.Supp. 550, 684 4 A.2d, 179 (1996), People v. Cavallerio, 428 NY S.2d 585 (Sup. 1980); People v. Pendleton, 394 5 NE.2d 496 (let Dist., 11. 1979), Commonwealth v. Miata, 432 A.2d 198 (Penn. 1981), Pool v.
6 7 Superior Court, 677 P.2d 261 (Ariz., 1984).
8 In its Opposition, the People argue that Guam has adopted the United States Supreme
9 Court's established standard on Double Jeopardy and assert that the sole question before the 10 Court is whether the People intentionally induced Defendant to file the motion for a mistrial.
11 People's Opp. to Deft Mot. to Dismiss for Double Jeopardy at 2 (Sep. 11, 2019). If the Court 12 13 finds this to be the case, Double Jeopardy would apply, and the Peoplewould be foreclosed from
14 retrying this case. Id. The People assert that, because they did not intentionally trigger the
15 Defendant to file a motion for a mistrial, Double Jeopardy does not apply. Id at 3-4.
16 Law and Authorities
17 The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution
18 prohibits more than one prosecution for the same offense. Oregon v. Kennedy, 456 U.S. 667, 671
;; (1982) (citing United States v. Dinitz, 424 U.S. 600, 606 (1976)). When a trial is terminated over
21 the Defendant's objection, "the classical test for lifting the double jeopardy clause bar to a
22 second trial is the 'manifest necessity' standard." 456 U.S. at 672 (citing United States v. Perez,
23 9 Wheat. 579, 580, 6 F.Ed. 165 (1824). However, different principles apply when a mistrial
24 declared at the request of the Defendant and the "manifest necessity" standard is inapplicable. Id. 25 at 673. Generally, a mistrial declared on the Defendant's motion is not a bar to retrial, however, 26 even where the defendant moves for a mistrial, there is a narrow exception which the United 27
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People v. Charfauros,CM0387-17 Decision & Order: Motion to Dismiss For Double Jeopardy 1 States Supreme Court has adopted, Id., and which the Guam Supreme Court has acknowledged.
2 In People v. Pablo, 2016 Guam 29, the Guam Supreme Court confirmed the U.S.
Supreme Court s protectlons against prosecutorial misconduct resulting in a mlstnal Hndlng that 4 "[w]here a mistrial arose from prosecutorial actions done 'in order to goad the [defendant]
5 into requesting a mistriaLs,' the general rule does not apply." Pablo at <II 25 (citing Kennedy, Id.)
6 7 (quoting US v. Dinitz, 424 U.S. 600 (1976)). In this limited circumstance, the protections
8 afforded a defendant under the Double Jeopardy Clause would bar the People from bringing a
9 new trial under circumstances which would provide a more favorable opportunity to convict him. 10 Dinitz at p. 611.
11 The Double Jeopardy Clause does not protect a defendant against 12 governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed 13 by multiple prosecutions. It bars retrials where "bad-faith conduct 14 b y j u d g e or prosecutor [citation omitted] threatens the '(h)arassment of an accused by successive prosecutions or 15 . declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict' the defendant. Id. (Numerous 16 citations omitted).
17 In People v. Pablo the People proposed, and the Court allowed over the objection of 18 19 defense counsel, the choice of "unable to decide" to be included in verdict forms provided to the
20 jury.1 The ambiguous clause allowed the jury to indicate that it was unsure whether the defendant
21 in that case was guilty or not guilty and the jury invoked this choice for Count One against the
22 Defendant. Id. The Court declared a mistrial on Count One, and the People indicated its intention
23 to retry the count. Id. iI 8. Pablo filed a motion to dismiss based on Double Jeopardy grounds
Q; arguing that the inclusion of the "unable to decide" language was tantamount to prosecutorial
26
27 1 The verdict form submitted to the jury included the following instructions: "If you are unable to decide whether the Defendant is guilty or not guilty of this charge, your foreperson will sign and date this form below." Id. 'i[4.
