N" $3
QLQRIQ ? €:%%&T
1 J
2 2{§21,35l1~ 16
3 soQ§§z§§?i saw? 4 *A
4
r
go: aw
5 IN THE. SUPERIOR
SUPERIOR COURT
COURT OF
OF GUAM
GUAM
6
7 PEOPLE OF GUAM, GUAM,
8 8 CRIMINAL CRIMINALCASE
CASEno.
NO.CF0313-21
CF0313-21
9 vs.
DECISION DECISION AND
AND ORDER
10 10
11 NICHOLAS WAYNE WAYNE MOORE,
MOORE,
12 12 Defendant. 13 13
14 INTRODUCTION INTRODUCTION
This This matter
mattercame
came before
before the Honorable
Honorable Vernon
VernonP.
P. Perez
Perez on September
September 4,
4, 2024,
2024, for
for hearing
15
on Defendant Nicholas Wayne Defendant Nicholas Wayne Moore's Moore's ("Defendant")
("Defendant") Amended
Amended Motion
Motion to
to Dismiss
Dismiss Amended
Amended
16 16 Superseding Indictment. Present Superseding Indictment. Assistant Attorney General Present were Assistant Sean E.
General Sean E. Brown
Brown on
on behalf
behalf of
of
17 17 the People of Guam People of Guam ("the ("the Government") and Defendant Defendant with
with counsels,
counsels, David
David J.J.Lujan,
Lujan, Michael
Michael
18
F. F. Phillips, Phillips,and and William
WilliamL.L.Gavras.
Gavras.Having
Havingreviewed
reviewedthe
thepleadings,
pleadings,the
thearguments
argumentspresented,
presented, and
and
19 19
the record, the Court now issues issues the
thefollowing
following Decision
Decision and
and Order.
20 20
21 BACKGROUND
21 Defendant Defendant is charged
charged with (1)
(1) two
two counts
counts of
ofAggravated
Aggravated Assault
Assault (As
(Asaa Second
Second Degree
Degree
22 22
Felony) Felony) with withattached
attached Special Allegation: Deadly Special Allegation: Deadly Weapon Weapon Used in the
the Commission of
of a Felony;
a Felony;
23 23 (2) one count count of
of Terrorizing
Terrorizing (As
(As aa Third
Third Degree with attached Degree Felony) with SpecialAllegation:
attached Special Allegation: Deadly Deadly
24 24 Weapon Used Used in
in the Commission
Commission of
ofaa Felony,
Felony; and
and (3)
(3) one
one count
count of
ofPossession of an Unregistered Possession ofan Unregistered 25 25 Firearm Firearm (As aa Third Third Degree
Degree Felony).1
Felony). (Am.
(Am. Superseding Indictment, Jun.
Superseding Indictment, Jun. 13, 13, 2022).
2022). Jury
Jury
26 26
27 27 11 On March March 24,
24, 2022,
2022, the
the Grand
Grand Jury
Jury returned
returned aa Superseding Indictment adding Superseding Indictment adding aa co-defendant co-defendant to
to the matter, Eric
the matter, Eric
28 28 Benjamin Salone. Benjamin Salone. The Thedefendants
defendants were
were subsequently severed for subsequently severed for trial. See Order, trial. See Order, May
May 20,
20, 2022
2022 (granting
(granting an
an oral
oral
People People v.
v. Moore
Moore
Case Case No. CF0313-2 l 3-2 lI
Decision and Order Order
Pa g 1 :Page 1 of12 1 Selection Selection and Trial commenced commenced on the Amended
Amended Superseding
Superseding Indictment
Indictment on
on June
June 15,
15, 2022 before
2 Judge Alberto E. Tolentino Tolentino and continued throughout throughout the
the fall
fall of
of 2022.
2022. On November
November 9,
9, 2022,
3 the court adjourned turned trial
trial Until
until January 10, 2023,
2023, to
to allow
allow trial jurors
jurors an opportunity
Cpportunity to
to travel
travel during
during
4 the holidays. Trial Trial did
did not
not resume
resume on
on January
January 10,
10, 2023, however, and
and aa mistrial was granted on 5 January 23, 2023.22
6 On May 15, Jury Selection and 15, 2023, Jury and Trial Trial commenced
commenced for the
the second time before Judge
7 Tolentino. No Nojury
jurywas
wasultimately
ultimatelyempaneled
empaneledand
andsworn
swornfrom
from this selection. 3
this selection.3
8 On October 16, 2023, Jury Jury Selection
Selection and
and Trial
Trial commenced
commenced for the third time time before Judge
9 Tolentino. AA jury jury of
oftwelve
twelve and
and four
four alternates
alternates was empaneled the following day, however, the 10 10 matter did not immediately proceed to opening statements and witness testimony.
testimony. This
This jury was
11 11 later discharged by this Courts4 on April 9, 2024 after it granted Defendant's October October 17,
17, 2023
12 12 Motion for Mistrial.
Mistrial. See
See Order
Order re:
re: Deft's
Deft's Oct.
Oct. 17,
17, 2023
2023 Mot. for Mistrial, Apr. 9, Mistrial, Apr. 9, 2024.
2024. Jury
Jury
13 13 Selection Selection and and Trial was set to commence commence for
for a fourth time on April 30, 2024, but but was
was subsequently
subsequently
14 14 vacated due to Defendant's Defendant's waiver
waiver of
of speedy
speedy trial
trial and a Motion
Motion to
to Dismiss
Dismiss Indictment filed April
15 15 2024. See 22, 2024. Order Granting See Order Granting Deft's Deft's Ex
ExParte
Parte Mot.
Mot. to
to Continue
Continue Trial
Trial filed
filed Apr.
Apr. 22,
22, 2024, Apr.
16 16 25, 2024.
2024. Jury Jury Selection
Selection and
and Trial
Trial was then set for September 4, 4, 2024.
2024. See Am. Criminal
Criminal Trial
17 17 Scheduling Order, Order, May 1,
1, 2024.
