I F! L E D I supER:oR COURT OF GUAM I l 2622 Hay EB AH 8; Lm 2 CLERKUFCOURT 3 IN THE SUPERIOR COURT OF§UAM- 4
5 THE PEOPLE OF GUAM, 6 Case No. CF() 13-21 7 vs.
8 NICHOLAS WAYNE MOORE DECISION AND ORDER (Motion for Release with Conditions) 9 Defendant. 10 11 12 INTRODUCTION
13 This matter came before the Honorable Alberto E. Tolentino on Nicholas Wayne
14 Moore's ("Defendant") Motion for Release with Conditions ("Motion for Release"). Attorneys
15 David J. Lucan, William L. Gavras, and Michael F. Phillies appeared for Defendant. Assistant 16 Attorney General Sean E. Brown appeared for the People of Guam ("People'). In accordance 1? with its ruling from the bench on October 31 , 2022, the Court now issues the following order 18 D E N Y I N G Defendant's Motion for Release. 19 BACKGROUND 20 On June 29, 2021, the People filed a Magistrate's Complaint charging Defendant with 21 22 the following: (1) Two Counts of Aggravated Assault (As a Second Degree Felony) with Two
23 Counts of the Special Allegation: Deadly Weapon Used in the Commission of a Felony, (2)
24 Terrorizing (As a Third Degree Felony) with the Special Allegation: Deadly Weapon Used in
25 the Commission of a Felony, and (3) Possession of an Unregistered Firearm (As a Third
26 27 Decision and Order Case No. CF0313-2 l , People v. Nicholas Wayne Moore Page I off I I I
I
1 i Degree Felony). Mag. Comal., June 29, 2021. On June 29, 2021, Defendant appeared before 2 the Court for a preliminary hearing and the Court set bail at $100,000. Minute Entry, June 29, 3 2021. Defendant posted bail and the Court ordered Defendant released on his own 4
recognizance, provided that he abide by the conditions of release. Minute Entry, June 30, I
. 6 .I2021. Among other things, Defendant's conditions of release included: complying with 7 electronic monitoring, remaining on house arrest, reporting to Adult Prob action Services
8 ("Probation") three times a week, and not consuming any alcohol or dogs. Order of
9 Conditional Release and Appearance Bond, June 30, 2021 . 10 Probation filed a first violation report after Defendant failed to comply with the 11 conditions of electronic monitoring by making an unauthorized stop. let Violation Report, 12 Mar. 17, 2022. Probation filed a second violation report when Defendant refused to submit to 13 1
a random urinalysis sample. 2nd Violation Report, June 16, 2022. Probation filed a third 14 15 violation report when Defendant again refused to submit to a random urinalysis sample. 3rd I
n 16 I Violation, .Tune 17, 2022. Probation filed a fourth violation report after Defendant tested
17 positive for illegal drugs. 4th Violation Report, June 17, 2022. Probation filed a fifth violation
18 report after Defendant failed to comply with the conditions of electronic monitoring by making
19 an unauthorized stop. 5th Violation Report, July 13, 2022. On June 16, 2022, Defendant
20 failed to appear at Jury Selection. Minute Entry, June 16, 2022. The Court held a violation 21 hearing and the Court imposed the additional condition that Defendant have a third-party 22 custodian. Minute Entry, July 18, 2022, Minute Entry, July 20, 2022. Defendant never 23 I
informed the Court that Probation approved of two people to serve as his third-party I
24 I
custodians, and thus, Defendant remained in custody. Defendant filed the instant motion. I
25 II De£'s Men. Of P. & A. In Supp. Of His Mot. for Release With Conditions, Oct. 28, 2022. 26 I I
Decision and Order I
27 Case No. CF0313-21, People v. M.eho£'a5 Wayne Moore Page 2 of 5 I
I I
1 I
The Court held a Motion Hearing. Minute Entry, Oct. 3 l, 2022. Upon considering the parties 2 arguments and the applicable law, the Court denied Defendant's Motion for Release. Id. 3 I
DISCUSSION 4
Under Guam law, there is a presumption that a defendant charged with an offense will be 5
6 released pending trial. 8 G.C.A. § 40.10. In all instances, the "[Court] shall order the person
'If' charged to be released on recognizance, unless the [Court] determines, in [its] discretion, on the
8 basis of available information, that such a release will not reasonably assure the appearance of
9 the person as required or will endanger the safety of any other person or the community." 8
10 G.C.A. § 40.15(b). In determining whether there is a substantial risk of nonappearance or if a 11 defendant will endanger the safety of individuals in the community, the Court "shall consider the 12 following factors : 13
14 (1) the nature of the offense charged, the apparent possibility ofeonviction I 15 and the likely sentence,
16 (2) the history and characteristics of the person charged ... 17 (3) the nature and seriousness of the danger the person would pose to the 18 n community or to any individual member thereof if released; [and] 19 (4) any other factors which b ear on the risk of willful failure to app error the 20 danger the person would impose to the community or to any individual 21
