People of Guam v San Nicolas [1999] GUSC 19; 1999 Guam 19 (21 June 1999)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM
Plaintiff/Appellant/Cross-Appellee

vs.

DONICIO M. SAN NICOLAS
Defendant/Appellee/Cross-Appellant

OPINION

Supreme Court Case No. CRA98-004
Superior Court Case No. CF0471-97

Filed: June 21, 1999

Cite as: 1999 Guam 19

Appeal from the Superior Court of Guam
Argued and Submitted on October 14, 1998
Hagåtña, Guam

For the Plaintiff/Appellant/Cross-Appellee: Thomas J. Fisher Assistant Attorney General Office of the Attorney General Prosecution Division Suite 2-200E, Judicial Center Building 120 West O=Brien Drive Hagåtña, Guam 96910	For the Defendant/Appellee/Cross-Appellant: Richard P. Arens, Esq. Cunliffe & Cook A Professional Corporation Suite 200 210 Archbishop Flores Street Hagåtña, Guam 96910

BEFORE: PETER C. SIGUENZA, Chief Justice[1]; JANET HEALY WEEKS[2] and BENJAMIN J. F. CRUZ Associate Justices.

SIGUENZA, C.J.:

[1] This appeal arises after a jury convicted the Defendant/Appellee/Cross-Appellant, Donicio M. San Nicolas (hereinafter ASan Nicolas@), of two counts of child abuse as third degree felonies. The jury, however, was deadlocked on the charges of aggravated murder as well as the lesser included offenses of aggravated murder and aggravated assault.

[2] The People appeal the trial court=s subsequent decision, granting San Nicolas= Motion to Dismiss the Indictment as to the second count of the aggravated murder charge on which the jury could not return a verdict, based on the doctrine of collateral estoppel. San Nicolas answers the People=s appeal by asserting that, not only was the court correct in barring prosecution based upon collateral estoppel, but that the doctrine of implied acquittal and statutory preclusion also require dismissal. In his cross-appeal, San Nicolas also appeals the denial of the dismissal of the lesser included offenses to aggravated murder and aggravated assault. The court hereby affirms the trial court=s ruling.

FACTUAL AND PROCEDURAL BACKGROUND

[3] On July 27, 1997, San Nicolas went to the Lonfit River, accompanied by the two alleged child-victims, (hereinafter AVictim One@ and AVictim Two@) and other children. The children were swimming in the river when the weather changed causing the river to begin to rise and the water to become rough. Subsequent to the change in weather, San Nicolas hooked up a chain which the children could hold onto for their safety while in the river. San Nicolas was watching the children from the banks of the river where he was also barbecuing and drinking beer. At some point, Victim One and Victim Two began to have trouble holding on to the chain and San Nicolas proceeded into the river in an attempt to help them. The girls struggled and, although Victim Two managed to get back to land, Victim One lost hold of the chain and was swept down river and drowned. Victim Two made representations, at the subsequent trial, that San Nicolas was trying to hold her head and Victim One=s head under the water, instead of trying to save them. Victim Two later produced letters which she represented were written by Victim One regarding abuse by San Nicolas.[3] As a result of this incident, San Nicolas was subsequently indicted on October 29, 1997 on five charges, including murder, assault and child abuse.

[4] The case proceeded to trial early in 1998. At the conclusion of the trial, the jury was provided with Lesser Included Offenses (hereinafter ALIOs@), not charged out in the indictment, to consider in its deliberations. The jury was instructed to consider each charge separately and that its verdict on one charge should not control its decision on another. The jury initially returned with verdicts on the Second, Third and Fifth Charges. The trial court sent the jury back to deliberate several more times. The jury eventually returned with verdicts on various other charges, but could not reach a decision on the remainder. The jury=s verdicts were as follows:

1. First ChargeC Aggravated Murder VICTIM ONE

a. First CountC Aggravated Murder : Premeditation NOT GUILTY

(1) LIOC Murder NOT GUILTY

(2) LIOC Manslaughter NOT GUILTY

(3) LIOC Negligent Homicide NOT GUILTY

(4) LIOC Aggravated Assault HUNG JURY

(5) LIOC Misdemeanor Assault HUNG JURY

b. Second CountC Aggravated Murder HUNG JURY

2. Second ChargeC Murder, VICTIM ONE NOT GUILTY

a. LIOC Aggravated Assault (as a 2nd Degree Felony) NOT GUILTY

3. Third ChargeC Attempted Murder, VICTIM TWO NOT GUILTY

b. LIOC Attempted Aggravated Assault NOT GUILTY

c. LIOC Attempted Misdemeanor Assault NOT GUILTY

4. Fourth ChargeC Aggravated Assault

(as a 2 nd Degree Felony), VICTIM TWO NOT GUILTY

a. LIOC Aggravated Assault (as a 3rd Degree Felony) HUNG JURY

b. LIOC Misdemeanor Assault HUNG JURY

5. Fifth ChargeC Child Abuse (as a 3rd Degree Felony )

a. First Count- VICTIM ONE GUILTY

b. Second Count- VICTIM TWO GUILTY

After the verdicts were returned, the trial court did not enter a judgment. San Nicolas made a Motion to Dismiss the Indictment as to the charges on which the jury was unable to reach verdicts. The trial court heard argument and later issued a written decision and order on March 25, 1998, wherein it determined the First Charge, Count Two (hereinafter AAgg. Murder, Count 2") should be dismissed on the basis of collateral estoppel. At the same time, the trial court rejected San Nicolas=