2 2O7~FEU2 ~ ~:59 3 CLE 4 IN THE SUPERIOR COURT OF G~M 5 6 PEOPLE OF GUAM, ) CRIIvIINAL CASE NO. CF0317-18 )
7 Plaintiff, ) DECISION AND ORDER RE.
) DEFENDANT’S MOTIONS IN LIMINE;
8 vs. ) DENIAL OF DEFENDANT’S FAY DANIEL FAMA NEDEDOG, ) REQUEST FOR LEAVE OF COURT TO 9 DOB: 08/10/1996 ) FILE INVITATION TO DISMISS THE 10 ) CASE ON THE COURT’S OWN Defendant. ) MOTION; OVERRULING OBJECTION 11 ) TO ORDER VACATING TRIAL )
12 13 INTRODUCTION
14 Defendant Jay Daniel Fama Nededog (“Defendant”), by and through his counsel,
15 Assistant Alternate Public Defender Heather Zona (“Defense Counsel” or “Attorney Zona”) has 16 filed nearly twenty Motions In Limine in this case, in addition to a Motion to Dismiss the 17 Indictment, which the Court denied on February 11, 2020. The People have filed responses to 18 some but not all of Defendant’s motions in limine. After considering the numerous motions 19 20 filed by Attorney Zona between December 7, 2020 and December 24, 2020, the Court now 21 issues this Decision and Order addressing each motion in limine as set forth herein. 22 I. DEFENDANT’S MOTIONS IN LIMINE 23 24 Motion in Limine to Have a People’s Response of Granted, with some limitations 25 Confidential Questionnaire non-objection (filed Jan. on questions proposed by Published to the Jury (filed Dec. 4, 28, 2021) Defendant. The Court already 26 2020) employs a Questionnaire in CSC cases, but will consider including 27 some questions requested by Defendant.
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Decision and Order Denying Defendant’s Several Motions In Limine
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1 2 Motion in Limine to Preclude the People’s Response filed Denied. Defendant has not Prosecution from Introducing All on Jan. 28, 2021. identified any discovery which 2 Evidence not Discovered to has not been turned over to it nor Defendant as of November 1, 2020 has Defendant filed any motion to 3 (filed Dec. 7, 2020) compel discovery not provided after demand. The motion is not 4 ripe, unsupported by fact or law and any objection may also be 5 made at trial if and when appropriate. 8 GCA § 65.40.
6 3 Motion in Limine to Exclude Any No response filed. Denied. Defendant has not Business Records Containing specifically identified any records 7 Information and Statements from which are subject to such Persons Who Had No Business Duty exclusion in order for the Court to 8 to the Business Where Such Records make a ruling on Objection may Are Offered to Prove the Truth of be made when appropriate at trial.
9 Such Information and Statements 8 GCA § 65.40. (filed_Dec._9,_2020)
10 4 Motion in Limine to Preclude No response filed. Denied. Defendant has not Prosecutor and All Witnesses from identified any specific witness Expressing Opinions as to the Guilt statement sought to be precluded 11 or Innocence of the Defendant (filed and makes only generalized Dec. 9, 2020) objections which are 12 inappropriate at this time. Objection may be made when 13 appropriate at trial. 8 GCA § 65.40.
14 5 Motion in Limine to Preclude People’s Response filed Denied. Defendant fails to Prosecution From Eliciting on Jan. 28, 2021, identify the specific evidence 15 Testimony or Presenting Any opposes the motion in sought to be excluded and broadly • Evidence as to Accusers’ State of that it is “unripe” and identifies it as “evidence 16 Mind Regarding Defendant, and to suggests that the alleged concerning the accuser’s state of Exclude Any Such Evidence (filed victim’s state of mind - mind regarding the defendant.”
17 Dec. 9, 2020) may become relevant at The Court denies any request for trial. Development of a broad exclusion and Defendant 18 the evidence at trial may may object to the admissibility of make the witness’ state such evidence at trial, if and when 19 of mind relevant and appropriate. 8 GCA § 65.40.
admissible.
20 6 Motion in Limine to Prohibit the No response filed. Denied. Objection may be made Prosecution from Eliciting at trial when and if appropriate. 8 21 Testimony or Otherwise Presenting GCA § 65.40. Additionally, Evidence at Trial Concerning Defendant has not specifically 22 Conduct Which is Not Charged in identified any conduct not this Case and to Require the charged which supports the filing 23 Prosecution to Instruct its Witnesses of this motion in limine.
