People v. Nalicat

Opinion

FI1 z.. LED E ._ l CLERK OF COURT 2 20214 JUL 202~ JUL -3-3 AM RH 9: 52 52 3 SUPEGR SUPERIORCSURT COURT 4 oOFGUAM~ F eumvz @ 5

6 IN THE SUPERIOR COURT COURT OF OF GUAM GUAM 7

8 PEOPLE OF OF GUAM, GUAM, CRIMINAL CASE NO. CFOl64-22 CF0164-22 9 vs. 10 10 DECISION AND ORDER 11 MARK MARK ANTHONY ANTHONY JUNDARINO 12 NALICAT aka NALICAT akaCheesebread, Cheesebread, 13 Defendant. Defendant. 14

15 INTRODUCTION

16 This matter is before the Honorable Vernon P. Perez on the Honorable on Defendant MARK ANTHONY

17 JUNDARINO NALICAT NALICATaka akaCheesebread's Cheesebread's ("Defendant") ("Defendant") Motion MotiontotoDismiss DismissINdictment Indictment

18 filed filed February February 5, 2024 2024 and andMotion Motionto toDismiss DismissIndictment Indictmentfiled filedMarch March28, 28,2024. 2024.Having Havingreviewed reviewed

19 the the pleadings, pleadings, the the arguments presented,and arguments presented, andthe therecord, record,the theCourt Courtnow now issues issues the the following following

20 Decision Decision and and Order.

21 21 BACKGROUND

22 Defendant is charged chargedwith withone onecount countof ofAggravated AggravatedAssault Assault(As (As aaThird ThirdDegree Degree Felony). Felony).

23 (Indictment, Apr. Apr. 7, 7, 2022). 2022). This Thischarge chargestems stemsfrom fromallegations allegationsthat thatDefendant Defendantassaulted assaulted J.P. J.P. on

24 or or about February February 10, 10,2021 2021atatthe theDededo DededoSkate SkatePark. Park.(Deel. (Deal. of of Jeremiah JeremiahB. B.Luther, Luther,Magistrate's Maglstrate's

25 Con Compl., Mar. Mar. 19, 19, 2022). 2022). J.P. J.P. told toldresponding responding officers officersthat thatDefendant Defendantpunched, punched, kicked, stomped, stomped,

26 him on and hit him thehead on the headwith withaaskateboard. skateboard.Id ld J.P. J.P. was was observed observed to to be be in in "serious "serious pain" pain" and and had had

. 27 "large swelling "large swellingand andredness redness to tothe theforehead foreheadand and temple templearea, area, redness redness on on his his right right neck, neck, redness redness

People v. v. Nalicat Case No. CF0164-22 Case No. CFOl64-22 Decision Decision and and Order

Page 11 of 10 oflO 1 and scratches to both both forearms and elbow, purple bruising to his right right bicep, bicep, redness redness and and swelling swelling

22 and upper to his lower and upper back." back." Id Defendant Defendantwas wasindicted indictedby byaagrand grandjury jury on on April April 7, 7, 2022. 3 On February 5, 2024, February 5, 2024, Defendant Defendant filed filed a Motion to Dismiss Indictment along along with a 44 Declaration of Jehan'ad Martinez in support of the motion. On OnFebruary February 16, 16, 2024, the_People People of of 5 Guam ("the Government") Government") filed filed their their Opposition. Opposition. On OnMarch March12, 12, 2024, 2024, the Court heard arguments 6 on the Motion and placed the matter under advisement.l1

7 Subsequently, Subsequently, on March 28, 2024, Defendant Defendant filed a second second Motion Motion to to Dismiss Dismiss Indictment Indictment

8 along with a Declaration of Richard L. L. Johnson Johnson in support of of the the Motion. Motion. On On April April 5, 5, 2024, the 9 Government Government filed filed its Opposition and on April 12, 12, 2024, 2024, Defendant Defendant filed filed his his Reply. Reply. On On April April 29, 10 2024, the Court heard arguments on the Motion and placed the matter matter under under advisement advisement as well. 2 as well.2 11 Motions to Both Motions to Dismiss Dismiss aallege llege er r errors by by the the prprosecuting osecuting aattorney ttor ney during ing the gr a grand jur jury 12 proceedings in in this matter matter on on April 7, 2022. 133 1 DISCUSSION

