NL~O SUPERIOR COURT 1 OF GUAM
2 2mSEP 26 MIll: 13 CLERK OF COURT 3 By~_ 4
7 IN THE SUPERIOR COURT OF GUAM 8 PEOPLE OF GUAM, 9
10 Plaintiff, Criminal Case No. CF0421-15
11 vs. . DECISION AND ORDER 12 MARK A. TORRE, JR., Defendant. 13
14 INTRODUCTION 15
16 This matter is before the Honorable Judge Michael J. Bordallo. The People of Guam
17 (“People”) are represented by Assistant Attorney General J. Basil O’Mallan III. Defendant
18 Mark A. Torre Jr. (“Torre”) is represented by Attorney Joaquin C. Arriola Jr. Having reviewed
19 the memoranda and papers presented, the Court now issues the following Decision and Order
20 GRANTING the People’s Motion to Amend Indictment. 21 FACTS 22 1. On July 24, 2015, a Grand Jury returned an Indictment charging Torre with the 23 following: (1) Murder (as a First Degree Felony) with a Special Allegation of 24 Possession or Use of a Deadly Weapon in the Commission of a Felony; (2) 25
Page 1 of 8 1 Manslaughter (as a First Degree Felony) with a Special Allegation of Possession or Use
2 of a Deadly Weapon in the Commission of a Felony;. (3) Aggravated Assault (as a
Second Degree Felony) with a Special Allegation of Possession or Use of a Deadly
Weapon in the Commission of a Felony; and (4) Aggravated Assault (as a Third Degree 5 Felony) with a Special. Allegation of Possession or Use of a Deadly Weapon in the 6 Commission of a Felony. 7 2. This matter~ went to jury trial on January 31, 2017. Prior to deliberations, the Court 8 instructed the jury that if they found Torre not guilty of Manslaughter, they must
10 consider the lesser included charge of Negligent Homicide. 3. The jury returned its verdicts on March 2, 2017. Torre was acquitted of Murder (as a
12 First Degree Felony), Manslaughter (as a First Degree Felony), and Aggravated Assault
13 (as a Second Degree Felony), together with all Special Allegations attached to said
14 counts. Torre was convicted of Negligent Homicide (as a Third Degree Felony) (as a
15 lesser included offense of Manslaughter), with Special Allegation of Possession or Use
16 of a Deadly Weapon in the Commission of a Felony, and Aggravated Assault (as a
17 Third Degree Felony), with Special Allegation of Possession or Use of a Deadly
18 .
Weapon in the Commission of a Felony. 19 4. Torre subsequently appealed his convictions and on July 31, 2019, the Supreme Court 20 of Guam issued an opinion in People v. Torre, 2019 Guam 9. In its opinion, the 21
22 Supreme Court found that this Court had improperly admitted certain evidence during
23 Torre’ s trial, and therefore vacated the Judgment of Conviction.
24 5. On August 7, 2019, the People filed a Motion to Amend Indictment along with a
25 proposed Amended Indictment. The People seek to remove the charges of which Torre
Page2of8 1 was acquitted (Murder, Manslaughter, and Assault (as a Second Degree Felony)) and
2 add the charge of Negligent Homicide, which was not included in the initial Indictment
but still considered by the jury as a lesser included offense of Manslaughter. 4 ISSUES 5
6 1. Whether the People’s proposed Amended Indictment is untimely because the matter is
7 post-verdict.
8 2. Whether the People’s proposed Amended Indictment improperly adds a new charge
9 which has not been brought before a grand jury.
10 3. Whether the People’s proposed Amended Indictment prejudices Torre’s substantial
11• rights.
12 PRINCIPLES OF LAW
13 Amendments to indictments are governed by 8 GCA § 55.20, which provides: “[t]he 14 court may permit an indictment or information to be amended upon the application of the 15 pro secuting attorney at any time before verdict or finding if no additional [or] different offense 16 is charged and if substantial rights of the defendant are not prejudiced.” 8 GCA § 55.20. “An 17
18 amendment to an indictment which alleges no new facts and cites no new statutory citation has
19 been held not to charge an additional or different offense.” People v. Diaz, 2007 Guam 3 ¶ 16.
