People v. Nalicat

Opinion

. ~F I L E D CLERK-OE COURT l

2 ZGZSJUL 25 PH u= I

3 SUPEREUR :6~:1s~T i GF Gum : 4

5 IN THE SUPERIOR COURT COURT OF OF GUAM GUAM 6 ) CRIMINAL CASE no. CRIMINAL NO.CF0336-23 CF0336-23 7 PEOPLE OF GUAM, GUAM, I ) GPD GPD Report Report No. No. 23-12543 23-12543 ) 8 8 vs. )) )) 9 9 ) 10 10 MARKANTHONYJUNDARINO MARK ANTHONY JUNDARINO ) DECISION DECISION & ORDER NALICAT, )) RE. DEFENDANT'S RE. DEFENDANT'S 11 )) MOTION MOTION TO TO DISMISS DISMISS aka Cheesebread 11/07/1993 DOB: 11/07/1993 ) 12 12 )) 13 13 Defendant. Defendant. )) - - - - - - - - - - ~ )w 14

15 15 This matter came before matter came before the the Honorable Honorable Alberto Alberto E. Tolentino on April 28, 28, 2025, 2025, for aa

16 Motion Hearing. Motion Hearing. Defendant Defendant Mark Anthony Jundarino Jundarino Nalicat Nalicat ("Defendant") was was present present with with

17 17 counsel Attorney Isa Baza. Assistant Attorney Attorney General Kathleen O'Neil O'Neil was counsel Attorney Baza. Assistant General Kathleen was present present for the the 18 18 ofGuam People of Guam ("People"). ("People").The Thecourt courtheard heardoral oralarguments arguments regarding regarding the Defendant's Motion Motion 19 Dismiss, which to Dismiss, which was was tiled filed on on March March20, 2025. Following 20,2025. Followingthe thehearing, hearing,the thecourt courttook tookthe the matter matter 20 20

21 under under advisement pursuanttoto Supreme advisement pursuant SupremeCourt COurtof of Guam Guam Administrative Administrative Rule Rule 06-00 06-001, l, CVR

22 7.l(e)(6)(A) 7.1(e)( 6)(A)and andCRI CRl.1.1ofofthe theLocal LocalRules Rulesofofthe theSuperior SuperiorCourt Court of ofGuam. Guam. Having Having duly duly considered 23 23 the parties' briefings, briefings, oral oralarguments, arguments, and and the applicable law, the court now issues this this Decision Decision 24 24 and Order DENYING Rh the .e Defendant's Defendant's Motion Motion to Dismiss. 25 25 BACKGROUND 26 26

27 27 On On May 18, 2023, the 18, 2023, theDefendant Defendantvyas wascharged charged with with POSSESSIONOF POSSESSION OFAASCHEDULE SCHEDULE II

28 28 CONTROLLED CONTROLLEDSUBSTANCE SUBSTANCE(As a 3rd (As a 3rdDegree DegreeFelony), Felony),with withaaNotice Noticeof ofthe the Commission Commission ofaa

Decision Decision & Order Re. Re. Defendant's Motion to Dismiss Dismiss People v. Nalicat, Nalicaf, CF0336-23 CF0336-23 Page l1 of 12 9 Felony Felony while on on Felony Felony Release. Release'. See See Indictment Indictment (May 18, 18, 2023). 2023). The The court court originally originally set set 1

2 November 27, 2023, as the 2023, as the deadline deadlinefor for counsels counselstotoexchange exchangediscovery discoveryororfile- file aa Motion Motion to to

3 Compel Discovery Discoveryififnecessary. necessary. See See Criminal CriminalTrial TrialScheduling SchedulingOrder Order(Jul. (Jul.7,7,2023). 2023).On OnJanuary January 4 3, 2024, 2024, the the court appointed Attorney Isa Bozo appointed Attorney Baza who currently currently represents represents the Defendant. Defendant. See 5 Notice Notice (Jan. (Jan. 3, 2024). 1 3, 2024).1 6

7 After After hearing hearing arguments the Defendant's arguments on the Defendant's Motion Motion to to Retain Retain Expert Expert Witness, Witness, the the court court

8 granted thatmotion granted that onMay motionon May 14, 14,2024. 2024.See SeeMot. Mot.Hr'g Hr'g Mins. Mins. at at 10:16:01 10:16:01- - 16:35AM 16:35AM (May 14, 14,

9 2024). The Defendant filed filed aa Motion Motion for forDiscovery Discoveryon onSeptember September3,3,2024, 2024, which which requested requested the 10 10 following following items: items: (1) (1)information informationin inregards regards to to the the plastic baggy in evidence, evidence; (2) information information and and 11 11 documents regarding the documents regarding thefield field test; test, and and (3) (3) officer officer records. records. See SeeDef. Def.'s Mot. Discovery (Sept. 's Mot. (Sept. 3, 12 12