14 Under Gua Guam la law, "[a ]ny felony "[a]ny felony ttogether oget wit with aany ny r related ela t misdemea misdemeanor sha shallll be 15 prosecuted by prosecuted by indictment..." indictment..." 88G.C.A. G.C.A. §§ l.1.15. "A "A grand grand jury's jury's chief chiefduty duty is to determine is to determine whether whether

16 16 the prosecution has established a prima facie facie case case that that a crime crime has has been been committed and that the

17 17 accused committed it. it. Further, Further, aa grand grand jury jury serves serves aa gatekeeping gatekeeping function function by considering considering the 18 18 sufficiency of the evidence to support an indictment." People v. San Nicolas, Guam21 Nicolai, 2013 Guam 1 2111 19 19 ll (internal 11 (internal citations citations and and quotation quotation marks marks omitted). omitted). "The indictment indictment serves serves two two essential essential 20 20 purposes: itit affirms purposes: affirms that that the the grand grand jury found found probable probable cause for the charges in the indictment, 21 and it gives the defendant notice of the the charges." Id 1 "The Id atat1112. "The key key to to ensuring ensuring that that the grand 22 22 jury system works as as it should is to ensure that the grand jury jury has has indicted based on a finding of of 23 23 probable cause probable for the cause for the 'offense 'offense charged."' Id.atat1121 charged."' Id 121 (citation (citation omitted). "The grand omitted). "The grand jury jury shall shall 24 24 receive only competent competent evidence evidence but but the the fact that evidence which is incompetent incompetent was received by

25 25 1 26 26 1 Present at this Present this hearing hearing were were Defendant Defendant with counsel, Richard L. Johnson, and and Assistant Assistant Attorney Attorney General Sean E. Brown on Brown on behalf of the People of the People of of Guam. 27 27 2 2 Presentatat this Present this hearing were were Defendant Defendant with with counsel, counsel, Richard Richard L. L. Johnson, Johnson, and Assistant Attorney Attorney General Charles 28 on behalf of the Carsey on the People People of of Guam.

People v. Nalicat Case No. CF0164-22 Decision Decision and and Order

Page 2 oflO 10 1 jury does the grand jury does not not render render the the indictment indictment void void where where sufficient competent evidence evidence to support

2 the evidence the evidence was was received received by by the grand jury." the grand jury." 88 G.C.A. G.C.A. §§ 50.42. 50.42. 3 On April April 7, 7, 2022, 2022, the the grand grand jury jury returned returned an an Indictment Indictment against against Defendant, Defendant, finding finding 4 probable cause for the the following:

5 On or or aabout bout FFebruary ebr r y 9,9, 2021 2021 in GuaGuam, MARK ANTHONY JUNDARINO JUNDARINO NALICAT (aka Cheesebread) did commit the offense of Aggravated Assault Assault (As (,4s 6 rd a 3rd Degree Degree Felony), Felony), in that he did recklessly recklessly cause cause or or attempt attempt to cause serious 7 bodily bodily injury injury to to another, that is, J.P. JP. (DOB: 08/28/1993), in (DOB: 08/28/1993), in violation violation of GCA §§ of9 GCA §§ 8 19.20(a)(2) and (b).

9 (Indictment, Apr. 7, 2022).

10 I. First Motion to Dismiss (February 5, 2024)

11 11 Defendant first moves Defendant first moves the Court Court to to dismiss dismiss the the Indictment Indictment because because the the prosecuting prosecuting

12 12 attorney improperly presented evidence that was obtained attorney obtained after after Defendant asserted asserted his right to

13 remain silent to the grand grand jury. See generally, generally, Mot. Dismiss, Feb. 5, Dismiss, Feb. 5, 2024. 2024. At At issue issue is the

14 14 following testimony testimony elicited elicited during the grand jury jury proceedings:

AAG: How about about the the witness witness statements that were statements that were made made to the police and the 15 15 injures -- did he acknowledge? 16 W: He denied and and stated stated that he had nothing else to say. 17 17 AAG: Was therethere any any other other questions? questions? Did Officer Officer Pewtress ask him about about any 18 18 martial arts training? 19 W: When asked asked ifif he he trained trained in in any any martial martial arts, arts, he indicated indicated that he trained in 20 Muay Thai.

21 AAG: At At that point point did Officer Officer Pewtress place him under under arrest? 21

22 W: Yes, sir.

23 AAG: Did Did he he make make any any other other statements statements after after that?

24 W: He remarked remarked that that he he was was set set up up and and that that [JP] [JP] often often talks a lot of of shit.

