People of Guam v Meseral [2014] GUSC 13; 2014 Guam 13 (6 June 2014)

	Home \| Databases \| WorldLII \| Search \| Feedback Supreme Court of Guam

Appeal from the Superior Court of Guam
Argued and submitted August 30, 2012
Hagåtña, Guam

Appearing for Defendant-Appellant:
Peter C. Perez, Esq.
Law Office of Peter C. Perez
DNA Bldg.
238 Archbishop Flores St., Ste. 309
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, Guam 96913

BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice; KATHERINE A. MARAMAN, Associate Justice.[1]

[1] Defendant-Appellant Keith Vaughn Meseral appeals his conviction of aggravated assault, reckless conduct, terrorizing, and misdemeanor assault. Meseral was sentenced to serve direct time of six years of imprisonment. On appeal, Meseral seeks reversal of his conviction, arguing that (1) he was deprived effective assistance of counsel based on numerous alleged errors committed by trial counsel; (2) the People engaged in prosecutorial misconduct during trial; and (3) the trial court committed numerous errors during trial and at the sentencing. For the reasons discussed below, we affirm in part and reverse in part.

[2] Defendant-Appellant Keith Vaughn Meseral was indicted by a grand jury on the following charges:

[3] After indictment and prior to trial, Meseral was represented by the Alternate Public Defender. Attorney Jeffrey Moots, a private practitioner, was appointed to represent Meseral, and a pre-trial conference was held three days after his appointment. Jury selection occurred three days later, and after the selection of the jury, trial commenced. The jury returned a guilty verdict on charges (1), (2), (3), (4), and (6) and the accompanying special allegations in charges (1), (2), and (6). Id. Meseral was acquitted of the fifth charge. That same day, the court ordered a presentence report and allowed counsels to file sentencing memoranda. After the filing of the presentence report, the People and Meseral each filed a sentencing memorandum. Meseral was sentenced to one year direct time for each of the five charges, running concurrently. In addition, Meseral was sentenced to serve the minimum of five years for the accompanying special allegations in charges (1), (2), and (6), running concurrently. All together, the trial court sentenced Meseral to serve direct time of six years of imprisonment.

[4] A judgment of conviction was entered, and Meseral timely filed this appeal. When he filed the notice of appeal, Meseral's trial counsel moved for the appointment of appellate counsel, and this court appointed Attorney Michael Phillips. Attorney Phillips later moved to withdraw as counsel and filed an Anders brief asserting that Meseral's conviction should be affirmed because there were no errors in Meseral's trial and there were no non-frivolous issues that would support an appeal. After examining the record and briefs filed,[2] this court determined that there were non-frivolous issues for appeal and Meseral's appeal should not be dismissed. See People v. Meseral, CRA10-005 (Order (Sept. 23, 2011)). Attorney Peter C. Perez was appointed as the new appellate counsel.

[5] The charges involve allegations that Meseral attempted to stab Dolores John with a knife following an argument at Dolores's residence. Meseral was also generally alleged to have communicated threats to kill Dolores and her son, Matthew John. At trial, the People presented the testimony of Dolores, the alleged victim; Lindsay Lasai Eyoel, Meseral's niece; and Otisis John, Dolores's son. The People also presented the testimony of Guam Police Department Officers Joseph Aguon and Duk Yi.

[6] Dolores testified that Meseral came to her residence drunk with another male individual known as Colin, and was looking for her son, Matthew. Dolores stated that Meseral claimed he was looking for Matthew because Matthew stole someone's marijuana plants. She further testified that Meseral threatened to kill her, and described how Colin pushed Meseral when he pulled out a knife from his pocket and attempted to stab her in the chest area. She also testified that she was afraid of Meseral.

[7] Lindsay was at Dolores's residence when the incident occurred and testified that while there, she saw Meseral pull out a knife and point it towards Dolores. Lindsay also testified she recognized the knife as the same knife used at the home where Meseral stayed because she at one time stayed in the same residence. Lindsay further testified that she heard Meseral state, "I'll kill you."

[8] Otisis was also present at Dolores's residence when the incident occurred, and at trial he stated that he saw Meseral pull out a knife and attempt to stab Dolores around her chest area.

