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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. ·
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
17 HONORABLE VERNON P. PEREZ Judge, Superior Court of Guam 18 I
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