20 The United States Supreme Court has held that “a court cannot permit a defendant to be
21 tried on charges that are not made in the indictment against him” and that “[d] eprivation of such
22 a basic right is far too serious to be treated as nothing more than a variance and then dismissed
23 as harmless error.” Stirone~v. United States, 361 U.S. 212, 217 (1960). The Court clarified
24 Stirone in United States v. Miller, 471 U.S. 130 (1985), by explaining that it is constitutionally
Page 3 of 8 1 permissible for a court to narrow an indictment• by dropping “those allegations that are
2 unnecessary to an offense that is clearly contained within it.” Id. at 144.
In Williams v. United States, 641 A.2d 479, 483 (D.C. 1994), the District of Columbia
Court of Appeals held that lesser included offenses may be substituted for greater offenses 5. without being brought before a grand jury because such amendments narrow an indictment 6 rather than broaden it. V
7 In the context of double jeopardy, the Ninth Circuit has held that lesser included V
8 V
offenses should be treated as if they had been specified in separate counts of the indictment.
V United States v. Gooday, 714 F.2d 80, 83 (9th Cir. 1983).
The test of whether an amendment will prejudice the Defendant’s substantial rights is
12 “whether a defense under an indictment as it originally stood would be equally available after V 13 the amendment is made, and whether any evidence the defendant might have would be equally
14 applicable to the indictment in the one form as in the other.” Diaz, 2007 Guam 3 ¶ 17 (quoting
V 15 United States v. Fawcett, 115 F.2d 764, 767 (3rd Cir. 1940)).
V 16 V ANALYSIS 17 a. The People’s Motion is timely V V
18 V Torre first argues that 8 GCA 55.20 provides that an Indictment may be amended at any 19 V V V V
time “before verdict,” and therefore cannot be amended at this time. It is undisputed that a jury 20 V V V V
returned a verdict in this case on March 2, 2017. It is also undisputed that this verdict was 21 V
22 vacated by the Guam Supreme Court on July 31, 2019. The Supreme Court’s reversal of Torre’ ~ V
23 conviction negates the existence of a verdict. ThereforeV, for all intents, and purposes, this matter V 24 is pre-verdict. The Court therefore holds that the People’s Motion is timely and properly before
25 the Court. V
26 V
V V V Page4of8 1 b. The Amended Indictment does not improperly add a new charge
2 Torre next argues that the proposed Amended Indictment contains a statutory citation
~ that was not included in the initial Indictment and must therefore be brought before a grand jury
for a finding of probable cause. It is undisputed that Negligent Homicide was not specifically 5 charged in the initial Indictment, and the proposed Amended Indictment therefore contains a 6 new statutory citation. However, the jury was previously instructed to consider Negligent 7 Homicide as a lesser included offense of Manslaughter.