13 13 2024). Without objection 2024). Without objection from from the the People, People, the the court court granted granted the the Defendant's Defendant's Motion for

14 14 Discovery. Discovery. See See Further Further Proceedings Mins. at 10:50:58AM (Sept, (Sept 11, 11, 2024). 15 15 As As of ofDecember December17, 17, 2024, 2024, the the People People had had not not disclosed disclosed the the discovery discovery items items requested requested 16 16 back in September, September, leading the Defendant Defendant to to file file a Motion to Compel Discovery ("Motion Compel Discovery ("Motion to 11 17 Compel") Compel"). See Def. 's's Mot. Compel (Dec. 17, 2024). Accompanying his Motion Mot. Compel Motion to to Compel Compel was was a 18 18

19 19 Declaration Declaration in in Support Support with attached email email threads threadsshowing showingdefense defense counsel's counsel's attempts attemptsto toreceive receive

20 20 the the requested discoveryfrom requested discovery from the the People. People.See See Deel. Decl. (Dec. (Dec. 17, 17, 2024). 2024). With neither neither a filed 21 opposition nor response responseto tothe theMotion Motionto to Compel, Compel, the the Defendant Defendantfiled filed aa Reply Reply to to the the Motion to 22 Compel on on January 7, 2025, January 7, 2025,requesting requestingthe thecourt courtto to grant grantthis thismotion motion as asthe the"ordered "ordered discovery discovery 23 23 24 remain[ed] unproduced" unproduced" at at the the time. time. Reply Reply(Jan. (Jan.7~, 7, 2025). 24

25 \\

26 26 \\\ 27 27

28 28 11 At At arraignment, arraignment, the the court courtpreviously previouslyappointed appointed Attorney Attorney James James Spivey Spivey as as the the Defendant's Defendant's counsel. See Arraignment Arraignment Hr'g Mins. Hr'g Mins. at at 3:46:35PM 3:46:35PM (May 12, 12, 2023).

Decision Decision & &Order Order Re. Re. Defendant's Motion to Dismiss Defendant's Motion People People v. Nalicat, CF0336-23 v. Nalicat, Page 2of 12 Page 2-of 12 On February 21, 2025, 2025, the the court court held held aa Further Further Proceedings Proceedings to to determine determine how the parties 1

22 intended for this case to intended to go go forward. forward. When When asked asked whether whether the Motion Motion to Compel Compel was still pending, pending,

3 defense counsel made the following record: 4 BAZA: Yes, Your Your Honor. YouYou had had ordered ordered discovery discovery back back in in September September of of last last 5 year based on our our Motion Motion for for Discovery. Discovery. And And we we followed followed up with with the the AG's AG's Office. haven't received We still haven't received it, so we filed a Motion to Compel. And Arid the the AG's AG's Office 6 did not respond. So, we did file a reply, which is still pending pending before the court. 7 7 Further Proceedings Mins. Further Proceedings Mims. atat 2:26:25 2:26:25 -- 26:43PM 26:43PM (Feb. (Feb. 21, 2025). 2025). On assurances assurances that the 8 discovery would be turned over, the court ordered the People to produce discovery by close of of 9 10 10 business Monday, February 24, 2025. See See Further Further Proceedings Proceedings Mins. at 2:27:26-28:22PM 2:27:26 28:22PM (Feb.

11 11 21, 2025). 2025).

12 12 Due to the the People's People's failure failure to to provide provide discovery, discovery, the the Defendant Defendant subsequently subsequently filed a 13 13 Motion Motion to Dismiss ("Motion to Dismiss") his case. See See Def.'s Def.'s Mot. Dismiss (Mar. 20, Mot. Dismiss 20, 2025). The . 14 14 to the Motion to Dismiss ("Opposition") on April 3, 2025; People filed its Opposition to 2025; and the 15 15

16 16 Defendant Defendant filed a Reply to the Opposition Opposition on on April April 10, 10, 2025. At the Motion Hearing on April 28,

17 2025, the court heard heard oral oral arguments arguments on on the theMotion Motion to Dismiss Dismiss and and subsequently subsequently took the matter 18 18 . under advisement. advisement. 19 19 DISCUSSION 20 20 A. The The People People violated violated its its discovery discovery obligation to Defendant Nalicat. 21

22 88 GCA GCA §§ 70.10 relays the 70.10 relays the People's People's discovery discovery obligations obligations as follows: as follows:

23 (a) Except (a) Except as as otherwise otherwise provided provided byby §§ §§ 70.20 and 70.30, 70.20 and 70.30, atat any any time time after after the the first first appearance upon noticed motion appearance upon noticed motion by the defendant, defendant, the court court shall order the 24 prosecuting attorney to prosecuting attorney to disclose disclose toto the defendant's defendant's attorney attorney or permit the the 25 defendant's attorney to inspect and copy copy the following following material and information information within his possession or control, control, the the existence existence of of which which isis known, or by the 26 26 exercise of due diligence may become become known known toto the the prosecuting prosecuting attorney: 27 27

Decision Decision &&Order Order Re. Re. Defendant's Motion to Dismiss Defendant's Motion People v. v. Nalicat, Nalicat, CF0336-23 CF0336-23 Page Page 3 of of 12 12 (1) the name name and and address address Of any person of any person whom whom the prosecuting attorney intends 1 witness at the to call as a witness the trial, tnlal,together together with with his his relevant relevant written written oror recorded recorded 2 statement, statement; (2) any written oror recorded statement statement andand the substance substance of of any oral statement 3 made byby the defendant defendant or or made made byby aa co-defendant co-defendantififthe the trial trial is is to be a joint joint one; one, 4 (3) any report or statement of of an an expert, expert, made made in in connection connection withwith the. the_ case, case, 5 including results including results ofof physical or mental examinations and of scientific examinations and of scientific tests, experiments oror comparisons, comparisons; 6 (4) any any book, paper, paper, document, photograph or document, photograph or tangible tangible object, obi et, which the prosecuting attorney intends to use use in in the the trial trial or or which whichwas was obtained from 7 or belonged to the defendant; defendant, 8 (5) any record ofof prior criminal convictions of persons whom the prosecuting attorney intends to call as witnesses witnesses at at the trial, trial; 9 (6) whether whether there there has has been been an an electronic electronic surveillance surveillance of ofConversations conversations to whichwhich 10 the defendant defendant was party or of his premises; premises, (7) any material or information which or information which tends tends to negate the guilt of the defendant defendant 11 as to the offense charged or would tend to reduce his punishment punishment therefor.

12 12 (b) The The prosecuting prosecuting attorney's attorney's obligations obligations under under this Section Section extend extend to any material 13 13 information in the possession or control of members of members ofof his staff staff and any other other persons who have have participated participated in the investigation investigation or or evaluation evaluation of of the case and 14 14 who either _who either regularly regularly report or with reference to this case have reported to his office. 15 15

16 16 GCA §§ 70.10(a)-(b). 88 GCA Further, all 70.l0(a)-(b). Further, parties have all parties have aa continuing continuing duty duty to to disclose disclose to to the the other other party, party,

17- 17 · attorney, or the the court "additional "additional material or information information previously previously requested requested or ordered, which 18 18 is subject to is subject to disclosure." disclosure." 88 GCA GCA §§ 70.40. 70.40. In In this this case, case,the theDefendant Defendant requested requested the the following following items items 19 19 of of discovery in his Motion for Discovery Discovery and Motion Motion to to Compel: 20 20 1. The Theamount amountofofsubstance substance in in the the baggy baggy minus minus the the weight weight ofof the baggy. 21 2. AAdescription descriptionofofthe the substance. substance. 22 3. Any Anyplanned plannedscientific scientificanalysis analysisononthe thesubstance substance in in the the bag, bag, to include the type of laboratory procedure, of analysis, laboratory procedure, and and where where testing has oror will will be be conducted. conducted. 23 23 *** *** L Specific 1. Specificidentification identification ofofthe the field field test test lat kit used used inin this this case case including: including: a) the 24 manufacturer, manufacturer; b)b) kit lat product product numbers numbers and/or ardor reagents, reagents; c) lot number, number; and d) 25 expiration date of of kit. . 2. AAgeneral generaldescription description ofofthe the kit kit used used inin this this case, case, toto include include the condition 9ondition of of 26 26 packaging and reagents. 27 3. Storage Storageconditions conditionsofofthe thefield fieldtest testlat kitprior prior to to use use in in this this case. *** *** 28 l. Color 1. Colorchart chartutilized utilizedfor forcomparison comparisonofoffield field test test kit kit results. results.

Decision Decision & &Order Order Re. Re. Defendant's Motion to Dismiss Defendant's Motion People People v. Nalicat, CF0336-23 v. Nalicat, Page Page 4 of of 12 12 F