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People v. Charfauros; CM0387-17 Decision & Order: Motion to Dismiss For Double Jeopardy
III
1 and judicial misconduct as the language "was contrary to and called into question the duty of the
2 jurors to deliberate in an effort to reach a verdict of not guilty or guilty." Id. qt 9. 3 On appeal, the Guam Supreme Court rejected Defendant's assertion that Double Jeopardy 4 applied to bar a retrial, stating that the "relevant inquiry is whether the conduct giving rise to the 5 mistrial was intended to provoke a mistrial." Id. '][ 28. In denying Defendant's appeal to 6 7 reverse his conviction on Double Jeopardy grounds, the Guam Supreme Court rejected Pablo's
8 argument that including the "unable to decide" language amounted to impropriety on the part of
9 the trial court and the prosecutor "as it was intended to and did provoke a mistrial." Id. iI 21, 28.
10 The Guam Court agreed that the inclusion of such language was clearly intentional, but it was
11 not clear that the reason that the triad court permitted its inclusion over objection was for the
13 purpose of provoking a mistrial. Id. 7/28. The High Court reasoned that there was no evidence
14 that the trial court intended for a rnistriad to occur by including the language, finding as follows:
15 It appears the court believed that the. jury instruction regarding the requirement of a unanimous decision would negate any potential 16 suggestiveness of the "unable to decide" language in the verdict 17 form. Putting aside the questionable wisdom of that decision, we are hard-pressed to find that behind the triad court's decision to 18 include the language was its intent to provoke a mistrial. T he record, although a cold one, lacks any suggestion that either the 19 trial court or the prosecutor intended to provoke a mistrial by keeping in the "unable to decide" language.
20
21 Id. Y!29 (footnotes omitted).
22 Following the precedent set in Pablo which articulated and adopted the U.S. Supreme
23 Court's rationale in Kennedy, this Court's only question is whether, based on the objective 24 conduct of t he P eople dur ing t he fir st t r ia l, t hey int ended t o induce a r nist r ia d t hr ough 25 Defendant's motion. As the Kennedy concurrence pointed out, looking at the subjective or stated 26 27 intent of the People is not dispositive, nor the most relevant, in determining whether the
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People v. Charfauros; CM0387-17 Decision & Order: Motion to Dismiss For Double Jeopardy 1 government intended to goad a defendant into seeking a mistrial. Subjective intent is, as Justice
2 Powell asserts, hard to discern. This Court must, therefore, look at the record from the first trial,
3 analyze the People's conduct, and discern whether their conduct intentionally triggered a motion 4 for mistrial from Defendant.
5 The facts of this matter differ from the facts in Pablo with regard to one important detail 6
7 the previous finding by this Court on the record that the People failed to comply with a
8 fundamental and basic rule of evidence requiring the People to provide reasonable notice of its
9 intent to use "prior bad acts" as defined in GRE 404(b) at the trial in the manner as required 10 under the rule. Indeed, after discussions held in chambers and at side bar with counsels for the 11 12 parmies, including g repeated warning
g s to the
P prosecution,
q questions elicited from the Peop Le's first
13 witness included the declaration that the Defendant had connections with the ABT Gang. Thus,
14 unlike the decision of the trial J'edge in Pablo to include Jang page in a verdict form over the
15 objection of counsel, it is incontrovertible to the Court that eliciting the testimony at the trial of
16 Defendant Charfaros was made intentionally and with the purpose of goading defense counsel to 17 object to the testimony, request the court strike the statement from the record and, ultimately, 18 . . 2
seek a m1str1a1.
19 The facts of this case are similar to that in the Kennedy case on which the Pablo court 20
21 relied. In Kennedy, a single question by the Prosecutor asldng his testifying witness whether the
22 defendant was "a crook" triggered the mistrial. Here, the People's insistence on introducing
23 evidence of Defendant's connection to the ABT through the testimony of Police Officer Craig P.
