:Law sup€Fz@oR CSQLJRT OF QLMO
1 2@22 OCT In 5éFH8=22
2 CLE FBOi QT 3 IN THE SUPERIOR COURT OF GUAM 4
5 THE PEOPLE OF GUAM, 6 Case No. CF0313-21 7 vs. DECISION AND ORDER 8 (People's Motion to Bar Further Cross- NICHOLAS WAYNE MOORE Examination of Eric Salone Pursuant to 9 Guam Rules of Evidence 403) Defendant. 10
12 INTRODUCTION
13 This matter came before the Honorable Alberto E. Tolentino on October 4, 2022, for a
14 Motion Hearing on the People of Guam's ("People") Motion to Bar Further Cross-Examination
15 of Eric Salone Pursuant to Guam Rules of Evidence 403 ("Motion to Bar Further Cross- 16 Examination"). Attorney David J. Lucan, Attorney William L. Gavras, and Attorney Michael F. 17 Phillies appeared for Nicholas Wayne Moore ("Defendant"). Assistant Attorney General Grant 18 A. Olan appeared for the People of Guam ("People'). In accordance with its ruling from the 19 bench on October 4, 2022, the Court now issues the following order GRANTING the People's 20 Motion to Bar Further Cross-Examination. 21
22 BAC K G R O UN D
GO On June 13, 2022, the Grand Jury indicted Defendant on the following charges: (1)
:QS Two Counts of Aggravated Assault (As a Second Degree Felony) with Two Counts of the
925 Special Allegation: Deadly Weapon Used in the Commission of a Felony, (2) Terrorizing (As a ZN Decision and Order |""'27 Case No. CF03l3-2l, People v. Mcholas Wayne Moore Page 1 of 7 I
1 Third Degree Felony) with the Special Allegation: Deadly Weapon Used in the Commission of 2 a Felony, and (3) Possession of an Unregistered Firearm (As a Third Degree Felony). Am. 3 4 Superseding Indictment, June 13, 2022. Jury selection commenced on June 15, 2022, and a
5 petite jury was sworn in on August 11, 2022. Minute Entry, June 15, 2022, Minute Entry,
,6 Aug.11,2022.
7 The People called Eric Salone-a co-defendant in this matter-as a witness on August
8 22, 2022, and defense counsel's cross-examination began on August 23, 2022. Minute Entry,
9 Aug. 22, 2022, Minute Entry, Aug. 23, 2022. On September 20, 2022 the People filed the
10 instant motion. Mot. to Bar Further Cross-Examination, Sept. 20, 2022. Defendant tiled an
opposition. Opp'n. to People's Mot. to Bar Further Cross-Examination of Eric Salome Pursuant 12 to Guam Rules of Evidence 403, Sept. 28, 2022 (hereinafter "Opp'n. to People's Mot. to Bar 13 Further Cross Examination"). The People filed a reply. People's Reply to Opp'n. to People's 14 15 Mot. to Bar Further Cross-Examination of Eric Salome Pursuant to Guam Rules of Evidence
16 403, Sept. 29, 2022 (hereinafter "People's Reply to Opp'n. to People's Mot. to Bar Further
17 Cross Examination") . The Court held a Motion Hearing. Minute Entry, Oct. 4, 2022. Upon
18 considering the parties arguments and the applicable law, the Court granted the People's Motion
19 to Bar Further Cross-Examination. Id.
20 DISCUSSION
21 The People argue that "this Court should exercise its wide latitude to bar further cross- 22 . examination of Mr. Salone, pursuant to caselaw and Rule 403, because any probative value of Q 3 :o his continued examination is outweighed by considerations of undue delay, waste of time, -24 m "'-*25 needless presentation of cumulative evidence, and witness harassment." Mot. to Bar Further
Cross-Examination at 5. Defendant argues "cross-examination should end only when defense >26 27 Decision and Order Case No. CF0313-21, People v. Nicholas Wayne Moore Page 2 of 7 I
1 counsel has reached a point of, not diminishing returns (i.e. not where fewer good points are 2 still being made) but ono returns." Opp'n. to People's Mot. to Bar Further Cross 3 4 Examination at 3.
