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10\ THE SUPERIOR COllRT OJ!' GVAM
TIlE PEO]'LF: OF GllA:\1, ) CRIMI.'OAL CASE NO. C'F0639.j I"
3 )
) ) DFTISION AND ORDER )
5 RACKSON IOKAPUS, )
)
OcfcndaJlt. 3
) )
8 ') This matter came before the HONORABLE VERNON p, PEREZ on December 30. 2011
10 ,on DcfcndanCs Motion to Dismiss Indictment. Attorney Raymond B. Jlagan appeared on behall; j 1 of the Defendant, who was present. Altomey Nelson J. Wema appeared on behalf of th 12 Government, Having r~vie\\'ed Ih" pleadings, the arguments presented and the record, the Cou 13 ,_now issues the I()liowing Decision and Order. 14 BACKGROUND
15 Dctcndant is charged with firs! Degree Criminal Sexual Conduct as 3 First Dcgrc 16 felony. Defendant r~quests dismi8sal as he argue~ thai the grand jury was not instructed on th 17 generJllaw or an essential element of lh~ offense. Defendant has also filed a Motion For Bill 0 18 Particular8 and <! Mo[ion [() Compel Discovery with this Comt, rhis Dedsi(jn and Ord~r will 19 resolw only the Molion to Dismiss as the other two motions have not yet been heard. 20 DISCUSSION 21 Failure to Properly Instruct the Grand Jury 21 Defendant argues thm the Court should b'T<!nt the Motion to Dismiss Indictment bccaus 23 the Government failed to in~lrucl th~ grand jury as to the required culpable mental slate, Th'1 24 Government opposes on the ba~j~ of People l' Jones, 2006 Guam 13, 0:: 12, The Governmen i 25 ,contends the olTensc a~ charged was directly read to the grand jury and thc grand jury hear 26 testimony from the invcstigating police officer. Sce Gl'Und Jury Recording. 'Ibc Govcrnmcn 27 also argues that sufficient description of the law to allow the gnmd jury to find with a rcasonabl 18 c~rtainty thllt a crime was committed under 9 (leA § 25.15(a)(l) Ilnd (b) Wa5 pres~nL Th
!o'~opL '.'. L"'c<;o,; 10,\apos, nC~l>ion and Onk7 ('rim,ool Ca« 1<0 U-{l6.14· I I .1'''1'' I ufJ-
charge in the indictment tracks thc language of applicable statUle and the indictment may b 2 8ufJicient on Ihi~ basis alonc. Su People l' Jones. 2006 Guam 13, '1 23. As to the charges rea 3 to the gmnd jury. Ihe Court finds the indictment to !J.) sufficicnt. The issue of thc applicable la\, 4 on the culpable mental state remains. 5 The Court revieweu the grand jury disc Ii-om Novcmocr 23, 2011. The Court no" fi wrifies lhut Auomey General Urian D. Gallagher provided instructions as to th~ g~nera 7 princip<lls ofthc law. On the morning portion of the grand jury disc it is elear that the grandjm) 8 heard the Government rcad verbatim 9 GCA § 4_10 through § 4.50 from approximately 9: 17a.mj 9 to 9;20a.m .. The Court pays special all~ntion 10 ') GCA § 4.30(a), which was read v~rbalim a~ 10 9:18a.m.. Thus. the Wand jury panel was read the general law and the law on the require 11 culpable mental stale f'lr intentional acts defined in ') GCA § 4.30. The Government contend 12 that the general law, induding the culp<lble mental states, is read to thc grand jury at the start () 13 every grand jury's day. Therefore, all grand jurors were instructed of the culpable mcntal stat 14 !J.)fore they returned an indictment. J5 The Court does however undersland wherc confusion has fallen ovcr the Defendan 16 regurding Ihe recording. The Court had difficulty in obtaining the morning portion of lh 17 'recording 3S well because the recordings are categori;:ed by case num!J.)r and the Court has t 18 request a different case number to retrieve the morning'~ reC{lrdings. Yet, the Court has review ]9 the recording and the W<lnd jury was instructed on the applicable law bef(lre hearing CI-'639-11. 20 In addition. the Government has confinned that the moming panel was identical to the afiernoo 21 paneL See Declaralion of Nelson 1. Wemer; See also Deciamtion of Jennifer ConceiCilo. Here 22 the indictmenl was fornled sucb that the Defendant was adequately informed and subscqucn 23 prosecution would be barred. In addition, the Court ha~ previOUsly found that the Govcmmcnt' 24 practice complies with Guam laws as long as it can !J.) ShO\Hl that all members of the grand jUf) 25 ,were read the general law. For these reasons, the instructions to the grand jury were sumcien 2fi and 1he \1o(ion to Dismiss is denied. Finally, the COUlt believes thatthcrc would be too mnch 0 21 a financial and time burden to requir~ the Government to instruct the grand JUT)' with the genera 28 law before cach case Ihroughonl a single day UJlless a new grand juror is pre$Cnt.
