People of Guam v Nicolas [2013] GUSC 21; 2013 Guam 21 (5 November 2013)

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Appeal from the Superior Court of Guam
Argued and submitted May 13, 2013
Hagåtña, Guam

Appearing for Defendant-Appellant:
F. Randall Cunliffe, Esq.
Cunliffe & Cook, PC
210 Archbishop Flores St., Ste. 200
Hagåtña, GU 96910

Appearing for Plaintiff-Appellee:
James C. Collins, Esq.
Office of the Attorney General
590 S. Marine Corps Dr., Ste. 706
Tamuning, GU 96913

BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice; and KATHERINE A. MARAMAN, Associate Justice.

[1] Defendant-Appellant Alvin Gerard San Nicolas appeals his conviction of fifteen counts of First Degree Criminal Sexual Conduct and one count of Second Degree Criminal Sexual Conduct.[1] The trial court, upon discovering a mistake in the indictment during jury selection, ordered Plaintiff-Appellee People of Guam (the "People") to amend the indictment. The People amended, and San Nicolas was found guilty of all charges in the amended indictment. San Nicolas contends that the trial court cannot raise the indictment defect sua sponte and does not have the authority to order an amendment to the indictment. For the reasons set forth below, we reverse and vacate the convictions of First Degree Criminal Sexual Conduct and Second Degree Criminal Sexual Conduct, and remand the matter to the trial court for further proceedings not inconsistent with this opinion.

[2] The grand jury presented an indictment charging Alvin Gerard San Nicolas with fifteen counts of First Degree Criminal Sexual Conduct ("CSC"), one count of Second Degree CSC, and one count of Child Abuse. During jury selection, the trial court, sua sponte, raised a potential problem with the indictment, specifically with the First and Second Degree CSC charges. It stated:

[T]he Court pursuant to its authority under 8 GCA Section 65[.]15(b) is advising you at this time that in review of the Indictment herein, the Court's extremely concerned that in reading the elements out loud that the full statutory requirement under 9 GCA 25[.]15(a)[(]2[)] is not noted on the Indictment.

Transcripts ("Tr.") at 2 (Jury Trial, Feb. 2, 2012). Thereafter, the People filed a Memorandum stating that the indictment was sufficient.

[3] In response to the People's Memorandum, San Nicolas filed a Motion for Partial Dismissal of Partially Defective Indictment. That afternoon, the trial court heard argument on the issue. San Nicolas argued that the first charge of the indictment did not charge First Degree CSC, despite the mistitling of that charge, but rather, that it charged Third Degree CSC. He further argued that if the People intended to charge him with First Degree CSC, they must seek leave of court to dismiss the erroneous charge, obtain San Nicolas's consent to do so, and thereafter obtain a new indictment. With respect to the second charge of Second Degree CSC, San Nicolas argued for dismissal because to allow an amendment would impermissibly introduce a new charge. Specifically, as to the first charge, the original indictment stated that San Nicolas

did commit the offense of First Degree Criminal Sexual Conduct, in that he intentionally engage [sic] in sexual penetration with another, to wit: by causing his penis to enter the vagina of LM.D. (DOB: 04/05/1995), a minor at least fourteen (14) but less than sixteen (16) years of age, in violation of 9 GCA §§ 25.15 (a)(2) and (b).

Record on Appeal ("RA"), Indictment at 1-5 (Aug. 20, 2010). Because the alleged victim was at least fourteen years of age but less than sixteen years of age, the court found that 9 GCA § 25.15(a)(2) requires that in order for San Nicolas to be guilty of First Degree CSC, he must be a member of the same household as the victim, be related to the victim by blood or affinity to the fourth degree, or be in a position of authority over the victim and used this authority to coerce the victim to submit. The charge of First Degree CSC in the original indictment did not state any of these elements. Similarly, the trial court found that the charge of Second Degree CSC in the original indictment also failed to state any of the elements, apart from age of the victim, that are required by 9 GCA § 25.20(a)(2), which are identical to those found in 9 GCA § 25.15(a)(2).