The Court first notes that 8 G.C.A § 90. 10 states "[i]t shall be the duty of the judge to 5
6 control all proceedings during the trial, and to limit the introduction of evidence and the
7 argument of counsel to relevant and material matters, with a view to the expeditious and
8 effective ascertainment of the truth regarding the matters involved." Therefore, in granting the
9 People's Motion to Bar Cross-Examination, the Court is using the authority vested to it by 8
10 G.C.A § 90.10 to limit the introduction of evidence that the Court finds is inadmissible upon 11 balancing the probative value of further cross-examination and considerations of undue delay, 12 waste of time, and needless presentation of cumulative evidence under Guam Rules of Evidence 13 ("GRE") 403. In barring further cross-examination, the Court is ensuring that trial proceeds in 14 an expeditious and efficient manner, rehashing questions that have already been asked does not 15
16 aid the jury in ascertaining the truth of this matter.
17 GRE 403 states "[a]lthough relevant, evidence may be excluded if its probative value is
18 substantially outweighed by the danger of unfair prejudice,'confusion of the issues, or
19 misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
20 of cumulative evidence." "Evidence is cumulative when it replicates other admitted evidence, 21 and the exclusion of relevant, but cumulative, evidence is within the discretion of the trial 22 court." United States v. Jamil, 707 F.2d 638, 643 (Znd Cir. 1983). O go 4 Defendant represents that defense counsel has cross-examined Salone for
_<-2 approximately fifteen hours. Opp'n. to People's Mot. to Bar Further Cross Examination at 3. 25 The Court agrees with Defendant's estimation of the length of cross-examination. The Court 3 |"- Decision and Order 27 Case No. CF0313-21, People v. Mcholas Wayne Moore Page 3 of 7 1 observes that fifteen hours is a long a period for cross-examination of one witness. Even so, 2 the Court would be inclined to permit defense counsel to continue the cross-examination of 3 Salome if they could demonstrate that continued cross-examination will elicit new facts. 4
The purpose of cross-examination is to test the credibility and truthfulness of a witness. 5
6 See Davis v. Alaska, 415 U. s. 308, 316 ("Cross-examination is the principal means by which " ~ 7 the believability of a witness and the truth of his testimony are tested. "Subject always to
8 the broad discretion of a trial judge to preclude unduly harassing interrogation, the cross
9 examiner is not only permitted to delve into the witness' story to test the perceptions and
10 memory, but the cross examiner has traditionally been allowed to impeach, i.e., discredit, the 11 witness. Id. 12 Defense counsel assert they have more video clips to play of Salone's interview with 13 Naval Criminal Investigative Service ("NCIS") Agent Craig Pen'y. Digital Recording at 14 3:33:37-4:43:09 (Jury Trial, Oct. 4, 2022). The Court notes that defense counsel has already 15
16 played several clips from Salone's interview with Agent Pen'y and Salome has repeatedly
17 admitted during cross-examination that he lied to Agent Pen'y during the interview. Digital
18 Recording at 9:22:29-11113:23 (Jury Trial, Sept. 6, 2022). Accordingly, the Court finds that
19 defense counsel has delved into Salone's story to test his memory and impeach him.
20 Introducing additional video clips constitutes cumulative evidence because defense counsel has 21 already shown several video clips to attack Salone's credibility.