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Competent Evidence
2 [)ckndJDI further argues that the requirement lhal evidence to a grand jury must J competent should be applieu to the instructions given to the grand jury as welL 111 Guam. felon} 4 ofTenses arc pw:;ecu\etl hy grand jury imliClmcnt. 8 GC A § 1.15. During grand jury procectling.,>
5 the pros~culm is the only person authorized to present evidence to the grand jury and the gran () Jury mu~l receive su!1icien! competent evidence 10 support the charges. 8 GCA §§SOA6 and 7 § 50.42.
Title S (leA §50.42 provide, in relevant parl:
9 TIle grand jury shall receive only competent evidence but the fact that eYid~nce Which is incompetent ,HIS received by the grand jUl")' docs not 10 render the indictment void where sufficient competent evidence 10 support Ihe indictment was received by the grandjllry. (2010).
12 The Court appreciates and agrees with Defendant that instruclion~ to Ihe grand JUT)' should 13 competent Yet. there are adequate safeguards in case law and the Guam Code that ~n} 14 ~dditional rcquirement of compekncy for gr~nd jury in~!ructions would be redundant.
Additionally. it is not the place o['thi~ Court 10 create a new smrutc requiring the word compcten 16 be added to instruction roquirem~nts \vhen obtaining an indictment. Finally, the instmelion 17 were competent a~ given and th~ grand jurors did not indicate a I~ek of understanding of th 18 gcnerallaw. 19 CONCLUSIO:\, 20 For the foregoing reasons, the Court DENIES Defendant's Motion to [)ismiss. Partie, 21 are ordered to return MAY 2 4}012 6 10 MY! for lr~setting.
So ORDERED this J day of May, 2012.
~ Yff'//
24 25 .... 'lZf'=~ .... ~
HONtl LE VERNON P. PEREZ JUDGE, SUPERIOR COURT OF GUAM
TN THE SlJPERlOR COtJRT OF r;VAM 2 I'
1 DOMESTIC CASE NO. O!Vt-0425-08 CLELLA M. CHA:'tt1' ACO, 1 )
4 Plaintiff, 1 .-s. ) DECISION AJ'\D ORDER 5 ) )
VICENTE T. CHAMI'ACO, )
7 )
Defendant. )
8 .....1
This matter ealll~ before the IlONORAI3LE VER,,\01\ P. PEREZ on January 5. 2012 10 for Defendant's Motion for Reconsideration. A1tomey Joaquin C. Arriob Jr. repre~ented
Defendant Vicente Champaeo. AtlOrney Harold F. Parker represented Plaintiff Clella
Champaco. Parties snbmitted on the briefs. As both Parties share a common snrname they will 13 be referred to herein solely as Plaintiff and Defendant. Having reviewed the pleadings 14 pre8enled. Ihe Court now jS811e~ the following Decision and Order 15 BACKGROUND
The parties first became acquain!eu in 1986, married on July 20, 1993. and separated on
Angust 6. 2006. The parties have two adult children bm no minor children. Plaintiff filed hcr >8 Complaint for Dissolution of Marriage on July 7, 2008. Defendant filed an Answer and 19 Counter-Claim on July 25. 2008. Plaintiff seeks divorce on the grounds of adull~D-'. ~xtreme 20 emelly, willful desertion. willful negieci and irreconcilable dilferenees. (SL'-e Complaint at pg.
