FILED
SUPERIOR COURT
1 OF GUAM
2 2020AUGIO PH'-FS; 3 CLERK OF COURT
4 BY: lnsuvw
5
6 IN T H E SUPE RIO R CO URT O F GUA M 7
8 THE PEOPLE OF GUAM, C R I M I N A L C A S E n o . CF0604-19 9
vs.
10 D E CISIO N A ND O R D E R
11 KANCY SILO aka Kanev Silo aka Kaney 12 Silo aka Tino Silo aka Taro Silo,
13 Defendant.
14
15 INTRODUCTION
This matter came before the Honorable Vernon P. Perez on August 3, 2020, for remote 16
hearing on Defendant Kancy S110 aka Kanev Silo aka Kana Silo aka Tito Silo aka Tano Silo's 17
("Defendant") Motion to Disiniss the Indictment or in the Alternative to Dismiss the First, 18
Second, and Third Charges of the Indictment for Lack of Particularity ("Motlon to Dismiss").
19
Defendant was present via videoconference from the Department of Corrections, Assistant 20
Alternate Public Defender Heather Zora was present on behalf of Defendant via Zoom, and 21
Assistant Attorney General Rochelle Canto was present on behalf of the People of Guam ("the 22
Government") via Zoom. Having reviewed the pleadings, the arguments presented, and the 23
record, the Court now issues the following Decision and Order DENY]NG Defendant's Motion 24
25 to Dismiss.
BACKGROUND
26
On November 15, 2019, Defendant was indicted with the following charges: (1)
27
Aggravated Assault (As a Second Degree Felony), (2) Family Violence (As a Third Degree 28
Peopl e v Si l o CF0604-19 Decision and Order
Page l off
1 Felony), (3) Assault (As a Misdemeanor), and (4) Harassment (As a Petty Misdemeanor) 2 (Indictment, Nov. 15, 2019). These charges stem from allegations that Defendant repeatedly 3 punched and kicked his girlfriend, Ms. Marninta Sop ("Ms. Marninta"), as they were walling to 4 the main road to dispose of trash. (Decl. of Benjamin B. Paholke, Magistrate's Con pl., Nov. 7, 5 2019). This caused Ms. Marninta to scream and return to the apartment holding her right side. 6 Id. When she reached the apartment, Defendant attempted to throw a beer can at her, but she 7 hid behind her niece K.J., a minor. Id. Defendant yelled at Ms. Marninta, threw the can on the 8 ground, and left the scene. Id. Defendant returned thirty minutes later and yelled at her and her 9 sister to get their things so the three of them could go to Defendant's relative's house. Id. 10 Defendant entered into the apartment and chased Ms. Marninta. Id. Ms. Marninta's sister, 11 Loteisha Sop, tried to stand between the two and protect her sister, but Defendant reached 12 around her and grabbed Ms Marninta by the hair and dragged her outside. Id. Defendant then, 13 still holding her by the hair, slammed her face into the concrete and punched her repeatedly in 14 the face, chest, abdomen, and arm, and lacked and stomped on her while she was on the ground. 15 Id. At some point Ms. Marninta was able to escape and KJ. called the police Id. Ms. 16 Marninta was hospitalized by the Guam Fire Department Medic personnel based on extensive 17 injuries to her face and mid-section area of the upper torso. Id. 18 Defendant remains confined on a $5,000 cash bail. See Commitment Order, Nov. 7, 19 2019, Dec. & Order, Dec. 6, 2019 (denying Defendant's Motion for Bail Redetermination). On 20 June 16, 2020, Defendant re-asserted his right to a speedy trial.l 21 On July '7, 2020, Defendant filed the instant Motion. Defendant moves the Court to 22 dismiss this matter because insufficient evidence was presented to the grand Jury (Mot. 23 Dismiss at 6-16, Jul. 7, 2020). 111 the alternative, Defendant the Court to dtsrmss the first three 24 charges of the Indictment for lack of particularity. Id. at 16-20. 25 On July 30, 2020, at the calendared Motion Hearing, the Court gave the Government 26 twenty-four hours to submit its Opposition and continued the hearing. Later that day, the
27 1 Defendant previously asset Ted his right ro a speedy trial on November 20, 2019, and subsequently waived on 28 December 10, 2019
People v Silo CF0604-19 Declsnon and Order 1 People fried its Opposrtion to the Motion. On July 31, 2020, Defendant flled his Reply. On 2 August 3, 2020, the Court he ard argume nts from counse l and place d the matte r unde r 3 advisement. 4 DISCUSSION 5 Defendant first moves the Court to drsrmss thls matter because insufficient evidence I
6 was presented to the grand jury. The Government opposes, arguing that the grand Jury received 7 competent evidence, as required under Guam law. 8 Under Guam law:
9 The grand Jury shall receive only competent evidence but the fact that evidence which is I ncom pe te nt wa s re ce ive d by the gra nd Ju ry doe s not re nde r the 10 indictment vold where sufficient competent evidence to support the indictment 11 was received by the grand jury
