People v. Martin

Opinion

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6 IN THE SUPERIOR COURT OF GUAM 7

8 THE PEOPLE OF GUAM, CRIMINAL CASE NO. CM0354-22 9 vs.

10 DECISION AND ORDER

11 SAMSON MARTIN, 12 Defendant.

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14 INTRODUCTION 15 This matter came before the Honorable Vernon P. Perez on November 28, 2022, for 16 hearing on Defendant SAMSON MARTIN'S ("Defendant") Motion to Dismiss Complaint Due 17 to the De Minims Nature of the Alleged Offense ("Motion to Dismiss"). Present were Defendant

18 with counsel, Assistant Alternate Public Defender Brycen Breazeale and Assistant Attorney Ii

19 General Matthew Shuck on behalf of the People of Guam ("the Government"). Having reviewed 20 the pleadings, the arguments presented, and the record, the Court now issues the following 21 Decision and Order.

22 BACKGROUND 23 Defendant is charged with one count of Assault (As a Misdemeanor).1 (Magistrate's 24 Con pl., Oct. 10, 2022). The charge stems from allegations that Defendant was yelling about 25 trash and utility bills and after being told to walk away, threw a full beer can at August Fest's 26

27 1 Although the Magistrate's Complaint filed on October 10, 2022 also includes a Second Charge of Disorderly Conduct (As a Violation), said charge was dismissed without prejudice by the Magistrate Judge on the same day.

28 See Order of Dismissal (Charge 2), Oct. 10, 2022.

People v. Martin Case No. CM0354-22 Decision and Order 1 back, hitting him near the left shoulder blade. (Decl. of Matthew M. Shuck, Magistrate's Con pl., 2 Oct. 10, 2022). Defendant allegedly told Guam Police Department ("GPD") Officers who 3 responded to the incident "Sir, I'm sorry. I was mad and threw the beer to him." Id. Defendant 4 was released with conditions at his Magistrate's "Hearing, see Order of Conditional Release & 5 Appearance Bond, Oct. 10, 2022, but remains held at the Department of Corrections by U.S. 6 Immigration and Customs Enforcement. 7 On November 4, 2022, Defendant filed the instant motion. On November 17, 2022, the 8 Government tiled its Opposition, and later the same day Defendant filed his Reply. 9 On November 22, 2022, at Arraignment, Defendant asserted his right to a speedy trial. 10 On November 28, 2022, at a Status Hearing, the parties indicated it was not necessary to 11 further argue the motion and the Court placed the matter under advisement. 12 DISCUSSION 13 Defendant moves the Court to dismiss this matter, arguing that the charge of Assault (As 14 a Misdemeanor) is de minims under 9 G.C.A. § 7.67(a) and (b). See generally, Mot. Dismiss, 15 Nov. 4, 2022. The Government opposes, arguing that the crime alleged is not de minims. See 16 generally, Opp'n, Nov. 17, 2022. In Reply, Defendant sets forth an additional argument that his 17 right to a speedy arraignment was violated. See generally, Reply, Nov. 17, 2022 . 18 Under Guam law:

19 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 20 finds that the defendant's conduct: .

21 (a) Was within a customary license or tolerance, neither expressly 22 negated by the person whose interest was infringed nor inconsistent 23 with the purpose of the law defining theoffense;

(b) Did not actually cause or threaten the harm or evil sought to be 24 prevented by the law defining the offense or did so only to an extent 25 too trivial to warrant the condemnation of conviction, or 26 (c) Presents such other extenuations that it cannot reasonably be 27 regarded as envisaged by the Legislature in forbidding the offense.

The court shall not dismiss a prosecution under this Subsection 28 without filing a written statement of its reasons.