25 AAG: Thank you. you. DoDo any any of ofthe the jurors jurors have have any any additional additional questions questions for for our our 25 witness. IfIfthere there are are no no additional additional questions then can questions then can we excuse him at excuse him at this time. 26 26 (Digital Recording at 12:07:00 to to 12:08:10, Apr. 7, 12:08:10, Apr. 7, 2022). 2022). Defendant Defendant argues argues that the inclusion i,nclusion 27 of "unnecessary discussion ofMuay of the "unnecessary ofMuay Thai Thai ... ...sewed servedonly onlytotoprejudice prejudicethe thegrand grandjury, jury, aa practice 28

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Page 3 oflO 10 1 and Guam's prohibited by both the U.S. Constitution and Guam's Bill of of Rights." (Mot. (Mot. Dismiss Dismiss atat 4, 4, Feb. 5, 22 2024). The 2024). The Government Government opposes, opposes, arguing arguing that that the the grand grand jury received competent evidence to 3 render its true bill. See generally, generally, Opp'n, Feb. 16, 2024. 2024. The The Government Government does does acknowledge, acknowledge, 4 however, that it would not not be able able to use such statements statements at at trial if they were made after after a refusal 5 talk. Id at to talk. at 2. 6 Fifth Amendment The Fifth Amendment provides that that "[n]o "[n]o person person ... ... shall shall be be compelled compelled in in any any criminal 7 to be case to be aa witness witness against againsthimself." himself." U.S. U.S. Const. Const. amend. amend. V. V. The "Fifth Amendment, Amendment, in in its direct 8 application to the Federal Government Government and and in in its its bearing on the States by reason of the the Fourteenth Fourteenth

9 Amendment, forbids Amendment, forbids either either comment comment by by the the prosecution prosecution on on the the accused's accused's silence silence or or instructions instructions 10 10 by the court court that such silence silence is evidence of of guilt." guilt." Grain Griffin v.v. California, California, 380 U.S. 609, 615 11 11 (1965).

12 well rrecognized "It is well ecognized that that the the remedy of of dismissal dismissal of an an indictment indictment on gr grounds of of 13 prosecutorial misconduct is an extraordinary extraordinary one." one." United States v. Soberon, Soberon, 929 F.2d 935, 939

14 14 (3d Cir. 1991) 1991) (citing Bank of of Nova Scotia v. v. United United States, States, 487 U.S. 250, 255 (1988)). (1988)). An 15 15 indictment may only only be dismissed dismissed based based on on prosecutorial prosecutorial misconduct misconduct ifif it is "shown "shown that that [such] [such] 16 conduct significa conduct nt ly infringed significantly infr ingedon on the t he ability bilit y of of t he gr a nd jur grand y t to jury o exer cise independent exercise independent 17 17 judgment." United States v. Cederquist, Cederquist, 641 F.2d 1347, 1353 (9th Cir. Cir. 1981) (citations (citations omitted). omitted).

18 The Court does not find find that that the theGovernment's Government's elicitation from the witness of of Defendant's Defendant's martial

19 arts after he arts after he stated stated he he had had nothing nothing else else to to say say significantly significantly infringed infringed on the grand jury's jury's ability to

20 exercise independent judgment. judgment. See, Ag., e.g., United United States v, Edmonson, 962 F.2d 1535, 1539 (10th v. Edmonson, 21 Cir. 1992) (finding that the the prosecutor's comment comment before before the the grand grand jury jury regarding regarding defendant's defendant's 22 22 refusal to to communicate communicate with law enforcement enforcement officers after being advised of his Miranda rights 23 did not prevent the the grand grand jury jury from from exercising exercising independent independent judgment judgment concerning the indictment).

