People of Guam v Reyes [1998] GUSC 30; 1998 Guam 32 (21 December 1998)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM, ) Supreme Court No. CRA97-012

) Superior Court No. CF0016-94

Plaintiff-Appellee, )

)

vs. ) OPINION

)

JAMES EVANGELISTA REYES, )

)

Defendant-Appellant. )

__________________________________________)

Filed: December 21, 1998

Cite as: 1998 Guam 32

Appeal from the Superior Court of Guam

Argued and Submitted on 05 October 1998

Hagåtña, Guam

Appearing for the Plaintiff-Appellant: Leonardo M. Rapadas, Chief Prosecutor Office of the Attorney General Prosecution Division Suite 2-200E, Judicial Center Bldg. 120 West O= Brien Drive Hagåtña, Guam 96910

Appearing for the Defendant-Appellee: David J. Highsmith, Esq. Highsmith & O=Mallan, P.C. 134 Chalan Santo Papa Hagåtña, Guam 96910

BEFORE: PETER C. SIGUENZA, Chief Justice; JANET HEALY WEEKS, and JOAQUIN C. ARRIOLA, SR., Associate Justices.

WEEKS, J:

[1] Appellant James E. Reyes appeals his conviction on two counts of Murder (As a 1st Degree Felony) and two counts of a Special Allegation of Possession and Use of a Deadly Weapon in the Commission of the Murder counts. Appellant argues for a reduction of his conviction from murder to manslaughter. He also contends that he was denied effective assistance of counsel at trial. We affirm, but remand for re-sentencing on the double convictions.

I.

[2] On 21 September 1994, a rosary was held at the residence of a neighbor of the Appellant=s mother. Appellant and his brother, Antonio Reyes, had been drinking beer in the back of their mother=s residence. After the rosary, Appellant and Antonio Reyes moved to the parking lot in front of their house. An argument occurred between the Reyeses and several men of Belauan ancestry. As a result of conflicting evidence, it is uncertain as to how the argument actually started, but Appellant claims that the Belauan men took some of their beer without permission. During the argument a shotgun was introduced into the fray. It was also unclear as to how and who brought out the weapon, but the evidence showed that the Appellant gained control of it. Appellant admits that he swung the weapon around, Ausing it as a bat@ to stave off the Belauans. At that time, there was a multitude of people around who had attended the rosary. Several shots were fired, the first of which dispersed the crowd. Appellant himself ran with the shotgun in hand. One of the shots killed the victim, Jesse Balatico. Appellant claims that the first two shots went off accidentally while he was struggling for control of the weapon, and that the next shot was a warning shot into the air; but Appellant could not explain how the victim was shot. The victim=s wife, however, testified that the Appellant stood over the body of her husband after the victim was shot.

[3] On 28 January 1994, Appellant was indicted on two counts of Murder (As a 1st Degree Felony); to wit, Aknowing@ murder and Areckless@ murder, the latter being committed under circumstances manifesting extreme indifference to the value of human life, and two counts of the Special Allegation of Possession and Use of a Deadly Weapon in the Commission of a Felony. Antonio Reyes was indicted on the charge of Hindering Apprehension (As a 3rd Degree Felony). On 03 October 1996, a jury convicted the Appellant on all counts, while his brother was acquitted of the Hindering Apprehension charge. On 17 June 1997, Appellant was sentenced to concurrent life sentences on the murder counts with the possibility of parole after 15 years, and to concurrent sentences of 10 years on the Special Allegations.

II.

[4] Appellant raises the following issues:

1. Whether there was insufficient evidence at trial for this court to reduce the level of the conviction from murder to manslaughter.

2. Whether the Appellant was denied effective assistance of counsel based upon the following:

a) failure to move for a reduction of the charges at the close of the People=s case;

b) failure to assert an affirmative defense based on 9 GCA ' 16.50(a)(2) (1993);

c) failure to move for a severance so that Appellant be tried separately from his brother, Antonio; and

d) failure to request permission to give closing argument after the closing argument of counsel for Antonio Reyes.

III.

[5] This court has jurisdiction pursuant to 7 GCA '' 3108 and 3108 (1994) and 48 U.S.C. ' 1424-3(d) (1984), 8 G.C.A. ' 130.15 and 130.60 (1993).