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:Law sup€Fz@oR CSQLJRT OF QLMO
1 2@22 OCT In 5éFH8=22
2 CLE FBOi QT 3 IN THE SUPERIOR COURT OF GUAM 4
5 THE PEOPLE OF GUAM, 6 Case No. CF0313-21 7 vs. DECISION AND ORDER 8 (People's Motion to Bar Further Cross- NICHOLAS WAYNE MOORE Examination of Eric Salone Pursuant to 9 Guam Rules of Evidence 403) Defendant. 10
12 INTRODUCTION
13 This matter came before the Honorable Alberto E. Tolentino on October 4, 2022, for a
14 Motion Hearing on the People of Guam's ("People") Motion to Bar Further Cross-Examination
15 of Eric Salone Pursuant to Guam Rules of Evidence 403 ("Motion to Bar Further Cross- 16 Examination"). Attorney David J. Lucan, Attorney William L. Gavras, and Attorney Michael F. 17 Phillies appeared for Nicholas Wayne Moore ("Defendant"). Assistant Attorney General Grant 18 A. Olan appeared for the People of Guam ("People'). In accordance with its ruling from the 19 bench on October 4, 2022, the Court now issues the following order GRANTING the People's 20 Motion to Bar Further Cross-Examination. 21
22 BAC K G R O UN D
GO On June 13, 2022, the Grand Jury indicted Defendant on the following charges: (1)
:QS Two Counts of Aggravated Assault (As a Second Degree Felony) with Two Counts of the
925 Special Allegation: Deadly Weapon Used in the Commission of a Felony, (2) Terrorizing (As a ZN Decision and Order |""'27 Case No. CF03l3-2l, People v. Mcholas Wayne Moore Page 1 of 7 I
1 Third Degree Felony) with the Special Allegation: Deadly Weapon Used in the Commission of 2 a Felony, and (3) Possession of an Unregistered Firearm (As a Third Degree Felony). Am. 3 4 Superseding Indictment, June 13, 2022. Jury selection commenced on June 15, 2022, and a
5 petite jury was sworn in on August 11, 2022. Minute Entry, June 15, 2022, Minute Entry,
,6 Aug.11,2022.
7 The People called Eric Salone-a co-defendant in this matter-as a witness on August
8 22, 2022, and defense counsel's cross-examination began on August 23, 2022. Minute Entry,
9 Aug. 22, 2022, Minute Entry, Aug. 23, 2022. On September 20, 2022 the People filed the
10 instant motion. Mot. to Bar Further Cross-Examination, Sept. 20, 2022. Defendant tiled an
opposition. Opp'n. to People's Mot. to Bar Further Cross-Examination of Eric Salome Pursuant 12 to Guam Rules of Evidence 403, Sept. 28, 2022 (hereinafter "Opp'n. to People's Mot. to Bar 13 Further Cross Examination"). The People filed a reply. People's Reply to Opp'n. to People's 14 15 Mot. to Bar Further Cross-Examination of Eric Salome Pursuant to Guam Rules of Evidence
16 403, Sept. 29, 2022 (hereinafter "People's Reply to Opp'n. to People's Mot. to Bar Further
17 Cross Examination") . The Court held a Motion Hearing. Minute Entry, Oct. 4, 2022. Upon
18 considering the parties arguments and the applicable law, the Court granted the People's Motion
19 to Bar Further Cross-Examination. Id.
20 DISCUSSION
21 The People argue that "this Court should exercise its wide latitude to bar further cross- 22 . examination of Mr. Salone, pursuant to caselaw and Rule 403, because any probative value of Q 3 :o his continued examination is outweighed by considerations of undue delay, waste of time, -24 m "'-*25 needless presentation of cumulative evidence, and witness harassment." Mot. to Bar Further
Cross-Examination at 5. Defendant argues "cross-examination should end only when defense >26 27 Decision and Order Case No. CF0313-21, People v. Nicholas Wayne Moore Page 2 of 7 I
1 counsel has reached a point of, not diminishing returns (i.e. not where fewer good points are 2 still being made) but ono returns." Opp'n. to People's Mot. to Bar Further Cross 3 4 Examination at 3.
The Court first notes that 8 G.C.A § 90. 10 states "[i]t shall be the duty of the judge to 5
6 control all proceedings during the trial, and to limit the introduction of evidence and the
7 argument of counsel to relevant and material matters, with a view to the expeditious and
8 effective ascertainment of the truth regarding the matters involved." Therefore, in granting the
9 People's Motion to Bar Cross-Examination, the Court is using the authority vested to it by 8
10 G.C.A § 90.10 to limit the introduction of evidence that the Court finds is inadmissible upon 11 balancing the probative value of further cross-examination and considerations of undue delay, 12 waste of time, and needless presentation of cumulative evidence under Guam Rules of Evidence 13 ("GRE") 403. In barring further cross-examination, the Court is ensuring that trial proceeds in 14 an expeditious and efficient manner, rehashing questions that have already been asked does not 15
16 aid the jury in ascertaining the truth of this matter.