18 18 On August 22, 2024, Defendant filed the instant motion. Defendant moves the Court to
19 19 Amended Superseding dismiss the Amended Superseding Indictment Indictment based on Judge Tolentino's Tolentino's actions
actions with
with regard to
20
21 stipulation for stipulation for severance severance of
of defendants).
defendants). The
The Superseding
Superseding Indictment
Indictment was
was later
later amended to remove
amended to remove Salone's Salons's name
name
22 and charges for for Defendant's See Am.
first trial. See
Defendant's first Am. Superseding Superseding Indictment,
Indictment, Jun.
Jun. 13,
13, 2022.
2 23 Judge Tolentino was unable to resume trial on January 10, developed throughout 10, 2023, due to medical issues that developed throughout break. Judge
the holiday break. Judge Arthur Arthur R.
R. Barcinas
Barcinas subsequently
subsequently presided
presided over the matter in a case management role to 24 address housekeeping issues and ultimately ultimately granted
granted Defendant's
Defendant's January 9, 2023 Motion for a Mistrial.
Mistrial. See Dec. &
Order, Jan. 23, 2023.
2023.
25 33 This Court previously previously noted
noted that
that it was not entirely
entirely clear
clear from
from the record how
the record how the May 15, the May 15, 2023
2023 jury
jury venire
venire and
and aa
26 May 19, May 19, 2023 2023 Motion
Motion for
for Mistrial
Mistrial Resulting from Violations Resulting from Violations Banning Banning Media
Media Coverage
Coverage and
and Public
Public Access,
Access, and
and
Failure to Maintain an Open Open Court
Court and
and Public
Public Trial
Trial were
were subsequently
subsequently addressed.
addressed. See
See Dec.
Dec. & Order
Order at
at 33 fn.
fn. 55 (Apr.
(Apr.
27 17, 2024). 17,
28 44 This This matter matter was
was assigned
assigned to
to this
this Court
Court on January 18,
18, 2024. See Notice of
of Judge Assignment, Jan. 18, 2024.
People v. Moore v. Moore
Case No. CF0313-21 Decision Decision and and Order
Page 2 of12
of12
1 the second second jury
jury selection venire
venire from May 2023.5
2023. See generally, Am. Mot.
Mot. Dismiss,
Dismiss, Aug. 22,
22,
2 2024.
2024. Defendant Defendant argues
argues that
that Judge Tolentino's unilateral Judge Tolentino's unilateral decision decision to
to discharge
discharge the
the remaining
remaining
3 Was"without veniremen was "without any any legal
legal or factual basis" and factual basis" andthat he lacked "the authority authority or power to
4 unilaterally discharge discharge the jury without without the
the express
express consent
consent Or agreement of
or agreement of both the
the People and
and
5 Idatat4-5.
the Defense." Id 4-5.Defendant Defendantfurther
further moves
moves the
the Court to order the
the following
following individuals to
6 testify testify regarding regarding their
their knowledge
knowledge of
ofthe
the dismissal
dismissal and
and discharge of the jurors:
jurors: Assistant
Assistant Attorney
Attorney
7 General General J.
J. Basil O'Ma11an III, the Jury O'Mallan III; Jury Clerk;
Clerk, the
the Deputy
Deputy Jury Clerk involved in all three Jury Clerk three 8 selections, JudgeTolentino;
selections; Judge Tolentino, and andJudge
JudgeTolentino's
Tolentino'sChamber
ChamberClerk.
Clerk.Id
Id at
at 5.
9 On August 27, 2024, 2024, the
theGovernment
Governmentfiled
filed its Opposition.
10 10 4, 2024, On September 4, theCourt 2024,the Courtheard
heardarguments
argumentsonon the
the Motion.At
Motion. Atthe
theMotion
Motion Hearing;
Hearing,
11 11 the Government acknowledged that that it misread the
the Motion
Motion to Dismiss,
Dismiss, as
as the written opposition 12 addressed addressed speedy trialand speedytrial andnot
notthe
theissue
issueof
ofthe dischargeof
thedischarge ofthe
thesecond
secondjury
jurytrial
trialvenire. 6 The
venire.6
13 13 Government, however, however, continued
continued to oppose
oppose the Motion,
Motion, arguing
arguing that
that Defendant waived
waived the issue.
issue.
14 14 The Court Court subsequently
subsequently placed
placed the matter under advisement.
15 15 DISCUSSION
16 16 At issue At before the
issue before the Court
Court is
is the
the second
second Jury
Jury Selection
Selection and
and Trial in
in this
this matter,
matter, which
17 17 commenced on May commenced on May 15, 15, 2023
2023 before Judge Tolentino. The Judge Tolentino. Thesecond second jury
juryselection
selection continued
continued
18 18 through May 18, 2023;
2023, however,
however, no jury was ever ever ultimately empaneled, empaneled, nor was the
thejury
jury venire
venire
19 19 formally discharged on on the
the record.
record. Relevant to this
this issue
issue is the
the following
following procedural history of procedural history of
20 20 the case:
case:
21 21 • • On
On May
May 5,
5, 2023,
2023, Defendant
Defendant re-asserted his right right to a speedy trial. ·
22
23
24 55 Attached to the Amended Attached to Motionare Amended Motion areseveral several exhibits,
exhibits; including
includingthe
thedocket
docketsheet,
sheet, minute
minute entries
entries and
and transcripts
transcripts
the jury selection
from the selection on on May
May15,
15, 16,
16, 17,
17, and
and 18,
18, 2023.
25 6 6 Regardless of whether or not the Government had responded to the arguments .set forth in the Motion to Dismiss, Regardless of whether or not the Government had responded to the arguments set forth in the Motion to Dismiss, 26 26 the Court still has a duty to evaluate the the the merits merits of
of the
the Motion.
Motion. See
See Quitugua
Quitugua v, Flores, 2004
v. Flores, 2004 Guam
Guam 19 1128("[W]e
19128 ("[W]e
emphasize that the the failure
failure to
to file
file aa written
writtenopposition
opposition to motion, the to aamotion, thefiling
filing ofa
of a notice
notice ofnon-opposition
of non-opposition to
to a
a motion,
motion,
27 -27 the disregard or the disregard of of untimely
untimely tiled
filed papers,
papers, does not require
does not require aa court court to
to automatically
automatically grant
grant the motion and
the motion and is
is not
not
dispositive of dispositive of the the motion
motion itself.
itself. The court
The court has
has aa duty
duty to analyze the
to analyze the merits of the merits of the motion
motion before
before rendering
rendering its
its
28 decision."). -
People People v. Moore v. Moore
Case No.