[9] Officer Joseph Aguon testified that when he arrived at the scene, he noticed that Dolores seemed frantic and scared. Officer Aguon also testified that a rowdy crowd of more than five individuals was present at the scene of the incident. According to Officer Aguon, the rowdy crowd grew mad at Dolores when she pointed out Meseral. Officer Aguon further testified that he was able to conduct only a quick sweep of the area because he believed that the rowdy crowd presented a threat to the officers and Dolores.

[10] Officer Duk Yi testified that when he arrived at Meseral's residence, Meseral appeared to be intoxicated because he could not keep his balance and his speech was heavily slurred, and Officer Yi smelled alcohol emitting from Meseral.

[11] Meseral was convicted on charges (1), (2), (3), (4), and (6) and the accompanying special allegations in charges (1), (2), and (6). Meseral was acquitted of the fifth charge. Before imposing Meseral's sentence, the trial court addressed both counsels and allowed them to present argument. Meseral's trial counsel argued for a suspended one-year sentence for the offenses of conviction and for a five-year sentence for the special allegation, for a total sentence of five years, noting that Meseral would be deported after serving his sentence. The trial court did not address Meseral personally or ask him whether he had anything to say before imposing the sentence.

[12] We have jurisdiction over an appeal from a final judgment pursuant to 48 U.S.C.A. § 1424-1(a)(2) (Westlaw current through Pub. L. 113-93 (2014)); 7 GCA §§ 3107(b) and 3108(a) (2005); and 8 GCA § 130.15(a) (2005).

[13] Ineffective assistance of counsel claims are mixed questions of law and fact, which we review de novo. Angoco v. Bitanga, 2001 Guam 17 ¶ 7 (quoting United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986)). "Although an ineffective assistance of counsel claim may be heard on direct appeal, it is more properly brought as a writ of habeas corpus." People v. Ueki, 1999 Guam 4 ¶ 5 (footnote omitted) (citing People v. Perez, 1999 Guam 2 ¶ 33; United States v. Carr, 18 F.3d 738, 741 (9th Cir. 1994)). "Courts will often decline to reach the merits of ineffective assistance of counsel claims because such claims are 'more appropriately addressed in a habeas corpus proceeding because it requires an evidentiary inquiry beyond the official record.'" Id. (quoting Carr, 18 F.3d at 741). This court reviews such claims, however, where "the record is sufficiently complete to make a proper finding." People v. Moses, 2007 Guam 5 ¶ 9 (quoting People v. Leon Guerrero, 2001 Guam 19 ¶ 12).

[14] "Prosecutorial comments objected to by defense counsel are subject to a harmless error standard of review," People v. Mendiola, 2010 Guam 5 ¶ 13 (citing Moses, 2007 Guam 5 ¶ 7), and "will not be reversed unless it is more likely than not that the comment affected the jury's verdict," Moses, 2007 Guam 5 ¶ 7 (citing People v. Evaristo, 1999 Guam 22 ¶ 18). "The comment must taint the underlying fairness of the proceedings." Id. (citing Evaristo, 1999 Guam 22 ¶ 18). Where defense counsel does not object to the conduct, however, this court reviews such conduct for plain error. Ueki, 1999 Guam 4 ¶ 17 (citing United States v. Young, 470 U.S. 1, 14-16 (1985)).

[15] When considering an allocution error on appeal, we agree with a majority of jurisdictions that the right of allocution is subject to forfeiture and therefore to plain error review where no timely objection is made at the sentencing hearing. See United States v. Rausch, 638 F.3d 1296, 1299 & n.1 (10th Cir. 2011); United States v. Luepke, 495 F.3d 443, 446 (7th Cir. 2007); United States v. Reyna, 358 F.3d 344, 347-350 (5th Cir. 2004); United States v. Adams, 252 F.3d 276, 278-79 (3d Cir. 2001) (reviewing for plain error); United States v. Cole, 27 F.3d 996, 998 (4th Cir. 1994) (same).[3]

[16] On plain error review, we will not reverse unless "(1) there was an error; (2) the error is clear or obvious under current law; (3) the error affected substantial rights; and (4) reversal is necessary to prevent a miscarriage of justice or to maintain the integrity of the judicial process." People v. Quitugua, 2009 Guam 10 ¶ 11 (citations omitted).

