People of Guam v Diego [2013] GUSC 15; 2013 Guam 15 (15 August 2013)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,
Plaintiff-Appellee,

v.

DUANE DIEGO,
Defendant-Appellant.

Supreme Court Case No. CRA12-020
Superior Court Case No. CF0398-07

OPINION

Filed: August 15, 2013

Cite as: 2013 Guam 15

Appeal from the Superior Court of Guam
Argued and submitted on February 18, 2013
Hagåtña, Guam

Appearing for Defendant-Appellant: Stephen P. Hattori, Esq. Assistant Alternate Public Defender Alternate Public Defender DNA Bldg., Ste. 902 238 Archbishop FC Flores St. Hagåtña, GU 96910

Appearing for Plaintiff-Appellee: Marianne Woloschuk, Esq. Assistant Attorney General Office of the Attorney General 590 S. Marine Corps Dr., Ste. 706 Tamuning, GU 96913

BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice; and KATHERINE A. MARAMAN, Associate Justice.

TORRES, J.:

[1] Defendant-Appellant Duane Diego appeals his conviction for criminal sexual conduct, kidnapping, and various related charges. At trial, the victim, A.M.,[1] was unable to identify Diego as her attacker; but while still on the witness stand, she was able to select his picture from the same photo array she previously used to identify him shortly after the attack. Diego challenges the admission into evidence of A.M.'s out-of-court identification, the jury instructions on the kidnapping charges, and the denial of his motion for judgment of acquittal. For the following reasons, the trial court's decisions were not erroneous, and Diego's conviction is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

[2] A.M., a 20-year-old Japanese student, arrived at the McDonald's in Tumon on the evening of August 12, 2007, to meet a friend. A.M. arrived at approximately 6:00 p.m., ordered a burger, and sat and waited for her friend. While she waited, a bus driver from the red trolley route she often rode asked to join her. She consented, and they sat and talked. At approximately 6:35 p.m. and with no word from her friend, A.M. decided to return to the Guam Reef Hotel where she was residing and working during a year-long internship with the hotel. It was raining outside, and the bus driver offered to give her a ride back to the Guam Reef Hotel. A.M. agreed. She sat behind the driver's seat as the bus drove past the Guam Reef Hotel and to the parking lot of the Okura Hotel. Once there, the bus driver pulled the shade down and instructed her to go to the back of bus. A.M. was hesitant, but the driver blocked her path and pushed her shoulder to the back of the bus. Once in the back, the driver sexually assaulted her. He dropped her off at the Westin bus stop at approximately 7:10 p.m. A.M. testified that she boarded the bus about 6:40 p.m.

[3] A.M. called a friend and went straight to her room to take a shower. At approximately 9:00 p.m. that same night, A.M. and an adult who oversees the student interns went to the police. A.M. described her attacker as "kind of fat" with a mustache and a ponytail. Transcripts ("Tr.") at 62 (Jury Trial – Day 1, Aug. 23, 2010). She stated the bus was a LamLam tour bus with TVs, and it had an A4-sized placard that read "SandCastle Number 4" in the front window. Id. at 63.

[4] A.M. testified that she participated in two showups[2] with two different suspects but did not identify either of them as her attacker. She informed the police after the second showup that her attacker was white. On August 21, a police officer came to the Guam Reef Hotel to present A.M. a photo line-up. A.M. indicated in the Photographic Line Admonition form that she knew "his face and [i]t's Number 3 [b]ecause [she] met him 3-5 times and [she] talked with him at least 1 hour." Id. at 74 (noting that this is the statement A.M. wrote on the back of the photo array). At trial, she testified that Number 3 was her attacker, but could not identify the man who was Number 3 in the photo—Duane Diego—in the courtroom even though he was sitting at the defense table.

[5] No physical evidence was recovered from the bus or from A.M. Supervisors and other bus drivers testified that Diego was assigned to the bus labeled "Sand Castle Number 4" on the night of the attack. Tr. at 63 (Jury Trial – Day 1); Tr. at 47-48 (Jury Trial – Day 2, Aug. 24, 2010)). The photo array featured six persons with round faces and thin mustaches; Diego had a lighter complexion than the other persons in the array. Shortly after the attack, Diego was terminated from his bus driver position because he did not remain on standby in the parking lot near the Sand Castle on the night of the incident and because he used the bus without authorization, which resulted in a serious incident. Tr. at 50 (Jury Trial – Day 2).

