FILE 1 -if 2
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6 IN THE SUPERIOR COURT OF GUAM 7
8 CRIMINAL CASE NO. CF28-14 9 PEOPLE OF GUAM 10 DECISION AND ORDER 11 vs. Defendant' s Motion to Dismiss 12 KENDALL NORRIS MCKINNEY, 13 Defendant. 14
16 INTRODUCTION 17 This matter came before the Honorable Anita A. Sukola on October 13, 2014 on 18 Defendant's Motion to Dismiss the Indictment. Attorney Joaquin C. Arriola, Jr. appeared for 19
20 and with the Defendant. Assistant Attorney General Richelle J. Yu appeared on behalf of the
21 People of Guam. Upon review of the written arguments and legal authorities presented by the 22 parties, the Court issues its Decision and Order GRANTING Defendant's motion. 23 BACKGROUND 24
The Superior Court of Guam Grand Jury returned a true bill against the Defendant on 25
January 17, 2014. Defendant is charged with Second Degree Robbery (as a 2nd Degree Felony) 26
27 with Special Allegation: Possession and Use of a Deadly Weapon in the Commission of a 28 Felony. See Indictment (Jan. 17, 2014). The indictment alleges that "[o]n or about the 21st day
CF28 -14: People Y. McKinney Page 1 of 6 Decision and Order - Defendant's Motion to Dismiss
ORIGINAL t
of August 2013, in Guam, [Defendant] did commit the offense of Second Degree Robbery, in 1
2 that he intentionally armed with or displayed what appeared to be a deadly weapon while in the
3 course of committing theft of property against Romeo and Aurora Reyes." Id. The Special 4 Allegation charge reads: "On or about the 21St day of August 2013, in Guam, [Defendant] did 5 knowingly and unlawfully possess and use a deadly weapon, that is, a hand gun, in the 6
commission of a felony, that is, Second Degree Robbery." Id. 7
8 On January 22, 2014, Defendant was arraigned and entered a plea of not guilty.
9 Defendant now files a Motion to Dismiss the instant case. Mot. to Dismiss (Sep. 24, 2014). 10 The People filed their opposition on September 30, 2014, and Defendant filed his reply on 11 October 9, 2014. The Court heard oral arguments on October 13, 2014, and now issues its 12
13 Decision.
14 DISCUSSION 15 Defendant moves the Court to dismiss the instant because " it violates the double 16 jeopardy clause of the Organic Act of Guam, as well as the Speedy Trial and Arraignment 17
Rights." D e ' s . Mot. to Dismiss at 1 (Sep. 24, 2014). Defendant argues that "[t]he Indictment is 18
19 barred by collateral estoppel and double jeopardy. Id. at 2. Specifically , Defendant contends
20 that "[ t]he crimes charged in CF535-13 (which has already gone to trial ) and CF 0028-14 are 21 sufficiently similar to invoke the doctrine of collateral estoppel. Based in part on evidence the 22 Defendant obtained possession of the vehicle either by burglary or robbery , the jury convicted 23 him of Theft by Receiving." Id. at 5. Additionally, Defendant argues that "[t]he crimes charged 24
25 herein were clearly known to the Government at the time it brought Defendant to trial in
26 CF535-14'." Id. 27
28 ' The Court notes that the correct case number should be CF535-13.
CF28-14: People v. McKinney Page 2 of 6 Decision and Order - Defendant's Motion to Dismiss
ORIGINAL The People oppose Defendant's motion and argue that the "Indictment in CF0028-14 1
2 does not constitute double jeopardy." Opp'n Mot. at 1 (Sep. 30, 2014). The People argue that
3 "trying Defendant on the charge of Robbery in the Indictment obtained on CF0028-14 would 4 not constitute Double Jeopardy because: (1) this crime was not based on the same conduct and 5 did not arise from the same criminal episode; (2) Defendant could not have been convicted of 6
robbery in the first prosecution; and (3) the People did not violate 8 GCA § 65.30(b) when it 7
8 chose not to prosecute Defendant for the robbery in the earlier trial. Id. at 3. As a result, the
9 People contend that "the issue of whether or not Defendant committed a robbery on August 21, 10 2013 has not been litigated and there has been no valid and final judgment on it." Id. 11
Collateral Estoppel 12
13 The Court will first address the issue of collateral estoppel raised by Defendant. "The
14 application of collateral estoppel to criminal cases [is] an embodiment of the Fifth Amendment 15 Double Jeopardy Clause." People v. San Nicolas, 1999 Guam 19 ¶ 12 (citing Ashe v. Swenson, 16 397 U.S. 436, 445, 90 S.Ct. 1189, 1195 (1970)). "Collateral estoppel `means simply that when 17
an issue of ultimate fact has once been determined by a valid and final judgment, that issue 18
19 cannot again be litigated between the same parties in any future lawsuit." Id. (quoting Ashe v.