No. CF0313-21l
Decision Decision and and Order
Page33<>fl12 Page of12 1 • • Judge Elyse
Elyze M. lriarte
Iriarte briefly presided over this matter after after Defendant's
Defendant's re-assertion.
2 At a Pre-Trial Conference on May 8, 2023, both both parties
parties waived
waived any conflict of interest
3 and Defendant agreed to "hold"
"hold" speedy
speedy trial
trial until Friday,
Friday, May 12,
12, 2023..
2023. (Minute
(Minute
4 Entry, May 8, Entry, 8, 2023).
2023). The
The Government
Government subsequently
subsequently withdrew its waiver of of Judge
5 Iriarte's conflict of interest.
interest. See People's
People's Obj.
Obj. to
to Judge Elyse
Elyze M.
M. Iriarte's Presiding
6 Over Deft's Over Deft's Trial,
Trial, May
May 8,
8, 2023,
2023; Notice
Notice of
ofDisqualification,
Disqualification,May
May9,9, 2023
2023.
7 • • Jury Selection and Trial Trial was
was then
then set before
before Judge
Judge Tolentino
Tolentino for
for May
May 15,
15, 2023.
2023. See
8 Notice of of In-Person
In-Person Hearing,
Hearing, May
May9,9, 2023
2023..
9 • • On May
May 15,
15, 2023, Judge Tolentino Tolentino began
began the
the void
voir dire process with potential potential jurors.
10 Present were Assistant Attorney Attorney General
General O
O'Mallan on behalf of the the Government and
ll 11 Defendant with counsels Lujan, Phillips, Phillips, and
and Gavras.
Gavras. The jury venire was told told that
that
12 12 the trial would the trial would last to three two to
last two three weeks.
weeks. (Jury
(JurySelection
SelectionTr.
Tr.44»'
44, 7-9, May 15,
7--9, May 2023).
15, 2023).
l
13 13 • On May May 16,
16, 2023, an additional fifty jurors were brought brought in
in for
for void
voir dire by the court.
14 14 • On May 17, for the 17, 2023, both counsel for the Government Government and Defendant moved the court
15 15 for a mistrial based on an erroneous news article article published by Pacific Daily News.
16 16 (Jury Selection Selection Tr.
Tr. 11:
ll: 5-10,
5-10; 16-17,
16-17, May 17, 2023
2023 ("So
("So Number
Number 1,
l, Your Honor, we
17 17 would agree to a mistrial.
mistrial. Number
Number 22 is
is we
we would
would also
also agree
agree that
that we would
would not
not start
start
18 18 the second trial until until maybe
maybe around June let,
1st, and
and the reason
reason for
for that, Your Honor, and 19 19 our client would would be
be willing
willing to
to waive,
waive,gain,
gain,up
upuntil
untilthat
thatime.
time...
. . while
while we want
want to
20 20 move fast, fast, we don't
don't want
want toto negate
negate the
the ver y r eason
very reason for
forthe
themistr ial.")).
mistrial.")). Judge
21 Tolentino denied the motion and ordered jury jury selection
selection to
to continue.
continue. Id at
at 16:
16: 5-10.
5-10.
22 ("The Court will go forward this morning, okay, so it's preserved and on the record,
23 his request to try try to
to continue
continue this
this to
toJune
June 1st,
let, even
even with
with Mr.
Mr. Moore's
Moore's waiver of speedy
24 trial and accommodation, trial accommodation, the the Court
Court will
will deny that request,
request, okay,
okay, and
and we'
we'll
11 just go
< 25 forward with with the void
voir dire of our venire.")).
26 • • On May 18, the fourth 18, 2023, the fourth day
day of
of selection,
selection, counsel
counsel for
for the
the Government
Government conducted
27 void dire his voir dire of
of the
the jury
jury venire
venire and
and counsel
counsel for
for Defendant
Defendant began, but
but did
did not
not complete
complete
28 void dire.
his voir dire. At
At the
the conclusion
conclusion of
ofthe
the fourth
fourth day
day of
of selection,
selection, the
the prospective
prospective jurors
People v.
v. Moore
Case No. CF0313-21l Case No. Decision Decision and and Order
Page 4 of12
1 were told to return the the following day, May 19, 19, 2023, at 9:00
9:00 a.m.
a.m. (Jury Selection Tr.
2 103: 9-11, May 18, 2023).
3 • On May 19, 19, 2023, a Motion
Motion for
for Mistrial
Mistrial Resulting from
from ViOlations Banning Media Violations Banning
4 and Public Access, and Coverage and and Failure to Maintain an Open Open Court
Court and Public Trial
5 filed. 7 In was filed.7 In light
light of
of the
the filing
filing of
of the
the Motion,
Motion, the
the fifth
fifth day
day of
of jury selection
selection was
6 cancelled.88 No further further hearing was calendared until after the the filing
filing of
of Defendant's
Defendant's Ex
7 Parte Motion for Release with with Conditions
Conditionson
onJune
June2,2,2023
2023.
8 •• On May21, 21, 2023,
2023, the Judiciary of
of Guam was closed for business upon the declaration 9 of COR 2 by of by I/ Maga'hagan Maga 'hagan Guahan
Guahan in light
light of
of Typhoon
Typhoon Mawar
Mawar approaching
approaching the
10 10 Mariana Islands Islands and
and was only opened
opened for
for limited
limited court-related
court-related services and urgent 111 1 proceedings on May May 30,
30, 2023.
2023. See ADM23-003,
ADM23-003, May
May 21,
21, 2023,
2023; ADM23~004,
ADM23-004, May
12 12 29, 2023.
2023. The
The Supreme
Supreme Court
Court of
of Guam
Guam subsequently
subsequently directed
directed certain
certain urgent
urgent matters
13 13 to continue to be scheduled and heard and for all other matters, matters, including
including criminal and
14 14 civil trials, trials, to
to be
be rescheduled
rescheduled until
until June
June 9,
9, 2023.
2023. See ADM23-005, May 30, 30, 2023,
2023;
15 15 ADM23-006, Jun. 2, 2023.
