People v. Moore

Opinion

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I FI L E D SUPERIOR COURT I I QFGUAM I I 1 | 2022 rem' I AH l0= 28 I 2 CLERKUFCOURT I

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IN THE SUPERIOR COURTO F G U A D L ' U Q 4

5 THE PEOPLE OF GUAM, 6 I Case No. CF0313.21 7 vs.

8 DECISION AND ORDER NICHOLAS WAYNE MOORE, (MotionIn Liming for Determination That 9 the Government Has Made Judicial Defendant. Admissions and That These Admissions Be 10 Read to the Jury With Appropriate Instructions) 11

13 INTRODUCTION 14 This matter came before the Honorable Alberto E. Tolentino on Nicholas Wayne 15 Moore's ("Defendant") Motion In Liming for Determination That the Government Has Made 16 I Judicial Admissions and That These Admissions Be Read to the Jury With Appropriate I

17 Instructions ("Motion for Judicial Admissions"). Attorneys David J. Lujan, William L. 18 Gavras, and Michael F. Phillips represent DefendaNt. Assistant Attorney Generals Grant A. 19

20 Olan and Sean E. Brown represent the People of Guam ("People'). Having considered the I 21 arguments and applicable law, the Court hereby DENIES Defendant's Motion for Judicial

22 Admissions.

23 BACKGROUND

24 On June 13, 2022, the Grand Jury indicted Defendant on the following charges: (1) I 25 Two Counts al:IAggravated Assault (As a Second Degree Felony) with Two Counts of the 26

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Special Allegationz Deadly Weapon Us ed in the Commission of a Felony, (2) Terrorizing (As a 2 | Third Degree Felony) with the Special Allegation: Deadly Weapon Used in the Commission of I 3 4 a Felony, and (3) Possession of On Unregistered Firearm (As a Third Degree Felony). Am. I Superseding Indictment, June 13, 2022. Jury selection commenced on June 15, 2022, and a 5 I 6 petit jury was sworn in on August 11, 2022. Minute Entry, June 15, 2022, Minute Entry, Aug. I

7 I 11, 2022. Defendant filed the instant motion. Mot. for Judicial Admissions, Sept. 30, 2022.

8 The People filed aN opposition. People's Opp'n. to Def.'s Motion It: Limfne for Determination I

| That the Gov 't Has Made Judicial Admissions and That These Admissions Be Read to the Jury I 10 with Appropriate Instructions, Oct. 4, 2022 (hereinaiier "Opp'n. to Mot. for Judicial 11 i Admissions"). Defendant filed a reply to the People's opposition. Def.'s Reply to Gov't.'s 12 People's Opp'n. to Dei's Motion In Lfmfne for Determination That the Gov 't Has Made 13 || Judicial Admissions and That These Admissions Be Read to the Jury With Appropriate 14 I

Instructions, Oct. 6, 2022 (hereinafter "De£'s Reply to Opp'n. to Mot. for Judicial 15 16 Admissions"). I

17 Pursuant to the Local Rules of the Superior Court of Guam ("CVR") '7.1(e), "[o]ral I

18 argument may be denied in the discretion of the judge, except where oral argument is required

19 by statute or the Guam Rules of Civil Procedure." Upon review of the filings, the Court I

20 determines that oral argument is not necessary and denies oral argument on the motion. The I

I i 21 Court now issues the following decision and order. 22 DISCUSSION 23 Defendant argues that the People made "critical judicial admissions" in People's 24 Motion to Bar Further Cross-Examination of Eric Salome Pursuant to Guam Rules of Evidence 25 26 403 ("Motion to Bar Further Cross-Examination") and "requests that those admissions be I

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I Decision and Order 27 Case No. CF0313-21, People v, Nicholas WayneMoore I

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I l deemed judicial admissions and the jury be read those admissions together with a brief I 2 explanation of their effect." Mot. for Judicial Admissions at 1-2. The People assert that it 3 4 "simply highlighted testimony by Mr. Eric Salome, over the course of 13 to 15 hours during

defense counsel's exhaustive cross-examination, that undermines his credibility and bolsters 5 I I

6 their case theory to show that any probative value of his continued examination is substantially

7 outweighed by considerations of undue delay, waste of time, needless presentation of

8 cumulative evidence, and witness harassment." Opp'n. to Mot. for Judicial Admissions at 1.