20 Swensen, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194 (1970)). Whether the doctrine of collateral 21 estoppel applies is determined by a three part test: 22 (1) An identification of the issues in the two actions for the purpose of 23 determining whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; 24 (2) an examination of the record of the prior case to decide whether the issue was 25 `litigated' in the first case; and (3) an examination of the record of the prior proceeding to ascertain whether the 26 issue was necessarily decided in the first case. 27 People v. Angoco, 2004 Guam 11 ¶ 10. 28
CF28 -14: People v. McKinney Page 3 of 6 Decision and Order - Defendant's Motion to Dismiss In applying the first element as announced in the test above , the Court notes that in 1
2 CF535-13, Defendant was charged in a Superseding Indictment with the following: (1) Burglary
3 (as a 2nd Degree Felony ); (2) Theft of Property (as a 2nd Degree Felony); and (3 ) 2 counts of
4 Theft by Receiving (as a 2nd Degree Felony). The first and second charge alleged an offense 5 occurring or about July 21, 2013. Charge Three, Count One alleged an offense that occurred on 6
or about August 29, 2013, and Charge Three, Count Two alleged an offense that occurred on or 7
8 about September 11, 2013. See Superseding Indictment CF: 535-13 (Nov. 14 , 2013). With the
9 case at bar, CF 28-14, Defendant is charged with Second Degree Robbery (as a 2nd Degree 10 Felony ) and a Special Allegation charge of Possession and Use of a Deadly Weapon in the 11 Commission of a Felony. The charge in the instant case alleges that on or about August 21, 12
13 2013, Defendant committed the offense of Second Degree Robbery , in that he intentionally
14 armed with or displayed what appeared to be a deadly weapon while in the course of 15 committing theft of property against Romeo and Aurora Reyes. In the Court ' s review, the 16 victims are the same in both cases. The only difference is the date the alleged offense occurred. 17
However, the Court finds that the time -frame involved in CF535-13 is from July 21, 2013 18
19 through September 11, 2013. The date in the instant case falls in between. Accordingly, aside
20 from a different date, the Court finds the issues sufficiently similar and sufficiently material to 21 justify invoking the doctrine. The offenses are all based on one police report as well. 22 As to the second element of the test, the Court in examining the record is to decide 23
whether or not the issue was litigated in the first case. In CF535-13 , Defendant was convicted 24
25 of Burglary (as a 2nd Degree Felony ); a lesser included offense of Theft of Property (as a 3rd
26 Degree Felony); and one count of Theft by Receiving (as a 2nd Degree Felony).
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FILE 1 -if 2
3 T 4
6 IN THE SUPERIOR COURT OF GUAM 7
8 CRIMINAL CASE NO. CF28-14 9 PEOPLE OF GUAM 10 DECISION AND ORDER 11 vs. Defendant' s Motion to Dismiss 12 KENDALL NORRIS MCKINNEY, 13 Defendant. 14
16 INTRODUCTION 17 This matter came before the Honorable Anita A. Sukola on October 13, 2014 on 18 Defendant's Motion to Dismiss the Indictment. Attorney Joaquin C. Arriola, Jr. appeared for 19
20 and with the Defendant. Assistant Attorney General Richelle J. Yu appeared on behalf of the
21 People of Guam. Upon review of the written arguments and legal authorities presented by the 22 parties, the Court issues its Decision and Order GRANTING Defendant's motion. 23 BACKGROUND 24
The Superior Court of Guam Grand Jury returned a true bill against the Defendant on 25
January 17, 2014. Defendant is charged with Second Degree Robbery (as a 2nd Degree Felony) 26
27 with Special Allegation: Possession and Use of a Deadly Weapon in the Commission of a 28 Felony. See Indictment (Jan. 17, 2014). The indictment alleges that "[o]n or about the 21st day
CF28 -14: People Y. McKinney Page 1 of 6 Decision and Order - Defendant's Motion to Dismiss
ORIGINAL t
of August 2013, in Guam, [Defendant] did commit the offense of Second Degree Robbery, in 1
2 that he intentionally armed with or displayed what appeared to be a deadly weapon while in the
3 course of committing theft of property against Romeo and Aurora Reyes." Id. The Special 4 Allegation charge reads: "On or about the 21St day of August 2013, in Guam, [Defendant] did 5 knowingly and unlawfully possess and use a deadly weapon, that is, a hand gun, in the 6
