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IN THE SUPERIOR
SUPERIOR COURT OF GUAM
5
6 THE PEOPLE OF GUAM CRIMINAL CASE NO. CF0242-20 7 vs.
8 DERICK JAMES SIMMONS, DECISION AND ORDER DOB: 07/27/1991 Re: Motion/or Motion for New Trial
9 Defendant.
10
11 11 This matter matter came before the Honorable Arthur R. Barcinas Barcinas on October 6, 2023, 2023, for an
an
evidentiary hearing on evidentiary hearing on Defendant's Defendant's Motion
Motion for New
New Trial
Trialdue
duetotopotential
potentialjuror
jurordishonesty.
dishonesty.
12 12 Defendant was present Defendant was presentwith with Assistant
AssistantPublic
PublicDefender
DefenderBrian
BrianEggleston.
Eggleston.J.J.Basil
BasilO'Mallan
O'Mallan III
III
13 13 represented the the People.
People.
14 14 BACKGROUND
15 15 On On June 13, 2022,
June 13, 2022,Defendant
DefendantDerick
DerickJames
JamesSimmons
Simmons("Defendant")
("Defendant") moved
moved for
for a new
16 16 trial, trial, alleging to to newly
newly discovered
discovered evidence
evidence that
that one
one of
ofthe
thejurors
jurors had
had deliberately
deliberately concealed
concealed
relevant information on void dire, thereby depriving Defendant of voir dire, of his his Sixth
Sixth Amendment right to
17 17 an impartial impartial jury. Defendant alleged alleged that,
that, upon
upon examination
examination during void
voir dire,
dire, the juror did not
18 18 disclose disclose her relationship with "a "a key Government
Government witness
witness (and
(and legal guardian
guardian of the complaining 19 19 victim)." Mot., victim)." Mot.,atatl.1.Said Saidwitness
witnessisisJacqueline
Jacqueline Duenas
fas ("Duenas"),
("Due fas"), mother
mother of
ofDefendant's
Defendant's partner
partner
20 20 Therese-Rae Duenas fas ("Therese")
("Therese") and
and grandmother
grandmother of
ofthe
the victims
victims in
in this
this case.
21 Defendant statedthat Defendant stated thatGuam GuamPublic
Public Defender
DefenderService
Service Corporation
Corporation("PDSC")
("PDSC") chief
chief
investigator Robbie Call submitted investigator Robbie an affidavit, submitted an affidavit, establishing that:(1)
establishing that: (1) on May 17, 17, 2022,
2022, the
the
22 defense investigator investigator received
receivedinformation
informationthat
thatthe
the juror
juror in
in question
question had lied onvoid
voir dire by failing
23 to disclose her relationship with with Duenas;
Due fas, (2)
(2) on
on May
May 24,
24, 2022,
2022, the defense investigator met with 24 24 the juror juror in in question
questionat
ather workplace,the
herworkplace, theMaite
MaiteBranch
Branchof
ofCoast360
Coast360Credit
CreditUnion
Union("Coast360"),
("Coast360"),
Decision Orderre: Decision and Order Motionfor re:Motion New Trial
forNew Trial
CF0242-20; People v.
Criminal Case No. CF0242-20,People DerickJames v. Derick Simmons
James Simmons
11 to discuss her role discuss her role as as a juror
juror in
in Defendant's trial;
trial, (3) the
the juror
juror told
told the
the investigator
investigator that
that she
she is
2 personally personally acquainted with Duenas acquainted with fas because because they
they were coworkers
coworkers at
at Coast360,
Coast360, and
and that
that her
her
3 decision to withhold withhold this
this information
information from
from the
the Court
Court was
was justified
justifiedby
byher
herassumption
assumption that
that her
her
relationship with with Duenas
fas did not impair her
her ability
ability to be fair and impartial impartial at
at trial;
trial, (4) at
at no point
4 during the trial did the juror inform inform the
the Court,
Court, the
the marshals,
marshals, or the attorneys that she she worked
worked with
5 Duenas fas or knew her, and and (5) when
when asked
asked how her association association with
with Due fas was discovered, the Duenas
6 investigator showed showed the
the juror
juror aa group
group photograph
photograph from
from aaCoast360
Coast360 annual
annual report
report published
published in
7 2015, depicting both both the
the juror
juror and fas.
and Duenas.