24 "The gr grand jury's y's sour ces of information sources ma tion are r e widely widely drawn, a wn, and nd the the validity lidity of a n

25 25 indictment indictment is not affected by the character of the the evidence considered. Thus, an indictment valid

26 face is on its face not subject is not subject to to challenge challenge on on the the ground ground that that the the grand grandjury juryacted acted... ... on on the basis of of 27 information obtained in information obtained in violation violation of aa defendant's defendant's Fifth Fifth Amendment Amendment privilege privilege against against self- self- 28 incrimination." United States v. v. Calandra, Calandra, 414 U.S. 338, 344-45 344--45 (1974). (1974). "[A]lthough "[A]lthough the grand

People v. v. Nalicat Nalicat Case No. No. CF0164-22 Decision Decision and and Order

Page 4 oflO of10 1 jury may Jury may not force force aa witness witness to to answer answer questions questions in violation violation of of the the Fifth Fifth Amendment's Amendment's 2 constitutional guarantee against self-incrimination, self-incrimination, our our cases cases suggest suggest that that an indictment obtained obtained 3 through the use through the use of of evidence evidence previously obtained in previously obtained in violation violation of of the the privilege privilege against against self- self- 4 4 incrimination is nevertheless neverthelessvalid." valid." United United States v. Williams, Williams, 504 U.S. 36, 49 49 (1992) (1992) (citations

5 omitted). "[T]he "[T]he exclusion exclusion of ofunnamed unwarned statements statements [at aa criminal criminal trial] trial] is is aa complete complete and and 6 · sufficient remedy for any perceived Miranda violation." violation." United States v.v.Patane, United States Patine, 542 U.S. 630,

7 643 (2004) (quoting Chavez v. 643 (2004) v. Martinez, Martinez, 538 U.S. 760, 760, 790 790(2003)). (2003)). Accordingly, Accordingly,the the Court Court does does 8 not find a basis basis to to grant grantDefendant's Defendant's First First Motion Motion to Dismiss. Should Should this this matter proceed to matter proceed to trial, trial,

9 any statements madeby statements made byDefendant Defendantin inviolation violation of his his Miranda rights rights may may be be suppressed. The suppressed. The IO 10 Court therefore therefore DENIES the Motion Motion to Dismiss.

11 11 II. II.Second Second Motion Motion to to Dismiss (March (March 28, 28, 2024) 12 Defendant next moves the Defendant next the Court Court to to dismiss dismiss the theIndictment Indictment because because the the prosecuting prosecuting 13 13 attorney did not attorney did exculpatoryevidence presentexculpatory not present evidenceto to the thegrand grandjury, jury,ininviolation violationof of 88 G.C.A. G.C.A. §§ 50.46. 50.46. 14 14 See generally, Mot. Dismiss, Dismiss, Mar. 28, 2024. 2024. The The Government Government opposes, opposes, arguing that (1) arguing that (1) "the

15 15 charge could be proven proven by the the attempt attempt to cause serious bodily injury and and serious serious bodily injury 16 16 does not have to actually actually occur", occur"; (2) (2)the theinjuries injuriesdescribed describedby bythe theprosecutor prosecutorat atthe the Grand Grand Jury Jury 17 17 proceeding were sufficient sufficient to to prove proveserious serious bodily bodilyinjury injuryand and aa description description of ofother other lesser lesser injuries 18 is not exculpatory"; exculpatory", and (3) "a and (3) "a description of of other lesser lesser injuries injuriesisisnot notexculpatory." exculpatory." (Opp'n (Opp'n at at 19 19 1, 1, Apr. 5, 2024). 2024).

20 Guam law provides that: that: 21 The grand grand jury shall shall receive only only evidence evidence presented presented to itit by by the the prosecuting prosecuting attorney attorney but the the prosecuting prosecuting attorney attorney shall shall submit any evidence in submit any in his his possession possession 22 which would tend to negate negate guilt and the the grand grandjury jury shall shall weigh weigh allall the evidence 23 23 submitted. submitted. 24 8 G.C.A. §§ 50.46. 8 G.C.A. 50.46. Section Section50.46 50.46 was was based based on on proposed section 9299 proposed section the California of the 9299 of California Criminal Criminal 25 Procedure Procedure Code. See 88 G.C.A. Code. See G.C.A. §§ 50.46, Note. In 50.46, Note. InCalifornia, California,the the"prosecutor "prosecutorisisobligated obligatedpursuant pursuant 26 to Cal. to Cal. Penal Penal Code Code§ 939.7 to give 939.7 to give to to the the grand jury exculpatory grand jury evidence as exculpatory evidence well as as well incriminating as incriminating 27 evidence evidence due due to the peculiarly unilateral role of ofaa prosecutor prosecutor in in the nonadversary nonadversary context of grand 28 28

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Page 5 of 10 10 proceedings."33 People v. Serbian, 1986 WL 68900 *3 1 jury proceedings." People v. Sablan, 1986 WL 68900 *3 (D. Guam Guam App. Div. Div. Oct. Oct. 24, 24, 1986) 1986) 2 (citing Johnson Johnson v.v. Superior Superior Court, 124 Cal.Rptr. 32 124 Cal.Rptr. 32 (Cal. (Cal. 1975)).