IV.

[6] Appellant argues that there was insufficient evidence of a culpable mental state to maintain the murder conviction under 9 GCA ' 1640(a),[1] and asks this court, pursuant to 8 GCA ' 130.60,[2] to reduce the level of his conviction from murder to manslaughter under 9 GCA ' 16.50(a) (1993), which defines manslaughter as a homicide which is committed recklessly or under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse.

[7] The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 303, 318, 99 S.Ct. 2781, 2788-89 (1979). When a criminal defendant asserts that there is insufficient evidence to sustain the conviction, this court reviews the evidence in the light most favorable to the prosecution to ascertain whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Gill, Crim. No. 92-00099A, 1994 WL 150934, at *6 (D. Guam App. Div. April 15, 1994), citing U.S. v. Necoechea, 986 F.2d 1273 (9th Cir. 1993). AThe Ninth Circuit has noted that this is a highly deferential standard.@ Id., citing U.S. v. Rubio-Villareal, 967 F.2d 294 (9th Cir. 1992) (en banc).

[8] The evidence shows that Appellant had possession of the shotgun before and after the shots were fired. All of the witnesses put the weapon in the Appellant=s hands he admitted to swinging the shotgun Aas a bat@ and running with the gun. Appellant was the sole person in possession of the weapon. There were no other firearms used. By Appellant=s own account, there were more than twelve people in the area who were in attendance of the rosary when the argument between Appellant, his brother Antonio, and the three Belauans started. Two witnesses, Marjorie and Lisa Medder, who were inside their residence, testified that they looked out their window and saw the Appellant running with the shotgun, trip and fall, and then fire the weapon, before seeing the victim lying on the ground. Another witness, Juliet Balatico, the wife of the victim, testified that she saw Appellant stand over the body of her husband after the victim had been shot. The People argue that although no one saw Appellant shoot the victim, the evidence was sufficient for the jury to reasonably infer that the Appellant possessed the requisite mental state and to disbelieve his testimony, despite other inconsistencies in the witnesses= testimony, and that the jury was in the best position to determine credibility and weigh the significance of any inconsistencies. We agree. We find that sufficient evidence was elicited from the various witnesses for the jury to infer that Appellant knowingly and recklessly, under circumstances manifesting extreme indifference to the value of human life, committed the crimes charged. Therefore, we decline to exercise our authority under 8 GCA ' 130.60 to reduce the conviction from murder to manslaughter.

V.

[9] Whether a defendant has received ineffective assistance of counsel is a question of law. People v. Quintanilla, 1998 Guam 17, & 8, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). This court reviews questions of law de novo. Camacho v. Camacho, 1997 Guam 5, & 24. Under Strickland, a convicted defendant must show, first, that counsel=s performance fell below an objective standard of reasonableness, and second, that defense counsel=s deficient performance must have so prejudiced the defendant as to result in the denial of a fair trial. 466 U.S. at 687, 104 S.Ct. at 2064.

[10] Appellant argues that he was denied effective assistance of counsel on the following grounds: A) failure to move for a reduction of the charges at the close of the People=s case; B) failure to assert an affirmative defense based on 9 GCA ' 16.50(a)(2); C) failure to move for a severance so that Appellant be tried separately from his brother Antonio; and D) failure to request permission to give closing argument after the closing argument of counsel for Antonio Reyes. We examine each in turn.

A. Failure to move for a reduction of charges at the close of the people=s case.

[11] Appellant asserts that the lack of evidence on the murder charge should have led trial counsel to move for a reduction of charges at the close of the People=s case, as well as to argue a charge of manslaughter under 9 GCA ' 16.50(a)(2).[3] Appellant claims that had trial counsel argued 9 GCA ' 16.50(a)(2) to the court or the jury or requested an instruction thereon, the maximum sentence Appellant could have received for manslaughter, as a first offender, would have been fifteen years. See 9 GCA ' 80.31(a) (1993). The failure to request an appropriate jury instruction may be ineffective assistance of counsel where there is no strategic justification for doing so. U.S. v. Span, 75 F.3d 1383 (9th Cir. 1996). Appellant argues that this was not a part of trial counsel=s strategy; rather, Appellant asserts that trial counsel simply missed the relevant law.

[12] In