People v. Martin Case No. CM0354-22 Decision and Order

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1 9 G.C.A. § 7.67. Section 7.67 "directs the trial court to dismiss a prosecution if it finds that the 2 defendant's conduct falls within at least one of three distinct circumstances." People v.'Perez, 3 2004 Guam 4 119 (emphasis in original). The "statute recognizes that it would be unrealistic to 4 believe that judges never enter a finding of not guilty even . though guilt is proven where a 5 . conviction is considered to be inappropriate, and therefore authorizes the trial court to mitigate 6 the general provisions of the criminal law to prevent absurd applications." Id. at 1[ 10 (quoting 9

7 G.c.A. § 7.67 commentary). - - 8 Section 7.67 is modeled after Model Penal Code § 2. 12, which has been adopted by New

9 Jersey, Maine, Hawaii, and Pennsylvania. Id. at 1] ll, fn. 3. In People v. Perez, the Supreme 10 Court of Guam looked to case law from New Jersey for guidance in evaluating a motion to dismiss 11 pursuant to 9 G.C.A. §7.67, citing State v. Zarrilli, 523 A.2d 284 (NJ. Super. Ct. Law Div. l987), 12 aff'd, 532 A.2d 1131 (N.J. Super. Ct. App. Div. 1987). Id. at 11 .11. The Zarrilli court stated that 13 "[t]he One question to be asked and answered in response to a de minims motion is ... What is 14 the risk of harm to which society is exposed by defendant's conduct?" The Zarrilli court then set 15 forth five factors relevant in evaluating this question: (1) the circumstances surrounding the 16 commission of the offense, (2) the existence of contraband, (3) the amount and value of property 17 involved, (4) the use or threat of violence, and (5) the use of weapons. 523 A.2d at 288. 18 For purposes of this motion, the Court assumes as true all the factual allegations against 19 Defendant. See Perez, 2004 Guam 41116 (quoting Zarrilli, 523. A.2d at 286) ("it must be assumed 20 thatthe conduct charged actually occurred' because .'.[t]he motion does not provide a setting for 21 a determination of guilt or innocence."'). The Magistrate's Complaint charges Defendant as 22 follows : 23 FIRST CHARGE

24 On or about the . 8th day of October, 2022, in Guam, SAMSON MARTIN did commit the offense of Assault (As a Misdemeanor), in that he did recklessly cause 25 or attempt to cause bodily injury to another, that is, August Fest, in violation of 9 26 GCA § 19.30(a)(1) and (e). 27 (Magistrate's Comal., Oct. 10, 2022). As set forth in the Declaration.attached to the Magistrate's 28 Complaint, August Fest and a coworker observed a male individual (later identified as Defendant)

People v. Martin Case No. CM0354-22 Decision and Order 1 approach them yelling about trash and utility bills. (Decl. of Matthew M. Shuck, Magistrate's 2 Con pl., Oct. 10, 2022). Defendant was told to walk away. Id. Mr. Fest turned away from 3 Defendant and then felt an object hit his backside close to the left shoulder blade. Id. When he 4 turned around, he saw a full beer can sitting on the ground. Id. Defendant subsequently told GPD 5 Officers who responded to the scene "Sir, I'm son'y. I was mad and threw the beer to him." Id. 6 Defendant first argues that this matter should be dismissed under section 7.67(b) because 7 his "conduct amounts to allegedly throwing a beer can to Fest and Fest being hit in the back with 8 the can. Mr. Martin was upset about trash and utility bills ... however he was not intending to 9 assault or even injure Fest. Moreover, Fest never admitted to feeling any pain and was 10 uncooperative when asked if he felt pain." (Mot. Dismiss at 3). Defendant appears to take issue 11 with the fact that the alleged victim never asserted that he was in fact injured. The crime charged 12 here, Assault (As a Misdemeanor), does not require actual bodily injury as Defendant is charged 13 with "recklessly causing or attempting to cause bodily injury" to Mr. Fest. The Court finds that 14 the question of whether or not the alleged victim was injured and 'to what extent, along with 15 whether or not Defendant recklessly caused or attempted to cause bodily injury to be facts for .the 16 jury to decide. The Court acknowledges that there was no existence of contraband or property 17 damage or the use of weapons such as a machete or a gun. Nonetheless, based on the information 18 set forth in the Magistrate's Complaint, the Court does not find the circumstances of Defendant's 19 behavior as alleged - yelling at individuals and throwing a full beer can at the back of one of them 20 - to be of'the type customarily tolerated and will not grant the motion on that ground. 21 Defendant next argues that this matter should be dismissed under section 7.67(c) because 22 he is held by U.SQ Immigration and Customs Enforcement and will likely be deported. Defendant 23 sets forth that "[e]ven should he agree to accepting a plea, he will never complete the terms of 24 probation because he will not be in Guam as a result of his deportation, nor will he be able to 25 return." (Mot. Dismiss at 4). The Government, in response, argues that Defendant's statement 26 that he will likely be deported is hypothetical at this point, but acknowledges that if~Defendant is 27 deported then it would be appropriate to dismiss the case at that time. (Opp'n at 3). The Court 28 is inclined to agree with the Government that any dismissal of this case based on likely deportation

