People of Guam v Tennessen [2009] GUSC 3; 2009 Guam 03 (1 April 2009)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,
Plaintiff-Appellee/Cross-Appellant,

V

GENE A. TENNESSEN,
Defendant-Appellant/Cross-Appellee.

AMENDED OPINION

Filed: April 1, 2009
Cite as: 2009 Guam 3

Supreme Court Case No.: CRA05-012
Superior Court Case No.: CF0292-02
Appeal from the Superior Court of Guam
Argued and submitted on May 14, 2007
Hagåtña, Guam

Appearing for Defendant-Appellant/Cross-Appellee: F. Randall Cunliffe, Esq. Cunliffe & Cook, P.C. 210 Archbishop Flores Street Hagåtña, Guam 96910

Appearing for Plaintiff-Appellee/Cross-Appellant: Clyde Lemons, Jr., Esq. Office of the Attorney General Major Crimes and Government Corruption The Justice Building 287 West O’Brien Drive Hagåtña, Guam 96910

BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice;[1] and, RICHARD H. BENSON, Justice Pro Tempore.

BENSON, J:

[1] The court issued an earlier opinion in People v. Tennessen, 2008 Guam 21. The opinion did not address the insufficiency of the evidence arguments. On rehearing, we determined that this court should have addressed the insufficiency of the evidence arguments in its earlier decision. As a result, we now issue this Amended Opinion to supersede our earlier opinion in People v. Tennessen, 2008 Guam 21.

[2] Defendant Gene A. Tennessen appeals a conviction of two counts of Theft and two counts of Official Misconduct. Specifically, Tennessen appeals the Superior Court’s denial of both a motion for acquittal and a motion in arrest of judgment. Insofar as the appeal of these denials argues insufficiency of the evidence, we find the evidence to be sufficient. Tennessen also appeals the denial of a motion to dismiss, arguing that Attorney General Douglas Moylan had a conflict of interest. While we do not agree that Tennessen’s indictment should have been dismissed due to the conflict of interest, the conflict wall erected around Moylan was clearly ineffective. We hold that the trial court abused its discretion in not disqualifying the entire Attorney General’s office in October of 2005. For this reason alone, Tennessen’s judgment of conviction must be vacated, and we need not reach the remaining issues presented in this appeal. The People’s cross appeal is dismissed as moot.

I. FACTUAL AND PROCEDURAL BACKGROUND