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NL~O SUPERIOR COURT 1 OF GUAM
2 2mSEP 26 MIll: 13 CLERK OF COURT 3 By~_ 4
7 IN THE SUPERIOR COURT OF GUAM 8 PEOPLE OF GUAM, 9
10 Plaintiff, Criminal Case No. CF0421-15
11 vs. . DECISION AND ORDER 12 MARK A. TORRE, JR., Defendant. 13
14 INTRODUCTION 15
16 This matter is before the Honorable Judge Michael J. Bordallo. The People of Guam
17 (“People”) are represented by Assistant Attorney General J. Basil O’Mallan III. Defendant
18 Mark A. Torre Jr. (“Torre”) is represented by Attorney Joaquin C. Arriola Jr. Having reviewed
19 the memoranda and papers presented, the Court now issues the following Decision and Order
20 GRANTING the People’s Motion to Amend Indictment. 21 FACTS 22 1. On July 24, 2015, a Grand Jury returned an Indictment charging Torre with the 23 following: (1) Murder (as a First Degree Felony) with a Special Allegation of 24 Possession or Use of a Deadly Weapon in the Commission of a Felony; (2) 25
Page 1 of 8 1 Manslaughter (as a First Degree Felony) with a Special Allegation of Possession or Use
2 of a Deadly Weapon in the Commission of a Felony;. (3) Aggravated Assault (as a
Second Degree Felony) with a Special Allegation of Possession or Use of a Deadly
Weapon in the Commission of a Felony; and (4) Aggravated Assault (as a Third Degree 5 Felony) with a Special. Allegation of Possession or Use of a Deadly Weapon in the 6 Commission of a Felony. 7 2. This matter~ went to jury trial on January 31, 2017. Prior to deliberations, the Court 8 instructed the jury that if they found Torre not guilty of Manslaughter, they must
10 consider the lesser included charge of Negligent Homicide. 3. The jury returned its verdicts on March 2, 2017. Torre was acquitted of Murder (as a
12 First Degree Felony), Manslaughter (as a First Degree Felony), and Aggravated Assault
13 (as a Second Degree Felony), together with all Special Allegations attached to said
14 counts. Torre was convicted of Negligent Homicide (as a Third Degree Felony) (as a
15 lesser included offense of Manslaughter), with Special Allegation of Possession or Use
16 of a Deadly Weapon in the Commission of a Felony, and Aggravated Assault (as a
17 Third Degree Felony), with Special Allegation of Possession or Use of a Deadly
18 .
Weapon in the Commission of a Felony. 19 4. Torre subsequently appealed his convictions and on July 31, 2019, the Supreme Court 20 of Guam issued an opinion in People v. Torre, 2019 Guam 9. In its opinion, the 21
22 Supreme Court found that this Court had improperly admitted certain evidence during
23 Torre’ s trial, and therefore vacated the Judgment of Conviction.
24 5. On August 7, 2019, the People filed a Motion to Amend Indictment along with a
25 proposed Amended Indictment. The People seek to remove the charges of which Torre
Page2of8 1 was acquitted (Murder, Manslaughter, and Assault (as a Second Degree Felony)) and
2 add the charge of Negligent Homicide, which was not included in the initial Indictment
but still considered by the jury as a lesser included offense of Manslaughter. 4 ISSUES 5
6 1. Whether the People’s proposed Amended Indictment is untimely because the matter is
7 post-verdict.
8 2. Whether the People’s proposed Amended Indictment improperly adds a new charge
9 which has not been brought before a grand jury.
10 3. Whether the People’s proposed Amended Indictment prejudices Torre’s substantial
11• rights.
12 PRINCIPLES OF LAW
13 Amendments to indictments are governed by 8 GCA § 55.20, which provides: “[t]he 14 court may permit an indictment or information to be amended upon the application of the 15 pro secuting attorney at any time before verdict or finding if no additional [or] different offense 16 is charged and if substantial rights of the defendant are not prejudiced.” 8 GCA § 55.20. “An 17
18 amendment to an indictment which alleges no new facts and cites no new statutory citation has
19 been held not to charge an additional or different offense.” People v. Diaz, 2007 Guam 3 ¶ 16.
20 The United States Supreme Court has held that “a court cannot permit a defendant to be
21 tried on charges that are not made in the indictment against him” and that “[d] eprivation of such
22 a basic right is far too serious to be treated as nothing more than a variance and then dismissed
23 as harmless error.” Stirone~v. United States, 361 U.S. 212, 217 (1960). The Court clarified
24 Stirone in United States v. Miller, 471 U.S. 130 (1985), by explaining that it is constitutionally
Page 3 of 8 1 permissible for a court to narrow an indictment• by dropping “those allegations that are
2 unnecessary to an offense that is clearly contained within it.” Id. at 144.
In Williams v. United States, 641 A.2d 479, 483 (D.C. 1994), the District of Columbia
Court of Appeals held that lesser included offenses may be substituted for greater offenses 5. without being brought before a grand jury because such amendments narrow an indictment 6 rather than broaden it. V
7 In the context of double jeopardy, the Ninth Circuit has held that lesser included V
8 V
offenses should be treated as if they had been specified in separate counts of the indictment.