16 16 •• On June 5, 2023, parties parties returned
returned to
to court
court for
for hearing
hearing on
on Defendant's
Defendant's Ex Parte Motion Motion
17 17 for Release Release with
with Conditions.
Conditions. At
At the
the hearing,
hearing, Attorney
Attorney Phillips
Phillips mentioned pending 18 18 before the issues before the court,
court, including
including the
the Motion for Mistrial.
Mistrial. See Digital Recording at
19 19 ll:04:08, 11 :04:08, Jun.
Jun. 5,
5, 2023.
2023. Counsel
Counselfor
for Defendant
Defendantultimately
ultimately asked
asked for
for this
this matter
matter to be
20 20 placed placed on hold in
in light
light of
of the
the pending
pending issues
issues and
and Defendant's
Defendant's upcoming
upcoming trial
trial in
9 Id at 11:06:21
CF0314-21. .9
21 Id ("My request request Your
Your Honor
Honor is
is very simple.
simple. And
And that
that is,
is, as
22
7 23 Defendant moved moved for
for aa mistrial
mistrial based on
on structural
structural error because the 'the court did
did not
not allow
allow media
media in the
the courtroom
during jury selection selection and
and failed to articulate any specific findings for not maintaining for not maintaining aa public trial pursuant to Waller 24 v. Georgia, Georgia, 467 U.S. 39 (1983) and Press-Enter.
Press-Enter. Co.
Co. v.
v. Superior Court,
v. Court, 464 U.S. 501 (1984). See generally, Mot. Mistrial, May 19, 19, 2023
2023..
25 8 The May
May 19,
19, 2023
2023 selection
selection was
was vacated
vacated in the
the court's case management system case management systemwith with aanote
note"by
"byCourt
Court (Motion
(Motion
26 26 filed)." ItItdoes doesnot
notappear
appear that
that any
any written
written order
order was issued by
was issued by the
the court
court or
or that
that the was called
the case was called on
on the record
the record
May 19, May 19, 2023 2023 to address
address the
the filing
filing of the Motion or
the Motion or how
how the
the court
court was planning on with jury on proceeding with jury selection.
selection.
27 27 9 In CF0314-21, Defendant faces faces charges
chargesof
of Aggravated
Aggravated Murder
Murder (As
(As a Degree Felony);
a First Degree Felony), Murder Murder (As
(As aa First
First
28 Felony); and
Degree Felony), and Aggravated Aggravated Assault
Assault (As
(As aa Second
Second Degree
Degree Felony).
Felony). (Indictment
(IndictmentininCF0314-21, CF0314-21,Jul.
Jul. 15, 2021).
15, 2021).
People People v. Moore v. Moore
Case No. CF0313-21 CF0313-21
Decision Decision and and Order
Page 5 of12
1 I said, the other matters are pending before the court court and rather than rushing that, we 2 willing to would be willing to waive waive speedy
speedy trial
trial because
because obviously
obviously this
this matter before Your
3 Hori.or is not going to be resolved tomorrow and the court I believe Honor believe needs the time, my
4 client really needs the time to work with us us on
on our
our murder
murder case.
case. So we ask
ask that
that this
5 case in essence be put on hold and the court can resolve the matters at its its convenience
convenience
6 so to speak, and my client at the same time be be released,
released, waive
waive speedy
speedy trial,
trial, and be
7 placed on the placed the conditions conditions similar
similar to
to before.").
before."). Defendant was Defendant released back was released back on
8 electronic monitoring and Judge Tolentino indicated the May 2023 jury venire was electronic
9 still available available for
for when
when trial re-started. Id trialre-started. Id at 11: 15: 17,Jun.
l l:l5:l7, Jun. 5,5, 2023 2023 ("I
("I spoke with the
10 10 Jury Commissioner. The panel that the venire that we were able to have is still going
11 11 available to,us to be available when we start to,us when up so start up so we
we won't have to
won't have to re-do
re-do another
another 80
80 or
or 60 to
12 12 call in, okay."). Judge Tolentino okay."). Judge Tolentino set set aa Status Hearingsixty sixty days
days out
out to find out where
13 everything was with both the instant everything instant matter and Defendant's more more serious
serious matter,
matter,
14 14 CF0314-21. IdIdatat11120158.
cF0314-21. 11:20:58.
15 15 • • Augl!st 8, 2023, Judge Tolentino inquired as to whether or not the Motion filed in On August
16 16 resolved. (Digital May had been resolved. (Digital Recording at 11 Recording at :08:33, Aug. 8, 2023).
ll:08:33, Attorney 2023). Attorney
17 17 Phillips indicated Phillips indicated that
thathe
hebelieved
believedthe
the matter
matterstill
stillneeded
neededtotobe addressed. Id beaddressed. at
Id at
18 18 11:09:03. Attorney ll:09:03. AttorneyPhillips Phillipslater
laterstated
statedthat
that"Mr.
"Mr. Gavras
Gavras just
just pointed
pointed out
out to
to Me
me that
19 19 may have on the record we may have actually actually withdrawn
withdrawn that
that as
as part of the agreement that we 20 20 move on were going to move on to
to the
the other
other case
case and
and Your
Your Honor
Honor would
would preserve
preserve the jury."
21 Id a at t l l :11:10:54.
l 0 : 5 4 . J u Judge
d g e T oTolentino
l e n t i n o r eresponded spond t that
h a hhe
e wwould
o u l d " t"take
a k e c ocounsels
unsel
22 22 representations epr es ent a t ionsthat
t ha tI Idon't
don't know
know if
if itit wass a quid
quid pr
pro quo
quo excha
exchange tthat was
ha wa
23 23 recognition that Mr. Moore has an interest in resolving this and assisting counsel in
24 the investigation for for the
the other
other case."
case." Id atat11:1
11: 11:
l :11. Judge Tolentino
l l. Judge Tolentino further further noted
25 that the other trial trial in
in CF0314-21
CF0314-21 before
before a different
different court
court was
was going
going to
to be
be delayed and
26 26 invited the parties to consider whether t4e the jury venire needed to be excused due to the
27 27 charge also has
Each felony charge has an an attached
attached Special
Special Allegation:
Allegation: Deadly
Deadly Weapon Used in
.in Commission
Commission of
of a Felony.