2. Manufacturer's Manufacturer'sinstructions instructionsononthe theuse useofofthe thekits kits. 1 3. Guam GuamPolice PoliceDepartment DepartmentStandard StandardOperating OperatingProtocols Protocols for for the Performance performance of 2 field testing and interpretation of of field test kit results, results, including including but not not limited to to information related to the the following: sample size, procedure for conducting 3 field tests, determination of of positives and negatives, and any special procedures for the analysis of residues. 4 4. Quality Qualitycontrol controlsample sampleresults resultsfor foraarepresentative representative field field test test kit kit from the specific 5 kit lot number number used in this case, including including known known positive positive and negative and negative controls controls.. 5. Documentation Documentation of of contamination contamination pr evention measur prevention measures, es, including, but not including, but 6 limited to, the following: a) a) cleaning ofof tools tools Used used toto conduct the field test on 7 the substance in the baggy or documentation of of a disposable single use tool;tool, b) protective equipment_ personal protective equipment wornwom by thethe officer officer who administered administered the test, test; 8 c) cleaning ofof surfaces where field testing was conducted. *** 9 *** l. 1. Training Trainingrecords recordsfor forall allofficers officers involved involvedininthe the field field testing testing in in this this case. 10 2. Color Colorvision visiontesting testingrecords, records, for for all all officers officers involved involved in in the the field field testing testing in this case. 11 11 3. Proficiency Proficiencytesting testing records records for for all all officers officers involved in in the the field field testing testing in this case, specifically for the period case, specifically for the period of of time including this case case and immediately 12 12 prior to and after said field testing. 13 13 Def.'s Mot. Def.'s Mot. Discovery Discovery (Sept. (Sept. 3, 3, 2024); Def.'s Def.'s Mot. Mot. Compel Compel (Dec. (Dec. 17, 17, 2024). 2024). In its Opposition, the 14 14 People informed informed the the court court that the Defendant Defendant was sent sent thirty-six (36) pages of discovery, which 15 15

16 16 he acknowledged acknowledged receipt. receipt. See See PaL's Ppl. 's Opp'n Opp'natat 22 (Apr. (Apr. 3, 2025). However, the People disregard the

17 17 fact that fact that these these thirty-six thirty-six (36) (36) pages pages of of discovery discovery had had already already been been forwarded forwarded by the Public Public 18 18 Defender Service Corporation on January Corporation on January 3, 3, 2024, 2024, which which did did not include the discovery items 19 19 requested and ordered on September 12, 12, 2024, 2024; and and again, again, .on February 21, 2025. 22 21, 2025. 20 20

21 The People also note that a "report was was immediately forwarded forwarded to to defense counsel" on

22 22 2025. Ppl. April 2, 2025. Ppl.'s 's Opp'n at 2. Although the People provide no clarification clarification on what what report this 23 is or aanything nything about bout itss release elea se to t o an a n unknown entity with the aacronym onym "LERMS"" in itits entity with 24 Opposition, the People addressed this matter at the the Motion Motion Hearing. Hearing. Despite Despite the the People People providing providing 25

27 27 2 Prior to Attorney Baza's appointment, the Public Defender Service Corporation was briefly appointed to this case 2 Prior to Attorney Baza's appointment, the Public Defender.Service Corporation was briefly appointed to this case on November November 20,20, 2023. See See Notice Notice (Nov. (Nov. 20, 20, 2023). Upon its 2023). Upon relief of its relief of court-appointment, court-appoinment, the the Public Public Defender Defender Service Service 28 28 Corporation forwarded forwarded initial initial discovery information to to Attorney Baza on January January 3,3,2024. 2024.See SeeDeel., Decl.,Ex. Ex.AA (Dec. (Dec. 17, 2024). 2024).

Decision Decision &&Order Order Re. Re. Defendant's Motion to Dismiss Defendant's Motion People People v. Nalicat, CF0336-23 v. Nalicat, Page Page 5 of 12 12 this report report after after receiving receiving it, the the People specified specified that that it did not receive this this lab report until until after 1

2 March 24, 24, 2025, 2025, because because itit is not something something itit receives "right away away unless it's an unless it's an emergency. emergency." 77

3 Mot. Hr'g Hr'gMims. Mins. at 28:58PM (Apr. 28, 2025). at 2:28:47 -28:58PM 4 The People People argued argued that the the manual manualfor for aa field-testing field-testing kit does not constitute as discovery constitute as discovery 5 within their within their obligation obligation under under88GCA GCA §§ 70.10. 70.10.See SeeMot. Mot. Hr'g Hr'g Mims. at2:18:36 Mins. at 2:18:36- - 20:57PM 20:57PM (Apr. (Apr. 6 6 7 28, 2025). After After indicating indicating that the NARK that the NARK IIIIfield-testing field-testingmanual manualisisnot not something something the the People People use 7

8 at trial, the People People also also argued argued that that the Defendant made no showing that made no the requested that the requesteddiscovery discovery

9 9 was exculpatory, and made made no no effort effort to use his power to subpoena GPD for that information. Id. Id. subpoena GPD that information. 10 When When asked about the the lack lack ofattempts attempts to subpoena the the information information sought, the Defendant 11 stated that thatthe thePeople People never never opposed opposed his discovery discovery requests requests from from last lastyear yearand and January of this year. January of year. 12