[17] Meseral makes numerous claims of prosecutorial misconduct. He argues the People engaged in prosecutorial misconduct because (1) the prosecutor improperly argued that the jury could not hold the failure to present the knife at trial against the People, (2) the prosecutor's opening statements were argumentative, (3) the prosecutor repeatedly made statements calculated to inflame the passions and prejudices of the jury, and (4) the prosecutor engaged in improper vouching of several of the People's witnesses. We review each of these claims in turn.

[18] Meseral claims the People engaged in prosecutorial misconduct when the prosecutor improperly argued that the jury could not hold the failure to present the knife at trial against the People. Specifically, Meseral contends the prosecutor's argument misstated the People's burden and the jury's role as the trier of fact. Appellant's Br. at 26 (Feb. 13, 2012). Because no timely objection was made at trial, we review for plain error.

[19] The People counter that the prosecutor did not misstate the People's burden as to the evidence regarding the knife. Appellee's Br. at 34 (Mar. 15, 2012). The People contend that "[w]hen seeking an enhancement through a special allegation of possession and use of a deadly weapon, the government has no burden to produce evidence of a deadly weapon, but only to produce evidence that a weapon was used." Id. at 12-13.

[20] To support its claim, the People cite In re M.M.S., where the court explained:

Generally, the government may prove the use of a weapon in one of three ways. Ideally, a weapon is recovered and introduced in evidence as the one allegedly used by the assailant. Alternatively, in the absence of a weapon in evidence, witnesses may provide direct testimony that they had seen the defendant with a weapon. Finally, without direct evidence the government may prove the existence of a weapon by adequate circumstantial evidence.

[21] The weapon in In re M.M.S. was not recovered by the police, and the victim, who was the only witness, testified that she did not see a weapon because she was struck from the back; thus, the government relied on circumstantial evidence to prove the weapon. Id. Because the witness did not testify she felt anything consistent with a weapon when she was struck, the court held that the government failed to elicit testimony that a weapon had been used, and the judgment was reversed. Id. at 138-39.

[22] In United States v. Moore, the defendants were charged with carrying firearms in connection with a bank robbery. 25 F.3d 563, 568 (7th Cir. 1994). The police did not recover the guns used, and no shots were fired. Id. At trial, multiple witnesses testified they saw the defendants carrying guns, and one witness testified that the robbers pointed their guns at her. Id. Additionally, a bank surveillance video showed that the objects were guns. Id. The court held that although the guns were never recovered, there was sufficient evidence from the video and the testimony of the witnesses for the jury to conclude that the defendants carried guns. Id.

[23] In this case, the knife was not produced, and the People relied on the testimony of Dolores, Otisis, and Lindsay to prove the use of the knife. Dolores testified that Meseral tried to stab her and even described how the knife looked and demonstrated to the jury how Meseral pulled the knife from his pocket and pointed it at her. Transcript ("Tr.") at 53-60 (Jury Trial, Feb. 3, 2010) ("He take [sic] out the -- the small knife, he want [sic] to stab me."). Otisis testified that he saw Meseral pull out a knife to try and stab Dolores, and he also demonstrated to the jury Meseral's actions that night. Tr. at 19-22 (Jury Trial, Feb. 4, 2010). Lindsay testified she saw Meseral pull out a knife, and, like the other witnesses, she demonstrated how Meseral used the knife. Tr. at 8-10 (Testimony of Lindsay Lasai Eyoel, Feb. 4, 2010). Lindsay also testified that she recognized the knife because it was the same knife used at the house when she stayed with Meseral. Id. at 10.

[24] Based on the testimony provided at trial, there was sufficient evidence for the jury to find that a knife was used. The People were not required to produce the knife at trial because there was other evidence in the record sufficient to show that Meseral had a knife when he assaulted Dolores. A review of the transcripts also reveals that the prosecutor did not misstate its burden of proof because the jury was instructed that the People must prove each and every element of the charged offenses beyond a reasonable doubt, and counsel also stated this in his opening and closing statements. Tr. at 81-82 (Jury Trial, Feb. 5, 2010). On plain error review, we find no error.

[25] We next address Meseral's claim that the prosecutor's opening statement was improper because the prosecutor began his opening statement with argument. Because no timely objection was made at trial, the plain error standard applies.