8 Based on the above, Defendant Defendant argues
argues that
that the facts
facts establish
establish that
that the juror, at minimum, possessed an an understanding
understandingof
ofthe
thescreening
screeningfunction
function of
of void
voir dire, and that
that her
her desire
desire to serve as
as
9 a juror motivated her to withhold withhold truthful answers deliberately deliberately and
and consistently despite the ample 10 time and and opportunity for a response.
response.
11 11 In their opposition, the thePeople
People submitted
submittedaadeclaration
declarationfrom
fromOffice
Office of
of the
the Attorney
Attorney General
12 12 ("AG")investigator ("AG") investigatorWilliam WilliamSalisbury,
Salisbury,who
whoalso
alsomet
metwith
withthe
thejuror.
juror.InInthe
thedeclaration,
declaration, Salisbury
Salisbury
stated that that the
the juror
juror stated
stated that
that she
she does
does not know a Jacqueline Duenas, fas, but
but vaguely remembers
remembers
13 13 working with with aa "Jackie" Due fas several Duenas several years
years ago
ago and
and never connected the two. The The declaration
declaration
14 14 further stated that that the
the juror
juror was surprised when shown a picture from from aa Coast360
Coast360 annual
annual report
15 15 because she had hadno
noidea
ideawhat
whatyear
yearthe
thereport
reportwas
wasfor,
for, and
andbelieved
believed she only worked
worked with
with aa Jackie
16 16 Duenas fas for a short time.
time.
17 17 At aa March At March 30, 2023 hearing on the 2023 hearing the Motion, Motion, the People
People raised
raised concerns
concerns that an evidentiary evidentiary
hearing may be needed to hearing may to resolve whether whether the
the juror
juror in
in question
question was deliberate and knowing knowing in
18 18 her her void voir dire omission. Both Both parties agreed to let let the
the Court
Court know
know at
at the
the next
next hearing on
on April
April21
21,
19 19 2023, 2023, if an an evidentiary hearing
hearing would be needed. At the needed. At the April
April 21
21 hearing,
hearing, the
the parties
parties agreed to
20 submit on on the
the pleadings,
pleadings, and
andthe
theCourt
Courtstated
statedititwould
would decide
decide if
if further testimony was needed to
21 rule on on the
the Motion.
Motion. The
TheCourt
Courtsubsequently
subsequently scheduled evidentiary hearing scheduled an evidentiary hearing to to be held on
on
22 October 6, 2023. At the 2023. At the evidentiary
evidentiary hearing,
hearing, the
the Court
Court heard
heard testimony from
from the
the juror,
juror, Due fas,
Duenas,
and Therese.
23
24 Page Page2 of6
Decision and Order Order re:
re:Motion
Motion for
for New
New Trial
Trial
Criminal Case People v. Derick CF0242-20,People
Case No. CF0242-20; DerickJames James Simmons
1 1. The juror's
juror's testimony
testimony
2 2 At the evidentiary hearing, the the juror
juror testified
testified that
that she
she recognized
recognized Due fas and Therese Duenas
3 took the when they took the witness witness stand,
stand, and
and that
that she
she did
did not
not alert
alert the
the Court
Court or
or the
the attorneys
attorneys after
after
recognizing them. Tr., at 10:50:32 10:50:32 (Oct.
(Oct. 6,6, 2023).
2023).The
Thejuror
jurorstated
stated that
that she
she had
had attended
attended one of
4 Duenas's family family events,
events, but
but did
did not
not remember
remember what
what year,
year, and
and that
that Due fas had
Duenas had attended
attended her
5 grandson's grandson's first first birthday
birthdayaround
around 2015,
2015,but
butthat
that she
she was
wasnot
not sure
sure ififshe
she invited
invited Duenas
fas or a member
member
6 other of her husband's husband's family
familydid.
did. Tr.,
Tr., at
at 10:45:30:
10:45:30;10:53:10
10:53:10(Oct.