V United States v. Gooday, 714 F.2d 80, 83 (9th Cir. 1983).
The test of whether an amendment will prejudice the Defendant’s substantial rights is
12 “whether a defense under an indictment as it originally stood would be equally available after V 13 the amendment is made, and whether any evidence the defendant might have would be equally
14 applicable to the indictment in the one form as in the other.” Diaz, 2007 Guam 3 ¶ 17 (quoting
V 15 United States v. Fawcett, 115 F.2d 764, 767 (3rd Cir. 1940)).
V 16 V ANALYSIS 17 a. The People’s Motion is timely V V
18 V Torre first argues that 8 GCA 55.20 provides that an Indictment may be amended at any 19 V V V V
time “before verdict,” and therefore cannot be amended at this time. It is undisputed that a jury 20 V V V V
returned a verdict in this case on March 2, 2017. It is also undisputed that this verdict was 21 V
22 vacated by the Guam Supreme Court on July 31, 2019. The Supreme Court’s reversal of Torre’ ~ V
23 conviction negates the existence of a verdict. ThereforeV, for all intents, and purposes, this matter V 24 is pre-verdict. The Court therefore holds that the People’s Motion is timely and properly before
25 the Court. V
26 V
V V V Page4of8 1 b. The Amended Indictment does not improperly add a new charge
2 Torre next argues that the proposed Amended Indictment contains a statutory citation
~ that was not included in the initial Indictment and must therefore be brought before a grand jury
for a finding of probable cause. It is undisputed that Negligent Homicide was not specifically 5 charged in the initial Indictment, and the proposed Amended Indictment therefore contains a 6 new statutory citation. However, the jury was previously instructed to consider Negligent 7 Homicide as a lesser included offense of Manslaughter. Despite finding Torre not guilty of 8 Murder, the jury found Torre guilty of Negligent Homicide.
10 The initial Indictment charged Torre with Manslaughter in that he “recklessly caused the death of another human being, that is, Elbert G. Piolo.” The proposed Amended Indictment
12 seeks to charge Torre with Negligent Homicide in that he “caused the death of another human
13 being, that is, Elbert G. Piolo, by criminal negligence.”
14 i. Negligent Homicide is a lesser included offense of Manslau,ghter
15 Guam law provides that an offense is a lesser included offense of a charged offense if it
16 is established by proof of the same or less than all the facts required to establish the commission
17 of the charged offense. 8 GCA § l05.58(b)(1). The Supreme Court of Guam has held that a trial
18 court is required to provide a jury instruction on a lesser included charge if: “(1) the lesser 19 offense is within the offense charged, and (2) based on the evidence presented at trial, a rational 20 -
jury could find the defendant guilty of the lesser offense but not the greater.” People v. Perez, 21
22 1999 Guam 2 ¶ 24. Guam law specifies that when a charge requires that a defendant acted
23 “negligently,” the People can meet their burden of proof by demonstrating that the defendant
24 acted “intentionally,” “knowingly,” or “recklessly.” 9 GCA § 4.35. However, the reverse is not
25 true, and a charge requiring a showing of “intentionally,” “knowingly,” or “recklessly” cannot
26 Page 5 of 8 1 be sustained by a showing that the defendant acted “negligently.” Id. Negligent Homicide
2 therefore contains a “lesser” mens rea requirement than Manslaughter. Apart from the mens rea
~ requirement, Manslaughter (as charged in the Indictment) and Negligent Homicide contain
identical elements. Compare 9 GCA § 16.50 with 9 GCA § 16.60. For this reason, the Court 5 held that Negligent Homicide is a lesser included offense of Manslaughter and instructed the 6 jurors that if they found Torre not guilty of Manslaughter, they must consider the charge of 7 Negligent Homicide. 8 ii. Indictments may be amended to add lesser included offenses without bein,~ 9 brou,ght before a Rrand jury
10 In Côreas v. United States, 585 A.2d 1376 (D.C. 1991), the District of Columbia Court
