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I I FILED I I SUPERIOR COURT OFGUAM 1 ZUZ2 NOV -7 PH Ll: Ia 2 CLERKOFCOURT 3 IN THE SUPERIOR COURT GFIGUAM- . M A J 4
5 THE PEOPLE OF GUAM, 6 Case No. CF0313-21 7 I vs.
8 DECISION AND ORDER NICHOLAS WAYNE MOORE (Defendant's Motion to Compel Discovery; 9' Motion for Continuance) Defendant; 10
12 INTRODUCTION
13 This matter came before the Honorable Alberto E. Tolentino on Nicholas Wayne
14 Moore's ("Defendant") Motion to Compel Discovery, Motion for Continuance (Motion to
15 n Compel Discovery"). Attorneys David J. Lucan, William L. Gavras, and Michael F. Phillipe 16 appeared for Defendant. Assistant Attorney General Sean E. Brown appeared for the People of 17 Guam ("People'). In accordance with its ruling from the bench on October 31, 2022, the Court 18 I
now issues the following order DENYING Defendant's Motion to Compel Discovery. 19 BACKGROUND 20 Trial in this case is proceeding upon an amended superseding indictment on the 21
22 following charges: (l) Two Counts of Aggravated Assault (As a Second Degree Felony) with
23 Two Counts of the Special Allegation: Deadly Weapon Used in the Commission of a Felony, | 24 I (2) Terrorizing (As a Third Degree. Felony) with the Special Allegation: Deadly Weapon Used 25 in the Commission of a Felony, and (3) Possession of an Unregistered Firearm (As a Third
26 I
Decision and Order 27 Case No. CF0313-2 l, People v. Nicholas Wayne Moore Page 1 of 7 I I I
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1 Degree Felony). Am. Superseding Indictment, June 13, 2022. Jury se1.ection commenced on 2 June 15, 2022, and a petitjuly was swam in on August 11, 2022. Minute Entry, June 15, 2022, I I 3 I
Minute Entry, Aug. 11, 2022. Defendant filed the instant motion. Mot. to Compel Discovery, 4 Mot. for Continuance, Oct. 25, 2022. The People filed an opposition. People's Opp'n. to Def.'s 5
6 Mot. for Discovery, Oct. 27, 2022. Defendant filed a reply. Dei's Reply to People's Opp'n. to
'1 I Mot. to Compel Discovery, Mot. for Continuance, Oct. 28, 2022. The Court held a Motion
8 Hearing. Minute Entry, Oct. 3 l , 2022. Upon considering the parties arguments and the
9 applicable law, the Court denied Defendant's Motion to Compel Discovery. Id. 10 DISCUSSION 11 Defendant states that Brian Mendiola's ("Victim") testimony on October 18, 2022, I 12 discussed a "police raid" on his residence, where officers entered with "guns blazing." Mot. to 13 Compel Discovery at 1. Defendant asserts that he was not aware of police raid on Victim's 14 15. residence and requests that Court "order the prosecution to immediately provide Defendant
16 I with all remaining discovery." Id. at 8. The People state that Detective Goto informed the
17 People that a raid of Victim's residence did not occur. People's Opp'n. to DeE's Mot. for
18 Discovery at 2, The People assert that "[j]ust because Victim felt like the interaction was I I 19 excessive does not mean the police carried out an actual raid." Id. at 1-2 .
20 The Court first notes that Defendant should have filed this motion with a request to
21 shorten time because this case is mid-trial and the Court has can obligation to expedite the 22 proceedings. Additionally, Victim's direct examination occurred October 18, 2022, and 23 Defendant did not file this motion until October 25, 2022-a week after Victim's direct 24 I
examination. The Court reminds Defendant that he should be expeditious in preparing his 25 26 motions to avoid an unnecessary delay to trial.