(Oct.6,6,2023).
2023).The
Thejuror
jurorfurther
further testified
7 that she did not still maintain a friendship friendship with the Duenases today, and Duenases today, and the
the last time she
8 remembered running running into
into Duenas
Due fas was
was approximately
approximately a year earlier, earlier, either
either at work or
or Cost-U-
Cost-U-
Less. Tr., at 10:54:45 10:54:45 (Oct.
(Oct. 6,
6, 2023).
2023). The
Thejuror
jurorfurther
further testified
testified that
that when she saw
saw Due fas and
Duenas
9 Therese on the stand and realized realized that she recognized them, she did not tell the Court because because "it
10 didn't didn't dawn dawn on
on me
me that
that I should. For me, I did take take an oath to
to be
be fair
fair and
and impartial,
impartial, so
so that's
that's what
11 I proceeded proceeded under."
under." Tr.,
Tr., at
at 10:56:00
10:56:00 ( O c t . 6, 2023).
2023). The
The juror
juror stated
stated that
that she
she did
did not think that any
12 the Duenases previous relationship she had with the Duenases would affect her decision.
decision. Tr.,
Tr., at 10:56:15 (Oct.
(Oct.
13 6, 2023).
2. Duenas's testimony
14 At the evidentiary hearing, Duenas fas testified that she knows the juror juror because
because they
they worked
15 in the same department at Coast360 Coast360 until 2017. Tr., at at 11 :07:50 (Oct. 6, 2023). Duenas 11 :07:50 fas also stated 16 that that she and and the
the juror
juror had
had attended
attended each
each other's
other's family
family events,
events, including
including her
her daughter's
daughter's
17 graduation. 11 graduation. 11:08:00-11109:30 :09:30 (Oct. 6, 2023).
(Oct. 6,
3. Therese's testimony
18 At the evidentiary hearing, Therese Therese testified
testified that she recognized the juror juror as her mother's
mother's
19 "longtime coworker." Tr., at 11:15:00 11 :15:00 (Oct.
(Oct. 6,6, 2023).
2023).Therese
Theresestated
stated that
that the
the juror
juror and
and Due fas
Duenas
20 worked alongside each other. Tr., at 11:16:00 (Oct.
other. Tr., (Oct. 6, 6, 2023).
2023). Therese
Therese stated
stated that
that she and
and her
her
21 family had had attended
attended the juror's grandson's grandson's birthday,
birthday, and
and that
that juror
juror had
had attended
attended her sister's
22 graduation and her her younger
younger brother's
brother's birthday.
birthday. Tr.,
Tr., at
at 11
11:16:30 (Oct. 6,
:16:30 (Oct. 6, 2023).
2023). When asked how
often she met or or interacted
interacted with
with the
the juror,
juror, Therese
Therese testified
testified that
that when
when Duenas
Due fas worked
worked at
at Coast360,
Coast360,
23 everyone knew Therese and her siblings, siblings, so they
they met "a lot." 11:18:00-11:18:30 11:18:00-11218:30 (Oct.
(Oct. 6, 2023).
24 Page of Page3 of6
Decision and Orderre:
and Order re:Motion
Motionfor
forNew
New Trial
Trial
Criminal Case No. CF0242-20,People CF0242-20; Peoplev.
v. Derick
DerickJames
James Simmons
Simmons
11 Therese further testified testified that
that she and Defendant lived and Defendant Duenas's house in Duenas's
lived in between 2014 house between and 2016, 2014 and
2 2 still visit Coast360 would still
they would
that they and that to see Duenas Coast360 to for at least the fas for next year the next or two.
year or at
two. Tr., at
3 11:19:00 11: 19:00 (Oct. 6, 6, 2023).