13 13 See See Mot. Hr'g Hr'g Mins. Mins. atat2:25:25 2:25:25 -- 27:02PM 27:02PM(Apr. (Apr.28, 28,2025). 2025).Because Becausethere there had had been no oral or been no

14 14 written objections from from the the People Peopleand andfurther further assurances thatitit would assurances that would tum turnover over that thatdiscovery, discovery,

15 15 the Defendant did not subpoena GPD as he subpoena GPD he was was under underthe theimpression impressionthat thatthe thePeople Peoplewere wereworking working 16 16 to provide provide the the requested information. Id. requested information. Id 17 17 The People also also stated that some stated that some of of the the requested requesteddiscovery discovery items items were were not not in in the thePeople's People's 18 18

19 19 or GPD's GPD's possession, possession, and was not something and was they routinely something they routinelyprovide. provide.See SeeMot. Mot. Hr'g Hr'g Mins. at at

20 :24:53-25:02PM 2:24:53 28,2025). -25 :02PM (Apr. 28, 2025). In In light light of ofthis this statement,the statement, People also indicated it provided provided 21 documents it received from GPD, in response to a subpoena dices what documents duces cecum tecum regarding the 22 NARK NARKIIIIfield fieldtesting testing kit. kit. Id. at at 2:18:05 2:18:05 -- 18:35PM. 18:35PM. 23

The People cannot The absolve themselves cannot absolve themselvesof of its its obligation to provide obligation to provide discovery discovery in its its 24

25 25 possession as of February possession as 24, 2025, February 24, 2025, pursuant pursuant totothe thecourt's court's order. order.The The People People did not not meet meet 26 26 discovery deadlines deadlines and, to date, have not fully complied and, to date, have complied with withthe the Defendant's Defendant's requests requests or or the the 27

Decision Decision & & Order Order Re. Re. Defendant's Defendant's Motion Motion to to Dismiss Dismiss People People v. Nalicat, Nalicat, CF0336-23 CF0336-23 Page Page 6 of of 12 12 .1

orders orders of the court. court. Therefore, the finds the the court finds the People violated its discovery obligations obligations to 1

2 Defendant Nalicat under 88 GCA DefendantNalicatunder GCA §§ 70.10. 70.10.

3 Dismissalisisnot B. Dismissal notthe the appropriate appropriatesanction sanctionagainst against the the People People in in this this case. 4 The People People argue argue that that dismissal is not the the appropriate appropriatesanction, sanction,claiming claimingto to have have complied complied 5 with the the court's court's discovery discovery orders, orders, and and have have disclosed disclosed all all materials materials in in its its possession, possession, including including 6

7 everything everything it intends intends to use at trial. See See Opp'n at 3-5. In contrast, the Defendant In contrast, Defendant argues argues that that

8 dismissal dismissal is an an appropriate appropriate sanction in this case. See See generally 's Mot. generally Def.'s Mot. Dismiss Dismiss (Mar. (Mar. 20, 20,

9 2025). 2025). 10 If Ifthe the court court becomes becomes aware aware that a party party has hasfailed failed to to comply with with a court order, "the court 11 may order such party party to to comply with with the the prior prior order, order, grant grant aa continuance, continuance, or or issue issue such other order 12 12

13 as as itit deems just under deems just under the the circumstances." circumstances." 88 GCA GCA §§ 70.45. 70.45. When trial judges When trial judges select select aa sanction to sanction to

14 14 impose against against counsel, the Guam Guam Supreme Court has has iterated that the appropriate sanction iS is 15 13 ,r1]24 15 "proportionate to the misconduct." misconduct."People v. Tuncap, 1998 v. Tuncap, 1998 Guam 13 (quoting United 24 (quoting United States States 16 16 v. Gee, v. 1165, Gee, 695 F.2d 1165, 1169 (9th 1983)). 1169 (9th Cir. 1983)). In In addition, addition, the trial court court should should impose the least 17 17 severe sanction to achieve sanction to achieve "prompt "prompt and and full full compliance compliancewith with the the court's court's discovery discovery orders." orders." Id Id 18 18

19 19 (quoting United States States v.v.Sarcinelli, Sarcinelli, 667 F.2d 5, 5, 77 (5th (5th Cir. Cir. 1982)).

20 Dismissal is deemed an extreme sanction,-because sanction,- because ititwould would prevent prevent the the case case from from going going 21 forward forward on on its its merits. merits. See See Tuncap, 1998 Guam 13 ,r1127. Tuncap, 1998 Unlessthere 27. Unless thereisis''.flagrant 'vagrant and prosecutorial prosecutorial 22 misconduct," misconduct," dismissing aN an indictment is not not an an appropriate appropriate sanction. v. Naich, 2013 sanction. People v. 2013 23 23

24 24 ,r 33 Guam 77 1] 33 (quoting United United States States v. Jacobs, Jacobs, 855 F.2d 652, 655 655c ,(9th Cir. 1988)). The Guam (9th Cir.