9 The Supreme Court of Guam has defined a judicial admission as "a formal act done in

10 the course off judicial proceedings which waives or dispenses with the necessity of producing 11 evidence by the opponent and bars the party himself from disputing it." Sfnfao v. Sfnfao, 2005 12 Guam 24 1116 (quoting Gofdsmirh v. AU:'ed Bldg. Components, Inc., 833 S.W.2d 378, 380 (Ky. 13 1992)). "Whether a statement is a judicial admission depends on the circumstances of the 14 case." Sinfao v. Sfnlao, 2005 Guam 241] 16 (quoting Krone v. Yost, 818 P.2d 360, 362 (Mont. 15

1991)). The Supreme Court of Guam has stated following factors determine whether a 16

17 statement constitutes a judicial admission: "(1) an attorney's statement must be deliberate,

18 I clear, and unambiguous, (2) the statements must be deliberate waivers of the right to present I

19 I evidence, and (3) counsel's statements deal with opinions and legal conclusions." Sinlao v. 1

20 Sinlao, 2005 Guam 241] 17 (citingMacDonald v. Genera! Motors Corp., I 10 F.3d 337, 340 21 I (6th Cir. 1997)). I 22 The Court finds that the statements contained in the Motion to Bar Further Cross- 23 I

Examination regarding Eric Salome's cross-examination were not deliberate, clear, and 24 unambiguous. "If a doubt exists as to the statementof counsel, the court will withhold its 25 I directions, as where the evidence is conflicting, and leave the matter to the determination of the 26

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1 jury." Oscanyan v. Arms Co., 103 U.S. 261, 263 (1880). Defendant emphasizes that the 2 Motion to Bar Further Cross-Examination uses the word "established," and argues that its use 3 demonstrates that the People's statements were "unequivocal, clear, and deliberate" 4

admissions. Mot. for Judicial Admissions at 5-6. HOwever, the People prefaced their 5 I statement "defense counsel have established" with the phrase "[t]hroL1gh its cross-examination 6 7 of Eric Salome." The People's use of a qualifier makes it unclear to the Court that the People

8 believe defense counsel have actually established these facts, rather, the Court sees an alternate

9 interpretation where the People are simply stating Salone's testimony. Without an indication

10 ' that the People deliberately made statements regarding facts defense counsel have established, 11 the Court is reluctant to find these statements are deliberate, clear, and unambiguous. See I 1

12 MacDonald', 110 F.3d at 340 (finding statements did not constitute judicial admissions when 13 . "such remarks were guarded and qualified"). 14 The Court finds that Me People were not making a deliberate waiver of the right to 15 16 present evidence refuting Salome's testimony, but rather illustrating Defendant had elicited all

1? possible testimony from Salome to bolster his claim. "Because of their binding consequences,

18 judicial admissions generally arise only from deliberate voluntary waivers that expressly I

19 concede for Purposes of trial the truth of an alleged fact." United Stares v. Belcuffine, 527' U.S.

20 941, 943 (let Cir. 1975). In its Motion to Bar Further Cross-Examination, the People cite

21 nDefendant's Motion o for M1striaI, 1 1 . which stated testimony that Defendant believed he would 22 I elicit at trial. Mot. to Bar Cross-Exarninatioriat 2-3, Sept. 20, 2022. The People then listed 23 I portions of Salone's testimony where defense counsel had educed the facts Defendant stated he 24 anticipated to obtain at trial in his Motion for Mistrial. Id. The Court interprets the People's 25 26 I statement to be recitation of Salome's testimony to support the Motion to Bar Further Cross- I 1

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Decision and Order Case No. CF0313-21, People v. JVichofas Wayne Moore I

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Examination and illustrate that Defendant elicited all possible testimony, not a statement that I

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I Salome's testimony should be evidence. 3 . Likewise, nothing in the Motion to Bar Further Cross-Examination suggests the 4 I I 5 n| People's intent to waive the right to present evidence disputing Salone's testimony. To the | .| 6 | contrary, the People have made statements contradicting the statements in the Motion to Bar I

7 I Further Cross-Examination throughout the trial. Courts have found that comments made by

8 counsel that are inconsistent and fundamentally at odds with counsel's previous pleadings, I

9 evidence, and closing argument are not binding admissions. See MacDonald, 110 F.3d at 340,

10 'see also Harrison Construction Co. v, Onto Turnpike Commission, 316 F.2d 174 (6th Cir.

11 1963). Assistant Attorney General Olen argued in his op erving statement that both Defendant 12 and Salome shot guns during the incident, which contradicts the statement in Motion to Bar 13 Further Cross-Examination that Salome shot the .38 caliber revolver. Mot. to Bar Cross- 14 Examination at 5-6, Minute Entry, Aug. 15, 2022. Assistant Attorney General Sean Brown 15

elicited testimony from Detective Eric Mondia that some witnesses claim or previously 16 I

17 claimed Defendant was the shooter and despite some witnesses being untruthful, police I

18 investigation suggests Defendant fired the gun that discharged the .38 caliber bullet. Minute I

19 Entry, Oct. ll, 2022.

20 The Court finds that the statements contained in the People's Motion to Bar Further 21 Cross-Examination were opinions and legal conclusions. "A judicial admission is usually I

22 treated as absolutely binding, but such admissions go to matters of fact which, otherwise, 23 would require evidentiary proof" New Amsterdam Cos. Co. v. Waller, 323 F.2d 20, 21 (4th 24 Cir. 1963). "They serve a highly useful purpose in dispensing with proof of matters and of 25 facts about which there is no real dispute." Id. The statements in the Motion to Bar Further 26