2023). Therese
Therese also
also testified the juror that the
testifiedthat did not juror did know Defendant, not know but knew Defendant, but
who Duenas were. Tr., at Therese were.
fas and Therese :00-11 :34:00 at 11:33:00-11 (Oct. 6, 2023).
:34:00 (Oct.
4 DISCUSSION
5 5 Pursuant to 88 G.C.A.§ Pursuant to G.C.A.§ 110.30(b), 110.30(b), aa defendant
defendant may
may move
move for
for aanew
newtrial
trial based
based upon
upon the
the
6 ground of newly discovered evidence before or within two (2) ground of (2) years years after judgment. The final judgment.
after final
7 decision decision to grant grant a new trial
trial rests
rests within
within the
the sound discretion of the v. Leslie, People v.
the trial court. People
8 2011 Guam Guam 23 ,r
23 1115. Defendant argues that, having argues that, allegedly discovered new evidence having allegedly ofjuror evidence of dishonesty, he juror dishonesty,
9 is entitled to to a new trial on the basis basis of by an verdict by
of the Sixth Amendment right to a verdict impartial an impartial
10 10 jury, under under the test in McDonough Equip. v.v. Greenwood, McDonough Power Equal (1984). To Greenwood, 464 U.S. 548, 556 (1984).
11 11 obtain obtain a new trial under the McDonough McDonough test, "a
"a party
party must
must first juror failed demonstrate that aajuror
first demonstrate failed to
12 12 answer honestly honestly a material question on void voir dire, and then further further show that a correct response response
would have provided a valid basis for a challenge cause." Id.
challenge for cause." Id. The concealing for concealing
motives for
The motives
13 13 information information may vary, vary, but
but only
only those
those reasons that
that affect
affect a jury's
jury's impartiality truly be said to can truly
impartiality can
14 14 affect the fairness of a trial. Id. affect the Id.
15 15 There is
is no
no dispute
dispute that
that the juror did not
not answer
answer the
the question voir dire, but there question during void
16 16 was no showing that her failure failure to disclose
disclose was
was intentional jurors testimony and the Court finds the jurors intentional and testimony
17 17 credible credible and and reasonable that her
her lack
lack of
of answer was because she she did notrecognize
did not recognize Duenas's name
on on the witness list.
list. Under McDonough, Defendant Defendant must
must still
still demonstrate truthful answer that a truthful
demonstrate that
18 18 from from the the juror would have provided provided aa valid
valid basis
basis to
to strike
strike the juror cause. In order juror for cause. to disqualify order to disqualify
19 19 the juror for cause, there must cause, there mustbe
be aa showing
showing of
of either actual
actual or
or implied
implied bias,
bias, i.e.,
i.e., bias in fact or
20 20 1109, 1112 (9th Cir.
bias conclusively presumed as as a matter
matter oflaw. Gonzalez, 214 F.3d 1109, US. v.v. Gonzalez,
of law. US.
21 2000). The TheCourt
Courthad
hadthe
the opportunity
opportunity to
to observe
observeand
and assess
assess the credibility of ofthe
the juror
juror during
during the
22 evidentiary evidentiary hearing hearing held
held to
to address
address this matter and finds the juror's juror's answers
answers to
to be
be reasonable
reasonable and
and
credible given given her
her explanations,
explanations, the
the extended
extended break in
in the
the working
working relationship
relationship and
and minimum
minimum
23
24 Page Page44-of6
Order re:
Decision and Order Motion for re:Motion New Trial
for New Trial
Criminal Case No. CF0242-20;
Case No. James Simmons DerickJames
CF0242-20,People v. Derick
11 contact between the contact between the juror juror and
andthe
thewitnesses.
witnesses. Governments case in Governments case in chief chief as
as well as
as aa defense
defense
2 witness. Duenas fas was called as a government government witness.
3 Actual bias exists exists when, as
as the term suggests, the juror juror is
is in fact biased for or against one
of ofthe the parties, thereby precluding her from rendering a fair and impartial impartial verdict.
verdict. United
United States
States v.