In the early morning hours on September 3, 2009, Dolores John was at her residence when an unwelcome drunken man paid her a visit. This man was accompanied by another male individual and demanded to know the whereabouts of Mrs. John's son Matthew. Now, when Mrs. John did not disclose where Matthew was at, this man -- this drunken man, he came by and (indiscernible).

That same man subsequently pulled out a knife and tried to stab Mrs. John, who was both a mother and a grandmother. This was not enough. That same drunken man told Mrs. John that if she called the police, he was going to kill her, he was going to kill her son, Matthew, and he's going to kill another family member. Sitting in front of you, ladies and gentlemen, five feet in front of you today in the Defendant's chair is that same drunken man and that person is the Defendant, Keith Meseral.

[27] A prosecutor's opening statement is an explanation of the nature of the charge and a statement of facts which the government intends to prove at trial. United States v. DeRosa, 548 F.2d 464, 470 (3d Cir. 1977); see also State v. Kirksey, 658 S.W.2d 60, 61 (Mo. Ct. App. 1983) ("The primary purpose of the prosecution's opening statement is to apprise the jury and the defendant of the facts which the state expects to prove." (citation omitted)).

An opening statement has a narrow purpose and scope. It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument. To make statements which will not or cannot be supported by proof is, if it relates to significant elements of the case, professional misconduct. Moreover, it is fundamentally unfair to an opposing party to allow an attorney, with the standing and prestige inherent in being an officer of the court, to present to the jury statements not susceptible of proof but intended to influence the jury in reaching a verdict.

[29] In this case, the prosecutor's opening statement provided the jury with a summary and explanation of what the People expected to prove at trial. Moreover, throughout the trial, several of the witnesses testified about the events of the alleged incident as outlined by the prosecutor. The opening statement was a fair statement of what the People intended to prove at trial. It was not error for the prosecutor to make the statements alleged to be improper because the statements were later supported by the proof at trial. We therefore find that the prosecutor's opening statement was proper.

[30] Meseral also claims reversal is warranted because the prosecutor repeatedly made statements calculated to inflame the passions and prejudices of the jury, by referring to Meseral as a violent man who knew no boundaries, and by referring to Dolores as a person who reads the Bible. "To succeed on a claim of prosecutorial misconduct, a petitioner must demonstrate that the 'prosecutor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Mendiola, 2010 Guam 5 ¶ 12 (quoting Evaristo, 1999 Guam 22 ¶ 20). "A comment to which defense counsel did not object is subject to a plain error review, which requires more than just a likelihood that the comment affected the jury. It requires that the comment taint the underlying fairness of the proceedings." Moses, 2007 Guam 5 ¶ 30 (citation omitted). Because trial counsel did not object when the prosecutor made the statement that Meseral was a violent man who knew no boundaries, it is reviewed under a plain error standard, and the insertion of the comment must have affected Meseral's substantial rights such that reversal is necessary to prevent a miscarriage of justice. See id. ¶¶ 8, 36. We have held that "a miscarriage of justice occurs when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." Id. ¶ 36 (quoting People v. Aguirre, 2004 Guam 21 ¶ 29) (internal quotation marks omitted).

[31] In United States v. Pungitore, the prosecutor in closing argument referred to one defendant as a "cold-blooded murderer," and to various other defendants as "mob killers." 910 F.2d 1084, 1127 (3d Cir. 1990). On appeal, the defendants claimed that the prosecution made prejudicial references to them. The court found no prosecutorial misconduct in the comments, agreeing with the district court that the statements were a fair comment on the evidence adduced at trial. Id. "A prosecutor's characterization of a defendant does not justify the granting of a new trial where the characterization is supported by the evidence and, in the context of the trial as a whole, produces no significant prejudice to the defendant." United States v. Scarfo, 711 F. Supp. 1315, 1327 (E.D. Pa. 1989) (citations omitted); see also United States v. Williams, 726 F.2d 661, 664 (10th Cir. 1984) (concluding that defendant was not denied a fair trial where prosecutor repeatedly characterized the defendant as a "drug smuggler" because the references were accurate based on the evidence presented); United States v. Malatesta, 583 F.2d 748, 759 (5th Cir. 1978) (holding that defendant was not denied a fair trial when counsel for co-defendant described defendant as a "con man" and "hoodlum" because the descriptions were supported by the evidence); United States v. Taxe, 540 F.2d 961, 967-68 (9th Cir. 1976) (holding that prosecutor's characterization of defendant as a "scavenger," "parasite," "fraud," and "professional con man" was supported by the evidence and was not prejudicial).