27 Decision and Order . I Case No. CF0313-21, People v. Nicholas Wayne Moore Page 2 of 7 I I
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1 n Title 8 G.C.A. § 'F0.l070.45 constitute Guam's discovery states. Title 8 G.C.A. § 2 70.10(a) states specific material the prosecuting attorney must disclose to the defendant's 3 attorney. Title 8 G.C.A. § 70.l5(a) states "[e]xcept as otherwise provided by this Section and 4 5 n§§7.20 and 7.30, upon noticed motion by the defendant and a showing of materiality to the n 6 preparation of his defense and that the request is reasonable, the court in its discretion may
7 order the prosecuting attorney to disclose to the defendant's attorney any relevant material and I I 8 information not covered by § 70.1 O." "The court possesses discretion to order the prosecuting
9 attorney to disclose relevant material and information not covered by section '70.10." Id. The
10 I Supreme Court of Guam has encouraged a liberal and broad reading of Guam's-discovery 11 statutes. People v. Laxamana,2001 Guam 26 1]53. 12 The People called Victim to testify on October 18, 2022, and it finished its direct 13 examination that same day. Minute Entry, Oct. 18, 2022. Defense counsel requested the Court 14 delay Me cross-examination of Victim until after the Jury Viewing, and the Court granted 15
16 defense counsel's request. Minute Entry, Oct. 21, 2022. Prior to beginning cross-examination, I 17 Defendant filed this motion. Mot. to Compel Discovery, Mot. for Continuance. At the motion
18 hearing, the Court encouraged Defendant to call Detective Goto--outside the presence of the I
19 jury-to testify under oath that a raid of Victim's residence did not occur in this case, and to
20 explain the interactions that took place in this case between Victim and police officers. Digital 21 Recording at 9:50:14-11:23:05 (Mot. H'rg. Oct. 31, 2022). The Court also encouraged 22 ' Defendant to call Victim+4Jutside the presence of the jury-to the stand to have him clarify 23 the statements he made on direct examination. Id. The Coul't notes that during the time of this I I
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motion hearing, both witnesses were present in the courthouse and available to testify I
25 26 immediately. Alternatively, defense counsel could have clarified Victim's statements during I
Decision and Order 27 Case No. CF0313-21, People v. Nicholas WayneMoore I Page 3 of 7 I I l cross-examination. However, Defendant declined to call either witness to the stand. When the 2 Court askedDefendant if he would be calling Victim to the stand during the motion hearing, 3 defense counsel stated "based on what Mr. Mendiola said, I'm not sure there's any reason to go 4
| any further. He was under oath, he described in detail what happened pursuant tcrquestioning
6 by Mr. Brown, I quoted just the two paragraphs, what more is there?" Digital Recording at
7 9:50:14-l0:09:23 (Mot. H'rg. Oct. 31., 2022). Defendant also contended that the People failed I
8 to deny Defendant's allegations in a swam declaration from Detective Goto. Digital I
9 . Recording at 10:09:23-10:25:30 (Mot. I-I'rg. Oct. 31, 2022). Yet, Defendant could have asked
10 Detective Goto to deny these allegations under oath if he had called Detective Goto to the 11 stand during the motion hearing. The Court believes that it would have been helpful to hear 12 testimony firm Victim and Detective Goto during the motion hearing. Instead, Defendant 13 insisted that the People make an offer ofproofunder oath that a police raid of Victim's 14 15 residence did not occur. Digital Recording at 10:25:30-I 1:23:05 (Mot. H'rg. Oct. 31, 2022). I 16 The People made an offer of proof-not under oath-that a police raid of Victim's residence
17 did hot occur. Id.