21 4) Plainti)f also seeks spousal support. (See Renewed Notice of Motion and Motion for
Spousal Support. filed February I, 2(10) Defendant seeks divorce on the grounds of extremc
emotional distress. cruelty. and irreconcilable differences. (Sec Answer at pgs. 2-3)
24 It is uncontested thal Mr. C'hmnpaco has developed a romantic relali(ln~hip with 26 Josephine Chanlpa<:o. the \\~d()w of hi~ hrother who pa.~sed away in Septembt'r of 200S. (Sec
Hearing of May 19, 20 I 0 at 10: 12) PiaintilT alleges that the affair began before the separation
of the parties in 2006. bllt admits that she has no evidence of this fact. (See llearing of May 19,
Ch~.~paco ,~. Cil'J"+"""~' i'mding> Qr fa,~ lUld Coociu.,io", ofb" lJ"me<tk {'"-,,, 1\<> IlM-(l4;'.I-08 .l'ogclof4.
I 2010 at J2:27) Defcndant denies that the relationship began /)clore the parties sepunw:d. (See 2 Hearing of May 19.2010at 10:17-10:18). 3 Partie~ tried the case on May 19.2010 and thi~ Court granted Plaintiffs re.quest for
4 Divorce, through interlocutory decree on June 22, 2010. As to the basis for divorce, this Court 5 fonnd thaI Defendant committed adultery. Defendant now mOlions the Court to reconsider the 6 Findings of Fact and Conclusions of Law. 7 DISCUSSION 8 I. Standard for Reeonsideratiun 9 Oencral!y, there are several gronnds upon which a motion for reconsideration may be 10 granted. These inclnde situatiollS where thc tria! court: 1) is prcsenlcd with new evidence; 2) 11 committed clear error or the decision was manifestly unjll~t; or 3) if there is an intervening 12 change in controlling law:' Ward l'. Reyes, 1998 Guam 1. 'I; 10 (April 2. 1998) (citations 13 omitted).1 In the case here. Defendant alleges that the Court based its decision on Ihe wrong 14 facts. )5 In addition. "no motion for reconsid"'Hltion shall in any manner repeat any oral or 16 wTitten argument made in support of or in opposition to the original motion". CVR 7.I(i). 17 Thns, the Coun will only decide the issue of whether or not b'r<)UJ)ds for reconsideration exist. 18 This Cuurt 1'0';11 not decide on the merits of the case once again_ 19 II. Timing 20 Rnle 60(b) provides thal "the motion shall be madc within a reas()nablc time, and for 21 reasons (1), (2). and (3) not more than one year after the Judgment, ordcr, ()r proceeding was 22 entered or taken. In this matter, reasons (I) and (2) which are mistake and newly discovered 23 evidence respectively where Defendant's reasons for l\."'COnsideration. Thus, Defendant had not 24 "more than one year" to file this Motion. Facially, the motion is uillimely and the Court does 25 not have to consider the Motion for Reconsideration, The Court's Findings of Fact and 26 Condm;ions of Law was filed on June 22, 2010. Defendant had unti! Jlme 23. 2011 to lodge
28 I See "I"" Rule 60(b).
crwmpaGO v. Ch)'-'f)~C'~ Finding, <1f r-ac~ ""d Cencl,,-,;o", 01' L~" Dornoslio C","" NQ, D~H).jH.(l8 his Motion for Reconsideration. Defcndant's Mptio!) fbr RL"<xl11sidcralion: Alternativc Motion 2 for l\ew Trial was filed January 5, 2012 which is long after Rule 60(b) allows frlr such m()li(l!)~. 3 '!1lerejore, the Court will not gram reconsideration of its Findings of Fact and Conclusions of i :
4 ,i Law, Yet. the Court will make a brief analysis of the Defendam' s main contentions th<ll would 5 allow f(}f rec{m~ideration if the motion was timely. which it is not. 6 III.Reeonsideration 7 " The thru~t of f}ere!)dant'~ argumem is that the Motion for Reconsiderat;()!J should he 8 granted because the Court mistakenly based its June 21. 2010 Finding~ of Fact and Conclusions 9 of Law without receiving evidence tending to prove adultery on behalf of thc Defendant.