24 Calvo, despite failing to comply with Rule 404(b) and multiple admonishments from this Court, 25
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27 2 The Court hereby incorporates by reference its findings as set forth in its Decision and Order Granting Def.'s Mot.
for A Mistrial (Dec. 17, 2018).
28
People v. Charfauros; CM0387-17 Decision & Order: Motion to Dismiss For Double Jeopardy ll I
1 triggered the mistriaLs Thus, the Court applies the factors articulated in Kennedy in detemlining
2 the objective intent of the prosecutor in eliciting the improper testimony. 3 Applying these factors, the Court finds that the Prosecutor knew that his conduct during 4 the direct examination of the witness (given the Court's admonition against eliciting improper 5 bad act evidence immediately preceding the examination) would cause Defendant to move for a 6 mistrial, yet he proceeded to inquire into the reason why the witness avoided the Defendant.
7 While the mistrial in Kennedy was triggered by only a single question, here the conduct was far 8 more egregious, because previous discussions between the Court and the counsels cautioned the 9 People about eliciting any gang affiliation. Yet, during the questioning of Officer Calvo, who 10 happened to be the People's first witness, the prosecutor almost immediately launched into 11 questions clearly intended for the sole purpose of connecting the Defendant to the ABT - which 12 was contrary to the Court's admonitions to the People.
13 In granting Defendant's motion for a mistrial, the Court rejected adj arguments made by 14 the People. This Court finds that the inconsistent statements made by the People regarding their 15 attempt to introduce what this Court has already found to be clearly irnpemmissible character 16
17 wAs discussed in the Decision and Order Granting Defendant's Motion for a Mistrial, the Court discussed the prosecutor's direct examination of Officer Calvo, and it is evident to the Court that the Prosecutor continued to ask 18 questions regarding whether the witness was afraid of the Defendant until he was satisfied with the answer which was clearly intended to cause Defendant to lodge an objection (Digital recording of Jury Trial on Nov. 7, 2018 at 19 11:19:02 to 11:22:23): 20 Santos: Defense Counsel asked you, whether or not you spoke to the Colonel when you arrived, and you did not.
Did you purposefully avoid speaking to him?
21 Cad vo: Yes, I did...when I was informed he was at the scene, I did.
Santos: W hy would you purposefully avoid him?
22 C a l v o : During my time in Agat precinct C u n l i f f e: Your honor, may we approach. [sidebar] C o u r t : Objection overruled 23 Santos: I'll just repeat the question. W hy would did you purposefully avoid spealdng to Colonel Charfauros?
C a l v e : One is because, it is very unusual for the Colonel to show up to the scene.of an investigation and two is that during my 24 t im e at Agat precinct, I was informed by officers...
C u n l i f f e: I'll object to that as being hearsay, your honor.
25 C o u r t : Sustained. [To prosecution] Unless you have an exception?
Santos: W ere you afraid of the colonel?
26 C a l v o : Afraid of the colonel? No sir, I was not afraid of the colonel.
Santos: But you avoided him, there has to be a reason why you avoided him. C u n l i f f et The answer is that it is unusual for him to show up, your honor.
27 C o u r t : Overruled, you may answer the question.
C a l v o : Second reason is because I had reason to believe that the Colonel was affiliated with the Agat Blood Town Gang.
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People v. Charfauros; CM0387-17 Decision & Order: Motion to Dismiss For Double Jeopardy 1 evidence. Further, the Court finds that the People attempted to circumvent the Court's
2 admonitions against introducing evidence of gang affiliation at least two separate times on
3 record. Finally, the Court finds that the People's refusal to file the requisite notice of intent to 4 introduce 404(.b) lends to its finding that the People actually intended to use such evidence for an 5 impermissible purpose at trial. The People's actions go much farther than a "single question" as 6 7 pondered by Justice Powell in rendering the Opinion in Kennedy, and constitute a sequence of
8 intentional overreaching.