People v. Martin Case No. CM0354-22 Decision and Order

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1 to be premature. The Court is aware of several pre-trial matters before its docket where 2 defendants are pending deportation, however, they have been waiting for a significant period of 3 time for flights to the Federated States of Micronesia in light of travel restrictions created by the 4 pandemic. Some of the defendants have also been released from ICE custody in DOC on 5 electronic monitoring pending their deportation. The Court does not find the fact that a defendant 6 is pending deportation to be render the charge itself de minims and will also not grant 7 Defendant's Motion on that ground. 8 Lastly, in his reply, Defendant also asserts that this matter should be dismissed for 9 violation of his right to a speedy arraigrnnent. See Reply at 2-3. Pursuant to 8 G.C.A. § 60.10, 10 a "defendant shall be arraigned promptly ... after the complaint is filed." 8 G.C.A. § 60.l0(a). 11 Defendant argues that his constitutional rights have been blatantly trampled upon because the 12 Government was unable to properly serve a writ on the U.S. Immigration and Customs 13 Enforcement. (Reply at 2). Defendant's arraygnment was continued several times from October 14 19, 2022 to November 22, 2022. Upon review of the Court's case management system and -the 15 file, itappeared that Arraignment was inst continued from October 19, 2022 to October 20, 2022 16 because the court was not aware Defendant was in the custody of DOC as he was released at the 17 Magistrate's Hearing, continued from October 20, 2022 to November 1, 2022 because a writ was 18 needed, continued from November 1, 2022 to November 15, 2022 and then against from 19 November 15, 2022 to November 22, 2022 because the wrong writ was submitted by the 20 Government.2 21 Section 60.10 does not set forth a statutory time limit for arraignment, only that it should 22 be "prompt." See 8 G.C.A. § 60.l0(a). The Supreme Court of Guam, in addressing the issue of 23 prompt arraignment, "stated that this prompt arraignment requirement is a statutory expression of 24 the speedy trial right and that a delay involving merely a matter of weeks does not, in most 25

26 2 The Writ of Habeas Corpus Ad Prosequendum filed October 20, 2022 and November 10, 2022 incorrectly set forth that Defendant was in the custody of the United States Marshal Service, and therefore returned as non-service. See 27 Writ of Habeas Corpus Ad Prosequendum, Oct. 21, 2022, Affidavit of Non-Service (Writ, U.S. Marshal Service), Writ of Habeas Corpus Ad Prosequendum, Nov. 10, 2022, and Affidavit of Non-Sewice (W rit, U.S. Marshal 28 Service), Nov. 14, 2022).

People v. Martin Case No. CM0354-22 Decision and Order 1 circumstances, violate a defendant's right to a speedy trial." People v. Rasauo, 2011 Guam 14 1] 2 9 (citing People v. Stephen, 2009 Guam 8 1]32). The Supreme Court in Rasauo ultimately held 3 that "unless good cause is shown, a complaint shall be dismissed where a defendant is not 4 promptly arraigned within 60 days of the .filing of the Complaint." Id. at 11 14. Here, the 5 Magistrate's Complaint was filed. on October 10, 2022. Defendant was arraigned on November 6 22, 2022, 43 days after. As Defendant was arraigned within the 60-day period set forth in Rasauo, 7 the Court does not find that his right to a prompt arraignment was violated and therefore denies 8 Defendant's Motion to Dismiss. 9 CONCLUSION 10 For the foregoing reasons, the Court hereby DENIES Defendant's Motion to Dismiss. A 11 Criminal Trial Scheduling Order with asserted trial dates shall be issued contemporaneously with 12 this Decision and. Order.

13 IT IS SO ORDERED this day of.December, 2022 14

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17 HONORABLE VERNONrP. PEREZ Judge, Superior Court Bf Guam 18

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People vs Martin Case No. CM0354-22 Decision and Order