[32] Here, the statement was supported by the record. Several witnesses testified that Meseral told Dolores he wanted to kill her. Dolores testified that if Colin did not interfere and push Meseral, she believed Meseral would have used the knife to stab her chest. Dolores also testified that she was afraid of Meseral. Other witnesses also testified about Meseral's violent acts on the night of the alleged incident. While "prosecutors must always be mindful of their duty of restraint," Moses, 2007 Guam 5 ¶ 38, we do not believe the prosecutor's characterization of Meseral in any way influenced the verdict, as the testimony from the witnesses supported the comment and was more than sufficient to convict Meseral.

[33] Similarly, the prosecutor's statement that Dolores was a person who reads the Bible was also supported by the record. At trial, Dolores described herself as a person who regularly attends church. Tr. at 24-25 (Jury Trial, Feb. 3, 2010). She also stated that she was reading the Bible when the incident occurred. Id. The statement by the prosecutor did not influence the verdict because Dolores's testimony supported the comment. Thus, Meseral has failed to show any error.

[34] Meseral further claims the prosecutor engaged in improper vouching of several of the People's witnesses. Although Meseral does not provide a citation to the record to show where such alleged vouching occurred, a review of the transcripts show there may have been two instances in the prosecutor's rebuttal that Meseral may be referring to that could potentially constitute improper vouching:

[Statement 1.] Do you recall during [defense counsel's] closing, when the discussion of Dolores came up in her testimony, if you recall he says, "You know, people that go to church, you know they lie." Well, I ask you this, with your common sense, and your life experiences, why would a person that reads the Bible, a person that goes to church daily, what reason would [Dolores] have to lie?

[Statement 2.] Unlike what [defense counsel] was indicating in his closing, they weren't lying.

Tr. at 72-74 (Jury Trial, Feb. 5, 2010) (emphasis added). Each statement is addressed in turn.

[35] Improper vouching generally occurs in two situations: (1) the prosecutor "suggests that the government is aware of evidence not presented to the jury which would tend to support a particular witness' testimony;" or (2) the prosecutor "places the 'prestige of the government behind the witnesses through personal assurances of their veracity . . . .'" Ueki, 1999 Guam 4 ¶ 19 (quoting United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991)); see also Evaristo, 1999 Guam 22 ¶ 29. Statement 1 involves neither situation.

[36] In Statement 1, the prosecutor did not suggest that the government is aware of evidence not presented to the jury which would tend to support the witness' testimony. The prosecutor referred only to evidence that had already been presented to the jury. The facts purported in Statement 1 were testified to by the witnesses. Specifically, Dolores indicated that she was reading the Bible at the time of the incident. Dolores also indicated that she went to church every day. Tr. at 24-25 (Jury Trial, Feb. 3, 2010).

[37] Additionally, the prosecutor did not place the prestige of the government behind the witness through personal assurances of the witness' veracity. In Ueki, this court found that the prosecutor had improperly placed the prestige of the government behind a witness when the prosecutor "presented her beliefs, as a representative of the government, as to the credibility and veracity of the [witness'] testimony before the jury." 1999 Guam 4 ¶ 22. Specifically, the prosecutor in Ueki stated: "[W]hat [the witness] said on that stand, I submit to you is the truth. She told you the truth on that stand. And if she said things when she was drunk or unconscious or confused, I submit they were wrong. But what she said on here was the truth." Id. Here, unlike in Ueki, the prosecutor did not give his personal assurances of Dolores' veracity when he stated during rebuttal:

Do you recall during [defense counsel's] closing, when the discussion of Dolores came up in her testimony, if you recall he says, "You know, people that go to church, you know they lie." Well, I ask you this, with your common sense, and your life experiences, why would a person that reads the Bible, a person that goes to church daily, what reason would [Dolores] have to lie?

Tr. at 72-73 (Jury Trial, Feb. 5, 2010). Instead of impressing his own beliefs upon the jury as the prosecutor had in Ueki, the prosecutor here simply asked the jury to (1) consider what motive Dolores had to lie, and (2) use its common sense and experience to determine whether Dolores was testifying truthfully.