22 I member thereof if released."
23 ' 8 G.C.A. §40.15(c). If release on personal recognizance will not reasonably assure Defendant's II
24 appearance as required, or will endanger the safety of any individuals in the community, the I
25 Court shall impose the leastonerous conditions of release. 8 G.C;A. § 40.20. I
26 I
27 Decision and Order Case No. CF0313-21, People v, }Wcho¢'o5 Wayne Moore Page 3 of 5 I
I After reviewing all available information, the Court finds that pre-trial release with the 2 condition that Defendant have two third-party custodians is the least onerous condition 3 imposable for the following reasons. Defendant argues that he is completing his fourth month 4
5 I' of incarceration, which is an unfair sanction for violating his pre-trial release conditions. Dei:'s
6 Men. Of P. & A. In Supp. Of His Mot. for Release With Conditions at 1. The Court did not
7 order Defendant remain in custody as sanctions for violating his pre-trial release conditions.
8 Defendant is in custody because he has not presented the Court with two people approved by
9 Probation to be his third-party custodians. Defendant argues that the unauthorized stops he made I 10 while on electronic monitoring were ten minutes or less, but the Court notes that ten minutes is 11 long enough to obtain illegal drugs. Defendant tested positive for illegal drugs while on 12 electronic monitoring, which means that he was able to obtain illegal drugs while on electronic 13 monitoring and house arrest. The Court delayed jury selection after Defendant consumed illegal 14 drugs, and the Court is concerned* that could happen again. The Court believes that a third-party 15
custodian could ensure that Defendant does not have access to illegal drugs. Likewise, 16
17 Defendant contends the day he failed to appear at jury selection he overslept. A third-party
18 custodian could prevent Defendant from failing to appear at trial again. Therefore, the Court
19 maintains that if Defendant can present the Court with two people who have been approved by
20 Probation to serve as his third-party custodians the Court will order Defendant released from
21 | custody. I
22 Lastly, Defendant states that trial has gone on for "months." Digital Recording at 23 1.
11125119-1 l :45:5'? (Mot. I-I'rg. Oct. 31, 2022). The Court notes that few of the trial delays are 24 'attributed to the Court and the People.
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I F! L E D I supER:oR COURT OF GUAM I l 2622 Hay EB AH 8; Lm 2 CLERKUFCOURT 3 IN THE SUPERIOR COURT OF§UAM- 4
5 THE PEOPLE OF GUAM, 6 Case No. CF() 13-21 7 vs.
8 NICHOLAS WAYNE MOORE DECISION AND ORDER (Motion for Release with Conditions) 9 Defendant. 10 11 12 INTRODUCTION
13 This matter came before the Honorable Alberto E. Tolentino on Nicholas Wayne
14 Moore's ("Defendant") Motion for Release with Conditions ("Motion for Release"). Attorneys
15 David J. Lucan, William L. Gavras, and Michael F. Phillies appeared for Defendant. Assistant 16 Attorney General Sean E. Brown appeared for the People of Guam ("People'). In accordance 1? with its ruling from the bench on October 31 , 2022, the Court now issues the following order 18 D E N Y I N G Defendant's Motion for Release. 19 BACKGROUND 20 On June 29, 2021, the People filed a Magistrate's Complaint charging Defendant with 21 22 the following: (1) Two Counts of Aggravated Assault (As a Second Degree Felony) with Two
23 Counts of the Special Allegation: Deadly Weapon Used in the Commission of a Felony, (2)
24 Terrorizing (As a Third Degree Felony) with the Special Allegation: Deadly Weapon Used in
25 the Commission of a Felony, and (3) Possession of an Unregistered Firearm (As a Third
26 27 Decision and Order Case No. CF0313-2 l , People v. Nicholas Wayne Moore Page I off I I I
I
1 i Degree Felony). Mag. Comal., June 29, 2021. On June 29, 2021, Defendant appeared before 2 the Court for a preliminary hearing and the Court set bail at $100,000. Minute Entry, June 29, 3 2021. Defendant posted bail and the Court ordered Defendant released on his own 4
recognizance, provided that he abide by the conditions of release. Minute Entry, June 30, I
. 6 .I2021. Among other things, Defendant's conditions of release included: complying with 7 electronic monitoring, remaining on house arrest, reporting to Adult Prob action Services
8 ("Probation") three times a week, and not consuming any alcohol or dogs. Order of
9 Conditional Release and Appearance Bond, June 30, 2021 . 10 Probation filed a first violation report after Defendant failed to comply with the 11 conditions of electronic monitoring by making an unauthorized stop. let Violation Report, 12 Mar. 17, 2022. Probation filed a second violation report when Defendant refused to submit to 13 1
a random urinalysis sample. 2nd Violation Report, June 16, 2022. Probation filed a third 14 15 violation report when Defendant again refused to submit to a random urinalysis sample. 3rd I
n 16 I Violation, .Tune 17, 2022. Probation filed a fourth violation report after Defendant tested
17 positive for illegal drugs. 4th Violation Report, June 17, 2022. Probation filed a fifth violation
18 report after Defendant failed to comply with the conditions of electronic monitoring by making
19 an unauthorized stop. 5th Violation Report, July 13, 2022. On June 16, 2022, Defendant