17 GRE 403 states "[a]lthough relevant, evidence may be excluded if its probative value is
18 substantially outweighed by the danger of unfair prejudice,'confusion of the issues, or
19 misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
20 of cumulative evidence." "Evidence is cumulative when it replicates other admitted evidence, 21 and the exclusion of relevant, but cumulative, evidence is within the discretion of the trial 22 court." United States v. Jamil, 707 F.2d 638, 643 (Znd Cir. 1983). O go 4 Defendant represents that defense counsel has cross-examined Salone for
_<-2 approximately fifteen hours. Opp'n. to People's Mot. to Bar Further Cross Examination at 3. 25 The Court agrees with Defendant's estimation of the length of cross-examination. The Court 3 |"- Decision and Order 27 Case No. CF0313-21, People v. Mcholas Wayne Moore Page 3 of 7 1 observes that fifteen hours is a long a period for cross-examination of one witness. Even so, 2 the Court would be inclined to permit defense counsel to continue the cross-examination of 3 Salome if they could demonstrate that continued cross-examination will elicit new facts. 4
The purpose of cross-examination is to test the credibility and truthfulness of a witness. 5
6 See Davis v. Alaska, 415 U. s. 308, 316 ("Cross-examination is the principal means by which " ~ 7 the believability of a witness and the truth of his testimony are tested. "Subject always to
8 the broad discretion of a trial judge to preclude unduly harassing interrogation, the cross
9 examiner is not only permitted to delve into the witness' story to test the perceptions and
10 memory, but the cross examiner has traditionally been allowed to impeach, i.e., discredit, the 11 witness. Id. 12 Defense counsel assert they have more video clips to play of Salone's interview with 13 Naval Criminal Investigative Service ("NCIS") Agent Craig Pen'y. Digital Recording at 14 3:33:37-4:43:09 (Jury Trial, Oct. 4, 2022). The Court notes that defense counsel has already 15
16 played several clips from Salone's interview with Agent Pen'y and Salome has repeatedly
17 admitted during cross-examination that he lied to Agent Pen'y during the interview. Digital
18 Recording at 9:22:29-11113:23 (Jury Trial, Sept. 6, 2022). Accordingly, the Court finds that
19 defense counsel has delved into Salone's story to test his memory and impeach him.
20 Introducing additional video clips constitutes cumulative evidence because defense counsel has 21 already shown several video clips to attack Salone's credibility. Defendant has no burden of 22 proof and, consequently, defense counsel's objective on cross-examination is to test the o z3 credibility and truth of the witness, not to prove Defendant's innocence. :u '74 Defense counsel contends that they plan to ask Salome about his plea agreement, stating G>'75
i- l""27 6 they believe they are entitled to ask what Salome is "escaping." Digital Recording at 3:33:37-
Decision and Order Case No. CF0313-21, People v. Nicholas Wayne Moore Page 4 of 7 1 4:43:09 (Jury Trial, Oct. 4, 2022). Defense counsel already questioned Salone extensively 2 about his plea agreement, including questioning Salons about the maximum punishment 3 Salome faces for the crimes if he violates the plea agreement, civil rights Salone is giving up by 4
taking the plea agreement, and Salone's obligations to the Office of the Attorney General under 5
6 the plea agreement. Digital Recording at 9:l7:l4~3:47:20 (Jury Trial, Aug. 23, 2022).
7 Defense counsel also presented a blown version of the plea agreement to the jury during his
8 opening statement. Digital Recording at 10:37:07-2:43:14 (Jury Trial, Aug. 15, 2022). Thus,
9 Defendant has already questioned Salone about the plea agreement, presented to the jury 10 Salone's possible bias resulting from the plea agreement, and asked Defendant what he is 11 "escaping." Any additional questioning on the plea agreement would replicate evidence 12 already in the record and has little probative value. Therefore, the Court holds that the 13 probative value of additional impeachment with these questions is substantially outweighed by 14 considerations of needless presentation of cumulative evidence 15
Defense counsel state they would like to ask Salome if the Office of the Attorney 16