[6] A jury found Diego guilty on a number of charges including first and second degree criminal sexual conduct, kidnapping, and felonious restraint and sentenced him to twenty years imprisonment. Diego timely filed a notice of appeal.

II. JURISDICTION

[7] This court has jurisdiction over an appeal from a final judgment. 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 113-3 (2013)); 7 GCA §§ 3107, 3108(a) (2005); 8 GCA § 130.15(a) (2005).

III. STANDARD OF REVIEW

[8] Evidentiary rulings which infringe on constitutional rights are reviewed de novo. See People v. Kitano, 2011 Guam 11 ¶¶ 16-17. Whether a pretrial identification procedure was impermissibly suggestive is reviewed de novo. People v. Carlos, 41 Cal. Rptr. 3d 873, 876 (2006).

[9] "[W]e review jury instructions de novo when they are challenged as a misstatement of the law." Guam Top Builders, Inc. v. Tanota Partners, 2012 Guam 12 ¶ 9 (citing People v. Songeni, 2010 Guam 20 ¶ 9 & n.1). The trial court's jury instructions are reviewed for plain error where no objection to the instructions was made at trial. People v. Felder, 2012 Guam 8 ¶ 8 (citing People v. Perry, 2009 Guam 4 ¶ 9). A denial of a motion for judgment of acquittal is reviewed de novo. People v. Tennessen, 2009 Guam 3 ¶ 10 (citing People v. Jung, 2001 Guam 15 ¶ 21).

IV. ANALYSIS

[10] Diego challenges the admission into evidence of A.M.'s out-of-court identification, the jury instructions on the kidnapping charge, and the denial of his motion for judgment of acquittal. Appellant's Br. at 1 (Sept. 17, 2012).

A. Admission of Photo-Array

[11] Diego appeals the trial court's denial of his motion to strike A.M.'s out-of-court identification of Diego, arguing that the photo array from which he was identified as A.M.'s attacker was impermissibly suggestive. Id. at 6, 8.

[12] Diego argues the motion to strike the out-of-court identification and related exhibits are essentially a motion to suppress, and motions to suppress are reviewed de novo. Id. at 5-6. He argues further that evidentiary rulings which infringe on constitutional rights are reviewed de novo. Id. at 6 (citing Kitano, 2011 Guam 11 ¶¶ 16-17). Plaintiff-Appellee People of Guam ("the People") disagree and argue the motion is actually a motion to strike and believe it is distinguishable from a motion to suppress, because the suppression motion must be made before trial, which Diego did not do, and therefore he is precluded from challenging it. Appellee's Br. at 20-21 (Oct. 18, 2012). In the alternative, the People argue the motion should be reviewed under an abuse of discretion standard as an ordinary evidence issue. Id. at 12.

[13] We view Diego's appeal of the admission of the testimony and the array as a constitutional challenge, because he argues that the photo array was unduly suggestive and therefore violated his right to due process. Claims of constitutional violations, including due process challenges, are reviewed de novo. Kitano, 2011 Guam 11 ¶ 17 (quoting United States v. Gordon, 290 F.3d 539, 546 (3d Cir. 2002)); Carlos, 41 Cal. Rptr. 3d at 912.

[14] In Simmons v. United States, the U.S. Supreme Court laid out the governing test to determine whether a defendant's due process rights have been violated where a witness makes an in-court identification stemming from previous exposure to a suggestive photographic array:

[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

390 U.S. 377, 384 (1968).

[15] In Neil v. Biggers, the Court revisited the Simmons test, stating that "with the deletion of 'irreparable' it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself." 409 U.S. 188, 198 (1972). The Court went on further to hold that unnecessary suggestiveness alone does not require exclusion of evidence. Id. at 198-99. In that instance, the "central" question is "whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive." Id. at 199.

[16] Although the cases leading up to Biggers generally concerned the admissibility of an in-court identification stemming from prior exposure to a suggestive out-of-court identification, Biggers makes clear that the same standard applies for determining the admissibility of testimony concerning the out-of-court identification itself.[3] See id. at 198. In other words, the admissibility of an out-of-court identification turns on whether the procedure "was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Id. at 197 (quoting Simmons, 390 U.S. at 384); see also Carlos