28 is assigned
CF0314-21 is assigned to to Judge
Judge Maria
Maria T.
T. Cenzon.
People v.
v. Moore
Case No. CF0313-21 Decision Decision and and Order
Page Page 66of12
ofl2
1 delays, stating "so delays, stating "so you might want to think think about
about too
too the
the fact that we
we might
might need
need to
2 exonerate or what's the term...
what's the ... leave the jury pool that we've selected to go rather than we've selected
3 keep them hanging because I don't know how much longer they had as jury duty and 4 they've they've been,
been, II assume
assume plucked
plucked out from regular jury selection in other cases." Id at at
5 11:21 :25.
:25. A Status Hearing was set set for
for several
several months
months later
later on
onNovember
November14,
14,2023
2023.
6 • On October 3, 2023, 2023, Defendant
Defendant filed a Reassertion of Speedy Trial.
7 • On October 16, 2023, 2023, Jury
Jury Selection
Selection and
and Trial
Trial commenced
commenced for
for the
the third
third time.
time. At the
8 start start of selection,
selection, several issues were several issues were brought brought up before
before the court,
court, including
including aa
9 stipulation stipulation between
between Defendant
Defendant and
and the
the Government
Governmentto
to continue
continue trial
trial to
to aa later
later date due
10 10 unavailability of to the unavailability oflead counsel Luj an and Lujan and the
the prosecutor,
prosecutor, witness
witness availability,
availability, and
11 1 the pending Motion for Mistrial Mistrial from
from the
the second
second jury
jury trial.
trial. Judge
Judge Tolentino denied
12 12 the parties'
parties' joint request to continue request to continue trial.
trial. He
He also
also advised
advised the
the parties
parties that he had
13 13 discharged discharge~ the May 2023 venire, stating:
14 The other thing was with regard to the jury remember we were holding off off until after the murder trial was going to be done. done. The jury commissioner commissioner
15 15 asked the court are
are we
we still
still going to keep
keep them
them because
because they're
they're kind of like
16 16 in limbo. And I said said no,
no, we'll
we'll go ahead and discharge discharge them.
them. We'll
We'll start anew
17 17 with the jury pool that we have this morning or now. It was just not fair because they were because they were lingering around for, lingering around for, when when diddid we do this,
this, uh,
uh, four
four
18 18 months, five months, right, and I thought, and then when I found found out that 19 19 you guys continued the murder trial till till next next year,
year, II can't
can't see myself
myself holding
on to I can't
can't see
see myself
myself holding
holding onon to
to those
those poor
poor people. So we're starting starting
20 20 anew with jury selection.
21 (Digital (Digital Recording
Recording at
at 9:
9:17:50, Oct. 16, 2023).
22 22 • • On October 17, 2023,
2023, a jury
jury of twelve and four alternates was empaneled and sworn 23 23 (Digital (Digital Recording
Recordingatat 55 :06:56, Oct. 17, 2023);
2023), however,
however, the matter
Matter did
did not
not immediately
immediately
24 24 proceed to opening statements statements and
and witness
witness testimony.
testimony. The
The jurors were told that they 25 10 Id at would be contacted
contacted by
by the
thejury
jurycommissioner
commissionerwhen
whentrial
trialwas
wasready
readytotobegin.
begin." Id
26 26
27 27 10 10 These sixteen jurors jurors remained on call for for jury
jury duty
duty until
until this
this Court
Court granted
grantedDefendant's
Defendant's October 17, 2023 2023 Motion
Motion
28 for Mistrial on April 9, 9, 2024.
2024. See Order re: Deft's Oct.
re: Deft's Oct. 17,
17, 2023
2023 Mot.
Mot. for
for Mistrial,
Mistrial, Apr. 9, 2024.
People People v. Moore v. Moore
Case No. CF0313-21 Decision Decision and and Order
Page 7 of12
1 at this time you would be receiving 5:07:30 ("Normally at receiving aa lot lot of
of instructions from
Hom the
2 court. However, like I spoke about before, okay, there's going going to
to be a little gap before 3 · we Ca cann get sta
started
ted ·`with
with the
the trial.
tr ia l. Alright,
Alr ight, and
a nd you
you will
will be Ca
called
lled by jury
by the jur
4 commissioner once we're commissioner we're ready ready to begin.")).
5 • • October 26, 2023, the parties returned for a Pre-Trial On October Pre-Trial Conference Conference to
to discuss
discuss when
when
6 statements and opening statements evidence would begin.
and evidence begin. Assistant Attorney Present were Assistant Attorney 7 Brown who General Sean Brown who had had just
just returned to the Office of of the Attorney General, and
8 Defendant with counsels Lujan, Lujan, Phillips,
Phillies, and
and Gavras. Defense counsel Gavras. Defense counsel brought up 9 issues with regard to the court having rushed through jury selection but then pausing
10 10 for evidence to begin, begin; the
the lack
lack of
of waiting
waiting for
for lead
lead counsel
counsel Lujan
Lujan to
to participate
participate in the
11 11 selection, selection; and Defendant's October October 17,
17,. 2023
2023 Motion
Motion for
for Mistrial.
Mistrial. Nothing was
12 12 mentioned about the mentioned about the dismissal dismissal of
ofthe
the second
second jury
jury venire
venire from
from May
May2023
2023.
13 13 • • On January 22, 2024, Defendant Defendant filed
tiled a Status Report on Outstanding Motions for this
14 Court's review, Court's review, as
as it was newly assigned to this matter. Included in matter. Included in the
the Status
Status Report
15 15 was the following:
following:
16 16 2. Defendant 2. nt expects
expects to file aa motion to tile motion for
for mistr
mistri_al based upon
ia ba upon Judge
Judge
. Tolentino's
Tolentino's failure
failure to
to bring
bring and
and continue
continue jury
jury selection
selection With
with the May 2023
17 17 panel for which multiple days of of void already occurred and for voir dire had already
18 18 which multiple jurors jurors had
had already
already been
been struck
struck for
for cause ... Defendant
cause... Defendant has
19 19 transcripts from
ordered the transcripts from the May 2023 void voir dire and is awaiting those transcripts transcripts in
in order
order to
to finish
finish his
his motion.''
motion."