Not to Testify as to Conduct Not 24 Charged in This Case (filed Dec. 7, 2020)
25 7 Motion in Limine to Limit Post- People’s Response filed Denied. Defendant has failed to Verdict Comment to Jurors (filed on Jan. 28, 2020, that it establish factual or legal support 26 Dec. 7, 2020) will comply with all for the filing of this motion and ethical and professional less justification forthe Court to 27 requirements. issue such an order under the circumstances. Defendant has not 28 alleged any breach of the Code of
Decision and Order Denying Defendant’s Several Motions In Limine
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1 Professional Ethics which would warrant such a pre-trial order.
2 Additionally, this Motion is not one permitted to be filed pursuant 3 to 8 GCA § 65.15.
8 Motion in Limine to Exclude Any People’s response filed Denied. Defendant has not 4 Prosecution Expert From Testifying on Jan. 28, 2020. established any facts that would (filed Dec. 7, 2020) justify precluding experts at this 5 time, nor have any been identified by the Prosecution. Any objection 6 to expert testimony may be offered at trial if appropriate. 8 7 GCA § 65.40.
9 Motion in Limine to Exclude Prior People’s Response filed Denied. Objection may be made
8 Acts Evidence (filed Dec. 7, 2020) Jan. 28, 2021. People at trial if evidence is offered in may inquire into this violation of any applicable rules 9 area if Def. “opens the and no exception applies. 8 GCA door” at trial. § 65.40.
10 10 Motion in Limine to Prohibit No response filed. Denied. Defendant has not cited Prosecution And Any Prosecution to any law supporting this Motion 11 Witnesses From Referring to or any facts that support the Accuser as “Victim” and “Alleged granting of this Motion. 8 GCA § Victim (filed Dec. 9, 2020) 65.40.
12 11 Motion in Limine to Exclude People’s Response filed Denied, In Part. A motion in Witnesses, Prohibit Witnesses From Jan. 28, 2021. People limine is not the appropriate 13 Discussing Testimony, and Ordering agree to the exclusion of process to seek an order regarding the Prosecution to Instruct Witnesses all witnesses for all the conduct of trial, and is limited 14 Not to Discuss the Case or parties. to excluding evidentiary matters. Testimony in the Presence of Jurors Defendant has failed to establish 15 or Other Witnesses (filed Dec. 15, the specific need (either based 2020). upon the conduct of the 16 ~ prosecution or other factor) for an order specifically admonishing 17 the prosecution in this manner. Additionally, the Court is 18 uncertain what is requested by Attorney Zona by asking “the 19 Court to take judicial notice of practices relating to its conduct of 20 jury trials and the handling of jurors.”
21 . Granted, In Part. Pursuant to Rule 615 of the Guam Rules of 22 Evidence, and as is the standard ~ practice of the Court addressed 23 sua sponte, except as provided in Rule 615, witnesses are excluded 24 from the courtroom unless they are testifying and/or prohibited 25 from listening to the testimony of other witnesses remotely.
26 12 Motion in Limine to Exclude Prior People’s Response filed Denied. Defendant has not Consistent Statements Unless Jan. 28, 2021. identified any specific prior 27 Offered in Strict Compliance with consistent statements sought to be Guam Rule of Evidence excluded in limine. Objection may 28 801(d)(1)(B)(filed Dec.16, 2020) be made at trial. 8 GCA § 65.40.
Decision and Order Denying Defendant’s Several Motions In Limine
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1 13 Motion in Limine to Exclude Pretrial People’s Response filed Denied. Defendant fails to Detention Misconduct (filed Dec. 16, Jan. 28, 2021. identify any specific pretrial 2 2020) detention conduct sought to be excluded and to which the Court 3 may apply any balancing test as urged. Objection may be made 4 upon the People’s Notice of 404(b) evidence or if and when 5 appropriate at trial. 8 GCA § 65.40.
6 14 Motion in Limine to Exclude Any No response filed. Denied. Defendant has not Mug Shots (filed Dec. 21, 2020) established that the prosecution 7 intends to use mug shots in this case, thus a pre-trial order is not 8 warranted at this time. 8 GCA § 65.40.
9 15 Motion in Limine to Have Hearings No response filed. Denied. This Motion in Limine is on Motions Regarding the unnecessary as motions in limine Admissibility and Reliability of are used to prevent the admission 10 Evidence to be Held Outside the of improper evidence at trial, Presence of the Jury (filed Dec. 21, before the start of trial. To the 11 2020) extent that Atty. Zona seeks an Order of this Court essentially 12 ordering itself to hear matters outside of the presence of the 13 jury, the Court is cognizant of its duty to ensure a fair trial for a 14 criminal defendant and, as a matter of practice and compliance 15 with such obligations, ensures that it addresses matters of law outside 16 ~ of the presence of the jury;
therefore, such an order is not 17 warranted.