20 failed to appear at Jury Selection. Minute Entry, June 16, 2022. The Court held a violation 21 hearing and the Court imposed the additional condition that Defendant have a third-party 22 custodian. Minute Entry, July 18, 2022, Minute Entry, July 20, 2022. Defendant never 23 I
informed the Court that Probation approved of two people to serve as his third-party I
24 I
custodians, and thus, Defendant remained in custody. Defendant filed the instant motion. I
25 II De£'s Men. Of P. & A. In Supp. Of His Mot. for Release With Conditions, Oct. 28, 2022. 26 I I
Decision and Order I
27 Case No. CF0313-21, People v. M.eho£'a5 Wayne Moore Page 2 of 5 I
I I
1 I
The Court held a Motion Hearing. Minute Entry, Oct. 3 l, 2022. Upon considering the parties 2 arguments and the applicable law, the Court denied Defendant's Motion for Release. Id. 3 I
DISCUSSION 4
Under Guam law, there is a presumption that a defendant charged with an offense will be 5
6 released pending trial. 8 G.C.A. § 40.10. In all instances, the "[Court] shall order the person
'If' charged to be released on recognizance, unless the [Court] determines, in [its] discretion, on the
8 basis of available information, that such a release will not reasonably assure the appearance of
9 the person as required or will endanger the safety of any other person or the community." 8
10 G.C.A. § 40.15(b). In determining whether there is a substantial risk of nonappearance or if a 11 defendant will endanger the safety of individuals in the community, the Court "shall consider the 12 following factors : 13
14 (1) the nature of the offense charged, the apparent possibility ofeonviction I 15 and the likely sentence,
16 (2) the history and characteristics of the person charged ... 17 (3) the nature and seriousness of the danger the person would pose to the 18 n community or to any individual member thereof if released; [and] 19 (4) any other factors which b ear on the risk of willful failure to app error the 20 danger the person would impose to the community or to any individual 21
22 I member thereof if released."
23 ' 8 G.C.A. §40.15(c). If release on personal recognizance will not reasonably assure Defendant's II
24 appearance as required, or will endanger the safety of any individuals in the community, the I
25 Court shall impose the leastonerous conditions of release. 8 G.C;A. § 40.20. I
26 I
27 Decision and Order Case No. CF0313-21, People v, }Wcho¢'o5 Wayne Moore Page 3 of 5 I
I After reviewing all available information, the Court finds that pre-trial release with the 2 condition that Defendant have two third-party custodians is the least onerous condition 3 imposable for the following reasons. Defendant argues that he is completing his fourth month 4
5 I' of incarceration, which is an unfair sanction for violating his pre-trial release conditions. Dei:'s
6 Men. Of P. & A. In Supp. Of His Mot. for Release With Conditions at 1. The Court did not
7 order Defendant remain in custody as sanctions for violating his pre-trial release conditions.
8 Defendant is in custody because he has not presented the Court with two people approved by
9 Probation to be his third-party custodians. Defendant argues that the unauthorized stops he made I 10 while on electronic monitoring were ten minutes or less, but the Court notes that ten minutes is 11 long enough to obtain illegal drugs. Defendant tested positive for illegal drugs while on 12 electronic monitoring, which means that he was able to obtain illegal drugs while on electronic 13 monitoring and house arrest. The Court delayed jury selection after Defendant consumed illegal 14 drugs, and the Court is concerned* that could happen again. The Court believes that a third-party 15
custodian could ensure that Defendant does not have access to illegal drugs. Likewise, 16
17 Defendant contends the day he failed to appear at jury selection he overslept. A third-party
18 custodian could prevent Defendant from failing to appear at trial again. Therefore, the Court
19 maintains that if Defendant can present the Court with two people who have been approved by
20 Probation to serve as his third-party custodians the Court will order Defendant released from
21 | custody. I
22 Lastly, Defendant states that trial has gone on for "months." Digital Recording at 23 1.
11125119-1 l :45:5'? (Mot. I-I'rg. Oct. 31, 2022). The Court notes that few of the trial delays are 24 'attributed to the Court and the People. The Court has been generous in accommodating 25 Defendant's requests to continue trial, including continuing trial when Attorney Lujan was sick, 26
' Decision and Order 27 I Case No. CF0313-21 , People v. Nicholas WayneMoore I
Page 4 of 5 I
1 continuing trial when defense counsel was not prepared to cross-examine the witnesses the 2 People planned on calling, and granting multiple continuances to allow Defendant ample time to 3 4 prepare various motions.
CONCLUSION AND ORDER 5 I
I For the above reasons, the Court DENIES Defendant's Motion for Release. I
k I
7 SO ORDERED, this 0,3 day of _Q\lL'JrvL (" 2022.
9 "\¢. .r"*"\-.
"'T-1. 11 10 -
11 -.-' I - I
HONORABLE ALBE1iTO E. TOLENTINO 12 Judge, Superior Court of Guam 13
25 .I
Decision and Order 27 I Case No. CF0313-2 l, People v. Nicholas WayneMoore Page S of 5 I