20 Report atat 2,
(Status Report 2, Jan.
Jan. 22,
22, -2024).
2024).
21 21 • • On April
April 9,
9, 2024,
2024, after
after this
this Court
Court declared
declared aa mistrial
mistrial for the
the third
third jury
jury selection,
selection,
22 Attorney Gavras Attorney Gavras mentioned mentioned that
that "there
"there isis still
still this, what
what we refer
refer to as the second jury 23 has, we
that has, we don't believe was ever ever dismissed,
dismissed, and Maybe one, maybe maybe that one, maybe we could 24 24 discuss bringing that one one back." (Digital Recording back." (Digital Recording at at 4:l0:40,
4:10:40, Apr.
Apr. 9,
9, 2024).
25 25 The Court is presented with an unusual situation. This unusual situation. This matter matter has
has proceeded to
to Jury
Jury
26 26 Selection and Trial on three three different
different occasions
occasions before the previously previously assigned judge, Judge 27 27 Tolentino. AAmistrial mistrial was
was formally
formally declared
declared for
for the
the first
first and third selections.
selections. See
See Dec. & Order,
28
People v.
v. Moore
Case No. CF0313-21 Decision Decision and and Order
Page 8 of12
1 Jan. 23,2023;
Jan.23, Orderre:
2023,Order re:Deft's
Deft's Oct.
Oct. 17,
17,2023
2023Mot.
Mot. for
for Mistrial,
Mistrial, Apr. 9, 2024.
2024. Although
Although Judge
Judge
2 Tolentino announced his Tolentino announced his intent intentto
to continue
continuewith
withthe
theMay
May 2023
2023venire
venire(the
(the second
secondselection)
selection) after
3 was taken forgather time was for other matters mattersto
tobe
be addressed,
addressed,he
hein
ineffect
effect declared a mistrial by eXcusing excusing said
4 4 venire and and calling in
in a new panel of 100 jurors for the October 2023 100 or so jurors JurySelection 2023 Jury Selection (the third
5 selection).
selection). Defendant Defendantnow
nowmoves
movestotodismiss
dismissthis
thismatter
matter because
because Judge Tolentino did so without Judge Tolentino
6 notice to him him and the Government.
and the Government. See
See generally, Am. Mot.
Mot. Dismiss,
Dismiss, Aug.
Aug. 22,
22, 2024.
2024.
7 Defendant cites Defendant cites to
to Federal
FederalRules
Rulesof
of Criminal
CriminalProcedure
Procedure("FRCP") 26.3, Renieo ("FRCP") 26.3, v. Lett, Renico v. Let;
8 559 U.S. 766 (2010), and and United
United States
States v.
v. Sepulveda,
Sepulveda, 15
15 F.3d 1161
1161 (1st Cir. 1993)
1993) as
as a basis for
9 his Motion. Id Id atat5.5.Left
Lettand
andSep ulveda were in
Sepulveda in aa different differentprocedural
procedural posture
posture from
from the
the instant
instant
10 10 matter, as jeopardy jeopardy had attached
attachedwhen
when the
the mistrial
mistrial was declared or requested in those cases. See See
11 Left, Lett, 559 U.S. at 776 776 (noting that "Lett's trial that "Lett's trialwas
wasnot
notcomplex,
complex,and
and there
there isis no
no reason
reason that
that the
12 12 jury would necessarily jury have needed necessarily have neededmore morethan
thanaa few
few hours
hours to
to deliberate
deliberate over
over his
his guilt.");
guilt."),
13 13 Sepulveda, Sepulveda, 15 15 F.3d
F.3d at
at 1184
1184 ("Although
("Althoughthe
thedistrict
districtcourt
courtstruck
struckCommander
Commander Genny's
Gerry's half-
14 14 completed testimony completed and told testimony and told the
the jurors
jurors to
todisregard
disregardwhat
whatthey
theyhad
hadheard,
heard,appellants'
appellants· assert
assert that
that
15 15 the court court erred erred in
inrefusing
refusingtotogrant
grantaamistrial.").
mistrial."). FRCP 26.3
26.3 provides that
that "[b]efore
"[b]efore ordering
ordering aa
16 16 mistrial, the court must give each each defendant
defendant and the government an opportunity opportunity to comment on
17 17 the propriety the of the propriety of the order, order, to
to state
state whether
whether that
that party
party consents
consents or objects,
objects, and
and to
to suggest
suggest
18 18 altematives."
alternatives." Fed.
Fed.R.R.Crim.
Crim.P.P.26.3.
26.3.Guam
Guamdoes
doesnot
nothave
haveaacorresponding
corresponding statue rule to statue or rule to FRCP
FRCP
19 19 26.3.
26.3. However, However,the
theadvisory
advisorycommittee
committeenotes
notes to
to the
the rule
rule set forth that
that"[t]he
"[t]he Rule is
is not designed
20 20 to change the substantive change the substantivelaw lawgoverning
governingmistrials."
mistrials." Fed.
Fed. R. Crim.
Crim. P. 26.3.,
26.3.,Advisory
Advisory Committee
21 Notes. Thus, Thus,the
theCourt
Courtturns
turns to the substantive law governing mistrials.
substantive law
22 The Sixth Sixth Amendment
Amendment guarantees
guarantees a criminal
criminal defendant
defendantthe
theright
rightto
to a trial
trial by a fair and
and
23 23 impartial jury. U.S.
impartial jury. U.S. Const.
Const.amend.
amend.VI. Fifth Amendment"11provides VI. The Fifth providesthat that no
no person shall "be
person shall "be
24 24 subject for the subject for offenceto sameoffence
the same tobe
betwice
twiceput
putininjeopardy
jeopardyoflife
of life or
orlimb."
limb." U.S.
U.S. Const.
Const. amend. V.
amend. V.
25 25 "Ajury "A trialbegins, jurytrial begins,and and jeopardy
jeopardy attaches,
attaches, when the
the jury
jury is sworn."
sworn." Martinez
Martinez v.
v. Illinois,
Illinois, 572
572
26 26
27 11 "[T]he "[T]he double double jeopardy
jeopardy prohibition
prohibition of
ofthe
the Fifth
Fifth Amendment
Amendmentrepresents
represents aa fundamental fundamental ideal
ideal in
in our
our constitutional
heritage, and ... it should apply to the States heritage, and ... it should apply to the States through the Fourteenth Amendment."