25 Supreme Court has Supreme Court has found found that thatthe thebetter betterpolicy policy when applying sanctions sanctions is to choose one one that that

26 "affect[s] "affect[s]the theevidence evidenceatattrial trialand and the the merits merits of ofthe the case case as little as possible." possible."People People v. v. Martinez, 27 27

Decision &Order Decision & Order Re. Re. Defendant's Motion Motion to Dismiss People v. Nalicat, CF0336-23 v. Nalicat, Page Page 7 of of 12 12 1 2017 Guam 23 ,r 14 (quoting 23 1114 (quoting Tuncap, 1998 Guam 13 Tuncap, 1998 ,r (citation and internal quotation marks 13 1]23

2 omitted)).

3 whether aa sanction To decide whether sanction like dismissal isis an like dismissal an appropriate appropriate sanction sanction for a discovery discovery 4 vloIatlon, violation, the court court ut111zes thefollowing utilizes the following factors factors enumerated enumerated in United United States States v. v. Sarcznellz: Sarcinelli: (1) 5 reasons why the disclosure was reasons why was not not made; made, (2) (2) the the extent extent of of the the prejudice, prejudice, if if any, to the opposing 6 6

7 7 party; (3) party, (3) the feasibility feasibility of rectifying that prejudice prejudice by a continuance, and (4) any other relevant

8 circumstances. Naich, 2013 Guam 77 1],r 31 circumstances. Natch, 31 (citing Sarcinelli, Sarcinelli, 667 F.2d at 667 F.2d at 7 (5th (5th Cir. Cir. 1982)). 1982)).

99 Weighing these Sarcinelli factors, the court court will review review whether whether dismissal dismissal isis an an appropriate appropriate 10 sanction for the violation in this case. the People's discovery violation 11 (I) (1)Reasons Reasons why why the the disclosure disclosure was was not not made made 12 12

13 The first factor factor considers considers the the reasons reasons why why disclosure disclosure was not made. See Martinez, Martinez, 2017

14 14 ,r 15. 23 1] Guam 23 15. The The People People assert assert that that itit did did not not produce produce the the NARK II test results, because it do

15 15 not intend to use them at at trial. See Opp'n trial. See Opp'n at 3. At the Motion Hearing, the People stated on the 16 record several times times that that the lab is "backed up" and usually test closer to a scheduled date for jury 17 17

trial, and only when a jury trial trial; trial date date is is scheduled scheduled is when the lab conducts its tests. tests. See See Mot. Mot. Hr' Hr'g 18

19 19 Mims. at 2:15:25 Mins. at 2:15:25 -.-.16:49PM 16:49PM(Apr. (Apr.28, 28,2025). 2025).Considering Consideringthis this information information on on the the laboratory's

20 20 procedures relayed procedures relayed to to the the court court on of the on the day of the Motion Motion Hearing, Hearing, the the court court had had previously previously 21 scheduled aa jury trial for January January 17, 2024; 2024, and and subsequently subsequently on January 6, 2025, upon Attorney 22 Baba's appointment. 3 Baza's appointment.3 23 23 Several emails from from defense counsel went unanswered by the People who also also provided 24 24

25 25 no sort ofresponse response regarding the disclosure's disclosure's delay. delay. See See Deal. Deel. in in Support, Support, Ex. B (Dec. 17, 17, 2024). 26 26 The court does not believe that the People purposefully hid these materials from from the Defendant. 27 I

28 28 3 3 See Criminal Trill Scheduling Order (July 7, 2023),see also Amended Criminal Trial Scheduling Order (Aug. 6, See Criminal Tri~l Scheduling Order (July 7, 2023); see also Amended Criminal Trial Scheduling Order (Aug. 6, 1 2024). 2024). a

Decision Decision & & Order Order Re. Defendant's Defendant's Motion Motion to to Dismiss People v. v. Nalicat, CF0336-23 CF0336-23 Page 8 of 12 12 i k However, However, a back ed-up ed-up laboratory laboratorydoes does not not excuse excusethe thePeople's People's contravention contravention of the court's orders 1

2 light of in light of no oOh oJjections thethe to to sections Defendant's Defendant'sMotion Motionfor forDiscovery Discoveryand andMotion Motion to to Compel Compel and the

3 People's assurances People's assurahces as as recent recent as as February 21, 2025, 2025, that that the the requested requested discovery discovery would would be given. 4 This factor wei!hs Wei in favor of dismissal. 5 I (2) The The extent of prejudice, ififany, of the prejudice, any, to the opposing party parw 6

7 secbnd factor The second factor looks at the extent extent of of prejudice, prejudice, if if any, any, to to the the opposing opposing party. party. See