[38] State v. Jose G., 929 A.2d 324 (Conn. App. Ct. 2007), suggests that a prosecutor may present a question to the jury to discuss a witness's lack of a motive to lie. In Jose G., the Appellate Court of Connecticut stressed that a prosecutor may remark on the motives that a witness may have to lie, or not to lie. Id. at 334-35 (citations omitted). The court found: "The prosecutor's questions to the jury in this case, asking the jury to consider what motive these witnesses had for lying, were not improper." Id. at 335. Questions that ask the jury to consider what motive a witness would have for lying are not improper because they "properly call[] on the jury to use its common sense and experience to determine whether [the witness was] testifying truthfully." Id. (citation omitted); see also United States v. Walker, 155 F.3d 180, 188 (3d Cir. 1998) (holding that rhetorical question, "What motivation [would these witnesses have to lie]?", is not vouching because "[i]t does not maintain the credibility of the two witnesses by referring to information outside the record, nor does it contain a personal assurance of veracity."). Accordingly, the prosecutor did not improperly vouch for Dolores' credibility in Statement 1, and we therefore find no error.[4]

[39] Meseral also complains that the prosecutor's statement that the witnesses were not lying also constituted improper vouching.[5] During trial counsel's closing argument, he contended that several of the government's witnesses—specifically, Dolores, Otisis, and Lindsay—were lying about what they reported to the police and what they testified to because the versions of their stories continued to change throughout the trial. Tr. at 48 (Jury Trial, Feb. 5, 2010) (in describing Dolores's testimony, trial counsel stated: "No reason to lie about that, but she did."); id. (as to Otisis and Lindsay, counsel stated: "Either there's two Matthews, or one of those two is lying to you . . . ."); id. at 49 ("So one of them is lying. You may not think it's important, but you can't trust them about that."); id. at 52 ("You've got to figure out what the truth is, and if you've got witnesses up here that can't tell you the truth, that's kind of hard for you . . . ."); id. at 60 ("But one thing we do know is that people from the John household, that came up here to testify to you . . ., they lied to you; about little things, about big things, about lots of things.").

You heard from [defense counsel] that the witnesses that testified for the Government -- Otisis John, Lindsay Eyoel, the victim, Dolores John -- they're all lying because there was [sic] inconsistencies with their statement. Well, I'll tell you this much, [defense counsel] overstepped his boundary. That's for you the jurors, the fact finders, to make the decision of whether you believe the witnesses were telling the truth or not.

Let me ask you this, ladies and gentlemen. Do you know everything, in detail, that you did on September 3, 2010? Use your common sense.

Unlike what [defense counsel] was indicating in his closing, they weren't lying. [Defense counsel] said that we haven't proven our case because we didn't have the knife during trial, we didn't have the defendant's pair of shorts.

[41] "Prosecutorial comments objected to by defense counsel are subject to a harmless error standard of review." Mendiola, 2010 Guam 5 ¶ 13 (citing Moses, 2007 Guam 5 ¶ 7). When the prosecutor began his rebuttal summation and was about to launch into what Meseral alleges was improper vouching, trial counsel objected to the prosecutor's comments, arguing that they constituted improper vouching. The trial court excused the jurors for lunch, and after hearing argument from both counsels, took the objection under advisement. In its ruling, the court cautioned the prosecutor to refrain from making statements that would ensure the veracity of any witnesses. Tr. at 68 (Jury Trial, Feb. 5, 2010). The jurors returned from lunch, and the prosecutor continued with his rebuttal summation and at that time made Statement 2. The statement "[u]nlike what [defense counsel] was indicating in his closing, they weren't lying" is improper vouching because it assured the jury that the witnesses were credible. The prosecutor placed the "prestige of the government behind the witnesses through personal assurances of their veracity." Ueki, 1999 Guam 4 ¶ 19.

[42] We apply the harmless error standard because Meseral's counsel made a timely objection to the prosecutor's comments and did not need to continue objecting when the prosecutor made Statement 2. Under the harmless error test, the government bears the burden of persuasion regarding prejudice. Quitugua, 2009 Guam 10 ¶ 43 n.9. "Reversal under the harmless error standard is warranted when it is more probable than not that the misconduct affected the jury's verdict." Evaristo, 1999 Guam 22 ¶ 18 (citing United States v. Chavez-Vernaza, 844 F.2d 1368, 1377-78 (9th Cir. 1988)). "[T]he test for harmless error is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." People v. Roten, 2012 Guam 3 ¶ 41 (quoting People v. Flores, 2009 Guam 22 ¶ 112) (internal quotation marks omitted). We find that the improper vouching was harmless error.

