People of Guam v Quintanilla [2001] GUSC 12; 2001 Guam 12 (12 June 2001)

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Appeal from the Superior Court of Guam
Argued and Submitted on February 7, 2001
Hagåtña, Guam

Appearing for Defendant-Appellant:
Richard Parker Arens, Esq.

Cunliffe & Cook, P.C.

Suite 200 Archbishop Flores St.
Hagåtña, Guam 96910

Appearing for Plaintiff-Appellee:
Angela M. Borzachillo, Esq.
Assistant Attorney General
Office of the Attorney General of Guam
Suite2-200E, Judicial Center
Hagåtña, Guam 96910

BEFORE: BENJAMIN J.F. CRUZ, Chief Justice; PETER C. SIGUENZA, JR. and F. PHILIP CARBULLIDO, Associate Justices

CRUZ, C.J.:

[1] Henry T. Quintanilla was convicted for promoting prison contraband, possession of a controlled substance, and possession of a controlled substance with the intent to deliver. Quintanilla appeals his conviction on the grounds the trial court erred in: (1) admitting evidence of prior bad acts; (2) communicating with a juror; (3) refusing to exclude evidence; and (4) denying his motion for acquittal. Upon review of the issues, we hereby reject Quintanilla's arguments and affirm his conviction.

I.

[2] On January 28, 1996, the Department of Corrections conducted a Ashakedown@ at the Territorial Detention Center (ATDC@). During the search of the cell shared by inmates Henry T. Quintanilla (AQuintanilla@) and Cristobal Aguon (AAguon@), certain contraband items were discovered. Among the items were hot cocoa packets, which contained crystal methamphetamine, found in the pocket of a pair of jeans taken from a pile of dirty clothes in the cell, a lighter, two straws, and a plastic playing-card case which contained a clear rock-like object. During the pat-down of Quintanilla, an aluminum strip cut from a soda can was found in his pocket. Ownership of the contraband was attributed to Quintanilla. This evidence was submitted to the Guam Police Department (AGPD@) for custody and testing.

[3] Quintanilla was indicted on three charges: (1) supplying prison contraband by the unlawful and intentional possession of a Schedule II controlled substance, crystal methamphetamine (Amethamphetamine@), in a detention facility in violation of 9 GCA ' 58.60(a)(2); (2) unlawful and intentional possession with the intent to deliver a controlled substance, methamphetamine, in violation of 9 GCA ' 67.50(a)(1); and (3) unlawful possession of a controlled substance in violation of 9 GCA

' 67.52(a) and (b)(1).

[4] In a pretrial motion, the trial court heard the Government's motion to admit evidence of prior bad acts. The trial court granted this motion. This evidence consisted of testimony offered by a Government witness that, during a previous search of Quintanilla's cell conducted in March of 1995, drug residue and drug related items were found.

[5] At the close of the Government's case, Quintanilla made an oral Motion for Acquittal or in the alternative for exclusion of all physical evidence based on the Government's failure to authenticate the evidence because of a break in the chain of custody. The trial court denied the motion. At the close of his case in chief, Quintanilla renewed his motion for acquittal on the same grounds. The court again denied this motion. After the trial court issued the jury instructions, the jury was excused to deliberate. Shortly thereafter, legal counsels for both parties were summoned to the chambers of the trial judge. The judge informed counsels that Juror No. 6 had questions on the closing arguments and the jury instructions. In the presence of counsels, the trial court addressed the juror's concerns. The juror then left to deliberate further. Later that day, counsels were summoned back to court for the pronouncement of the verdict. Just before the judge asked for the jury's verdict, counsel for Quintanilla approached the bench stated for the record that there had been a discussion between Juror No. 6 and the judge. The jury found Quintanilla guilty as charged.

[6] Quintanilla filed a Motion for New Trial which was denied by the trial court by written decision. The trial court then filed a Judgment after Trial which sentenced Quintanilla to concurrent terms of eight years, five years and three years incarceration on the respective charges. This appeal followed.

[7] This court has jurisdiction over this appeal from a final judgment. Title 7 GCA ' 3107, (1994).

[8] The admission of evidence of prior bad acts is governed by Guam Rule of Evidence 404(b). The Government argues that Quintanilla did not object to the admission of this evidence at the time of the trial. However, review of the transcripts shows that the 404(b) issue was visited at least twice during the trial. First, on June 21, 1999, after the jury had been selected, the court entertained a motion on this issue. Transcript, vol. II, pp. 109-115 (Jury Selection and Jury Trial, June 21, 1999). Quintanilla argued that the prejudicial value of the evidence outweighed the probative value. Transcript, vol. II, p. 111 (Jury Selection and Jury Trial, June 21, 1999). Over Quintanilla's objection, the trial court ruled that the evidence was admissible. Transcript, vol. III, p. 2 (Jury Trial, June 22, 1999). Second, on day three of the trial, as the Government prepared to call a witness to testify on the 404(b) evidence, Quintanilla objected. Transcript vol. V, p. 5 (Jury Trial, June 24, 1999). The trial court reminded Quintanilla that it had already ruled the 404(b) evidence was admissible. Transcript vol. V, p. 8 (Jury Trial, June 24, 1999). Quintanilla then made a motion to limit the extent of the 404(b) testimony to the facts that a search warrant was executed on the cell occupied by Quintanilla and Pangelinan and drugs and drug paraphernalia were found. Transcript vol. V, pp. 11-12 (Jury Trial, June 24, 1999). The trial court granted Quintanilla's motion and further ruled that evidence of track marks on Quintanilla's arms was not admissible. Transcript vol. V, p. 14 (Jury Trial, June 24, 1999). Quintanilla reiterated his objection to any 404(b) evidence. Transcript vol. V, p. 15 (Jury Trial, June 24, 1999). The Government argues that Quintanilla's motion to limit the extent of the 404(b) testimony serves as a waiver to any objection he had. We do not agree. It appears that when Quintanilla realized the evidence was going to come in over his objection, he successfully attempted to limit the scope of such evidence. Quintanilla's objection to the 404(b) evidence was preserved on the record and is appropriately before this court in this appeal.