88 Martinez, ,-r 15. Martinez, 2017 Guam 23 11 15.Specifically, Specifically, the the court court looks at "prejudice "prejudice to to the the defendants' defendants'

99 substantial rights, that is, injury substantial rights, injury to to their theirright righttotoaafair fairtrial, trial,and andthat thatprejudice prejudicedoes doesnot notencompass encompass 10 10 putting trial pre preparation into minor I minor disarray." Martinez, ,-i (quoting United Martinez, 2017 Guam 231]18 United States 11 11 v. Garrett, 238 293, 299 238 F.3d 293, 299 (5th Cir. 2000) 2000) (citation (citation omitted)). omitted)). Under Under this this second second factor, the 12 12

13 13 court's conch court's conce "prejudice to is "prejudice must deal who must party who the party to the deal with with the the ramifications ramifications of of aa discovery discovery

14 14 violation, violation, not , rejudice to not prejudice to the disclosing party the disclosing party in in the that the the event that the evidence evidence isis ultimately ultimately 15 15 excluded." excluded." Nay h, 2013 Guam NaJh, Guam 77118, 1[ 18, n.n.3.3."If "Iftp.e thedefendant defendant had hadtime time to to put put the the newly newly disclosed 16 16 discovery to use, usl, then there there should should be beno nofinding Endingof of prejudice." prejudice." Martinez, Martinez, 2017 Guam Guam 23 23 1] ,-i 18. 17 17 I .

of tHe As of tlie Motion Hearing, the Defendant Defendant indicated indicated that that he he still still has has not not received. received all the 18 18 . . » . . . 19 19 discovery requ¢stedin discovery requLted Motlon for hisMotion in his for Discovery Dlscovery and and Motion Motlon to to Compel. Compel. However, However, the the court court I -

20 20 vacated jury selection vacated jury section and andtrial trialininthis thiscase, withoutobjection case,without fromthe objectionfrom theparties, parties,since since December December 21 I 18, 2024, 2024; the the same same day that that the the court courtalso also granted grantedthe the Defendant's Defendant'srelease release on onhouse house arrest. arrest. See See 22 ConfJence Mims. Pre-Trial Conference Mins. at 9:14:15AM 9:14:lSAM (Dec. (Dec. 18, 18, 2024). The Defendant is currently released 23 23 from confinement confinemJnt at at the the Department Department of ofCorrections, Corrections; and and the the court court recently recently Iifced lifted house arrest as a 24

25 conditi,n. See Further Proceedings Mins. at 2:25;00 PM (Feb. 21, 2025). In release condition. In addition, he

26 26 asserte, his right to speedy trial. has not asserted trial. See Arraignment Hr'g Hr'g Mims. Mins. at 2:20:20 2:20:20 PM (June 6, 27

Decision Decision & & Order Order Re. Defendant's Defendant's Motion Motion to to Dismiss Dismiss People v. Nalicat,CF0336-23 v. Nalicat, Page 9 of of 12 12 2023). Considering the Defendant's release from confinement, 2023). confinement, no scheduled date date for for jury trial, 1

2 and his his waiver waiver lf speedy trial, of speedy trial, the the court court finds that this factor weighs against against dismissal. dismissal. I * 3 (3) Zhefeasibility re feasibilityofrectwling ofrectifyingthat thatprejudice byaacontinuance prejudiceby continuance ' 4 The third thirtl factor considers whether aa continuance considers whether continuanceof ofthe thetrial trialisisaafeasible feasiblerectification rectification of 5 the Defendant'J Defendant's prejudice. See Martinez, 2017 Guam See Martinez, Guam 23 ,i 15. 23 'n 15. As As mentioned mentioned earlier, the court court 6

7 granted the De~ Motion for Discovery on September 12, 2024, without opposition sense'sMotion Defense's opposition or .

8 objection obi actionfrom from the People.See t~hePeople. SeeFurther FurtherProceedings ProceedingsMins. Mins.atat10:50:58AM 10:50:58AM(Sept. (Sept. 11, 11,2024). 2024).After After

9 the faileld to comply, the Defendant the People faugh Defendant filed his Motion Motion to to Compel Compel on on December December 17, 17, 2024. 2024. 10 See Def.'s Mot.Compel Def.'s Mot. Compel(Dec. (Dec.17, 17,2024). 2024).On OnFebruary February21, 21, 2025, 2025, the the court court ordered the the People to 11

t, the re provide the re wested uested discovery discovery by by the the close closeofofbusiness business on onFebruary February 24, 24, 2025. See Further 2025. See Further 12 12 1 13 13 Proceedings M.ns., at at2:25:00l'M 2:25:00PM(Feb, (Feb. 21, 21,2025), 2025).The The People People again again failed failed to comply with with both both

14 14 the Defendant'! Defendant's request request and and the thecourt's coilrt's orders.