12 8 G .C A § 50.42. The phrase "competent evidence" is not further defined. After receiving 13 competent evidence, "[t]he grand jury shall find an indictme nt whe n from the e vide nce 14 presented there is reasonable cause to believe that an indictable offense has been committed and 15 that the defendant committed it." 8 G.C.A. § 50.54(b) (emphasis in original). In this case, the 16 primary source of evidence presented to the grand jury consisted of the testimony of Guam 17 Police Department Office Arthur Diola, Jr. ("Offlcel' D1o1a"). Defendant argues that Officer 18 Dlola's testimony consisted solely of hearsay statements, as he did not have any personal 19 kn owl e dge of th e i n form a ti on re ci te d i n the pol i ce re port, a nd the re fore hi s te sti m on y 20 constitutes incompetent evidence. (Mot. Dismiss at 10). 21 "The Supreme Court of the United States has held that there is no constitutional 22 prohibition against presenting hearsay to a grand jury or against hearsay forming the basis for an 23 indictment." People v. Q u zdachay, 815 F.2d 1311, 1312 (9th Cir. 1987) (citing Costello v. 24 United States, 350 U.S 359, 363 ( 1956) ) . In Quzdachay, the court interpreted "competent 25 evidence" as "evidence that a reasonable person would rely upon in conducting his or her daily 26 affairs ... regardless of whether it would be admissible at trial under the rules of evidence " Id. 27 at 1313. The court, in comparing the amended version of section 50.42 to its prior version, 28 found that "the Guam Legislature, by amending the requirement that the evidence presented to a
People v Silo CF0604-19 Declslon and Order 1 grand jury must be 'evidence which would be admissible ... at dual' to a requirement that it be 2 'competent evldence,' desired to eliminate the technical requirements of the rules of evidence 3 but preserve some requirement of reliability." Id. 4 Defendant moves the Court to ignore this precedent, setting forth that Quidachay and 5 Pe o pl e v . Garri do , 1984 WL 48828 (D. Guam App. Div., May 4, 1984), a]j"d and remanded, 6 752 F2d 1378 (9th Cir. 1985), "should be rejected as poorly reasoned, unsupported in law, and 7 wrongly decided." (Mot. Dismiss at 10). Defendant argues instead that Guam's "preliminary 8 hearing statute would seem to provide persuasive evidence that the Legislature intended for 9 charges against defendants to be based on more than unbridled hearsay." Id. at ll. 10 The Court declines to deviate from Quidachay, finding that the amendment of Guam's 11 grand jury statute makes clear that the legislative intent was to lessen restrictions on evidence 12 presented for the grand jury. Accordingly, the Court will not dismiss the indictment merely 13 because it was based on hearsay testimony. 14 The Court next turns to Defendant's argument that the first, second, and third charges in 15 the Indictment must be dismissed for lack of particularity . S e e M ot. Dis m is s a t 1 6 - 2 0 . 16 Defendant argues that "all charges simply parrot the statutory provisions. No facts are alleged 17 to put Defendant on notice as to which activities are being charged, and therefore, he cannot 18 protect against double jeopardy should subsequent charges be brought... " Id. at 20 The 19 Government opposes, arguing that the Indictment does not lack particularity, and that any 20 remedy if the court were tpfind the Indictment lacked particularity would be a request for a bill 21 of particulars, not a dis °ssal. (Opp'n at 9-10). 22 Under Guam law, an indictment "shall contain a plain, concise and definite written 23 statement of the essential facts constituting the offense charged, and shall be signed by the 24 prosecuting attorney." 8 G.C.A. § 55.10. It is well established that an indictment is sufficient 25 if: (l) it contains the elements of the carne charged, (2) adequately informs the defendant of the 26 crime to allow him to defend against the charged, and (3) is stated with sufficient clarity to bar 27 subsequent prosecution for the same offense Pe o pl e v. Jones, 2006 Guam 13 'it 12 (citing 28 Peopl e v. Sal as, 2000 Guam 2 it 19). Se e al so Pe o pl e v . Tories, 2014 Guam 8 qt 20. "An
People v Silo CF0604-19 Deczsxon and O1de1 1 indictment which tracks the words of the statute charging the offense 'is sufficient' so long as 2 the words unambiguously ser forth all the elements of the offense "' Tories, 2014 Guam 8 q120 3 (quoting Jones, 2006 Guam 13 '][23) 4 The Court has the discretion to order the Government to provide a blll of particulars as 5 necessary for the defendant to adequately prepare a defense. See Will v. United States, 389 U.S. 6 90, 99 (1967). Under Guam law'
7 Whether or not an indictment or information complies with § 55.10, if it falls to speclfy the particulars of the offense sufflclently to enable the defendant to 8 prepare his defense, the court may, on motlon of the defendant, requite the 9 prosecuting attorney to furnish the defendant wlth a clanflcatlon of the pleading containing such particulars as may be necessary for the preparation of the defense.