10 'Defendant also arglleR thai he maintains an affirmativc defense 10 a claim of atlultery as 11 Plaimif'r has forgiven him.) Defendant claims the June 22, 2010 Findings of Fact and 12 Conclusions of Law should be reconsidered due to mislake and ncwly discovered evidence. 13 RuJc60(b), t4 Adult~f)' is deJin<,d as '"[h<' voluntary sexual intercourse of a married person with a
I
15 persun other than the ojTender's husband or \vife'·. 19 GCA § 8204. A person is still husband I 16 'and wife umil final decree of divorce. Without speculating on the pmdieality of the statute on
17 most marital dissolutions. the Court mllsl conclude that adultef)' is not excused by the physical 18 separation of the Parties as many jllriwidi()!)~ have found similarly. Set' Boyatl v, Boyall, 19 2485.\V.3d 144 (Ten. App. 2(07); Se~ also Ayala v. Ayala. 2011 WL2930311 (Tex. App. 20 lIollston.l'oisL20 II); J<;kul v. JekOl, 232 S. W.3d 744 (Tenn. App. 20(7); Gce v. Uee, 13 21 Pa.C.C 382 (Pa Com I'i. 1893); Arkinson v, Atkinson. 32 S.W. 3d 41 (Ark. App. 20(0). 22 Additionally, the Coun has enongh evidence to bas~ ils eonclu$ion of adultery. Ddendant 23 admitted that an affair occurred between his ~elf and the wife of his deceased brother belore 24 inter/ocutof)' de<:ree of divurce and wjthoul a separation agreement in place. Defendant's 25 arguments. which include that no evidence sllpportcd a conclusion of adulter), and that any 26 adultery occurred aJkr the dme of separation and therefor is excused. both faiL n 28 ' Defendant argue, thar Plaintiff condoned the adult~f)' and therefore it could n(lt be the ba,i; for Divorce acting as an affi.mative defense to a complaint for diwr,e,
'C"""'p.'"'' ". ell",,,.,,,,, ,.f
bodEn.!\-' Fot1 and CmlciL,,,oL" of La" Oo"",W< ca", 1'0, ))\1_042,·1)8
Defcndant finally ~fgue~ that condonation or recrimination makc il impossible for th~ ~ ICOlin to find adultery as the basis for divor~e_ Thc COU1t finds now that ir the OPPOrlllllil} 3 ~x.sted a! tnal to submIt ev.d"nce oj such affinnatne defen'~s. thr Court 1S limited m heann
4 evidence ~v~ilable to Defendant a! the time or tri~L Rule 60(b}; See Ward '"_ Reves, 1998 (iLla1 5 L According to the Supreme <ourt of the TCITitory of GUllm, a parly's failure to submi 6 cviden~e does not make Sl1ch evidence ncwly dis~(lvered and Iherefore, that evidence cannot b
7 Ibasi8 filr reconsideration, Ward v, Reyes, 1998 Guam 1 '113. Furlheml0re, if the evidcIlc1 8 "could have and should have been presented to the trial <:our!'", it is not an abuse of di8cretion 011 9 a trial court to deny a motion for reeonsiderJtion_ fd 10 Here. the evidence existed at the time of the trial and the Court will not take ne\\' II evidence that a Party could have presented. Thus, the Court mu.~t review only wh~t is already in 12 the 11k There is not adequate evidence of" PlaintitTs condonation or recrimination that the I, {'"uT! could have bascd the June 22, 201 {) Findings on. Even if the Court could review new 14 evidence that was not ~vllilable to Drf'endant at the time of the brneh trial. the Court does not IS find the elements 01" eilher defense to adultery to be satisfied. Therefore, neither or Dcfcndant's 16 three arguments submitted by Defendant !lHow li)r roconsideration. There me no grounds for 17 reconsideration and the Court will not decide the merits of Plaintiffs cause for divorce where 18 thc Court has already decided almost two years ago. 19 CONCLUSION 20 For the foregoing rea,ons. the Court DENIES ndendant's Motion for Reconsideration.