[43] Although the prosecutor improperly vouched for the witnesses, the prosecutor carefully reminded the jury that as fact finders, it was their decision to determine whether the witnesses were telling the truth, and after summarizing the evidence presented at trial, concluded that the government's witnesses were not lying as suggested by trial counsel. Immediately prior to making the statement, the prosecutor asked the jurors if they were able to recall the details of what happened to them on September 3, 2010, and instructed the jurors to use their common sense. After closing arguments, the court informed the jury that they are the sole judges of the witnesses' credibility. The court also instructed the jury that they are to consider only the evidence presented at trial and that the closing statements of the attorneys are not evidence. Tr. at 80 (Jury Trial, Feb. 5, 2010). "[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial." Young, 470 U.S. at 11. In context, Statement 2 can be viewed as the prosecutor simply suggesting that if the jury were to use its common sense, it would conclude that the witnesses were not lying. Under these circumstances, we hold that the improper statement had little, if any, prejudicial effect on Meseral because the jury was reminded immediately prior to the statement that it was up to them to determine witness credibility and that they should use their common sense in making this determination. The improper conduct therefore did not affect the jury's verdict.

[44] Meseral also seeks reversal of his conviction based on ineffective assistance of counsel claims. "[A] claim of ineffective assistance of counsel is a mixed question of law and fact that is reviewed de novo." Angoco, 2001 Guam 17 ¶ 7 (quoting Birtle, 792 F.2d at 847) (internal quotation marks omitted). "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The Sixth Amendment "right to counsel is the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)) (internal quotation marks omitted). Counsel can deprive a defendant of the right to effective assistance simply by failing to render "adequate legal assistance." Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)) (internal quotation marks omitted).

[45] The Supreme Court's two-part test in Strickland is employed to determine whether a defendant was denied the effective assistance of counsel. Ueki, 1999 Guam 4 ¶ 6 (citing People v. Quintanilla, 1998 Guam 17 ¶ 8). First, a defendant must establish that counsel's performance was deficient; then he must show that such deficiency prejudiced his defense so as to deprive him of a fair trial.[6] Strickland, 466 U.S. at 687. "The benchmark for judging any claim of ineffectiveness [is] whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686.

[46] To fulfill the first prong of the Strickland test, Meseral must show that "the behavior complained of falls below prevailing professional norms." United States v. McMullen, 98 F.3d 1155, 1158 (9th Cir. 1996) (citing Strickland, 466 U.S. at 689). To show deficient performance, the defendant must demonstrate that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. An inquiry into counsel's conduct probes "whether counsel's assistance was reasonable considering all the circumstances." Id. at 688. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689; see also Moses, 2007 Guam 5 ¶ 42 ("High deference is given when reviewing an attorney's performance."). In engaging in such an inquiry, "[the] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

[47] To establish that he was prejudiced by counsel's ineffective assistance, Meseral "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the [trial] would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Meseral must affirmatively prove prejudice in order to support his claim. Id. at 693.

[48] In his opening brief, Meseral provides a litany of ineffective assistance of counsel claims, which primarily stem from: trial counsel's failure to file specific motions before, during, and after trial; trial counsel's preparation for trial; trial counsel's conduct during trial; and trial counsel's conduct at sentencing. Because we address several of the alleged errors as part of Meseral's prosecutorial misconduct claims, we need not determine whether Meseral was deprived the effective assistance of trial counsel for those claims we held were not in error.

[49] In reviewing the record as to the other ineffective assistance of counsel claims, we conclude that, with the exception of the improper vouching in Statement 2 and the alleged sentencing errors, which we address below, each alleged action or inaction complained of requires an examination of facts, many of which are beyond the trial court record. While an ineffective assistance of counsel claim may be heard on direct appeal, we have previously held that it is more properly brought as a writ of habeas corpus because such a claim often requires an evidentiary inquiry beyond the official record. People v. Root, 1999 Guam 25 ¶ 14. We therefore decline to decide the claims of ineffective assistance of counsel which require an extra-record inquiry, and we address only the improper vouching in Statement 2 and the alleged sentencing errors.