3 Defendant argues thatthe argues that theprosecuting prosecutingattorney attorneyhad hadthe thefollowing following exculpatory exculpatory evidence evidence in

4 4 his possession, possession, which was not presented presented to the the grand grand jury: photographs photographs taken taken on February 10, 10, 5 2021 2021 of the the victim, victim,J.P., J.P., hours hours after after the the alleged allegedassault, assault, and and statements statements he made the same day to same day 6 Officer Officer Tagawa Tagawa regarding his visit regarding his visit to to GMH. (Mot. (Mot.Dismiss Dismissatat2). 2).Defendant Defendantargues argues that that the the 7 photos and and statements statementsnegate negatethe theGovernment's Government's assertion that thatJ.P. J.P.suffered sufferedserious seriousbodily bodily injuries.

8 Id.

9 A. Photographs Photographs 10 The Court first turns to Defendant's argument that turns to thatthe thephotographs photographsof ofthe thealleged allegedvictim's victim's

11 injuries negate that injuries negate that the the victim suffered suffered serious serious bodily bodily injuries. injuries. At At least least sixty-three sixty-three (63) (63) 12 12 photographs4 were photographs were taken of the taken of the alleged alleged victim hours hoursafter afterthe theincident. incident. (Deel. (Decl. of Richard L.

13 13 Johnson, Mar.28, Johnson,Mar. Ex.A). 2024,Ex. 28,2024; A). There Thereisisno nodispute disputethat thatthese these photographs photographs were not not presented presented 14 to the grand jury. jury. The TheGovernment Governmentsimply simplysets setsforth forththat that"there "thereisisno norequirement requirementthat that the the photos photos 15 be given given to to the the Grand Jury. Jury. The The fact fact that that Defendant Defendant caused minor minor injuries injuries to to the the Victim Victim does not

16 16 do away with with the Defendant attempting to cause attempting to cause serious seriousbodily bodily injury injuryto to the the Victim Victim but but failing

17 and only causing and only causingless lessserious seriousinjuries." injuries." (Opp'n (Opp'n at 2).

18 18 Defendant Defendant is charged with aggravated assault in that assault in that he he either either did did "recklessly "recklessly cause cause or 19 attempt to tocause causeserious seriousbodily bodilyinjury injurytotoanother." another." (Indictment, (Indictment, Apr. Apr. 7, 7, 2022). 2022). Thus, any any evidence evidence

20 20 that that would negate negate guilt for for either either attempting attempting to cause or recklessly causing serious bodily causing serious bodily injury

21 to the grand jury, 55 should must be presented to shouldthe theprosecuting prosecuting attorney attorney have have such suchevidence evidence in in his 22

3 23 23 "[t]he grand In California, "[t]he grand jury jury isis not not required to hear evidence evidence for for the the defendant, defendant, but but itit shall weigh all the the evidence submitted to it, and when it has reason to believe that other evidence within its reach will explain away the charge, itit 24 shall order the evidence to be produced, and and for that purpose may may require require the the district attorney to issue process for the witnesses." Cal. witnesses." Cal. Penal Penal Code Code§ 939.7. 939.7. 25 4 According to Attorney Johnson's Declaration, sixty-tive (65) photographs were referenced in GPD Police Reports 4 According to Attorney Johnson's Declaration, sixty-five (65) photographs were referenced in GPD Police 26 in in this this matter. Decl. ,r1i4,4,Mar. (Johnson Deel. matter. (Johnson Mar.28, 28,2024). 2024). Sixty-three Sixty-three (63) photos were turned over as part part of of discovery. discovery. Id Id 5 27 The Court notes that Defendant's Reply also also argues that "[a] argues that "[a] single charge needs needs to to allege allegeaasingle singlecrime. crime. The government's government's argument argument appears to be appears to bethat thatthe theindictment indictment isis duplicitous duplicitous and and that thatsomehow somehowsavessavesit.it.Not Notso." so." (Reply 28 at 2). The TheCourt Courtdoes does not notfind findthat thatthe theoffense offenseofofaggravated aggravatedassault, assault, as charged in as charged in the Indictment, Indictment, is duplicitous.

