People of Guam v Muritok [2003] GUSC 20; 2003 Guam 21 (24 December 2003)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,
Plaintiff-Appellee,

vs.

STEPHEN FRITZ MURITOK,
Defendant-Appellant.

Supreme Court Case No.: CRA02-001
Superior Court Case No.: CF0527-00

OPINION

Filed: December 24, 2003

Cite as: 2003 Guam 21

Appeal from the Superior Court of Guam
Argued and submitted on April 30, 2003
Hagåtña, Guam

Appearing for Plaintiff-Appellee: Rosetta L. San Nicolas Assistant Attorney General Office of the Attorney General General Crimes Division Ste. 2-200E, Guam Judicial Ctr. 120 W. O=Brien Dr. Hagåtña, Guam 96910

Appearing for Defendant-Appellant: Curtis C. Van de Veld, Esq. Associated Defense Advocates Suite 213, 194 Hernan Cortes Ave. Hagåtña, Guam 96910

BEFORE: F. PHILIP CARBULLIDO, Chief Justice; FRANCES M. TYDINGCO-GATEWOOD, Associate Justice; PETER C. SIGUENZA, JR., Justice Pro Tempore

TYDINGCO-GATEWOOD, J.:

[1] The Defendant-Appellant, Stephen F. Muritok, appeals from his convictions and sentence on the charges of Driving Under the Influence of Alcohol Causing Bodily Injuries (As a 3rd Degree Felony), Driving While Under the Influence of Alcohol With Child a on Board (As a 3rd Degree Felony), Driving While Under the Influence of Alcohol (B.A.C.) (As a Misdemeanor), Driving While Under the Influence of Alcohol (As a Misdemeanor) and Reckless Driving (As a Misdemeanor). Muritok argues that: (1) the reference to Muritok=s pre-custodial silence was a violation of his Fifth Amendment privilege against self-incrimination and the trial court erred in failing to provide a curative instruction to the jury; (2) the lower court erred in admitting the evidence of Muritok=s blood alcohol test results; and (3) the lower court erred in sentencing Muritok under the extended terms statute, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). We affirm the convictions, but remand for resentencing within the statutory maximum found in Title 9 GCA 80.30(c), for the charges of Driving Under the Influence of Alcohol Causing Bodily Injuries and Driving While Under the Influence of Alcohol With a Child on Board.

I.

[2] This criminal case stems from an auto accident witnessed by two Superior Court marshals on September 18, 2000. On that day, Marshals Vince Naputi and Harold Cruz witnessed a van veer off the roadway and collide into a political sign and telephone pole. Following the accident, the driver and the child passenger were transported to the Guam Memorial Hospital for treatment. At the hospital, blood was drawn from the driver of the van, later identified as Muritok, and a blood-alcohol test was performed on the blood sample. Muritok=s blood-alcohol quotient was .295, more than three times above the legal limit.

[3] Muritok was indicted on the following charges:

1. Driving While Under the Influence of Alcohol Causing Bodily Injuries (As a 3rd Degree Felony), in violation of 16 G.C.A. '' 18102(c) and 18110;
2. Driving While Under the Influence of Alcohol With a Child on Board (As a 3rd Degree Felony), in violation of 16 G.C.A. ' 18109;
3. Driving While Under the Influence of Alcohol (BAC) (As a Misdemeanor), in violation of 16 G.C.A.' 18102(a).
4. Driving While Under the Influence of Alcohol (As a Misdemeanor), in violation of 16 G.C.A. ' 18102(b);
5. Reckless Driving (As a Misdemeanor), in violation of 16 G.C.A. '' 9107(a) and (b);
6. Improper Storage of an Open Container (As a Misdemeanor), in violation of 16 G.C.A. ' 18122.

Appellant=s Excerpts of Record, tab 1 (Amended Indictment).

[4] On January 2, 2002, after a jury trial, the jury returned a verdict of not guilty on the charge of Improper Storage of an Open Container (As a Misdemeanor) and a verdict of guilty on all other charges. Appellant=s Excerpts of Record, tab 2 (Judgment).

[5] On April 9, 2002, in accordance with the jury verdict, the lower court sentenced Muritok as follows:

As to the charge of Driving Under the Influence of Alcohol Causing Bodily Injuries (As a 3rd Degree Felony), ten (10) years imprisonment; three (3) years shall be suspended.

As to the charge of Driving While Under the Influence of Alcohol With a Child on Board (As a 3rd Degree Felony), ten (10) years imprisonment; three (3) years shall be suspended, concurrent with the sentence imposed above.

As to the charge of Driving While Under the Influence of Alcohol (B.A.C.) (As a Misdemeanor), one (1) year imprisonment, concurrent with sentences imposed above.

As to the charge of Driving While Under the Influence of Alcohol (As a Misdemeanor), one (1) year imprisonment, concurrent with the sentences imposed above.

As to the charge of Reckless Driving (As a Misdemeanor), one (1) year imprisonment, concurrent with the sentences imposed above.

Appellant=s Excerpts of Record, tab 2 (Judgment).

[6] Muritok filed a timely notice of appeal on April 17, 2002. In this appeal, Muritok seeks a reversal of the judgment of conviction and sentence and an order remanding for a new trial, based on several grounds.

II.

[7] We have jurisdiction over this appeal from a final judgment pursuant to Title 7 GCA '' 3107 and 3108 and Title 8 GCA ' 130.60.

III.

[8] On appeal, Muritok challenges his convictions and sentences by arguing that his Fifth Amendment privilege against self-incrimination was violated and the trial court erred in failing to provide the requested curative instruction. He also contends that the trial court erred in admitting the evidence of Muritok=s blood alcohol test results. Finally, Muritok argues that he was improperly sentenced pursuant to the extended terms statute, without a factual finding by the jury to support the enhancement, in violation of the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000).

A. Muritok=s Silence

[9] The first issue we address is whether the reference to Muritok=