People of Guam v Pablo [2016] GUSC 29 (14 October 2016)

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Appeal from the Superior Court of Guam
Argued and submitted on February 12, 2016
Hagåtña, Guam

Appearing for Defendant-Appellant:
Howard Trapp, Esq.
Howard Trapp Inc.
Saylor Bldg.
139 E. Chalan Santo Papa, Ste. 200
Hagåtña, GU 96910

Appearing for Plaintiff-Appellee:
Gerald L. Henderson, Esq. (Briefed)
James C. Collins, Esq. (Argued)
Assistant Attorneys General
Office of the Attorney General
590 S. Marine Corps Dr., Ste. 706
Tamuning, GU 96913

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

MARAMAN, J.:
[1] Defendant-Appellant Serafin Reyes Pablo appeals from a judgment of conviction finding him guilty of second degree criminal sexual conduct. In an earlier trial, Pablo was acquitted of one count of criminal sexual conduct, but the jury was unable to reach a verdict on the other count. Pablo was retried and convicted. He argues that the conviction must be reversed on double jeopardy grounds because of judicial and prosecutorial impropriety, intended to provoke a mistrial, during his first trial for the crime. Specifically, he argues that the trial court or prosecution intended to provoke a mistrial by giving the jury a verdict form which included an “unable to decide” option, and, thus, further prosecution was barred on the charge after the jury in the first trial was unable to reach a verdict.
[2] For the reasons set forth below, we affirm.

[3] On February 22, 2013, the grand jury returned a Superseding Indictment charging Defendant-Appellant Serafin Reyes Pablo with: (1) one count of Second Degree Criminal Sexual Conduct (“CSC”) for intentional sexual contact involving T.M.I., a minor under fourteen years old (“Count 1”); (2) one count of Second Degree CSC for intentional sexual contact involving A.F.S., a minor under fourteen years old (“Count 2”); (3) one count of Child Abuse (as a misdemeanor) against T.M.I.; and (4) one count of Child Abuse (as a misdemeanor) against A.F.S. Subsequently, on Pablo’s motion, the trial court dismissed the two counts of misdemeanor Child Abuse.
[4] The case proceeded to trial on the remaining two counts of Second Degree CSC, i.e., Counts 1 and 2. Pablo’s counsel filed proposed verdict forms. The trial court proposed its own verdict forms, and ultimately submitted its forms to the jury. The two verdict forms (one for each count of Second Degree CSC) used by the jury contained the following language:

WE, THE JURY, in the above-entitled case find the Defendant, SERAFIN REYES PABLO:

If you unanimously find the Defendant “Not Guilty” of the offense of Second Degree Criminal Sexual Conduct, your foreperson will check the “Not Guilty” box and sign and date this form below.

If, however, you unanimously find the Defendant “Guilty” of the offense of Second Degree Criminal Sexual Conduct, your foreperson will check the “Guilty” box and sign and date this form below.

If you are unable to decide whether the Defendant is guilty or not guilty of this charge, your foreperson will sign and date this form below.

FOREPERSON Date/Time
Record on Appeal (“RA”), tab 95 (Verdict Form 1, June 4, 2013); RA, tab 96 (Verdict Form 2, June 4, 2013).
[5] In discussions between the parties and the court regarding finalizing the verdict forms, Pablo’s counsel objected to the “unable to decide” paragraph found in the court’s forms. Specifically, he argued:

Okay. Now, it says at the bottom, I submit -- you know, there’s such a thing as the -Allen charge, which says okay, we’re having trouble deciding this case go back and work on it some more, because it will never be tried any better than it’s been tried, and will be tried with a different jury with a [sic] the same evidence, and they will be in the same position you are, and so the jury is a hung jury. I suggest that the third paragraph of the verdict form, if you are unable to decide, it makes it sound like, well, it’s one, two or three, you’ve got to decide guilty, not guilty, or (indiscernible 10:40:55). What it does -- they can send you a note if they can’t reach a verdict. We can stress it at the time, give them an Allen charge or something that (indiscernible 10:41:03). I suggest -- we suggest that it is acceptable to not reach a verdict. I think that last paragraph if you are unable to decide just sign on the paper form below.
Transcript (“Tr.”) at 7-8 (Jury Trial, June 3, 2013). In response, the People simply stated, “The last paragraph, I feel like that should have been addressed in the numerous times that we could address --.” Id. at 8. The trial court then interjected, stating:

Yeah. I’m inclined to have that -- while I agree, we don’t want in any way to suggest to the jury they may not be able to come to a decision, of course, but that’s -- it’s also in the instruction which says must have a unanimous decision, or is -- yeah -- the decision must be unanimous. So I’m inclined to just probably have that portion of the verdict form remain, but I do understand the suggestion. I appreciate it, as well.
Id. Thus, the verdict forms given to the jury included the “unable to decide” language.
[6] At approximately 3:00 p.m. on June 3, 2013, after receiving its instructions from the court, the jury began deliberating. The trial court instructed the jury not to deliberate past 4:50 p.m. that day. At the end of the day, the court excused the jury for the night and instructed them to return at 9:00 a.m. the following morning to resume their deliberations. At approximately 10:05 a.m. the following day, the jury sent a note to the court requesting audio playback of certain testimony. Tr. at 2-3 (Jury Trial, June 4, 2013). After the audio was played, the jury resumed deliberations, taking a break for lunch. At 4:39 p.m., the jury sent a note to the court, stating, “We have come to our decision.” Tr. at 11 (Jury Trial, June 4, 2013). The jury was brought in, and the foreperson was asked, “Has the jury unanimously agreed on its verdict?”, to which the foreperson replied, “Yes, Your Honor.” Id. After seeing the verdict forms, the court remarked, “One of the verdicts or verdict forms, there does not seem to be an indication. Mr. Foreperson, did you intend to submit it this way?” Id. at 12. The foreperson replied, “Yes.” Id. Immediately thereafter, counsel and the court engaged in a sidebar discussion.^[1]
[7] After the sidebar, the court stated:

The Court at this time is in receipt of the verdict forms associated with this trial. As to Count 1 based on an indication from the foreperson, the Court takes this count and the indication that the jury is unable to decide whether the defendant is guilty or not guilty of this charge and that is Count 1, and it is signed and dated below. Therefore, the jury technically in [sic] a hung jury as to the inability to reach a unanimous verdict as to not guilty or guilty.
Id. The foreperson then published the jury’s verdict as to Count 2, indicating that the jury found Pablo not guilty of that count. The parties requested polling of the jury. The jury was discharged, but was asked to remain for a few minutes for polling.
[8] After the jury exited the courtroom, the court addressed Pablo:

THE COURT: Again, the indication by the foreperson is that I guess unanimously they could not come to a decision. Therefore, the Court believes that it should declare a mistrial as to Count 1. This means a few things. I’ll let your lawyer explain that to you, Mr. Pablo. Otherwise, you have been deemed, of course, not guilty by a jury of your peers as to the second count. The Court at this time will -- I mean, ultimately I believe it’s a refiling, correct, upon a mistrial – jurisdiction, Mr. Trapp?

[DEFENSE COUNSEL]: Well, you know, I like to say everything that’s totally in our favor and forget about the rest. Okay, it’s a mistrial and so, therefore, the Government could retry him.

THE COURT: They could retry him.
Id. at 14-15. The People thereafter indicated that it intended to retry the case and asked the court to set trial dates. After the close of proceedings, counsel took turns polling the jury.
[9] Ten days later, Pablo filed a motion to dismiss Count 1 on double jeopardy grounds, arguing that the mistrial on that count “resulted from judicial and prosecutorial impropriety designed to avoid an acquittal.” RA, tab 102 at 1 (Mot. Dismiss, June 14, 2013). Specifically, Pablo alleged that the inclusion of the “unable to decide” language, over his objection, amounted to prosecutorial and judicial misconduct as the language “was contrary to and called into question the duty of the jurors to deliberate in an effort to reach a verdict of not guilty or guilty.” RA, tab 101 at 2 (Mem. Supp. Mot. Dismiss, June 14, 2013). Pablo also argued that the “unable to decide” language foreclosed the jury from retiring and continuing its deliberations, because at that point, “The verdict form was signed and dated. The jurors had reached their decision. Their decision was final. And all after only one day.” Id. at 3.
[10] In response, the People indicated that it had “had no objection to the Court’s proposed verdict forms and left it for the Court to decide how to construct the final version of the verdict form.” RA, tab 105 at 2 (People’s Resp. to Defense’s Mot. to Acquit & Dismiss the Charge, June 21, 2013). The People then recounted the details of the sidebar discussion that took place immediately after the court received the signed verdict forms from the jury:^[2]

The Court called the foreperson to the bench with both counsel present. The foreperson explained that there were two entrenched positions on the jury and that they would not be able to reach a unanimous verdict even if given time to deliberate further. There was a discussion amongst counsel and the Court as to whether to order the jury to continue to deliberate. The Defense specifically asked the Court not to order the jury to further deliberate and instead to declare a mistrial based on a hung jury. The Court then declared a mistrial.
Id. The People then argued that Pablo’s motion to dismiss was without merit:

[T]hough Defendant certainly made a strong pitch to use its provided verdict form, Defense counsel specifically did not ask the Court to instruct the jurors to continue deliberating. So even though Defense initially objected, by not objecting to the Court not ordering the jurors to continue to deliberate, Defendant concurred that the outcome was proper. The only case Defendant cites is Jorn. The Jorn decision specifically dealt with the situation when the Court aborted the proceedings prior to the verdict without the Defendant’s consent. This is not the situation in this case. There was no sua sponte declaration of a mistrial. . . .

Second, Defendant is asserting that the Court, by putting forth a verdict form that allows the foreperson to sign without selecting guilty or not guilty, and the People, by not objecting to this form, are encouraging hung juries, which in the Defendant’s position is judicial and prosecutorial misconduct. Defendant’s argument that a decision to use one verdict form over the other constitutes judicial misconduct falls significantly short of the mark, especially under the high “abuse of discretion” standard. Instead, Defendant wants to have his cake and eat it too: he did not object and in fact concurred that the Court should declare a mistrial based on a hung jury, rather than requiring the jury to continue to deliberate, and now he wants to use that ruling that he concurred with to try to obtain a dismissal based on double jeopardy. Such a motion must fail.
Id. at 4.
[11] During the hearing on Pablo’s motion to dismiss, the People mentioned that “the Court was there when the foreperson came and told them that there were two intrenched [sic] camps, and that led to the hung jury.” Tr. at 3 (Mot. Hr’g, June 28, 2013).
[12] Pablo’s counsel argued that after he heard that the jury’s note had said, “we have come to our decision,” “there was no way [he] was going to ask to have the jury sent back out.” Id. at 6. He further stated, “I don’t even know that an Allen charge would be appropriate. Your Honor did announce that the bench -- and it’s on the record that you’re not a fan of the Allen charge. I think that’s almost verbatim of what you said.”^[3] Id. Pablo’s counsel then continued:

Supreme Court of Guam

People of Guam v Pablo [2016] GUSC 29 (14 October 2016)