of Appeals held that a new indictment is not necessary in order to add a lesser included offense. 12 The facts of Corea are very similar to the facts of the present case. In Corea, the defendant was 13 acquitted by a jury of Second Degree Murder While Armed, but convicted of the lesser included 14 offense of Manslaughter While Armed. Id. at 1378. His conviction was later reversed on the 15
16 grounds of prosecutorial misconduct. Id. The prosecution later retried the defendant for the
17 lesser included offense of Manslaughter While Armed, despite such charge not being included
18 in the indictment. Id. The Court of Appeals found that a new indictment was not needed:
19 Indeed, the jury in Coreas I found him guilty of that lesser-included offense. Accordingly, the grand jury which indicted him for the greater offense necessarily 20 found probable cause to believe that all of the elements of the lesser offense of manslaughter while armed were present. Neither the reversal of Coreas’ 21 conviction as a result of prosecutorial misconduct nor his acquittal of second degree murder while armed has any logical bearing on the grand jury’s conclusion 22 that Coreas’ conduct satisfied all of the elements of voluntary manslaughter while
23 armed, and more.
24 Id. at 1380. The Court finds this logic equally applicable in the present case.
Page 6 of 8 1 Torre is correct in pointing out that the initial Indictment did not allege that Torre acted
2 negligently. However, there is no logical basis for Torre’ s argument that a grand jury could
~ reasonably indict Torre for Murder and Manslaughter but fail to indict him for Negligent
Homicide based upon the facts of this case. The charges in the initial Indictment were of such a 5 nature that the Court was required to include a jury instruction and verdict form for Negligent 6 Homicide. For that reason, the Court holds that Negligent Homicide was implicitly charged 7 despite not explicitly being named as a charge in the initial Indictment. Torre’ s position that the 8 Amended Indictment charges a new or additional offense would lead to the untenable result of
~ requiring the People to include every possible lesser included offense as charged offenses. While not explicitly charged, Torre faced the charge of Negligent Homicide and was ultimately
12 convicted of it. The Court holds that an amended indictment does not contain a new charge if it
13 adds a charge which was implicitly charged in the initial indictment as a lesser included offense.
14 c. Torre is not prejudiced by the Amended Indictment
15 Lastly, Torre argues that his substantial rights will be prejudiced by the proposed
16 Amended Indictment. The test of whether an amendment will prejudice the Defendant’s
17 . . . . . . substantial rights is: “whether a defense under an indictment as it originally stood would be 18 equally available after the amendment is made, and whether any evidence the defendant might 19 have would be equally applicable to the indictment in the one form as in the other.” Diaz, 2007 20 Guam 3~j[l7 21
22 Torre argues that the different degree of culpability required by Manslaughter and
• 23 Negligent Homicide affects certain defenses and evidence previously available to him. Torre
24 does not cite to a single defense or piece of evidence which would be affected based upon the
25 new mens rea requirement. From the time he was indicted, Tone was on notice that he needed
26 Page 7 of 8 1 to defend against all lesser included offenses. Williams, 641 A.2d 479, 483 (D.C. 1994). During
2 the first trial, Torre was aware that Negligent Homicide was charged as a lesser included
~ offense and that the jury could possibly return a verdict of Negligent Homicide. Torre therefore
already had the opportunity to prepare for and defend against this charge. Therefore, he is not 5 prejudiced by the Indictment being amended to explicitly charge Negligent Homicide. 6 CONCLUSION AND ORDER 7 For the above reasons, the Court GRANTS the People’s Motion to Amend Indictment. 8
9 -
SO ORDERED~ this ~~~day of________________ 2019.
15 ~
21 SEIWICEVIA cOuRr sox’
I acknowledge that a copy of the 22 ong~nal hereto was placed in the cour( box of 23 ___________
24 ~ Ic’ 25 Deputy CIei*, Superior Coü~ of~uam
26 - Page8of8