People v. George

Opinion

FILED SUPERIOR COURT

OF GUAN

1 2022JAN—3 PM 3~3L, 2 CLERK OF C~1~T

3 8 \J .______~____

4

5 IN THE SUPERIOR COURT OF GUAM 6 ________________________________________________

_______________________________________________

‘~ PEOPLE OF GUAM,

8 Plaintiff, Case No. CF0182-21

9 vs.

10 DECISION AND ORDER ON LUCIAN MARATITA GEORGE, DEFENDANT’S MOTION TO SEVER

Defendant.

12

13

14 INTRODUCTION

15 This came matter came before the Honorable Alberto E. Tolentino on November 4,

16 2021, following a motion hearing on Lucian Maratita George’s (“Defendant”) Motion to Sever

17 Counts for Trial, which was initially filed on October 5, 2021. Heather M. Zona represents

18 Defendant. Katherine M. Nepton represents the People of Guam (“People”). Having 19 considered the arguments and the applicable law, the Court hereby DENIES Defendant’s 20 motion.

21

22 BACKGROUND

23 On April 6, 2021, Guam Police Department (“GPD”) received a report of a burglary at

24 Jesse Lizama Sablan’ s (“Sablan”) residence in Dededo. Mag. Complaint at 4, Apr. 9, 2021.

25 The report included the following description of the items missing: an iPad, black skill saw,

26 brown power drills, ball-peen hammer, a box containing a commendation medal, and various 1 prescribed medications. Id. On April 8, 2021, a GPD Officer responded to a report of a

2 burglary in the Dededo area. Id. Rose Lee Ann Mathiot (“Mathiot”) informed the GPD

Officer that on April 7, 2021, she received a text from her ex-husband that a male was seen 4 stealing items from her residence. Id. The text included a photo of the male in front of a green 5 sedan. Id. On April 8, 2021, GPD Officers reported to a residence in Dededo. Id. Jacob P.

6 Iriarte (“Triarte”) told the GPD Officers that he spotted a green sedan parked next to his storage

8 shed. Id. After spotting the green sedan, he checked on his storage shed and discovered a male

~ inside. Id. The male inside the shed informed Iriarte that he was looking for a chicken coop.

10 Id. friarte took a picture of the male and his green sedan before telling him to leave. Id. The

~ male left. Id. Triarte gave the picture to GPD Officers, who identified the green sedan as

12 registered to Defendant. Id. They also recognized the male in the photo from previous

13 encounters as Defendant. Id. GPD Officers located Defendant in the green sedan. Id. Upon 14 asking Defendant to open the trunk, GPD Officers discovered the items Sablan reported stolen 15

16 from his residence. Id. GPD Officers also discovered the items belonging to Mathiot in the

17 backseat of the green sedan. Id.

18 On April 15, 2021 a Grand Jury indicted Defendant with the following charges: (1)

19 Burglary (As a Second Degree Felony) (two counts); (2) Theft of Property (As a Second

20 Degree Felony); and (3) Theft by Receiving (As a Second Degree Felony). Indictment, Apr.

21 15, 2021. Defendant subsequently filed a motion to sever counts for trial. Def.’s Mot. to Sever

22 Counts for Trial (hereinafter “Def.’s Mot.”), Oct. 5, 2021. The People do not oppose 23 Defendant’s motion. People’s Resp. to Def.’s Motion to Sever, Oct. 26, 2021. The Court held 24

25 a motion hearing and took the parties’ arguments under advisement on November 4, 2021.

26 Minute Entry, Nov. 4, 2021.

1 DISCUSSION

2 Under Guam law, the Court may order separate trials for counts included on one

indictment if it appears that the joinder of offenses prejudices the government or defendant. 8 4 GCA § 65.35. Rule 14 of the Federal Rules of Criminal Procedure similarly allows for 5 severance in federal criminal matters when joinder prejudices the defendant or government.

6 Fed. R. Crim. P. 14. Thus, the Court may look to federal cases interpreting Rule 14 to

8 determine if Defendant demonstrated sufficient prejudice to warrant severance of the charges 9 against him. See Sumitomo Constr. Co. v. Zhang Ye, Inc., 1997 Guam 8 ¶ 17 (reasoning that

10 when a legislature adopts an identical or similar statute to one in effect in another jurisdiction,

~ there is a presumption that the adopting jurisdiction applies the construction of the originating

12 jurisdiction).

13 Defendant argues that a fair trial requires severance because the alleged acts occurred 14 on different dates, at different locations, with different accusers, and are different charges.

15

16 Def.’s Mot. at 1. Guam law expressly provides that “. . .a defendant shall not be subject to

17 separate trials for multiple offenses based on the same conduct or arising from the same

18 criminal episode, if such offenses are known to the prosecuting attorney at the time of the

19 commencement of the first trial.” 8 GCA § 65.30(b). As there are no Supreme Court of

20 Guam cases on this point, the Court looks to federal law. “In determining whether counts are

21 properly combined for trial, we historically have considered whether the charges are laid under

22 the same statute, whether they involve similar victims, locations, or modes of operation, and 23 the time frame in which the charged conduct occurred.” U.S. v. Taylor, 54 F.3d 967, 973 (1st 24 Cir. 1995).