commission of a felony, that is, Second Degree Robbery." Id. 7
8 On January 22, 2014, Defendant was arraigned and entered a plea of not guilty.
9 Defendant now files a Motion to Dismiss the instant case. Mot. to Dismiss (Sep. 24, 2014). 10 The People filed their opposition on September 30, 2014, and Defendant filed his reply on 11 October 9, 2014. The Court heard oral arguments on October 13, 2014, and now issues its 12
13 Decision.
14 DISCUSSION 15 Defendant moves the Court to dismiss the instant because " it violates the double 16 jeopardy clause of the Organic Act of Guam, as well as the Speedy Trial and Arraignment 17
Rights." D e ' s . Mot. to Dismiss at 1 (Sep. 24, 2014). Defendant argues that "[t]he Indictment is 18
19 barred by collateral estoppel and double jeopardy. Id. at 2. Specifically , Defendant contends
20 that "[ t]he crimes charged in CF535-13 (which has already gone to trial ) and CF 0028-14 are 21 sufficiently similar to invoke the doctrine of collateral estoppel. Based in part on evidence the 22 Defendant obtained possession of the vehicle either by burglary or robbery , the jury convicted 23 him of Theft by Receiving." Id. at 5. Additionally, Defendant argues that "[t]he crimes charged 24
25 herein were clearly known to the Government at the time it brought Defendant to trial in
26 CF535-14'." Id. 27
28 ' The Court notes that the correct case number should be CF535-13.
CF28-14: People v. McKinney Page 2 of 6 Decision and Order - Defendant's Motion to Dismiss
ORIGINAL The People oppose Defendant's motion and argue that the "Indictment in CF0028-14 1
2 does not constitute double jeopardy." Opp'n Mot. at 1 (Sep. 30, 2014). The People argue that
3 "trying Defendant on the charge of Robbery in the Indictment obtained on CF0028-14 would 4 not constitute Double Jeopardy because: (1) this crime was not based on the same conduct and 5 did not arise from the same criminal episode; (2) Defendant could not have been convicted of 6
robbery in the first prosecution; and (3) the People did not violate 8 GCA § 65.30(b) when it 7
8 chose not to prosecute Defendant for the robbery in the earlier trial. Id. at 3. As a result, the
9 People contend that "the issue of whether or not Defendant committed a robbery on August 21, 10 2013 has not been litigated and there has been no valid and final judgment on it." Id. 11
Collateral Estoppel 12
13 The Court will first address the issue of collateral estoppel raised by Defendant. "The
14 application of collateral estoppel to criminal cases [is] an embodiment of the Fifth Amendment 15 Double Jeopardy Clause." People v. San Nicolas, 1999 Guam 19 ¶ 12 (citing Ashe v. Swenson, 16 397 U.S. 436, 445, 90 S.Ct. 1189, 1195 (1970)). "Collateral estoppel `means simply that when 17
an issue of ultimate fact has once been determined by a valid and final judgment, that issue 18
19 cannot again be litigated between the same parties in any future lawsuit." Id. (quoting Ashe v.