[4] The trial court questioned both sides regarding whether the grand jury heard testimony to support the charges of First Degree CSC or Second Degree CSC. The People answered affirmatively, and, relying on their representation, the trial court orally ruled:

In light of the information that I have received, the Court is going to order the Government at this time to amend the Indictment to conform to the statute as noted regarding the phrase that I had just used to support your – the charges.

[5] San Nicolas's counsels stated they did not recollect whether this information was noted during the grand jury proceedings. The court continued to press the People on whether their answer was sufficiently responsive. Upon further questioning by the court, the People replied:

Your Honor, I listened to [the grand jury recording]; I don't have the transcript; I listened to the CD and I can note the times. I can note that at 10:08 point -- colon 50, they read the entire subsection two of 9 [GCA] Section 25.10 for first degree criminal sexual conduct. And at 10:10 point 06, they started reading 8 -- 9 [GCA] 25.20 second degree criminal sexual conduct, they read the entire subsection two; they -- they read -- proceeded to read the Indictment or -- investigator from the Office of the Attorney General, Juan Salas, was the witness. And they noted at 10:21 that the mother was deployed to Iraq, May of 2009 to February of 2010. At 10:24, they noted that the mother left the daughter in the care of the Defendant and she has been raised by the Defendant since she was two years old.

[6] The trial court concluded that allowing the People to amend the indictment to add the additional element to each of the criminal sexual conduct charges would not charge a new offense or prejudice the defendant. Subsequently, a written order was issued instructing the People to amend the indictment. The People filed an amended indictment later the same day. The amended indictment alleged in both the first charge and the second charge that San Nicolas was a member of the same household as the victim.

[7] Trial proceeded and the jury convicted San Nicolas of all charges in the amended indictment. San Nicolas timely appealed, arguing that the trial court erred in raising the issue of the defective indictment sua sponte and in ordering the People to amend the original indictment. More specifically, San Nicolas argues that the First Degree CSC charge in the original indictment actually charged him with Third Degree CSC, and the Second Degree CSC charge in the original indictment did not charge a crime.

[8] This court has jurisdiction over this appeal pursuant to 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 112-283 (2013)) and 7 GCA §§ 3107 and 3108(a) (2005).

[9] Whether the trial court has the authority to raise a defect in the indictment is a question of law; the trial court's legal conclusions are reviewed de novo. See People v. Rios, 2008 Guam 22 ¶ 8. Although "[r]eview of a trial court's decision to permit an amendment to a charging document is one of abuse of discretion,"[3] People v. Riocne, 2012 Guam 5 ¶ 4, the underlying question of whether the amendment charged new or different offenses or prejudiced the defendant is reviewed de novo, People v. Diaz, 2007 Guam 3 ¶ 15.

[10] San Nicolas's arguments can be split into two parts: first, whether the court can raise the issue of a defective indictment sua sponte; and second, whether the amendment was proper. San Nicolas argues that the trial court "is supposed to be an unbiased arbiter of the law," and thus violated its "arbiter's role and became an advocate for the Government" by raising the issue sua sponte and ordering an amendment over the People's objection. Appellant's Br. at 6 (Dec. 17, 2012). Further, San Nicolas argues, the trial court "overstepped the bounds of providing a fundamentally fair trial and was stripped of impartiality" by ordering a change to the indictment. Id. at 8. The People contend Guam law and federal precedent allow the trial court to both raise the issue and order the amendment. Appellee's Br. at 10-13 (Dec. 31, 2012). According to the People, the trial court can raise the issue, and its "order" was given after the People "implicitly represented that an amendment to the Indictment would be the preferred course of action." Id. at 13.

[11] Before addressing San Nicolas's contentions, we first briefly discuss the grand jury's role in the criminal justice system. A grand jury's chief duty is to determine whether the prosecution has established a prima facie case that a crime has been committed and that the accused committed it. See 38 Am. Jur. 2d Grand Jury § 2 (2013). Further, "a grand jury serves a gatekeeping function by considering the sufficiency of the evidence to support an indictment." Id. § 3. Title 8 GCA § 50.54, entitled "Form of Indictment: Standards for Indicting," provides:

(a) An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a felony or a felony and a related misdemeanor.

Supreme Court of Guam

People of Guam v Nicolas [2013] GUSC 21; 2013 Guam 21 (5 November 2013)