Parties will return on MY 25 2012..- 9~r a statlL~ hearing.
. ...... ,J 22 So ORDERED this day of ~ May, 2012.
23 j
24 I 25
liON
L6?:'~~~_~
ABLE VERNO::\, P. PFRFJ.
27 JUDGE, SUPER10R COURT OF GUAM
28
Cil""!,,', __" I', CI.""po _-'0 F.nding' of Fact "oJ Concbions "r C"" I)""'NJC ("iN N,,_ nM_042l·0S _ !\\go ~ ,,1'4_
[lit,,) L\l1lU]Y;~ I QjJ'"A?\t,n~ fl \f:V-J6 IN TIlE SUPERIOR COURT OF GUAM TRAFFIC COURT DIVISION
, PEOPLE OF GUAM, )
) TRAFFIC CASE NO. ) iC-0068l96- )
lC00686196
• ) , ) DF£ISION AND ORDER ) RE MOTION TO DISMISS " GLENN LBONARD DAVIS, )
)
• )
)
'" Defendant- ) " -------) " 14 INTRODUCTION IS The matter before the Court came on the People's issuance of a citation against 16 Defendant Glenn Leonard Davies (,Defendant") for a violation of 16 GCA §§ 3325(c) and 16 17 GCA 7\30 on February 27, 201 L On July 11, 2011, Defendant filed a Motion to Dismiss the
18 Citation claiming that because Defendant has a pending criminal matter under Superior Court of
19 Guam Case eMO] 20-1 J based on the same incident giving rise to the traffic citation On
20 February 29, 2012, Defendant's counsel submitted ajudgment and plea agreement under his 21 criminal case wherein the Defendant plead guilty to the following criminal offenses: 16 GCA 22 §18102(a) DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL (As a 23 Misdemeanor), and 16 GCA §9107(b) RECKLESS DRIVING WITH INJURIES (As a
" misdemeanor). " III " /I " '" I Page!
, DISCUSSION AND ORDER
• Title 16 GCA § 1.26(3)(2) provides as follows: , §1.26. Double Jeopardy. Different Offense.
• based onAdifferent prosecution ofa defendant for a violation of a different provision of the statutes or , following circumstances:
facts than a former prosC(:ution is barred by such former prosecution under the
• (a) the fomler prosecution resulted in an acquittal or in a conviction as defined in § 1.24 • and the subsequent prosecutien is for;
(2) any offense of which !he defendant should have been tried on the first " prosecution under SUbse;:;tion (b) of §65.30 oflhe Criminal Procedure Code, unless the coun " ordered a separate trial oflbe charge of such offense,.,
" In addition, Title 16 OCA §65.30(b) provides that
" §65.30 Joinder of Offenses Encouraged.
" for multiple (b) Except as provided by §65.35, a Defendant shall not be snbject to separate trials offenses based on the same conduct or arising from the same criminal episode, if such offenses are know to the prosecuting attorney at the time of the commencement of the first trial."
" 16 GCA§65.35 is inapplicable in the instant case since there was never any Court order
from the prior prosC(:ntion granting a severance of offenses into separate trials. Moreover, the
prosecuting attorney prosecuting Defendant's prior criminal case must have or should have been
aware of the alleged traffic violations against the Defendant at the time the plea agreement was
reached with the People ofOuam. Accordingly, Double Jeopardy now bars a second prosecution
against Defendant for the same conduct and/or criminal episode which gave rise to both the
alleged traffic violations in the instant case and the criminal violations WIder the plea agreement
Page 2
Defendant roached agrcemcnt with the People of Guam. Accordingly, IT IS ORDERED 1h~t , Traffic Citation 0686196 agains1 the Defendant is hereby dismissed. , , II SO ORDERED this _ _ day Of _ _ __._aY,-,O-,3:...c2f)"f,,2__ , 20ll.
,
. Court Referee
'" Superior Court ofGulim
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