People of Guam v Nicolas [2016] GUSC 32 (13 December 2016)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,
Plaintiff-Appellee,

v.

CLIFFORD BENAVENTE SAN NICOLAS,

Defendant-Appellant.

Supreme Court Case No.: CRA15-030
Superior Court Case No.: CF0049-13

OPINION

Cite as: 2016 Guam 32

Appeal from the Superior Court of Guam
Argued and submitted on May 2, 2015
Dededo, Guam

Appearing for Defendant-Appellant: Leevin T. Camacho, Esq. Law Office of Leevin T. Camacho 194 Hernan Cortez Ave., Ste. 216 Hagåtña, GU 96910

Appearing for Plaintiff-Appellee: Marianne Woloschuk, Esq. Office of the Attorney General Prosecution Division 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 Clifford B. San Nicolas appeals from a final judgment convicting him of one count of intentional Murder (As a First Degree Felony), one count of reckless Murder (As a First Degree Felony), one count of Family Violence (As a Third Degree Felony), and one count of Possession of a Firearm Without an Identification Card (As a Third Degree Felony). San Nicolas argues that the trial court abused its discretion by refusing his request to poll the jurors about potential exposure to a Pacific Daily News (“PDN”) article that contained extraneous and prejudicial information. He further asserts that the information in the article adversely affected the verdict. We affirm in part, vacate the verdict and sentence imposed in part, and remand this case for further proceedings not inconsistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

[2] Following the shooting of Valene Joi Borja on January 26, 2013, San Nicolas was indicted for Attempted Murder (As a First Degree Felony) with a Special Allegation of Possession and Use of a Deadly Weapon in the Commission of a Felony; Family Violence (As a Third Degree Felony) with a Special Allegation of Possession and Use of a Deadly Weapon in the Commission of a Felony; and Possession of a Firearm Without an Identification Card (As a Third Degree Felony).
[3] When San Nicolas was arrested and advised of his constitutional rights, he gave three versions of what transpired during the shooting incident to Guam Police Department Officer Matthew P. Cepeda. First, he stated that Borja, his “common law” wife, was standing outside of her vehicle after preparing rice when he saw her fall to the ground. Transcripts (“Tr.”) at 166 (Jury Trial, Apr. 7, 2015). When he checked her, she was bleeding from the right side of her neck, prompting him to rush her to medics in Dededo. He denied owning any guns on that date.
[4] When questioned regarding 22 shell casings found on the ranch grounds, Cepeda testified that San Nicolas appeared frustrated and changed his story. In this second version, San Nicolas stated he asked Borja to cook rice, she prepared the rice, and he began shooting at stray dogs in their driveway. After shooting at the dogs, San Nicolas told Cepeda that the gun accidentally went off when placed on the table, hitting Borja. Cepeda read San Nicolas’s written statement into evidence, which stated, “Me and my wife woke up cooking rice 10 a.m., shoot the dog, and then put the gun down on table. Then gun went off and hit her. I then rush her to the medic.” Id. at 172.
[5] In yet a third account, San Nicolas admitted arguing with Borja about improperly cooked rice, prompting him to pick up a gun with the purpose of frightening her while she sat in the passenger side of their vehicle. He claimed the gun accidentally fired and hit her neck. After trying to help her on his own, he brought her to the Dededo Fire Station. Cepeda read another statement by San Nicolas into evidence, which stated, “I make a statement. I just wanted to scare her. She didn’t hear me about the rice. I didn’t mean it. I never wanted to hurt her.” Id. at 172-73.
[6] The bullet in Borja’s neck fractured her spinal cord, paralyzing her from the neck down. Borja contracted pneumonia due to being quadriplegic, which resulted in her death.
[7] After Borja succumbed to her injuries, a Grand Jury returned a Superseding Indictment against San Nicolas for Aggravated Murder (As a First Degree Felony), Family Violence (As a Third Degree Felony), and Possession of a Firearm Without an Identification Card (As a Third Degree Felony). The first two charges likewise included special allegations of Possession and Use of a Deadly Weapon in the Commission of a Felony. A Second Superseding Indictment added two additional charges, intentional Murder and reckless Murder, both as first degree felonies. All charges, with the exception of Possession of a Firearm Without an Identification Card (As a Third Degree Felony), included special allegations of Possession and Use of a Deadly Weapon in the Commission of a Felony.
[8] A jury trial commenced April 7, 2015. Following the close of the People’s case on the third day of trial, San Nicolas successfully moved for a judgment of acquittal on the aggravated murder charge, with the court finding insufficient evidence of premeditation.
[9] San Nicolas’s counsel also moved to poll the jury regarding exposure to a newspaper article published by the PDN on April 8, 2015 (hereinafter, the “Article”), contending that it “contain[ed] inadmissible evidence that violate[d] Mr. San Nicolas’ Sixth Amendment right to a fair trial and other rights.” Record on Appeal (“RA”), tab 76 at 1-2 (Mot. to Poll Jury, Apr. 9, 2015); Tr. at 5 (Jury Trial, Apr. 9, 2015). San Nicolas’s motion included a PDN website printout of the Article as an exhibit, with the banner headline “Murder trial begins