[50] Because we find that Statement 2 was improper vouching, we must also address whether Meseral was denied effective assistance of counsel as to this error. In doing so, we apply the Strickland two-pronged test, which requires that a defendant demonstrate that: (1) his trial counsel's performance was deficient; and (2) the deficient performance prejudiced his defense. 466 U.S. at 687.

When the Government gave its closing arguments, and repeatedly vouched for the veracity of its witnesses, Counsel objected but the objection was insufficient. After the court ruled on the objection, the Government proceeded to vouch extensively for its witnesses, even beyond the scope of the court's ruling. Counsel did not continue to object.

[52] In reviewing the record and the circumstances surrounding Statement 2, we find that trial counsel's performance was not deficient. When it appeared that the prosecutor was about to vouch for the government's witnesses, Meseral's counsel immediately objected, and the court cautioned the prosecutor not to engage in such conduct. Trial counsel's initial objection was reasonable considering the circumstances and the timing of the objection. In determining whether counsel's performance was deficient, we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," especially where counsel's acts may be considered "sound trial strategy." Strickland, 466 U.S. at 689. Trial counsel timely objected prior to any improper vouching, and we cannot say that counsel's performance was deficient merely because he did not repeat his objection. See Moses, 2007 Guam 5 ¶ 43 ("Defense counsel here was not ineffective for failing to object to every questionable statement made by the prosecutor."). Even "[a] decision by trial counsel not to object to a portion of closing argument may indeed fall within the ambit of trial strategy." Id. (quoting Holmes v. State, 543 S.E.2d 688, 692 (Ga. 2001)).

[53] Moreover, a defendant is not denied effective assistance of counsel simply because his counsel fails to object to a prosecutor's improper comments; rather, "the 'defendant must show prejudice by his counsel's failure to object' or more specifically, that the outcome would have been affected." Id. ¶ 43 (quoting People v. Nitz, 572 N.E.2d 895, 907 (Ill. 1991)). Assuming arguendo that counsel's performance was deficient, Meseral fails to show how he was prejudiced by trial counsel's failure to object when the prosecutor made Statement 2. As we explained above, the jurors were reminded about their role as fact finders when considering the testimony of the witnesses and were also instructed to consider only the evidence presented at trial and not the arguments of the attorneys. We therefore find no error as to this claim.

[54] Lastly, Meseral argues trial counsel was ineffective during the sentencing proceedings and alleges that: (1) trial counsel waived Meseral's right to have the presentence report prepared within 21 days; (2) Meseral was not provided with a copy of the presentence report, and it is unclear from the record whether trial counsel discussed the report with him; (3) trial counsel failed to ensure that Meseral had an opportunity to allocute; (4) trial counsel failed to ensure that the court advise Meseral of his right to appeal, his right to the appointment of appellate counsel, and his right to file post-trial motions; and (5) trial counsel did not object to the additional sentencing provisions imposed in the judgment. Appellant's Br. at 22. We address each alleged error in turn.

[55] Meseral argues that trial counsel was ineffective because counsel waived Meseral's right to have a presentence investigation report prepared within 21 days of his guilty verdict without indicating on the record that this right had been discussed and that Meseral had consented to the waiver. Appellant's Br. at 22. Meseral does not articulate where this right to a presentence report ("PSR") within 21 days is derived. Presumably, the right is derived from 8 GCA § 120.14, which provides that after a verdict of guilty, the court shall appoint a time for pronouncing judgment, which must be within 21 days after the verdict. 8 GCA § 120.14(a) (2005). Subsection (b), however, allows the court to extend the 21-day period "[f]or such period as is necessary to permit preparation of the presentence report . . . ." 8 GCA § 120.14(b)(2). Thus, the statute contemplates that the preparation of a PSR may take longer than 21 days. In any event, the PSR in this case was filed a mere 14 days after the jury's verdict. Thus, notwithstanding any alleged error in counsel's waiver of Meseral's perceived right to a PSR within 21 days, Meseral has failed to demonstrate any prejudice, particularly because the report was filed within 14 days. Accordingly, Meseral fails the second prong of the Strickland test.

Supreme Court of Guam

People of Guam v Meseral [2014] GUSC 13; 2014 Guam 13 (6 June 2014)