9 In Kennedy, Justice Powell considered the surprise by the prosecutor to lend itself to 10 intentional conduct supporting the mistrial. Here, the Court acknowledges that the People on 11 record objected to the motion for mistrial, calling it premature. The Court also, however, notes 12 13 the People's refusal to stray away from introduction from gang affiliation despite failing to file a
14 notice with Defendant or the Court and despite this Court's order on previous objections on the
15 record. Thus, the Court cannot believe that the People were "surprised" at Defendant's motion
16 for mistrial based on the People's intentional conduct. Further, as stated earlier, the stated intent
17 of the People is not dispositive in determining the objective intent behind the People's conduct. 18 Finally, Justice Powell noted that the trial court in Kennedy held, with no objection from 19 20 either party, that there was no intention to cause a mistrial. This is a similar situation as in Pablo,
21 where the Court accepted the proposed jury instruction in question. But here, it is the factor
22 clearly distinguishing Pablo and Kennedy. In the case at bar, this Court clearly expressed a
23 disapproval of the People's conduct and, indeed, admonished such conduct on the record. The
22 Court sustained Defendant's objection to the introduction of gang affiliation testimony, and
26 ultimately granted a mistrial based on the introduction of such evidence. The Court further
27 expressed frustration with the People for not complying with the notice requirements of Rule
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People v. Charfauros; CM0387-17 Decision & Order: Motion to Dismiss For Double Jeopardy llllllll mu al I l l l
1 404(b) evidence. The People's conduct during the course of the trial with regard to how to treat
2 information about any possible gang affiliation explaining the Defendant's motive precluded this
3 Court from malting a decision on its admissibility well in advance of trial, and as a result, denied
4
the Defendant his due process right to prepare adequately for aid.
5
The Court was not previously asked to consider, nor did it consider, whether the 6 . 7 prosecution's conduct during trial was intended to goad the defense into seeking a mistrial.
8 However, applying the Guam Supreme Court's reasoning in Pablo and following the U.S.
9 Supreme Court's rationale in Kennedy, this Court finds that the People's conduct at trial in
10
eliciting the testimony regarding Defendant's purported affiliation with the ABT Gang was
11
clearly intended to cause the Defendant to seek a mistrial.
12
Conclusion
13
For the reasons stated above, this Court finds that, under the circumstances, the
14
15 Prosecutor's conduct at trial was intended to "goad" the Defendant into seeking a mistrial.
16 Further, the Court finds that this was done in order for the prosecution to seek a more favorable
17 opportunity to prosecute the Defendant. Having failed to comply with Rule 404(b) requirements,
18 the People knew that the Defendant's due process rights were effectively denied and that a
3) conviction under the circumstances could be the sound basis for a reversal of any conviction.
For these reasons, the Court finds that, under the very special circumstances of this case and the
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22 conduct of the Prosecutor in ignoring the admonitions of the Court not to elicit gang affiliation
23 testimony, the narrow exception to the Kennedy Rule for Double Jeopardy applies_and the People
24 are barred from retrying this matter.
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People v. Charfauros, CM0387-17 Decision & Order: Motion to Dismiss For Double Jeopardy 1 For the foregoing reasons, the Defendant's Motion to Dismiss for Double Jeopardy is
2 G R AN TED. The above matter against Defendant is hereby DISMISSED WITH PREJUDICE.
3 The Court shall, under separate issuance, order the expungement of this matter as 4 5 consistent with and required under the provisions of Guam law.
rec 26 ma
SO ORDERED this
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8 HO RABLEMARIA T.CENZON
9 JUDGE,ISUPER1OR COURT OF GUAM 10
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23 SERVICE VIA COURT BOX 24 I acknowledge that a copy of the original hereto was placed in the 25 court b0x 0f: .
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27 Date:nlwlmé1l=\0 Deputy clerk, SuperIor Court of Guam 28
People v. Charfauros; CM0387-17 Decision & Order: Motion to Dismiss For Double Jeopardy