Guam – A mistrial is been declared in the case against former GPD Colonel Mark Charfauros. Meanwhile, the prosecution may not be able to prosecute any further.
“I had reason to believe that the Colonnel was affiliated with the Agat Blood Town gang,” testified GPD officer Craig Calvo
That is the statement that stopped the trial involving former GPD Colonel Mark Charfauros dead in its tracks.
“Similarly had the defense been properly notified by the prosecution to use such evidence to establish motive Mr Cunliffe indicated that he would have filed a motion in limine or other such pre-trial motion to exclude the evidence which the court would have been able to address prior to trial rather than during trial,” stated Superior Court Judge Maria Cenzon.
But the jury had already heard the inflammatory evidence with out a limiting instruction and Cunliffe was not able to questions the potential jurors regarding any effects the Agat Blood Town evidence might have had on any of the potential jurors and addressed the information in opening statements.
“As the government failed to provide notice the court finds that the defendant has been denied his due process rights. So in this circumstance what is the proper remedy, the court is not convinced that the government was unaware that officer Calvo would testify that quote, he had reason to believe that the colonel was affiliated with the Agat Blood Town gang,” explained the Superior Court Judge Maria Cenzon.
Judge Cenzon stated that it is evident in the discovery that one of the reasons Calvo did not approach the Colonel on the night in question was because he knew Charfauros was affiliated with the gang.
“Thus the claim that the prosecution did not know that officer Calvo would testify at trial that there was any affiliation is naive at best and dubious at worst,” stated Judge Cenzon.
The court found that the evidence of any gang related activity falls within the requirements of 404(b) evidence which requires proper notification of use of such evidence. The court further found that any jury instruction to right the prejudice would not suffice as a remedy. For these reasons the court granted the mistrial and while the case was not dismissed by the Judge the Fifth amendment may bar the government from prosecuting further.
According to the Fifth amendment as it pertains to double jeopardy, if a trial ends because of prosecutorial misconduct, the proscription in the Fifth Amendment most commonly prevents a new trial. Meanwhile the government is waiting to see the judge’s order in writing to determine their next course of action.
Charfauros was standing trial for obstructing governmental functions and official misconduct stemming from an incident caught on body cam footage the evening of December 24, 2016, in which he is depicted berating fellow officers who responded to a sighting of fireworks being fired in the residential area of Agat.