17 General has revoked his plea agreement because Salome has admitted that he lied to Agent
18 Perry during the interview. Digital Recording at 3:33:37-4:43:09 (Jury Trial, Oct. 4, 2022).
19 The Court finds that whether the Office of the Attorney General believes Salome lied during his
20 testimony concerns the Assistant Attorney General Grant Olan's ethical obligations to the 21 Court, but is not relevant to the jury's determination of Salome's credibility. 22 Defense counsel asserts that the most effective cross-examination is when an attorney OF circles back and impeaches the witness on his inconsistencies. Id. The Court acknowledges 3
F32 that impeachment is an important part of cross-examination, and that the purpose of cross- 4 G).25 Z examination is to test the credibility of a witness. However, defense counsel has already J> 26
Decision and Order l " " 27 Case No. CF0313-21 , People v. Nicholas Wayne Moore Page 5 of 7 1 impeached Salone several times and presented to the jury Salome's potential lack of credibility. 2 Whether an impeachment is effective is the jury's decision. Defense counsel has asked Salons 3 4 multiple times if it is "in [Salone's] nature to lie," if Salone knows that Javier Mercardo will
testify that Salome bragged about shooting a .38 caliber pistol during the incident, and several 5
6 questions regarding Salone's drug use and the false statements Salons made to Agent Perry.
7 Digital Recording at 9:22:29-11:13:23 (Jury Trial, Sept. 6, 2022). Therefore, the Court Ends
8 that defense counsel has presented a multitude of evidence to make a determination about
9 Salone's credibility, and it is up to the jury to make that determination. Furthermore, when 10 . . . . . . . . balancing the probatlve value of clrcllng back to these questlons wlth the conslderatlons of
11 waste of time and needless presentation of cumulative evidence, the Court holds that the 12 considerations of waste of time and needless presentation of cumulative evidence outweighs 13 any probative value. As the jury has already heard the answers to these questions, there is little 14 . 15 probative value in presenting the questions again to the jury.
Mid-morning on August 25, 2022, Attorney Lujan stated "I believe I will be finished 16 77 17 with Mr. Salome tomorrow. Digital Recording at 10:26:35 (Jury Trial, Aug. 25, 2022).
18 Approximately an hour and a half later, the Court adjourned for lunch. Digital Recording at
19 11:55:21 (Jury Trial, Aug. 25, 2022). Upon returning Hom lunch that afternoon, Attorney
20 Gavras informed the Court that Attorney Luj an was ill and the Court decided to adjourn until 21 Attorney Lucan was well enough to resume cross-examination. Digital Recording at 1:34:08- 22 1:38:38 (Jury Trial, Aug. 25, 2022). The Court did not resume trial until September 6, 2022. 23 O Attorney Lujan spent the entire morning of September 6, 2022, cross-examining Salome. That 70?4 morning, Attorney Lujan stated "my goal is to finish with [Salome] today." Digital Recording at E.T>25 9:22:38 (Jury Trial, Sept. 6, 2022). However, due to an evidentiary dispute, no cross- '76
332, Decision and Order Case No. CF0313-21, People v. Nicholas Wayne Moore Page 6 of 7 l
1 examination occurred that afternoon. Trial resumed in the afternoon of September 15, 2022, 2 and Attorney Luj an spent the entire afternoon cross-examining Salone. At the end of the day, 3 4 Attorney Luj an stated that he needed "just one more minute." After asking an additional
5 question, he stated "I am done." The Court believed that Attorney Luj an meant he had
6 completed his cross-examination because of his previous representations to the Court regarding
7 the amount of time needed to finish his cross-examination. The Court finds that based on
8 Attorney Lujan's representations on August 25, 2022 and September 6, 2022, Attorney Lujan
9 had sufficient time to finish his cross-examination. The Court reminds defense counsel that 10 . . . . both the Court and the Government have a duty to expedlte dual. Contlnuously extending cross- 11 examination constitutes an undue delay under GRE 403 . 12 CONCLUSION AND ORDER 13 For the above reasons, the Court GRANTS the People's Motion to Bar Further Cross- 14 Examination. l5
18 SO ORDERED, this VO day of Qaémef 2022.
19 < < 2 .n"I 1
22 HONORABLE ALBERTO E. TOLENT1NO 23 Judge, Superior Court of Guam QS :u ""'25
9326 Z n>2v Decision and Order Case No. CF0313-21, People v. Nicholas Wayne Moore Page 7 of 7