4 Gonzalez, 906 F.3d 784, 784, 796
796 (9th Cir. 2018). Most Most of
ofthe
thecases
cases in
inwhich
whichactual
actual bias
bias has
has been
been
5 found involved involved jurors
jurors who
who either
either stated
stated that
that they could not be impartial impartial or who, after
after expressing
6 views adverse adverse to one
one party,
party, equivocated
equivocated when asked
asked if they
they could
could set
set aside
aside those
those views
views and
and
7 evaluate the the evidence fairly and
and impartially. Id. at
at 796-797.
796-797. The Court has
has found
found no
noevidence
evidence of
of
8 actual from the juror actual bias from juror in in this instance.
Under Under the
the implied
implied bias
bias doctrine,
doctrine, bias will
will be
beconclusively
conclusively presumed
presumed in
in certain
certain
9 circumstances even even if the juror
juror professes
professes a sincere belief beliefthat
that she
she can be impartial. Id., at 797.
797. The
The
10 Ninth Ninth Circuit Circuit has
has held that juror bias will be be presumed
presumed only in
in the
the extreme
extreme situation
situation where the
11 11 relationship between a prospective juror and some some aspect
aspect of
of the
the litigation
litigation is
is such that itit is highly such that
12 unlikely unlikely that that the average
average person
person could
could remain
remain impartial
impartial in
in their
their deliberations
deliberations under
under the
the
circumstances. circumstances. United United States
States v.
v. Kvasnuk,
Kvashuk, 29 F.4th 1077, 1092 (9th 1077, 1092 (9th Cir.
Cir. 2022).
2022). Examples of this
13 relationship include when the juror has has had
hadaapersonal
personalexperience
experience similar
similar or
or identical
identical to the fact
14 14 pattern at at issue
issue in
in the
the trial,
trial, when
when the
thejuror
juror is
is aware
aware of highly
highly prejudicial
prejudicial information
information about
about the
15 defendant no ordinary defendant which no ordinary person could could be
be expected to put aside
aside in reaching
reaching a verdict, or the 16 juror lies aboutvoid about voir dire facts.
facts. Id. The
The Defense
Defensehas
has presented
presented no
no evidence
evidenceto
tothe
theCourt
Courtsuch
such that
that
17 it can conclude that thatjurors
jurors shortfall
shortfall if at all amounts to to implied bias.
While While the
the juror
juror failed
failed to
to later
laterinform
informthe
theCourt
Courtor
orattorneys
attorneys upon
upon realizing
realizing that
that she
she been
18 formerly acquainted acquainted with
with the
the witnesses,
witnesses, the
the Court
Court finds
finds that
that the
the relationship
relationship between
between the juror
119 and the the issues
issuesof
of this case
case is too tenuous to meet the "extreme tenuous to "extreme situation"
situation"standard
standard established by
20 the Ninth Circuit.
Circuit. Therefore, the
the Court
Court finds
finds itit more
more likely
likelythan
than not
not that
that the
the juror
juror remained
remained
21 impartial in in her deliberations
deliberations as
as she had
had testified
testified at the evidentiary evidentiary hearing,
hearing, and
and consequently
consequently that
that
22 no implied implied bias exists in in this instance.
instance. The Court finding finding no
no implied
impliedor
oractual
actual bias,
bias, Deflendant's
Defendant's
argument does not pass theMcDonough McDonough test.
23
24 Page 5 of6
Decision and Order Orderre:
re:Motion
Motion for
for New
New Trial
Trial
Criminal Case Case No. CF0242-20,People CF0242-20; People v.
v. Derick
DerickJames
James Simmons
Simmons
11
2 CONCLUSION CONCLUSION
Based on the foregoing, the Court DENIES Defendant's Defendant's Motion
Motion for
for New Trial.
3
4
5 JAN O JAN 2024
0552024
IT IS SO ORDERED - - - - - - -
6
7 • •
8 , .
_.-._ A
HONORABLE ARTHUR R. BARCINAS 9 Judge, Superior
Superior COurt
Court of Guam
10
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12 12
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15 15
16 16
17 17
18 18
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20
21
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24 Page 6 of
of6