People v. People v. Nalicat Case No. CFOI64-22 CF0164-22 Decision and Decision and Order

Page 66 oflO ofl0 I or her possession. possession. The The Court Court does does not not find find that that the the photographs on their own necessarily negate 2 2 Defendant's guilt. guilt. The The photographs photographs show show dark dark bruising bruising on the victim's arm arm along along with with other other 3 3 scratches, marks and scabs scabs on on the the victim's victim's face, arm, arm, neck, neck, and and back. back. The photographs may speak

4 to the severity of of the injuries but would not negate guilt for either attempting attempting to cause or recklessly recklessly

5 causing serious bodily injury. Accordingly, Accordingly, the the Court Court finds no basis to grant Defendant's Defendant's Motion

6 on this ground.

7 B. Statements by Defendant

8 Next, the Court Next, Court Mrs turns totoDefendant's Defendant's argument argument that that the the alleged alleged victim victim made made several several 9 statements to GPD which negate Defendant's guilt guilt and and were not presented to to the the grand grandjury. jury. The

10 10 Government sets forth that the "description desired by Defendant was essentially provided to the

11 Grand Jury. Jury. The Thefollowing following quotes, quotes, appear appear to to the the People, People, to to satisfy satisfy the the request request of of Defense[:] Defense[:] 12 12 Holding temple area, area; Heard moaning in pain, pain; Officer Officer Togawa observes large swelling and redness 133 1 on [JP]'s [JP]'s forehead forehead and and temple temple area, area; Officer Officer Togawa observes observes Redness on his right right neck area, area, 14 redness and scratches on both forearms; forearms, Officer Togawa overheard the Victim tell medics that he

15 15 was in pain and that his lower back is the most pain right now; difficult time driving because his

16 whole body was hurting." (Opp'n (Opp'natat1-2 1-2(digital (digital recording recording time time stamps stamps omitted)). 17 17

18 18

20 Guam's aggravated assaultassaultstatute statuteprovides providesthat that"[a] "[a] person person is is guilty of ofaggravated aggravated assault assault if he he either either recklessly recklessly 21 causes causes oror attempts bodily injury cause"bodily attemptstotocause" injury in oneone of of three three ways: ways: "(1) "(1) serious serious bodily bodilyinjury injurytotoanother anotherin incircumstances circumstances manifesting extreme extreme indifference to the value of the value of human life, (2) serious bodily injury to another; human life; another, (3) (3) bodily injury to 22 another with aa deadly another with deadlyweapon." weapon." 99 GCA GCA§§19.20(a). 19.20(a).Thus,Thus,a aperson personmay maycommit committhe the offense offenseof ofaggravated aggravatedassault assault in in one of ofthree three means. means. 23 The Supreme Supreme Court of Guam Guam has adopted the has adopted the principle principle that that"conjunctive "conjunctive pleading is is not not strictly strictly necessary necessary 24 where a statute statuteisiswritten writtendisjunctively, disjunctively, because becausethe thegovernment governmentmay mayprove proveits itscase casedisjunctively." disjunctively." People People v. v. Tories, Torres, 2014 Guam 8 ,r,r 15152-53 (citationsomitted). 52-53 (citations omitted). The Thecharge chargeas as set setforth forthininthe theIndictment Indictmentusesuses the the same same language found 25 in in 9 9 G.C.A. G.C.A. §§19.20(a). 19.20(a).Defendant Defendantisischarged chargedwith withcommitting committingaggravated aggravatedassault assault against against J.P. under99 G.C.A. J.P. under G.C.A. §§ l9.20(a)(2) 19.20(a)(2)("recklessly ("recklesslycausing causingororattempting attempting to tocause cause serious serious bodily injury injury to another"). another"). Further, Further, the the disjunctive disjunctive 26 pleading isis in in reference reference to to two twomental states -- either mentalstates eitherrecklessly recklesslycausing causingororattempting attemptingtotocause cause -.- which which the the Supreme Supreme 27 Court of ofGuam Guam has has also found does does not not render render the charge uncertain. uncertain. See See People v. v. Diaz, Diaz, 2007GuamGuam 33 W ,r,r 20-21 ("the 20-21 ("the use of the disjunctive conjunction 'or' use of 'or'ininsetting settingapart apartthe the differing differingmental mentalstates states did did not not render the the charge chargeuncertain"). uncertain"). 28 Defendant is charged with one act of assaulting assaulting the the victim. victim.