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I I l I i Cross-Examination are not statements about which there is no real dispute. The parties 2 I

disagree on whether Salome or Defendant shot the .38 caliber revolver and whether one or two 3 4 guns were fired during the incident. Witnesses have given conflicting testimony on who was I

present during the incident, how many guns were tired during the incident, and the time and

6 location of the incident. Some witnesses have given multiple, conflicting statements to the

T' police regarding these facts. As a result, the Court finds these statements are disputed. I 8 I Determinations about what occurred on the October 15, 2020 should be made exclusively by . 9 I the jury without direction from the Court. | 10 Moreover, the circumstances of this case are such that these statements constitute the 11 parties' theories of the case. In Motion to Bar Further Cross-Examination, the People cited 12 Defendant's theories of the case as stated in his Motion for Mistrial and then compared these 13 . I theories to Salone's testimony during cross-examination. It appears to the Court that by 14 15 making this comparison, the People were emphasizing that defense counsel obtained all

IN necessary testimony from Salone. Defendant claims Salome shot the .38 caliber revolver and

17 only one gun was fired that night, while the People claim Defendant shot the .38 caliber I 18 I revolver, Salome shot the .45 caliber pistol, and traci guns were fired that night. Criminal

19 liability for Defendant's charged conduct depends on Defendant and Saline's actions during I

20 I the incident, including who fired .38 caliber revolver and if either person encouraged the other 21 person to do so. The Court concludes instructing the jury about statements that are essentially I

I 22 the legal theories of the case is improper. See New Amsterdam Cos. Co., 323 F.2d at 24 ("The 23 doctrine ofjudicial admissions has never been applied to counsel's statements of his 24 ,conception of the legal theory of the case.") . 25

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1 I Finally, the Court finds that the People did not intend for the statements to be judicial 2 I

admissions. "The trial court must focus upon the statement itself; as well as the intent of the 3 I , I

| person making the statement." Sfnlao, 2005 Guam 24 'H 17 (quoting Krone, 818 P.2d at 362). I

The People allege that the statements were not intended to be judicial admissions. Opp'n. to 5 I

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Mot. for Judicial Admissions at 2. There is no indication in Motion to Bar Further Cross-

7 Examination that the People intended these statements to bar the People from disputing them.

8 Thus, the Court holds that, after considering the circumstances of the case, the statements I

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I Defendant requests read to the jury are not judicial admissions . I |

10 Defendant argues in the alternative that the statements are evidentiary, positing 11 "[e]videntiary admissions are explicitly recognized by Rule of Evidence § 801(d)(2)." Mot. far 12 I

I Judicial Admissions at 2-3. Guam Rules of Evidence ("GRE") 80l(d)(2) provides that 13 admissions made by party-opponents are not hearsay.1 Courls are divided on whether 14 statements made by a prosecutor during a criminal trial may constitute a party admission. See 15 I

16|| e.g., United States v. Katter, 840 F.2d 118, 130- 31 (let Cir. 1988) (finding that the federal I

17 government is a party-opponent of the defendant in criminal cases), see also e.g., United States n

is v. Powers, 467 F.2d 1089, 1095 (7th Cir. 1972) (finding the prosecution's agents in a criminal

19 case are not party opponents). Regardless, the Court interpreted the People's statements in | 20 I I I

1 GRE 801(d)(2) states: 21 . I A statementis not hearsay if... The statement is offered against a party and is (A) the party's own 22 I statement, in eidier an individual or a representative capacity or (B) a statement of which the party has manifested art adoption or belief in its truth, or (C) a statement by a person authorized by the party to 23 make astatementconcerning the subject, or (D) a statement by the patty's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) 24 a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's 25 authority under subdivision (C), the agency or employment relationship and scope thereof under I subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the is offered under subdivision (E). 26 I

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1 Motion to Bar Further Cross-Examination to be a summary of Salone's testimony-not

statements that the People necessarily believe to be an accurate account of events of October 3 15, 2020. The Court finds it unnecessary to read to the jury-as Defendant requests--a 4 summary of Salome's cross-examination when the jury was present for Ir. Furthermore, the 5

6 Court maintains that because the statements made in Motion to Bar Further Cross-Examination

7 are directly tied to the parties' theories of the case, it would be improper to instinct the jury that I

8 the People have admitted these facts as true. The Court has already instructed the jury that

9 arguments made by the parties are not evidence, and the Court will repeat this instruction at the 10 I close of the presentation of evidence. Therefore, to instruct the jury that the People's 11 statements are evidentiary admissions is antithetical. 12 CONCLUSION AND ORDER 13 For the above reasons, the Court DENIES Deflendant's Motion for Judicial 14 Admissions. 15

16 SO ORDERED, this o F" day of Llou finer 4; 2022. I'7 \s_ 18 1IIlll""ll\Illlp

20 HONORABLE ALBERTO E. TOLENTINO 21 Judge, Superior Court of Guam 22

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