[9] The trial court's admission of evidence of prior bad acts under Guam Rule of Evidence 404(b) is reviewed for abuse of discretion. People v. Evaristo, 1999 Guam 22, & 6 (citing United States v. Santiago, 46 F.3d 885, 888 (9th Cir. 1996)). Under the abuse of discretion standard, Quintanilla must show that the trial court's decision to admit the evidence over his motion is not justified by the evidence and is clearly against the logic and effect of the facts as are found. People v. Tuncap, 1998 Guam 13, & 12 (citations omitted). In this appeal, this court will not substitute its judgment for that of the trial court. People v. Quinata, 1999 Guam 6, & 17. Instead, in order to reverse the trial court, we must first have a definite and firm conviction the trial court, after weighing relevant factors, committed clear error of judgment in its conclusion. Id. (citation omitted).

[10] Guam Rule of Evidence 404(b) provides:

Title 6 GCA ' 404(b) 1995. The prior act of Quintanilla alleged by the Government was the possession of drugs and drug paraphernalia while he was incarcerated. The Government asserts that proof that Quintanilla possessed and used drugs in the past goes to show that he knowingly and intentionally possessed it in the instant case.

[11] The Government provided evidence that drugs and drug paraphernalia, including syringes, were seized in a search of Quintanilla's prison cell in March of 1995, less than one year before the search in the instant case. As a result of the March 1995 search and seizure, charges were brought against Quintanilla and his then-cell mate, Pangelinan. Pangelinan pled guilty, whereas Quintanilla did not. Quintanilla was convicted and he appealed. In that appeal, this court reversed his conviction on the ground of ineffective assistance of counsel who had failed to introduce evidence of Pangelinan's guilty plea. People v. Quintanilla, 1998 Guam 17, & 2. This court found a reasonable possibility that the jury would have found reasonable doubt as to Quintanilla's guilty if it heard the evidence. Id. at & 18.

[12] In the instant case, the trial court acknowledged that the prior conviction had been reversed but nonetheless admitted the evidence. Quintanilla argues that admission of evidence of prior bad acts was error. Specifically he claims that the evidence of the syringe was irrelevant and prejudicial and that the evidence was not properly admitted due to insufficiency of proof. In Evaristo, this court announced the test for the admissibility of 404(b) evidence. To be admissible under Rule 404(b), evidence of prior bad acts must: (1) prove a material element of the crime currently charged; (2) show similarity between the past and charged conduct; (3) be based on sufficient evidence; and (4) not be too remote in time. Evaristo, 1999 Guam 22 at & 11 (citing United States v. Hinton, 31 F.3d 817, 822 (9th Cir. 1994)). In addition, the evidence must also be examined under Rule 403 and may be excluded if it is more prejudicial than probative. Id. at & 17.

[13] With regard to parts one, two, and four of the Evaristo test, there is no difficulty in finding that these issues were satisfied. The essential element shared by the three charges is the intentional possession of a controlled substance. The 404(b) evidence consists of Quintanilla's past possession and usage of illegal drugs in prison. The similarity is unmistakable. Thus, it is reasonable to conclude that the possession of methamphetamine by a person at one time may go toward proving he knowingly and intentionally possessed it on a subsequent occasion. Also, the present charged conduct occurred within one year of the past conduct and as such was not too remote in time. Cf. United States v. Hadley, 918 F.2d 848, 851 (9th Cir. 1990) (allowing the admission of evidence of prior conduct over ten years old upon a finding that similarity of the prior act to the offense charged outweighs concerns regarding remoteness). Thus, we find that parts one, two, and four of the Evaristo test are satisfied.

[14] However, the third part of the Evaristo test presents a more difficult question. Quintanilla argues that the evidence was insufficient as it did not directly show that he actually possessed the drugs or syringes found in the March 1995 search. The testimony offered was essentially that drugs and syringes were found in a cell shared by inmates Quintanilla and Pangelinan. Quintanilla's actual ownership of the drugs and paraphernalia was not directly alleged. The jury was left to infer Quintanilla's possession of the drugs. Compounding the problem is the fact prior to the trial in the case at bar, Quintanilla's conviction on the previous possession charge had been reversed by this court and was still pending. However, the trial court, fully aware that the prior conviction had been reversed and remanded, issued the following instruction prior to the introduction of the 404(b) evidence:

Supreme Court of Guam

People of Guam v Quintanilla [2001] GUSC 12; 2001 Guam 12 (12 June 2001)