People People v. v. Nalicaf Nalicat Case No. CF0164-22 Decision Decision and and Order

Page 7 ofll0 oflO 1 Although Although the prosecutor prosecutor had the witness read verbatim from most most of of the police report, the 2 following extract extract was not not read grand jury:66 read to the grand 3 Medic 4 strongly advised advised [J.P.] [J.P.] to go to the hospital hospital for further evaluation due to injuries. [J.P.] the extent of his injuries. [J.P.] acknowledged, however however refused refused to to be transported 4 saying "I ain't ain't got got money moneyforfor the the bills." bills." [J.P.] [J.P.] said said that he will go to the hospital but 5 he will drive there onon his own. II advised advised [J.P.] ride with [J.P.] to just ride with the Medics Medias because 6 of his injuries which he stated "it's of "it's okay okay par. par. II was able to drive here. I can drive to GMH." 7 * * * *** 8 I asked [J.P.] what was [J.P.] what was the the outcome of of the hospital hospital which he stated that he was 9 COVID tested, tested, X-rayed X-rayed andand scanned. scanned. [J.P.] [J.P.] stated that according to the Doctor according to Doctor 10 10 (name not remembered), he has has no internal or serious injuries aside from being no internal or serious injuries aside from bruised up. up. [J.P.] [J.P.] stated stated that they prescribed him some pills and discharged him prescribed him 11 from the ER around 4:00am today. 12 (Johnson (Johnson Decl. ,r 6,6, Mar. Deel. 'll Mar. 28, 28, 2024; 2024, Ex. B). 13 13 The Court does not find that the first first paragraph paragraph regarding regarding J.P. J.P.'s ability to to drive drive necessarily necessarily 14 Defendant's guilt. negates Defendant's guilt. The TheCourt Court does does find, find, however, however, that that J.P.'s J.P. 's statement statement regarding regarding his visit 15 15 with the doctor doctor that he had no internal or serious injuries aside from being bruised up and that he 16 16 some pills was prescribed some pills and and discharged discharged from from the the ER ER after afteraafew hours7 may fewhours may negate negate Defendant's Defendant's 17 17 guilt given the single charge of assault. 8 This statement was in the possession of of aggravated assault.8 of the 18 18 prosecutor and was not presented to the grand jury. jury. 19

21 6 The 6 The Court's Court'sreview reviewofofthethegrand grandjury juryproceeding proceedinginincomparison comparisonwith withthe thepolice policereport reportalso alsoindicates indicatesthat thataa paragraph 22 about the alleged victim's victim's injuries injurieswaswas not not read read to to the grand jury. This Thisparagraph, paragraph, however, however, does does not negate the the guilt guilt of of the Defendant as as itit refers to to the the victim victim moaning in pain;pain, the observations observationsof of purple purple bruising bruising on on the thevictim's victim's right 23 bicep, bicep; redness and swelling redness and swelling to to the the victim's victim's upper lower back upper and lower back area, and the area; and the victim victim telling the officer officer that that he he was face down trying to cover his head while being jumped. head while 24 7 The 7 Thegrand grand jury jury heard heard that Officer Togawa that Officer Togawafirst met with firstmet with J.P. J.P. that morning around that morning around11:20 a.m.(Digital (Digital Recording at :20 a.m. at 25 ll:45:03, 11:45:03, Apr. Apr. 2, 2, 2022). 2022).

26 s8 Defendant Defendant is is charged charged with with reclglessly causing or reck}essly causing or attempting attemptingtotocause causeserious seriousbodily bodilyinjury. injury. Serious bodily bodily injury is defined as as "bodily "bodilyinjury injurywhich whichcreates: creates:serious seriouspermanent permanent disfigurement, disfigurement; aa substantial risk of death substantial risk death or or serious, serious, 27 permanent disfigurement, permanent disfigurement, severe or intense physical pain, pain; or protracted loss or impairment of of consciousness or of the Mnction of any function of bodily member any bodily member or or organ." organ." 99 G.C.A. G.C.A. §§l6.10(c). 16.lO(c).Bodily Bodilyinjury pain, illness, physicalpain, "meansphysical injury"means illness, 28 unconsciousness unconsciousness ororanyanyimpairment impairment ofof physical physical condition." condition." 99 G.C.A.§ §16.l0(b). G.C.A. l6.l0(b).