18 The Court reviewed the report generated by Office of the Attorney General Investigator
19 Henry James October 27, 2022, following his phone interview of Detective Goto and the
20 Victim's testimony on direct examination.
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I
I I FILED I I SUPERIOR COURT OFGUAM 1 ZUZ2 NOV -7 PH Ll: Ia 2 CLERKOFCOURT 3 IN THE SUPERIOR COURT GFIGUAM- . M A J 4
5 THE PEOPLE OF GUAM, 6 Case No. CF0313-21 7 I vs.
8 DECISION AND ORDER NICHOLAS WAYNE MOORE (Defendant's Motion to Compel Discovery; 9' Motion for Continuance) Defendant; 10
12 INTRODUCTION
13 This matter came before the Honorable Alberto E. Tolentino on Nicholas Wayne
14 Moore's ("Defendant") Motion to Compel Discovery, Motion for Continuance (Motion to
15 n Compel Discovery"). Attorneys David J. Lucan, William L. Gavras, and Michael F. Phillipe 16 appeared for Defendant. Assistant Attorney General Sean E. Brown appeared for the People of 17 Guam ("People'). In accordance with its ruling from the bench on October 31, 2022, the Court 18 I
now issues the following order DENYING Defendant's Motion to Compel Discovery. 19 BACKGROUND 20 Trial in this case is proceeding upon an amended superseding indictment on the 21
22 following charges: (l) Two Counts of Aggravated Assault (As a Second Degree Felony) with
23 Two Counts of the Special Allegation: Deadly Weapon Used in the Commission of a Felony, | 24 I (2) Terrorizing (As a Third Degree. Felony) with the Special Allegation: Deadly Weapon Used 25 in the Commission of a Felony, and (3) Possession of an Unregistered Firearm (As a Third
26 I
Decision and Order 27 Case No. CF0313-2 l, People v. Nicholas Wayne Moore Page 1 of 7 I I I
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1 Degree Felony). Am. Superseding Indictment, June 13, 2022. Jury se1.ection commenced on 2 June 15, 2022, and a petitjuly was swam in on August 11, 2022. Minute Entry, June 15, 2022, I I 3 I
Minute Entry, Aug. 11, 2022. Defendant filed the instant motion. Mot. to Compel Discovery, 4 Mot. for Continuance, Oct. 25, 2022. The People filed an opposition. People's Opp'n. to Def.'s 5
6 Mot. for Discovery, Oct. 27, 2022. Defendant filed a reply. Dei's Reply to People's Opp'n. to
'1 I Mot. to Compel Discovery, Mot. for Continuance, Oct. 28, 2022. The Court held a Motion
8 Hearing. Minute Entry, Oct. 3 l , 2022. Upon considering the parties arguments and the
9 applicable law, the Court denied Defendant's Motion to Compel Discovery. Id. 10 DISCUSSION 11 Defendant states that Brian Mendiola's ("Victim") testimony on October 18, 2022, I 12 discussed a "police raid" on his residence, where officers entered with "guns blazing." Mot. to 13 Compel Discovery at 1. Defendant asserts that he was not aware of police raid on Victim's 14 15. residence and requests that Court "order the prosecution to immediately provide Defendant
16 I with all remaining discovery." Id. at 8. The People state that Detective Goto informed the
17 People that a raid of Victim's residence did not occur. People's Opp'n. to DeE's Mot. for
18 Discovery at 2, The People assert that "[j]ust because Victim felt like the interaction was I I 19 excessive does not mean the police carried out an actual raid." Id. at 1-2 .
20 The Court first notes that Defendant should have filed this motion with a request to
21 shorten time because this case is mid-trial and the Court has can obligation to expedite the 22 proceedings. Additionally, Victim's direct examination occurred October 18, 2022, and 23 Defendant did not file this motion until October 25, 2022-a week after Victim's direct 24 I
examination. The Court reminds Defendant that he should be expeditious in preparing his 25 26 motions to avoid an unnecessary delay to trial.