16 Motion in Limine to Prohibit the No response filed. Denied. Defendant has failed to 18 Prosecution from Eliciting proffer any specific evidence in Testimony from Witnesses that this case that is sought to be 19 Explicitly or Implicitly Give the excluded by this Motion which Witnesses the Opinion that the the Court is capable of addressing 20 Accusers are Being Truthful (filed because the motion is general in Dec. 24, 2020) nature and seeks to prohibit types 21 of evidence which may or may . not be presented at the trial of this 22 matter. Objections may be made at the trial of this matter. 8 GCA § 23 65.40.
17 Motion in Limine to Exclude People’s Opposition Denied. Addressed by the Court 24 Testimony of Minor Complaining filed on Jan. 26, 2021. in separate Decision and Order Witnesses Unless Such Witnesses issued on February 12, 2021. 8 25 Are Subject to a Hearing to GCA § 65.40.
Determine Their Competency To 26 Testify and Whether They Retain Sufficient Independent Recollection 27 of the Events at Issue to Ensure The Reliability of the Evidence 28
Decision and Order Denying Defendant’s Several Motions In Limine
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1 Almost none of the Motions In Limine filed by Defendant seek to preclude evidence 2 hich has been specifically identified as appropriate to exclude, and only ask the Court to issue
hat amounts to blanket orders prohibiting types of evidence which may or may not be presented 4 at the trial of this matter. The Court discourages the use of motions in limine in this manner 5 6 ecause it renders it difficult to analyze in the context of applicable law and craft an order 7 apable of specific application when the evidence is sought to be presented by the party who is 8 rohibited from presenting it. It requires the expenditure of judicial resources to essentially
address a hypothetical circumstance, and, when the Court is required to deliberate upon nearly 10 wenty (20) such motions in limine, this results in a further delay of the adjudication of the merits 11 12 of the case. Indeed, on December 28, 2020, Attorney Zona filed a Notice of Objection to the 13 Court’s Order vacating the January 4, 2021 trial date despite the pendency of Defendant’s 14 dispositive Motion to Dismiss the Indictment in this case, which the Court took under 15 advisement and which the Court denied on February 11, 2021. Counsel is also referred to 8 GCA 16 § 65.15 which identifies which motions must be made prior to trial. The Court may also defer 17 determination of any pre-trial (in limine) motions to the time of the trial of the general issue, or 18 19 yen after verdict. 8 GCA § 65.40. Additionally, motions in limine are interlocutory in nature and 20 subject to reconsideration by the Court throughout the trial. On this basis, Defendant is not 21 rejudiced by the Court’s denial of these motions at this time. 22 II. COURT DENIES DEFENDANT’S REQUEST FOR LEAVE OF COURT TO FILE 23 INVITATION TO THE COURT TO DISMISS THE CASE ON THE COURT’S OWN MOTION
24 Defense Counsel requests leave of Court to file an “Invitation” to the Court to dismiss the 25 26 dictment in this case sua sponte. Def ‘s Request for Leave of Court to File Invitation to The 27 Court to Dismiss the Case on the Court’s Own Motion (Dec. 21, 2020)(”Def ‘s Request”). As a 28
Decision and Order Denying Defendant’s Several Motions In Limine
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1 :hreshold matter, the Court is not certain what Defense Counsel is seeking from the Court by this 2 notion, given that “the traditional definition of sua sponte is that the court acts of ‘its own will
or motion[.]” Cristobal v. Siegel, 2014 Guam 16. Because the Court did not raise this issue on its 4 own will or motion, it may be presumed that the Court did not find dismissal appropriate under 5 6 he circumstances. Defense Counsel also confirms that this is submission is not a motion to ~ dismiss, but an “invitation” for the Court to do so. Def ‘s Request at 1. The Court, therefore, 8 denies the Defendant’s Request.
