People v. Nededog, J.D.

Opinion

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5 IN THE SUPERIOR COURT OF GUAM 6 _____________________________________________ _____________________________________________

~ PEOPLE OF GUAM,.

8 Plaintiff, Criminal Case No.: CFO3 17-18 U vs. -‘ DECISION AND ORDER RE:

DEFENDANT’S MOTION TO SEVER 10 JAY DANIEL FAMA NEDEDOG, COUNTS AND CHARGES

11 DOB:08/10/1996 Defendant.

12 _____________________________________ ______________________________________

13 Introduction

14 This matter came before the Honorable Maria T. Cenzon on March 16, 2020, for a 15 hearing on Jay Daniel Fama Nededog’s (“Defendant”) Motion to Sever Counts and Charges 16 filed on January 21, 2020. Attorney Anna Gayle of the Alternate Public Defender represented 17 Defendant at the hearing and Assistant Attorney General Dannis Le represented the People of 18 Guam (“People”). After reviewing the Motion, the pleadings on the record, and the relevant 19 law, the Court now issues this DECISION and ORDER DENYING Defendant’s Motion.

20 Background

21 On May 31, 2018, Defendant was indicted in the instant matter with four (4) criminal 22 sexual conduct charges. The first charge alleged Three (3) Counts of First Degree Criminal 23 Sexual Conduct (As a First Degree Felony), the second charge alleged Four (4) Counts of 24 People v. Nededog; CF0317-18 D&O re: Defendant’s Motion to Sever Counts and Charges 1 Second Degree Criminal Sexual Conduct (As a First Degree Felony), the third charge alleged 2 Five (5) Counts of Third Degree Criminal Sexual Conduct (As a Second Degree Felony), and 3 the fourth charge alleged Six (6) Counts of Fourth Degree Criminal Sexual Conduct (As a 4 Misdemeanor). Indictment (May 31, 2018). The Indictment lists two (2) minor victims and one 5 (1) adult victim amongst all the counts and charges. Id. at 2-6. The dates of the alleged 6 incidents range between January 1, 2017, and May 14, 2018, except for the Fourth Count of 7 Charge Two.’ Id. 8 On January 21, 2020, Defendant filed the instant Motion. On February 18, 2020, the 9 People untimely filed its Opposition.2 Defendant did not file a Reply. On March 16, 2020, the 10 Court heard further arguments on the Motion, and subsequently placed the matter under 11 advisement pursuant to Administrative Rule 06-00 1. Minute Entry (Mar. 16, 2020). 12 Discussion 13 Pursuant to 8 G.C.A. § 65.35, Defendant moves the Court to sever “the counts in such a 14 way that a separate trial would be held for each victim alleged.” Mot. at 2 (Jan. 21, 2020). 15 Defendant asserts without any legal authority other than that generally provided under 8 16 G.C.A. Section 65.35 that the charges regarding each alleged victim are fact specific and 17 severance is necessary to give the jury the opportunity to consider each of his defenses 18 individually. Defendant further, again without more specific case authority, argues that 19 presenting all allegations together in a single trial would severely prejudice his ability to 20 defend himself. 21

22 The Fourth Count of Charge Two was alleged to have occurred on or about the period between January 1, 2015, and December 31, 2017.

23 2 The People’s Opposition was due on February 4, 2020. “[T]he filing of a notice of non-opposition to a motion, or the disregard of untimely filed papers, does not require a court to automatically grant the motion and is not 24 dispositive of the motion itself. The court has a duty to analyze the merits of the motion before rendering its decision.” Pet. of Quitugua v. Flores, 2004 Guam 19, ¶ 28 (Oct. 4, 2004).

People v. Nededog; CF0317-18 D&O re: Defendant’s Motion to Sever Counts and Charges 1 The People oppose, arguing that the charges are properly joined and joinder in this 2 matter will not unfairly prejudice Defendant. See generally, Opp’n, Feb. 18, 2020. The People 3 agree with Defendant that a single trial will have a prejudicial effect. However, the People 4 argue that the prejudicial effect toward Defendant is innate to any indictment that contains 5 multiple charges against one defendant and therefore does not require severance. The People 6 contend additionally, that any such prejudice may be cured by instructing the jury on how to 7 treat such evidence when deliberating on its verdict. Moreover, GRE 413 permits acts of 8 criminal sexual conduct to be considered by the jury for any purpose and, therefore, severance 9 is not appropriate. The Court now undertakes its own analysis of the applicable laws 10 governing severance of charges. 11 Under Guam law, two or more offenses may be charged in the same indictment “if the 12 offenses charged are of the same or similar character or based on the same act or transaction or 13 on two or more acts or transactions connected together or constituting parts of a common 14 scheme or plan.” 8 G.C.A. § 55.35. Severance may be appropriate, however

15 [i]f it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or 16 information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of 17 defendants or provide whatever other relief justice requires.