27 Decision and Order . I Case No. CF0313-21, People v. Nicholas Wayne Moore Page 2 of 7 I I
I I I I
1 n Title 8 G.C.A. § 'F0.l070.45 constitute Guam's discovery states. Title 8 G.C.A. § 2 70.10(a) states specific material the prosecuting attorney must disclose to the defendant's 3 attorney. Title 8 G.C.A. § 70.l5(a) states "[e]xcept as otherwise provided by this Section and 4 5 n§§7.20 and 7.30, upon noticed motion by the defendant and a showing of materiality to the n 6 preparation of his defense and that the request is reasonable, the court in its discretion may
7 order the prosecuting attorney to disclose to the defendant's attorney any relevant material and I I 8 information not covered by § 70.1 O." "The court possesses discretion to order the prosecuting
9 attorney to disclose relevant material and information not covered by section '70.10." Id. The
10 I Supreme Court of Guam has encouraged a liberal and broad reading of Guam's-discovery 11 statutes. People v. Laxamana,2001 Guam 26 1]53. 12 The People called Victim to testify on October 18, 2022, and it finished its direct 13 examination that same day. Minute Entry, Oct. 18, 2022. Defense counsel requested the Court 14 delay Me cross-examination of Victim until after the Jury Viewing, and the Court granted 15
16 defense counsel's request. Minute Entry, Oct. 21, 2022. Prior to beginning cross-examination, I 17 Defendant filed this motion. Mot. to Compel Discovery, Mot. for Continuance. At the motion
18 hearing, the Court encouraged Defendant to call Detective Goto--outside the presence of the I
19 jury-to testify under oath that a raid of Victim's residence did not occur in this case, and to
20 explain the interactions that took place in this case between Victim and police officers. Digital 21 Recording at 9:50:14-11:23:05 (Mot. H'rg. Oct. 31, 2022). The Court also encouraged 22 ' Defendant to call Victim+4Jutside the presence of the jury-to the stand to have him clarify 23 the statements he made on direct examination. Id. The Coul't notes that during the time of this I I
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motion hearing, both witnesses were present in the courthouse and available to testify I
25 26 immediately. Alternatively, defense counsel could have clarified Victim's statements during I
Decision and Order 27 Case No. CF0313-21, People v. Nicholas WayneMoore I Page 3 of 7 I I l cross-examination. However, Defendant declined to call either witness to the stand. When the 2 Court askedDefendant if he would be calling Victim to the stand during the motion hearing, 3 defense counsel stated "based on what Mr. Mendiola said, I'm not sure there's any reason to go 4
| any further. He was under oath, he described in detail what happened pursuant tcrquestioning
6 by Mr. Brown, I quoted just the two paragraphs, what more is there?" Digital Recording at
7 9:50:14-l0:09:23 (Mot. H'rg. Oct. 31., 2022). Defendant also contended that the People failed I
8 to deny Defendant's allegations in a swam declaration from Detective Goto. Digital I
9 . Recording at 10:09:23-10:25:30 (Mot. I-I'rg. Oct. 31, 2022). Yet, Defendant could have asked
10 Detective Goto to deny these allegations under oath if he had called Detective Goto to the 11 stand during the motion hearing. The Court believes that it would have been helpful to hear 12 testimony firm Victim and Detective Goto during the motion hearing. Instead, Defendant 13 insisted that the People make an offer ofproofunder oath that a police raid of Victim's 14 15 residence did not occur. Digital Recording at 10:25:30-I 1:23:05 (Mot. H'rg. Oct. 31, 2022). I 16 The People made an offer of proof-not under oath-that a police raid of Victim's residence
17 did hot occur. Id.