The Court is further perplexed by Defense Counsel’s “Request” to file an “Invitation to 10 he Court” because the attached Exhibit A to the Request contains what appears to be an 11 12 argument for dismissal based upon 8 GCA § 80.65, which is a statute which is clearly for the 13 )enefit of child victims or witnesses of sex crimes “in order to minimize stress on such child,” 14 and not for use as a shield by the Defendant, who is accused of this crime, to prevent his 15 rosecution. Additionally, as the People point out in its Opposition to this Request, this trial was 16 scheduled to commence on January 4, 2021, after two previous delays, one of which was 17 recipitated by the global COVID-19 pandemic and government shut downs. However, the Court 18 19 ~vas required to address Defendant’s potentially dispositive Motion to Dismiss the Indictment 20 which then tolled the running of the speedy trial clock. Quinata v. Superior Court of Guam, 2010 21 Guam 8 ¶ 35~1 Defendant’s Motion to Dismiss was filed on October 1, 2020, heard on November 22 16, 2020 and under advisement until the Court’s Decision and Order denying the motion was 23 _________________________ It must be urged, even under normal and usual circumstances and without the additional stressors on resources 24 )oSed by the current pandemic, that a Court ruling within the time provided under Supreme Court of Guam ~dministrative Rule 06-00 1 and CVR 7.1 (e)(6)(A) of the Local Rules of the Superior Court of Guam, is 25 resumptively “good cause” delay under 8 GCA § 80.60(b)(3). Given the heavy workload of the trial courts, )articularly in light of the numerous challenges posed by the closure of the physical building, the soci’al distancing 26 ~andates during the pandemic and other limitations, the Court issued its Decision well within the timeline set forth in the Rule. To require more in order to establish “good cause” for delay flies in the face of what the Guam Supreme 27 ourt has already determined to be a reasonable and appropriate time frame in which judges may consider and arefully deliberate upon and write a clear, concise and understandable decision on extremely important issues of 28 law upon which the bar and the parties may rely.
Decision and Order Denying Defendant’s Several Motions In Limine
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1 ssued on February 11, 2021, in advance of the deadline for the Court to rule pursuant to 2 Supreme Court of Guam Administrative Rule 06-001 and CVR 7.1(e)(6)(A) of the Local Rules
of the Superior Court of Guam. The Defendant also filed nearly twenty (20) additional motions 4 vhich the Court has had to carefully consider, as clearly set forth, above. There has been no 5 6 indue delay in the proceedings. 7 It must also be emphasized that the Defendant did not assert his right to speedy trial until 8 ~ugust 14, 2020, which speedy trial clock has been tolled until February 28, 2021.2 This means
:hat the Court is required to bring the matter to trial within 45 days therefrom, or April 14, 2021.
10 rhis Court has already immediately set the Jury Selection for February 23, 2021 without further 11 12 delay, with the evidentiary portion of the trial to follow upon the availability of a courtroom. 13 Thus, on this basis, as well as on several procedural defects relating to this 14 equest/motionlnon-motionlinvitation, it is DENIED. 15 CONCLUSION 16 For the reasons set forth herein, the Court DENIES Defendant’s motions in limine as set 17 orth above; GRANTS the Parties’ joint requests to exclude witnesses (except as provided under 18 19 ~ule 615 of the Guam Rules of Evidence) from the courtroom unless testifying and from 20 istening or viewing any remote broadcast of the proceedings in any platform; GRANTS IN 21 PART the Motion in Limine To Have Confidential Questionnaire Published to the Jury; and 22 REJECTS Defense Counsel’s Request to invite the Court to dismiss the matter sua sponte. A 23 ~opy of the Court’s standard Questionnaire will be provided to the parties. All parties are 24 ~eminded of their obligations to file with the Court all required materials in advance of the trial 25 26 Admihistrative Order No. ADM21-001 ¶20 (Jan. 18, 2021). At the time Defendant asserted his right to speedy trial on August 14, 2020, the clock had been tolled until November 17, 2020. Adm. Order No. ADM2O-392 (Aug. 14, 27 2020). The Defendant filed his Motion to Dismiss in October, it was heard in November, and the Court issued its )ecision and Order within the timelines set by the Administrative Rule, on February 11, 2021. See Order Vacating 28 Trial For Good Cause (Dec. 23, 2020).
Decision and Order Denying Defendant’s Several Motions In Limine
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1 of this matter, as set forth in the Criminal Trial Scheduling Order filed in this case on February 2 11, 2021. To the extent that the Court has issued decisions on all pending motions before it, the 3 Court OVERRULES Defendant’s Objection to the resetting of the January 4, 2021 trial date, 4 filed on December 28, 2020. Pre-trial Conference is scheduled for February 18, 2021 at 9:30 5 A.M. THIS IS AN IN PERSON HEARING. Jury Selection shall commence on February 23, 6 7 2021 at 9:00 AM. 8 SO ORDERED this ~ 1 2 ZOZI 9 10 MARIA T. CENZON
11 JUDGE, SUPERIOR COURT OF GUAM 12 13 14 15 16 17 18 19 20 21 22 23 iERVICE VIA E-MAIL I aclnowledge that an electronic 24 copy of the original was e mailed to j~C,. ç~ro~4.(_ci~çio ~.( 25 p~v
26 Date: ~*~rne~3~
27 Dt:~iIerk~Ip~lor Court of.Guam
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Decision and Order Denying Defendant’s Several Motions In Limine