18 8 G.C.A. § 65.35. 19 In determining whether offenses are properly joined, courts traditionally consider 20 “whether the charges are laid under the same statute, whether they involve similar victims, 21 locations, or modes of operation, and the time frame in which the charged conduct occurred.” 22 United States v. Taylor, 54 F.3d 967, 973 (1st Cir. 1995) (citations omitted). Furthermore, “the 23 validity of the joinder is determined solely by the allegations in the indictment.” United States

24 v. Jawara, 474 F.3d 565, 572 (9th Cir. 2007) (citing United States v. Terry, 911 F.2d 272 (9th People v. Nededog; CF0317-18 D&O re: Defendant’s Motion to Sever Counts and Charges Page3of6 1 Cir. 1990)). The Court has considerable discretion when ruling on whether to grant a motion to 2 sever. Parker v. United States, 404 F.2d 1193, 1194 (9th Cir. 1986). 3 Here, Defendant argues that if the charges are not severed into separate trials, one for 4 each victim, he will be substantially prejudiced and incapable of effectively asserting an 5 individual defense for the charges regarding each alleged victim. The Court finds that although 6 the Indictment identifies different victims in the various charges, the offenses are properly 7 joined because Defendant’s alleged actions in each offense are of the same or similar character. 8 See, e.g. United States v. Sanders, 463 F.2d 1086, (8th Cir. 1972) (affirming joinder of counts 9 where offenses were of the same or similar character and occurred eight months apart); 10 Howard v. United States, 372 F.2d 294, 301 (9th Cir. 1967), cert. denied 388 U.S. 915 (1967) 11 (holding that “the use of multicount indictments charging offenses of similar character is a 12 sanctioned practice”); United States v. Rodgers, 732 F. 2d 625, 629 (after examining prior 13 cases where joinder was affirmed for offenses occurring during time periods including eight 14 months, two-years, and five months, finding “the time-period factor period is to be determined 15 on a case-by-case approach; there is no per se rule on when the time period between similar 16 offenses is so great that they may not be joined.”). 17 The Court acknowledges Defendant’s argument that he may suffer some risk of 18 prejudice if the charges are not severed; however, the Court finds that such risk is minimal and 19 certainly does not rise to a level supporting severance. Moreover, any possibility of prejudice 20 is sufficiently cured by giving the juror proper limiting instructions. “Juries are presumed to 21 follow their instructions.” Zafiro v. United States, 506 U.S. 534, 540 (1993) (citation omitted). 22 Next, the Court considers the argument that if a single trial is held for all charges, a 23 single jury will be unable to consider multiple defenses in a separate manner for a specific

24 charge, which will result in substantial prejudice towards defendant. Even if the Court accepts People v. Nededog; CFO317-18 D&O re: Defendant’s Motion to Sever Counts and Charges 1 this premise, which it does not, under the circumstances, Defendant has failed to establish 2 severance is appropriate. “The prime consideration in determining whether or not to grant a 3 severance is the possibility of prejudice to the defendant in conducting his defense. Weighing 4 the danger of confusion and undue cumulative inference is a matter for the trial judge and 5 within his sound discretion.” Johnson v. United States, 356 F. 2d 680, 682 (8th Cir. 1966). The 6 burden is on the defendant to show “clear,” “manifest,” or “undue” prejudice from a joint trial. 7 United States v. Polizzi, 801 F.2d 1543, 1554 (9th Cir. 1986). Defendant argues that a single 8 trial will inhibit the jury’s ability to consider separate defenses in a manner that is non- 9 prejudicial. The Court disagrees. The Court finds that proper limiting instructions will prevent 10 a jury’s verdict in any one charge to affect their deliberations for another charge. As such, the 11 Court holds that Defendant has failed to meet his burden in establishing that the joinder of the 12 charges will result in undue prejudice. 13 Finally, Defendant argues that “the government has not given notice of GRE 404(b) 14 evidence or GRE 413 evidence and instead has just lumped each allegation together in a single 15 indictment.” Mot. at 5. Under GRE 413, “any conduct proscribed by chapter 25 of Title 9, 16 Guam Code Annotated” is admissible in a case where “the defendant is accused of an offense 17 of criminal sexual conduct” and “in a criminal case in which the defendant is accused of an 18 offense of criminal sexual conduct, evidence of the defendant’s commission of another offense 19 àr offenses of criminal sexual conduct is admissible, and may be considered for its bearing on 20 any matter which it is relevant.” However, the evidence must be disclosed to the defendant:

21 In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, 22 including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of 23 trial or at such later time as the court may allow for good cause.

24 People v. Nededog; CF0317-l8 D&O re: Defendant’s Motion to Sever Counts and Charges 1 GRE 413(b). The Court holds that Defendant was given sufficient notice of GRE 413 2 evidence by way of the Indictment. 3 Conclusion 4 For the reasons set forth herein, the Court finds that Defendant has failed to establish 5 prejudice in the joinder of the offenses sufficient to justify severance. Consequently, the Court 6 hereby DENIES Defendant’s Motion to Sever Counts and Charges. 7 SO ORDERED _________________________ 8 9 ___________________________________________ 10 Judge, Superior Court of Guam 11 12 13 14 15 16 17 18 19 20 21 22 23

24 Peoplev.Nededog;CF0317-18 D&O re: Defendant’s Motion to Sever Counts and Charges