Amendment." Benton v. Maryland, Maryland, 395 U.S.
28 784, 794 (1969).
People v.
v. Moore
Case No.
No. CF0313-21
CF0313-21
Decision Decision and and Order
Page 9 of 12
ofl2
1 U.S. 833, 833, 840 (2014). "Courts
840 (2014). "Courtshave
haveconsistently
consistently understood
understood an 'empaneled and and sworn'
sworn' jury to
2 refer refer to the the jurors who are
are sworn
sworn to try the
the case and determine
determine aa defendant's
defendant'sguilt
guiltor
or innocence."
innocence."
3 Coley Coley v. United United States,
States, 267 A.3d 1065, 1067(D.C.
1065, 1067 (D.C.2022)
2022)(citations
(citationsomitted).
omitted). "[F]rom
"[F]rom that
that point
4 forward, the defendant has has aa constitutional
constitutionalright,
right, subject
subjectto
to limited
limited exceptions, to have his case case
5 decided by that that particular jury." United particular jury." United States States v.
v. Shafer,
Shafer, 987 F.2d 1054,
1054, 1057
1057 (4th Cir.1993)
Cir.1993)
6 See also (citations omitted). See also United United States
States v.
v. Bates,
Bates, 917 388 (9th
917 F.2d 388 (9th Cir.
Cir. 1990)
1990) ("Criminal
7 defendants have aaright defendants have rightto to have
have the
thejury
juryfirst
first impaneled
impaneledto
totry
trythem
themreach
reachaaverdict.
verdict. This right is
8 not not absolute, however, and absolute, however, and must must at
at times
times be
be subordinated to society's interest subordinated to interest in just just
9 determinations of guilt determinations of guilt or innocence.").
innocence."). The
The Double
Double Jeopardy
Jeopardy Clause
Clause grants
grants the
the criminal
criminal
10 10 defendant defendant aa "'valued "'valued right
right to
to have
have his
his trial completed
completed by a particular tribunal."' United particular tribunal."' United States States v.
v.
11 11 Join, Jorn, 400 U.S. 470, 484 (1971)
(1971) (quoting Wade
Wade v. Hunter,
Hunter, 336 U.S.
U.S. 684,
684, 689
689(1949)).
(1949)). Once
Once
12 12 jeopardy attaches, any re-trial attaches, any re-trial is barred barred unless
unless"manifest
"manifest necessity"
necessity" was demonstrated justifying demonstrated justifying
13 13 the court's court's declaration declaration of mistrial. 12 Here,no jury was ever empaneled and ofaamistrial.12 and sworn swam from
from the
the May
May
14 14 2023 yenire.
venire. Because
Because aa jury was never never sworn
sworn from
from the second selection,jeopardy selection, never
never attached.
attached.
15 15 Therefore, in Therefore, in the the context
context of
ofmistrials,
mistrials, absent
absent jeopardy, Defendant Defendant does not have any right to have 16 16
17 17 12 12 United States
"From United States v. Perez, 99 Wheat.
v. Perez, Wheat. 579,
579, 6 L.Ed. 165, decided L.Ed. 165, decided in
in 1824,
1824, to Gory
Gori v. United
United States, 367 U.S.
States, 367
18 364, 81 S.ct. 1523, 66 L.Ed.2d S.Ct. 1523, 901,decided L.Ed.2d901, decidedinin1961, 1961,itithas
has been
been agreed
agreed that there
there are
are occasions
occasions when
when a second
second trial
trial
18 may be had although the jury may jury impaneled impaneled for
for the
the first
first trial
trial was discharged without without reaching a verdict and without without the
19 19 defendant's consent."
defendant's Downum consent." Dow rum v. United States, v. United 372 U.S.
States, 372 of the the Supreme Court of
1824, the
In 1824,
(1963). In
735-36 (1963).
734, 735-36
U.S. 734,
UnitedStates United States stated:
stated:
20 20 "[T]he "[T]helawlawhas
hasinvested
investedCourts
Courts ofofjustice
justice with
with the
the authority
authority to discharge jury from giving any discharge a jury any 21 verdict, whenever, verdict, whenever, in their their opinion,
opinion, taking
taking all
all the
thecircumstances
circumstances into consideration, there is a consideration, there
manifest necessity
necessity for the act,
act, or the ends
ends ofof public justice would otherwise be defeated.
defeated. They are
22 to exercise exercise aa sound
sound discretion on the subject, subject; and
and it is impossible to define define all
allthe
thecircumstances,
circumstances,
which would
would render it proper to interfere. To Tobebesure, sure, the
the power
power ought
ought to
to be
be used
used with
with the
the greatest
greatest
23 caution, under urgent
urgentcircumstances,
circumstances,and andfor forvery
very plain
plain and
andobvious
obvious causes
causes...
...
24 Perez, 22 22 U.S.
U.S. at
at5.80.
580. "This
"Thisformulation,
formulation,consistently
consistentlyadhered
adheredtotoby bythis
thisCourt
Courtininsubsequent
subsequent decisions,
decisions, abjures
abjures the
application application of ofany
any mechanical
mechanical formula
formula by which
which to judge the propriety of ofdeclaring declaring aa mistrial in
in the varying and
and often
25 unique situations arising unique situations arising during duringthe
thecourse
courseofa
of acriminal
criminaltrial."
trial." Illinois
Illinois v.
v. Somerville,
Somerville, 410 U.S.
U.S. 458,461
458, 461(1973).
(1973). The
26 words "manifest "manifest necessity"
necessity""do"donot
notdescribe
describeaastandard
standard that
that can be applied mechanically or without attention to the particular particular problem confronting the trial judge. Indeed, ititisis manifest problem con'N'onting the trial judge. Indeed, manifestthatthatthe thekey
key word
word 'necessity'
'necessity' cannot
cannot be
27 interpreted literally;
literally, instead,
instead, contrary
contrary to the
the teaching
teaching ofofWebster,
Webster, we weassume
assume that
that there are
are degrees of necessity
necessity and
and
we require a 'high 'high degree'
degree' before
beforeconcluding
concludingthat
that aa mistrial is appropriate."
appropriate." Arizona
Arizona v. Washington,
Washington, 434 U.S. 497, 497, 28 506 (1978). 506 (1978).