20 Swensen, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194 (1970)). Whether the doctrine of collateral 21 estoppel applies is determined by a three part test: 22 (1) An identification of the issues in the two actions for the purpose of 23 determining whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; 24 (2) an examination of the record of the prior case to decide whether the issue was 25 `litigated' in the first case; and (3) an examination of the record of the prior proceeding to ascertain whether the 26 issue was necessarily decided in the first case. 27 People v. Angoco, 2004 Guam 11 ¶ 10. 28
CF28 -14: People v. McKinney Page 3 of 6 Decision and Order - Defendant's Motion to Dismiss In applying the first element as announced in the test above , the Court notes that in 1
2 CF535-13, Defendant was charged in a Superseding Indictment with the following: (1) Burglary
3 (as a 2nd Degree Felony ); (2) Theft of Property (as a 2nd Degree Felony); and (3 ) 2 counts of
4 Theft by Receiving (as a 2nd Degree Felony). The first and second charge alleged an offense 5 occurring or about July 21, 2013. Charge Three, Count One alleged an offense that occurred on 6
or about August 29, 2013, and Charge Three, Count Two alleged an offense that occurred on or 7
8 about September 11, 2013. See Superseding Indictment CF: 535-13 (Nov. 14 , 2013). With the
9 case at bar, CF 28-14, Defendant is charged with Second Degree Robbery (as a 2nd Degree 10 Felony ) and a Special Allegation charge of Possession and Use of a Deadly Weapon in the 11 Commission of a Felony. The charge in the instant case alleges that on or about August 21, 12
13 2013, Defendant committed the offense of Second Degree Robbery , in that he intentionally
14 armed with or displayed what appeared to be a deadly weapon while in the course of 15 committing theft of property against Romeo and Aurora Reyes. In the Court ' s review, the 16 victims are the same in both cases. The only difference is the date the alleged offense occurred. 17
However, the Court finds that the time -frame involved in CF535-13 is from July 21, 2013 18
19 through September 11, 2013. The date in the instant case falls in between. Accordingly, aside
20 from a different date, the Court finds the issues sufficiently similar and sufficiently material to 21 justify invoking the doctrine. The offenses are all based on one police report as well. 22 As to the second element of the test, the Court in examining the record is to decide 23
whether or not the issue was litigated in the first case. In CF535-13 , Defendant was convicted 24
25 of Burglary (as a 2nd Degree Felony ); a lesser included offense of Theft of Property (as a 3rd
26 Degree Felony); and one count of Theft by Receiving (as a 2nd Degree Felony). Again, the 27 offenses involve the same victim and arise out of the ultimate theft of property belonging to said 28
CF28-14: People v. McKinney Page 4 of 6 Decision and Order - Defendant's Motion to Dismiss
ORIGINAL victims. In the instant case, the robbery is the precursor to the ultimate theft of property charge 1
2 against Defendant. Therefore, the Court finds that while not charged with Robbery in the first
3 case , the issue was litigated and necessarily decided in the first case, which satisfies the second 4 and third elements of the test. 5 Joinder 6 Next, the Court recognizes that joinder of offenses is encouraged. Guam law provides: 7
8 (a) The Court may order two or more indictments or information or both to be tried together if the offenses, and the defendants if there is more than one, 9 could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single indictment or 10 information. 11 (b) Except as otherwise provided by § 65.35, a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising 12 from the same criminal episode, if such offenses are known to the prosecuting 13 attorney at the time of the commencement of the trial.
14 8 GCA § 65.30 (2005) (emphasis added). 15 On the basis of the joinder statute, the Court examines the meaning of "same criminal episode." 16 States have adopted the standard of "same transaction" as a matter of local law. "Compulsory 17 joinder of offenses which share a proximity in time, place and circumstances would not only 18
19 protect the defendant from successive prosecutions based on the same conduct or episode, but it
20 would also save the defendant and the [prosecution] time and money[.]" State v. Carroll, 627 21 P.2d 776, 780 (Haw. 1981). Moreover, offenses are part of the same criminal episode if the 22 conduct was so closely related in time, place and circumstances that a complete account of one 23
charge cannot be related without referring to details of the other charge. See State v. Akau, 185 24
25 P.3d 229 (Haw. 2008). In the present case, the theft of property charges against Defendant is
26 closely related to the robbery charge. The place, circumstances, and nature of the case involving 27 the same victims, leads the Court to find that there was a substantial factual nexus existing 28
CF28-14: People v. McKinney Page 5 of 6 Decision and Order - Defendant's Motion to Dismiss ORIGINAL e
between the two cases. For these reasons, the Court finds that collateral estopel and 8 GCA § 1
2 65.30 bars the prosecution in CF28- 14. Accordingly, Defendant's Motion to Dismiss is
3 GRANTED. 4 The Court does not find a need to analyze the other Double Jeopardy and Speedy Trial/ 5 Arraignment Rights issues brought forth by Defendant. 6
7 CONCLUSION
8 By preponderance of the evidence and based on the foregoing reasons, the Court
9 GRANTS Defendant's Motion to Dismiss. 10 SO ORDERED this _ � j day of NOVEMBER, 2014. 11
17 HONORABLE ANITA A. SUKOLA 18 Judge, Superior Court of Guam
24 SERVICE VIA COURT BOX I acknowledg,,, that a copy of the original hereto was placed in the 25 court bum
CF28-14: People v. McKinney Page 6 of 6
ORIGINAL Decision and Order - Defendant's Motion to Dismiss