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
28
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
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
People v.
v, Nalicaf
Nalicat
Case No.
No, cF0164-22
CF0164-22
Decision Decision and and Order
Page 3 oflO
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 selfself
-
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 selfself
-
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
People v.
v. Nalicat
Case No.
No. CF0164-22
CFOI64-22
Decision Decision and and Order
Page 5 of 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
19
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
20
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
[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
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.
6
7
8 HONORABLE VERNON P. p. PEREZ Judge, Superior Court of Guam 9
10 10
11 11
12 12
.13 )3
14 14
15 15
[6 16
17 17
18 18
19 19
20 20
21
22
23
24
25
26 26
27
28
People v.
v. Nalicat
Nalicat
Case No.
No. CF0164-22
Decision Decision and and Order
Page 10 of10
10 oflO