Moore wants jury to see facts that seem to exonerate him

The jury in the Nicholas Moore trial comes back Monday afternoon to a trial that has taken a drastic turn since it started in July. Scheduled to return to the stand is the prosecution’s key witness, Eric Salone, whom the attorney general originally charged (along with Moore) with the October 15, 2020 shooting of Brian Mendiola in the leg. Right before the trial began, the AG removed Mr. Salone from the case after entering into a deferred plea deal with the Navy sailor that exchanged his freedom for his testimony against Mr. Moore.

It was during cross examination of that very testimony Salone has been giving during the trial, when the government’s theory of the case – that Moore used a .38-caliber gun to shoot Mendiola in the leg – began to fall apart. Defense counsel David Lujan was able to elicit from Mr. Salone concessions that he had lied to investigators during his interrogation, and that testimony from others pointed to Salone as the assailant, not Moore.

In a motion filed by the prosecutor – Grant Olan – two weeks ago, the government made admissions damning to its theory of the case. And now, the defense is asking Judge Alberto Tolentino to make sure the jury knows about these admissions during their deliberations.

We provide the salient points of the defense’s motion to the judge below:

“The government has made critical judicial admissions. Those admissions appear in its Motion To Bar Further Cross-Examination Of Eric Salone Pursuant To Guam Rule Of Evidence 403 filed September 20, 2022. For example, the government has now admitted that the defense has elicited testimony from Mr. Salone that establishes that the bullet from the gun that Mr. Salons claims to have fired at the ground could have ricocheted off the ground and struck Mr. Mendiola.

“Moore has argued, contrary to the government’s theory of the case, that Mr. Salone fired the pistol that resulted in a .38 caliber bullet being lodged in Mendiola’s leg. Together with police reports that state that Mr. Salone admitted to Mr. Mercado that Mr. Salone shot the .38 pistol, Mr. Moore’s theory of the case is significantly advanced by the government’s admission.

“The government has also admitted that “other witnesses yet to testify have claimed that only one gun was fired and Mr. Salone was the shooter.” This admission also goes to the heart of Moore’s defense. Having made this admission, the government and defense should apprise the Court that one of the witnesses referred to by the government is Javier Mercado.

“Below, Moore discusses the law of admissions. He also sets forth the many admissions the government has made. Moore requests those admissions be deemed judicial admissions and the jury be read those admissions together with a brief explanation of their effect.”

(Discussion entitled “Memorandum of Law” followed the paragraph above. You may read this in the full motion, which we provide below this article)

The salient points continue:

“In its motion to prematurely terminate Moore’s cross-examination of Mr. Salone, the bulk of the government’s argument is that Moore has already accomplished what he set out to establish through its cross-examination of Salons. As part of the government’s effort to focus the Court’s attention on what Moore has already established, in its motion the government made many unequivocal, clear, and deliberate admissions. The government writes:

“‘Through its cross-examination of Mr. Salone, defense counsel have established that: (1) the bullet from the gun that Mr. Salone claims to have fired at the ground could have ricocheted off the ground and struck Mr. Mendiola, (2) Mr. Salone’s DNA was on the .38 caliber revolver, (3) Mr. Salone is aware that the bullet retrieved from Mr. Mendiola was a .38 caliber bullet, and (4) other witnesses yet to testify have claimed that only one gun was fired and Mr. Salone was the shooter.’

“Government’s Motion p. 3 Ins 10 .- 17 (emphasis added). Nothing could be more unequivocal than “defense counsel have established” the four statements of facts in the above quoted sentence.

“Conveniently, the government numbers its admissions (1) .- (4). Each of these should be read to the jury. State v. Kibble, 815 N.W.2d 872, 895 (2012)(” The trial court did not err in allowing the State to read the judicial admissions to the jury.”). More specifically, the jury should be informed that the admissions constitute judicial admissions by the government meaning that the jury should consider each of the four as facts which are binding and which cannot be contested or controverted by the government. See, GNffifts & Coder Custom Chopping, LLC v. CNH Indus. Am. LLC, 438 F. Supp. ad 1206, 1240-41 (D. Kan. 2020), Hork v. Minneapolis Sf. Ry. Co., 258 N.W. 576, 577 (Minn. 1935). c.f. Earthgrains Baking Companies Inc. v. Sycamore Fem. Bakery, Inc., 573 F. App’x 676, 681 (10th Cir. 2014).

“Other admissions are contained in the Government’s motion to prematurely terminate the cross-examination of Mr. Salone. In its motion, the government also stated :

“‘In addition, defense Counsel have extensively impeached Mr. Salons’s credibility and motives by: (1) pointing out multiple lies in his testimony that includes lying to Agent Craig Perry about the Defendant handing him the .45 caliber gun, (2) his history of drug use and marijuana that he has sold, and (3) benefits that he may receive by virtue of his cooperation in this case.’

“Government’s Motion p- 5 In 26 – p. 6 In 3. Here, the government admits 1) that Mr. Salone has lied multiple times in his testimony. The government admits 2) Mr. Salone lied to Agent Perry about Defendant Moore handing Salone the .45 caliber gun. The government admits 3) Mr. Salone has a history of drug use. The government admits 4) Mr. Saione has sold marijuana. The government admits 5) Mr. Salone may receive benefits by virtue of his cooperation in this case. All five factual assertions constitute judicial admissions.

“If for some reason the Court believes any of the nine admissions outlined supra do not rise to the level of a judicial admission, the Court should instruct the jury that they constitute evidentiary admissions. For these evidentiary admissions, the Court should instruct the jury that the government, through Mr. Grant Olan, made these assertions in a filing with the Court on September 20, 2022. The jury should be further instructed that these admissions by Mr. Olan should be given the “persuasive weight that you as jurors decide to give each admission.” See, GrifHtts & Coder Custom Chopping, LLC v. CNH Indus. Am. LLC, 438 F. Supp. 3d 1206, 1240-41 (D. Kan. 2020).”

Defendant’s Motion in Limine for Determination that the Government has Made Judicial Admissions and that these Admissions be Read to the Jury with Appropriate Instructions

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