People v. Nalicat Case No. No. CF0164-22 Decision Decision and and Order

Page 8 oflO 10 [T]he [T]hecourt courtmust must decide decide whether whether the the record record reflects reflects aaprob.ability prob_ability that that a properly 1 informed grand jury jury would not have found probable cause to indict; cause to indict, Le., i.e., whether 2 the grand the jury would not have found grand jury found aa strong strong suspicion suspicion of guilt. guilt. This This analysis analysis 3 requires consideration of the relative strengths requires a consideration strengths and weaknessesof and weaknesses of the the evidence supporting the probable supporting the probable cause cause finding finding necessary necessary to indict indict and and the the undisclosed undisclosed 4 exculpatory exculpatory evidence. 5 Berardi Berardi v. v. Superior Superior Cr., Ct., 57 Cal. Cal. Rptr. Rptr. ad 3d 170, 170, 183 183 (Cal. (Cal. App. App. 2007) 2007) (citation (citation omitted). omitted). 6 "[l]rregularities "[I]rregularitiesatatgrand grandjury juryproceedings proceedings should should be be closely closelyscrutinized scrutinized because because protection of the 7 defendant's rights is entirely under defendant's rights under the control of ofthe the prosecution prosecution without without participation participation by the 8 defense." defense." Id Id.atat184. 184.However, However,"not allall "not cases casesinvolving involvingsome somedeficiency deficiencyinindisclosure disclosure and and 9 interference with the the grand grandjury's jury's independence independencewill will support supportdismissal." dismissal." Id. Id "[T]he "[T]hecourt court must must 10 evaluate the the record record as as aawhole, whole, taking taking into into consideration considerationall allrelevant relevantfactors" factors" which "include the 11 II strength and andnature natureof ofboth boththe theundisclosed undisclosedexculpatory exculpatory evidence evidence and the the probable probable cause causeevidence evidence 12 12 that waspresented." that was presented." Id. "[T]he fact "[T]he that fact the that record the can record cause does probablecause findingofofprobable supportaafinding cansupport 13 1 not mean there there is is no no reasonable reasonableprobability probabilitythe thejury jurywould wouldhave haverejected rejectedsuch suchaafinding," finding,"id. id at 14 14 185-86, the grand 185-86, should the grandjury jury have have heard heardthe theadditional additionalstatements statementsregarding regardingJ.P. J.P.'s'svisit visitto toGMH. GMH. 15 15 See, See, Ag., e.g., People People v. v. Ramee, Ramey, 2019 Guam 11,r,r Guam 11 W21-22 (finding (finding aa rational juror could have concluded 16 that the victim did not suffer that the suffer serious serious bodily injury injury when when there there was evidence evidence showing showing that that the 17 victim was victim was at at the the hospital for for only onlythree three hours, hours; that that he was given given over-the-counter over-the-counter drugs drugs as as pain 18 18 medication, medication; that he was conscious and that he and alert, alert, answering answering all all the questions, questions; a little upset, upset; that he 19 19 complained of pain pain to his his head, head, had an an abrasion abrasionon onthe theside sideof of his his head head with with some some welling welling and and 20 minor bleeding). Accordingly, Accordingly,the theCourt Courtfinds findsthat that Defendant Defendant was was prejudiced by the the failure failure of 21 21 the prosecutor prosecutor in presenting presenting the the statements statementstotothe thegrand grandjury. jury. Should the Government seek to 22 continue to prosecute this matter, it must must present the the statements statementsto to the the grand grandjury jury within within twenty 23 (20) days days of ofthe the issuance issuance of this Decision and and Order. Order. The The Court Court will will dismiss dismiss this this matter matter if no 24 superseding indictmentisis filed superseding indictment filed within this time frame. frame. 25 II// 26 26 II// 27 II// 28

People v. v. Nalicat Case No. No. CF0164-22 cF0164-22 Decision Decision and and Order

Page 9 oflO 10 1 CONCLUSION

2 foregoing reasons, the For the foregoing the Court Court hereby hereby DENIES DENIES Defendant's Defendant's Motion to Dismiss filed

3 February 5, 2024 2024 and and GRANTS GRANTS IN PART PART Defendant's Defendant's Motion Motion to to Dismiss Dismiss filed filed March March 28, 2024. 4

5 ?JW IT IS SO ORDERED this 'bow day of of July, 2024.

8 HONORABLE VERNON P. p. PEREZ Judge, Superior Court of Guam 9

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People v. v. Nalicat Nalicat Case No. No. CF0164-22 Decision Decision and and Order

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