25

26 In United States v. Gray, the First Circuit found joinder was proper when the defendant

27 committed multiple robberies of federally insured banks in the greater Boston area within a 1 ten-week time period. United States v. Gray, 964 F.2d 1250, 1251(1st Cir. 1992). In this

2 case, the Grand Jury charged Defendant under three felony statutes prohibiting theft of

another’s property. The Court holds that the similarity of those three statutes indicates the 4 offenses are of the same conduct. Likewise, the three victims were all occupants of homes in 5 the Dededo area. Mag. Complaint at 4. Defendant’s modus operandi was almost identical in 6 each crime—he broke into residences and placed the stolen property in his green sedan.

8 Lastly, the crimes occurred over a span of three days. Id. Accordingly, the Court finds all

9 counts arose from the same criminal episode.

10 Defendant contends that allowing a trial on all counts would sanction the People’s use

~ of character evidence to convict Defendant. Id. When evidence of one crime would be

12 probative and admissible in a separate trial on another crime, “the defendant does not suffer

13 any prejudice when the two crimes are tried together.” U.S. v. Dennis, 625 F.2d 782, 802 (8th 14 Cir. 1980). The Court acknowledges the importance of ensuring the People do not offer 15

16 character evidence in violation of GRE 404(b)(1). However, the Court notes that even if the

17 Court were to grant Defendant’s motion, the other counts of the Indictment are admissible for

18 other purposes—such as plan and motive. GRE 404(b)(2). The Court does not find that

19 severance of the counts prevents the People from admitting the other counts as evidence at

20 trial, and consequently, there is no prejudice from one trial.

21 Defendant argues that the jury will not be able to compartmentalize the evidence

22 between the charges. Def’s Mot. at 4. Defendant further argues that the evidence will confuse 23 and enflame the jury in violation of GRE 403. Def.’s Mot at 3. Yet, Defendant has not 24

25 addressed whether a limiting instruction can cure any potential prejudice if one trial is held on

26 all counts. Jury instructions that the jury is obligated to consider each count separately

27 generally prevent a finding of prejudice. U.S. v. Jawara, 474 F.3d 565, 580 (9th Cir. 2007).

1 The jury will be able to separate evidence of each count and determine the Defendant’s guilt or

2 innocence as to each count. Additionally, the Court is prepared to instruct the jurors on their

duty to weigh the evidence presented for each count, and further that they may not use a 4 finding of guilt on one of the counts as the basis for a guilty verdict on another count.

5 Accordingly, the Court further finds that severance of counts is unnecessary given the Court’s 6 ability to instruct the jurors on their duty as to each count.

8 Defendant asserts that failure to sever the charges will require Defendant to violate his 9 right against self-incrimination if he wishes to testify to one count but not to another count.

10 Def.’s Mot. at 4. Defendant cites Cross v. United States, which states that joinder of counts

~ prejudices a defendant who wishes to testify as to one count but not another count. Cross v.

12 United States, 335 F.2d 987 (D.C. Cir. 1964). Defendant is correct that the privilege against

13 self-incrimination is one of the “most precious rights of a person accused of a crime.” Def.’s 14 Mot. at 4. However, Cross v. United States does not state the proposition that failing to sever 15 counts for trial is a violation of the Fifth Amendment. Cross v. United States, 335 F.2d 987 16

17 (D.C. 1964). Rather, that case declines to decide whether failure to sever counts violates a

18 Defendant’s Fifth Amendment rights. Id. at 989. The D.C. Circuit found that declining to

19 sever counts for trial “prejudiced” and “embarrassed” the defendant in that case. Id. at 991.

20 The Court is confident that declining to sever the counts at trial will not result in prejudice or

21 embarrassment to Defendant. As discussed above, evidence of the other counts is likely

22 admissible under GRE 404(b)(2). Therefore, separate trials on all counts would not cure 23 Defendant’s concerns regarding prejudice or embarrassment.

24

25 Regarding Defendant’s argument that failure to sever the counts is a violation of his

26 right against self-incrimination, Defendant fails to cite any legal authority to support this

27 argument. Moreover, the Supreme Court of Montana found that the assertion that the Page5of6 ~ 1 defendant’s privilege against self-incrimination would be violated in a trial on all counts does

2 not prove prejudice. State v. Kirk, 266 P.3d 1262, 1267 (2011). Likewise, the First Circuit

found that joinder of counts did not violate defendant’s right against self-incrimination or deny 4 him a fair trial. See United States v. Richardson, 515 F.3d 74, 79—83 (stating that the 5 defendant “failed to make a strong showing of prejudice required to justify severance”).

6

7 Lastly, the Court is mindful of judicial economy and the burden that severing the counts

8 for trial would create. “In the interest of conserving judicial economy, avoiding duplicitous,

9 time-consuming and expense [sic] trials, conserving public funds, diminishing inconvenience

10 to witnesses and public authorities, and promptly trying those accused of crime, joint trials are

~ favored.” United States v. Gaddis, 418 F.Supp. 869, 875 (W.D.Okla. 1976). The Court notes

12 Defendant contends that fairness of determining a defendant’s guilt or innocence should have

13 priority over judicial economy. Def.’s Mot. at 5. However, the facts of this case are 14 intertwined. The Court finds that risk of prejudice in this case is not so great that it warrants 15

16 empaneling three separate juries when jury instructions will cure any risk of prejudice.

17 CONCLUSION

18 For the above reasons, the Court DENIES Defendant’s Motion to Sever Counts for

19 Trial.

20

SO ORDERED, this day of~~~AP~) ~Q~4-~ 9SD’72...

23 SERVICE VIA E-MAIL 24 coinal

25 ____________ HONORABLE ALBERTO E. TOLENTINO 26 ~. ~)3\~jime: 3’.dj Judge, Superior Court of Guam

27 Deputy C~eck, Superior Court of Guam