15 15 In In termsofofa atrial trialdate datefor forthis thiscase, case,the thecourt court previously previouslyvacated vacated jury jury selection selection and and trial 16 16 scheduled for january scheduled for 1"nuary 6, 2025, 2025, based on the parties' parties' representations that they representations that they were working 17 17 towards towards aa deal deal rnstead insteadof of trial. trial. See See Pre-Trial Conference Mims. at 9:14:15AM Mins. at 9:14:15AM (Dec. 18, 18, 2024). 2024). 18 18

19 19 More More important~ important~y,y,the theDefendant Defendantremains remainsto towaive waive his right to speedy speedy tnlaL trial. Should the Defendant

20 20 remain unsure unsurelbout abouthow howto togo go forward in his case without the discovery, the the court court finds finds that that aa 21 brief continuance continuanL isis a feasible feaslble remedy remedy to to allow the Defendant tlme to Defendant time to review the the untimely yet 22 relevant discovr, discos Ry. Accordingly, Accordingly,this this factor factor weighs weighs against against dismissal. dismissal, . 23 23

24 (4) Any Any other other relevant relevant circumstances circumstances

25 The fourth fourth factor factor takes takes into into account account other other relevant relevant circumstances circumstances when determining an an

26 appropriate sanction.See See Martinez, 23,iii 15. Martinez, 2017 Guam 23 15.Both Both parties partiespreviously previously engaged in plea 27 27 negotiations leading up to to the the Motion Motion to Dismiss. However, However, the the People People later later found found the the Defendant 28

Decision Decision &&Order Order Re. Re. Defendant's Motion to Dismiss Defendant's Motion People People v. Nalicat, CF0336-23 v. Nalicat, Page 10 12 Page10of12 ineligible to legally ineligible of his only to participate in the Adult Drug Court program, despite the dismissal of 1

2 See Ppl.'s other case, CF0164-22. See Screening (Apr. Ppl.'s Legal Screening 1, 2025). However, it is noteworthy that (Apr. 1,

3 Defendant's Commission of a Felony while on the Defendant's for the basis for the basis felony, which is the the underlying felony, 4 Felony Release Notice in this case, has been dismissed.44 Should in this at this dismissal at grant dismissal court grant the court Shouldthe 5 time, the Defendant not be able to seek treatment through the Adult Drug Court program now Defendant may not 6

that convictions for that he has no convictions offenses on his for violent offenses record. Based on his record. these other on these relevant other relevant 7

s8 circumstances surrounding this circumstances surrounding case, this this case, against dismissal factor weighs against this factor as an dismissal as appropriate an appropriate

9 sanction for the People's discovery violation. the People's 10 10 After applying the Sarcinelli factors to dismissal factors to as the dismissal as sanction, the Defendant's proposed sanction, 111

the count finds that dismissal court finds not be an appropriate sanction in this case. dismissal would not 12 12

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20 \\ \\ 21 \\ 22 22 \\ 23 23

24 24 \\\ 25 \\

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28 28 44 On On October 16, 2024, October 16, 2024, the the court court granted granted the thedismissal dismissalof of Criminal Criminal Case CaseNo. No. CF0164-22 CF0164-22 in in its its entirety. entirety. See See People v. Nalicat, Nalicat, CF0164-22 CF0164-22 (Order (Oct. 16, 2024)).

Decision & Order Re. Re. Defendant's Defendant's Motion to Dismiss People v. v. Nalicat, Nalicat, CF0336-23 Page 11 Page ll of 12 ofl2 CONCLUSION

2 The court hereby DENIES the Defendant's Motion to Dismiss. In the event this matter

3 proceeds to trial, the court further ORDERS the following: 4 • By Close of Business September 26,' 2025, the People of Guam shall produce all 5 discovery stated in the Defendant's Motion to Compel that has yet to be submitted to the 6

7 Defendant for his review;

8 • If the People of Guam do not produce discovery by the above deadline, the court will 9 impose a sanction of attorney fees and costs, beginning from the court's Order Granting IO Defendant's Motion for Discovery (September 12, 2024) through the issuance of this 11 Decision and Order. 12

14 A Further Proceedings is scheduled before this court on October 3, 2025, at 2:00PM. 15

16 SO ORDERED this ---=JU__,l~2~5~2,,__02. . 5.____ . 17

21 HONORABLE ALBERTO E. TOLENTINO 22 Judge, Superior Court of Guam

24 SERVICE VIA E-MAIL I acknowledge that an electronic copy of the original was e-mailed to: 25 /t6.,. "!.. 'bu.~ 26

Decision & Order Re. Defendant's Motion to Dismiss People v. Nalicat, CF0336-23 Page 12 ofl2