18 The Court reviewed the report generated by Office of the Attorney General Investigator
19 Henry James October 27, 2022, following his phone interview of Detective Goto and the
20 Victim's testimony on direct examination. Upon reviewing that material, the Court found that 21 Defendant has not made a showing that the People possess any material and information | 22 related to a police raid of Victim's house. The Court Ends no reason that Detective Goto's 23 I
24 1 Both the People and the Court were uncomfortable with Assistant Attorney General Sean Brown stating under 25 oath that information and material regarding a raid of Victim's residence did not occur in this case because Assistant Attorney General Sean Brown does not know with certainty what material and information Guam Police 26 Department Possesses. Furthermore, Guam Rules of Evidence 103(a)(2) does not require an offer of proof to be made under oath. 27 I Decision and Order Case No. CF0313-21, People v. Nicholas Wayne Moore Page 4 of 7
I I I 1 statement contained in the report generated by Investigator James is inaccurate; if Guam Police 2 Department ("GPD") maintains that it does possess material or information regarding a raid of 3 I Victim's house in this case, then it does not exist. It is unreasonable to request material and 4
information that does not exist. I
Victim testified to the following on direct examination:
'F A few months later, maybe more than a few months later, there was this, like, I believe it was-it went all the way into mid~summer that CID came to my house. They came, 8 you know, guns blazing, full on-full on team, four cars. I'm not gonna lie, I was 9 intimidated. The--There were special investigators involved, and they woke me up, I you know. They woke me up. You know, my (indiscernible 3:32: 16) they, you know, 10 they told me "in the Kay" (sic), this is-You know, "We know what happened to you, and we're not playing around, and we know.that you lied to us the first time. We know 11 what happened, and right now this is a matter that's bigger than you, and we're going to need your full cooperation." From then they took me onto Tiyan, and then that's when I 12 I informed them of the actual incident and how it really happened, and how I was really shot. 13 The Court acknowledges that Victim's testimony suggests that his interaction with the 14
15 police does not comport to standard protocol for an interview. It would have been helpful for
16 the People to ask Victim during direct examination to clarify if anything besides an interview
17 occurred. Even so, nothing in Victim's statement suggests that GPD searched Victim's
18 residence, rather, his statement imp1ies.that GPD transported him to the precinct for an
19 interview. Whether the statement "guns blazing" meant that the officers had their guns drawn I
20 could have been clarified by questioning Victim during the motion hearing. 'why GPD sent 21 four police vehicles could' have been clarified by questioning Detective Goto during the 22 I
motion hearing. Defendant may call these witnesses when he presents his case to clarify these 23
24 questions. | Defendant also requested that the Court order the People disclose any information and 25 I
26 material it possesses of any police raids of Victim's residence, even if they occurred in other I
Decision and Order 27 Case No. CF0313-21, Peoloie v, Nicholas Wayne Moore I
Page 5 of 7 I I I
1 cases. Digital Recording at 11:18:06-11:23:05 lot. H'rg. act. 31, 2022). The CouN
declined to order the People to Mm over all discovery related to any raids on Victim's 3 4 residence in any case. Id. The Court finds information and material of police raids on
Victim's residence in other cases is not material to Defendant's preparation of his defense. 5 5 "Evidence is material only if there is a reasonable probability that, had the evidence been
7 disclosed to the defense, the result of the proceeding would Have been different." People of I 8 Guam v. Fisher, 2002 Guam 2 1113 (citing United States v. Presser, 844 F.2d 1275, 1281 (6th
9 Cir. 1988). "A 'reasonable probability' is probability sufficient to undermine confidence in the 10 outcome." Id. ~It is not evident to the Court that Defendant's inability to view information 11 about police raids of Victim's residence in other cases would change the result of this 12 proceeding. The People have disclosed information about Victiln's pre-trial case to Defendant, 13 which Defendant may-subject to admissibility constraints use to impeach Victim. I
14 I Information that other people who reside at Victim's residence have been subject to police 15 . IN raids is inelegant to this case.
17 The Court reminds the People that pursuant to 8 G.C.A. § 70.45, it has a continuing
18 duty to disclose any additional material or information it discovers. I
19 | 20
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27 Decision and Order I Case No. CF0313-21, People v. Nicholas Wayne Moore _ Page 6 of 7 I I I
1 I CONCLUSION AND ORDER 2
I I For the above reasons, the Court DENIES Defendant's Motion to Compel Discovery. 3 I 4 SO ORDERED, this 'I w 2022. I
5 day 6 "' . I 1 --. l- "\"\--_ '7 1. ~ : "\|-.. Mb _ m.
8 `er _/'
HONORABLE ALBERTO E. TOLENTINO 9 Judge, Superior Courtbf Guam 10
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