10
8 G.C.A. § 55 30. The purpose of a bill of particulars is to "appraise the defendant of the 11
specific charges being presented to minimize the danger of surprise at trial, to aid in preparation 12
and to protect against double jeopardy." United States v. Long, 706 F ad 1044, 1054 (9th Cir.
13
1983) (citations omitted). To determine whether "a bill of particulars should be ordered in a 14
specific case, a court should consider whether the defendant has been advised adequately of the 15
charges through the indictment and all other disclosures made by the government." Id. (citation 16 omitted). Here, however, Defendant asserts that dismissal of the charges is the remedy, not the 17 issuance of a bill of particulars.
18
The First, Second, and Third Charges of the Indictment state as follows:
19 C HA RGE GNE
20
On or about November 6, 2019, in Guam, KANCY SILO (aka Kanev Sllo; aka 21 Kana Silo, aka Tito Silo; aka Taro Sllo) did colmmt the offense of Aggravated 22 Assault (As a zlld Degree Felony), in that he did recklessly cause and attempt to
23 cau se se rou s bodily inju ry to M a m i n ta Sop, in circumstances manifesting extreme indifference to the value of human life, that is, in violation of 9 GCA §§ 24 19.20(a)(l) and (b).
25 CHARGE Two
26 On or about November 6, 2019, in Guam, K A N C Y S I L O (aka Kanev Silo; aka
27 Kase y S11o; aka Tina Silo; aka Taro Silo) did commit the offe nse of Family Violence (As a 3rd Degree Felony), in that he knowingly and recklessly caused 28
People v Sub CF0604-19 Declslon and Ordel and attempted to cause bodily injury to another family member or household l member, that is, Marrunta Sop, in violation of 9 G.C .A §§ 30.10(a)(1) and 2 30.20(a).
3 CHARGE THREE
4 On or about November 6, 2019, in Guam, KANCY SILO (aka Kanev S1Io; aka Kasey Silo; aka Tito Silo; aka Taro Silo) did commit the offense of Assault (As 5 a Mlsdemeanor), in that he did recklessly cause and attempt to cause bodlIy injury 6 to another, that is, Marninta Sop, in violation of 9 G.C A. §[§] 19.3()(a)(1) and (e).
7 (Indictment, Nov. 15, 2019). 8 The Court funds that Defendant has been sufficiently apprised of the charges he faces at 9 trial through the Indictment and all other disclosures made by the Government, e.g., the
10 accompanying Declaration to the Maglstrate's Complaint, grand jury proceedings, and police 11 report(s). The Indictment unambiguously sets forth all the elements of the offenses charged.
12 See Tories, 2014 Guam 8 'H 20. The Court does not find that there is any danger of double
13 jeopardy for the offenses alleged. Accordingly, Defendant's Motion to Dismiss is dented. 14 CONCLUSION
15 For the foregoing reasons, the Court hereby DENIES Defendant's Motion to Dismiss.
16 As Defendant remains in an asserted status, a Status Hearing is set for A1@.4§+ H, 2020 at
17 100969)
a. p.m. to address trial scheduling. Parties should be prepared for Jury Selection
is and Trial to commence as soon as a Judlciary facility large enough to accommodate soclal 19 distancing requirements is available. 20
2 1 IT IS so ORDERED this \0"'day of August, 2020.
2 2
2 3
H O N O R AB L E V ER N O N p . P ER EZ 2 4 SERVICE VIA E-MAIL Judge, Superior Court of Guam I admovNedge that an electrneuc copy 01 the oneal was e-mauled to 2 5
AS #L
2 6
2 7 Dageus 1 u sum i 9 5
cynuam I 'TW
2 8 Deputy Clerk, Superior Court at Guam
People v Silo CF0604-19
Declslon and Olden