People People v. Moore v. Moore
Case No.
No. CF0313-21
Decision Decision and and Order
Page 10of12
1 his case decided decided by
by the second
second jury
jury selection
selection venire,
venire, and
and is
is not
not entitled
entitled to a dismissal because the 22 jurors are jurors are no no longer available.
3 · The Court acknowledges Defendant's concern with how the the jury venire was ultimately ultimately
4 discharged the record.
discharged off the record. ItIt would would have
have been
been prudent
prudent for
for Judge
Judge Tolentino,
Tolentino, before discharging discharging
5 the jurors, to the jurors, have formally to have formally stated
stated on
on the
the record
record his
his decision
decision to
to do
do so.
so. However,
However, Judge
Judge Tolentino»'s
Tolentino's
6 discharge of the the jury
jury venire
venire off
off the
the record
record doesn't
doesn't stand
stand in
in isolation.
isolation. Judge
Judge Tolentino
Tolentino mentioned
mentioned
7 the possibility of having to relieve the jurors from their jury jury duty
duty as
as the
the matter
matter had
had been
been pending
pending
8 for several months in in anticipation of
of CF0314-21 proceeding
proceeding to
to trial
trial first, see Digital
first, see Digital Recording at
9 11:21 :25, :25, Aug.
Aug. 8,
8, 2023,
2023, which
which isis the
the basis
basis he
he indicated
indicated to
to the parties
parties for their
their ultimate
ultimate discharge
10 10 on October October 16, 16, 2023 at the start of the third selection. See See Digital
DigitalRecording
Recordingatat9:9:17:50,
17:50, Oct. 16,
16,
11 11 2023. These These jurors
jurors were
were told
toldthat
that the
the trial would
would be two to three weeks weeks long
long at
at the start of selection selection
12 in May 2023 and were still on call as as of
of August
August 8,
8, 2023,
2023, three
three months
months later.
later. The Court also notes
13 13 that there were at least there were motions for two motions
least two for mistrial mistrial for
for the
the second
second jury
jury venire.
venire. Defendant
Defendant first
first orally
14 moved for moved for a mistrial after the the Pacific
Pacific Daily
Daily News
News published
published an erroneous news article about which
15 15 case and/or charges Defendant was currently on trial trial for,
for, aamotion
motion which
which the
the Government
Government joined.
joined.
16 16 See Jury Selection Tr. 11: 5-10;
Tr. 11: 5-10, 16-17,
16-17, May
May 17,
17, 2023.
2023. Judge Tolentino denied that joint joint motion
17 17 on the third day day of selection.
selection. See Jury Selection Tr.
Tr. 16:
16: 5-10,
5-10, May
May 17,
17,2023.
2023. Defendant's
Defendant's second
18 18 motion for motion for mistrial was filed on on the fifth
fifth day of
of jury selection
selection and
and alleged
alleged structural
structural error during
19 19 because the the selection proceedings because the court court did
did not allow
allow any interested
interested members
members of the media
20 20 into the courtroom to observe jury selection.
selection. See
See Mot.
Mot. for
for Mistrial
Mistrial Resulting
Resulting from
from Violations
Violations
21 Banning Media Media Coverage
Coverage and
and Public
Public Access,
Access, and
and Failure
Failure to Maintain an Open Court and Public 22 22 Trial, May May 19,
19, 2023.
2023. Although there was mention of of the motion possibly being orally withdrawn 23 at the August 8, 2023 hearing, see Digital Recording Recording at
at 11:10:54,
11: 10:54, Aug.
Aug. 8,
8, 2023,
2023, itit is not clear
clear that
24 the Motion was formally withdrawn and it was still being inquired about by defense counsel at 25 the start of the the third selection on October 16, 2023.
2023. See
See Digital
Digital Recording
Recording at
at 9:16:08,
9:16:08, Oct.
Oct. 16,
16,
26 26 2023. Therefore, Therefore, while
while Defendant
Defendant isis now
now arguing
arguing that
that he is
is prejudiced by no longer longer having the
27 second second jury panel available for him for trial, trial, he
he also
also previously
previously moved to have a mistrial declared
28 for said jury jury selection,
selection, which
which would have led to those jurors jurors being
being dismissed and a new new jury
jury venire
venire
People v.
v. Moore
Moore
Case No. CF0313-21 Case No. CF0313-21 Decision Decision and Order
Page 11
11 of12
1 pool brought in for the next trial. Additionally, when counsels were informed that the May 2023 2 jury venire was discharged, no formal objection to that specific action was made on the record 3 after they were advised on October 16, 2023, nor the following day of selection on October 17, 4 2023, or when parties returned for a continued Pre-Trial Conference on October 26, 2023. 5 Objections were made, however, to the court proceeding to selection even though the parties had 6 stipulated to a continuance and Defendant had indicated he was willing to waive speedy trial. 7 Therefore, in consideration of all the above, the Court DENIES Defendant's Amended Motion to 8 Dismiss Amended Superseding Indictment. 9 CONCLUSION 10 For the foregoing reasons, the Court hereby DENIES Defendant's Amended Motion to
I
11 Dismiss Amended Superseding Indictment. Parties shalfretur:n for a Status Hearing on September
I
12 16, 2024 at 4:00 p.m.
!
13 it- 14 IT IS SO ORDERED this I/, day of September, 2024.
15
16
17 HONORABLE VERNON P. PEREZ Judge, Superior Court of Guam 18 I
19
20
21
22
23
24
25 #;;aRYICE·YIAiE•MAlt.
.ti ·'fl411ctl1.awfedie that a'n electrD1'1i~ r"' oftheorigll\alwas ..mai~to:
26
27 C :::::::::~:"s ~ec;,,. JcJ(o
28 :--8"
Awh,,,{c, ~ COia!,°'""""
People v. Moore Case No. CF0313-21 Decision and Order
Page 12 of12