People of Guam v De Soto [2016] GUSC 12 (11 April 2016)

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Appeal from the Superior Court of Guam
Argued and submitted on August 11, 2015
Hagåtña, Guam

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

Appearing for Plaintiff-Appellee:
James C. Collins, Esq.
Office of the Attorney General
Prosecution Division
590 S. Marine Corps Dr., Ste. 706
Tamuning, GU 96913

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

[1] Defendant-Appellant Chad Ryan De Soto appeals from a final judgment convicting him of three counts of Aggravated Murder and eleven counts of Attempted Aggravated Murder following his attack against pedestrians in Tumon. De Soto first argues the convictions should be reversed because the trial court committed plain error in failing to adequately instruct the jury on the doctrine of "diminished capacity." Second, De Soto contends the trial court committed numerous evidentiary errors, namely: (1) permitting impact testimony by victim and non-victim witnesses, (2) allowing impeachment evidence rebutting a defense witness's testimony about her conversations with De Soto, (3) permitting testimony of De Soto's psychotherapist despite the psychotherapist-patient privilege, and (4) allowing the prosecutor to make improper statements that commented on the credibility of defense witnesses and implied De Soto would be released if found not guilty by reason of insanity. De Soto believes his trial counsel's failure to object to the psychotherapist's testimony resulted in ineffective assistance of counsel, and that these errors cumulatively denied him a fair trial. For the reasons stated below, we affirm De Soto's convictions.

[2] On the night of February 12, 2013, De Soto drove his vehicle through a group of pedestrians in Tumon, injuring six people and killing one. After running through the pedestrians, De Soto got out of his vehicle, stabbed several people, and killed two more (hereinafter the "Incident").

[3] A Grand Jury indicted De Soto for three counts of Aggravated Murder (As a 1st Degree Felony), and twelve counts of Attempted Aggravated Murder (As a 1st Degree Felony), each accompanied by a special allegation of the Possession of a Deadly Weapon in the Commission of a Felony. De Soto pleaded not guilty by reason of mental illness, disease or defect pursuant to 9 GCA § 7.22(d).

[4] At trial, several victims and non-victims offered "impact" testimony regarding how the Incident affected them. One such witness was Roderick San Juan, a non-victim who worked as a security officer at the nearby Globe Nightclub the evening of the Incident. When San Juan was asked how the Incident affected him, De Soto objected on relevancy grounds, but the court overruled the objection when the People argued the statement went to bias, perception, and ability to remember. San Juan was permitted to testify regarding his difficulty sleeping and that he sought therapy as a result of the Incident. The People asked other non-victim and victim witnesses about the effect the Incident had on their lives, including Frank A. Jackson, Emma Dela Cruz, Kaylani Quichocho, Nicolas Dizmang, Tony Bruce Richardson, and Yusuki Sugiyama. De Soto objected on either relevancy or unfair prejudice grounds to each witness's testimony.

B. Trial Testimony by Defense Witnesses Offered to Support De Soto's Mental Condition

[5] De Soto called several witnesses to testify regarding his mental condition. One physician, Dr. Leopold Arcilla, Jr., provided testimony ruling out the use of drugs as a possible cause of his violent behavior. Joseph Hernandez, a former classmate of De Soto, testified that De Soto appeared sad, extremely depressed, and malnourished in the weeks leading up to the Incident. De Soto's family members testified De Soto was depressed after the death of their grandfather and exhibited erratic behavior. De Soto's girlfriend, Reanne Acasio, testified De Soto began acting strangely around January and February of 2013, when he recalled events that did not occur, expressed fear of government and elitist conspiracies, and claimed to be Leviathan.

[6] De Soto and Acasio ceased interaction for some time, and Acasio blocked his social media accounts. However, the two had a lengthy Skype conversation the day before the Incident. In reference to her last communication with De Soto before the Incident, Acasio testified that De Soto described bizarre instances of hallucinations. The morning after the conversation, Acasio stated De Soto messaged her stating "till it's gone," presumably referencing her previous Facebook post to him stating that "you don't know what you got till it's gone." Tr. at 46 (Jury Trial, July 1, 2014).

[7] On cross-examination, Acasio was questioned concerning statements she made to investigators from the Federal Bureau of Investigation ("FBI") following the Incident. When confronted by the prosecutor, she claimed to have forgotten certain statements made to the FBI. When asked whether she recalled the last thing De Soto told her when questioned by police officer Ronelle Rivera, Acasio testified she told Rivera that she had a conversation with De Soto, but was not questioned further, and that she could not recall "telling the officer the last thing [De Soto] said to [her]." Id. at 60. The prosecutor pressed further and asked:

Q Do you remember the last thing [De Soto] said to you being, you will forgive me for what I will do tonight; you will find out tomorrow?

Id. at 60. De Soto's counsel then objected, but the content of the sidebar is inaudible. The prosecutor continued:

Q If Detective Ronelle Rivera were to testify that you told him the last thing [De Soto] said to you on February 12th, 2013, was, you will forgive me for what I will do tonight; you will find out tomorrow, would the detective be incorrect?

Q In your phone - - I'm sorry - - your conversation with the FBI do you recall telling an FBI agent the last thing that [De Soto] said to you was, whatever I do tonight, I want you to forgive me?

Id. at 62. Acasio testified she and De Soto had rekindled their relationship after the Incident and spoke by phone while he was in prison "a few times a week," but did not talk about what she was going to testify to at trial. Id. at 51.

[8] De Soto underwent four psychological and forensic psychiatric evaluations by different practitioners. The first mental health professional called by the defense was Dr. Michael Kim, a court-appointed psychiatrist, who examined De Soto in February of 2013. Dr. Kim evaluated De Soto on one occasion, but was not aware of any statements made by Acasio at the time of his evaluation. The court qualified him as an expert in the field of psychiatry, and admitted his curriculum vitae and expert report. Dr. Kim concluded that De Soto "was competent to stand trial . . . understood the wrongfulness of his actions . . . and able to control his actions." Tr. at 22 (Jury Trial, July 7, 2014). However, Dr. Kim indicated that if he had access to Acasio's FBI narration and he had more sessions with De Soto, he might have diagnosed De Soto with a psychotic disorder.

[9] The defense also called Dr. Karen Fukutaki, a qualified expert in forensic psychiatry. Dr. Fukutaki examined De Soto at the detention facility on November 2, 2013, and reviewed police reports, a search warrant, Department of Corrections records, and FBI interview transcripts before the examination. Dr. Fukutaki's curriculum vitae and report were admitted into evidence. In generating her report, Dr. Fukutaki reviewed reports generated by De Soto's treating psychotherapist, Dr. Andrea Leitheiser, in making her evaluation. She testified that De Soto satisfied two of the prongs of Guam's insanity defense, namely that he "didn't understand the wrongfulness of his actions and he didn't have a rational understanding of the situation in which he was involved and the consequences of his actions, but that he had some control over his actions." Tr. at 22 (Jury Trial, July 8, 2014). Furthermore, she testified De Soto was "grossly psychotic" at the time of the commission of the crime. Id. at 21-22.

[10] The next day, the defense called Dr. Martin Blinder, another psychiatrist who evaluated De Soto. The trial court qualified Dr. Blinder as an expert in forensic psychiatry. Dr. Blinder evaluated De Soto in July of 2013, and his report was entered into evidence. In preparing his report and evaluation, Dr. Blinder reviewed Acasio's narrative provided to the FBI, Dr. Kim's reports, and records prepared by Dr. Leitheiser. In Dr. Blinder's opinion, De Soto suffered from psychosis at the time of the Incident, and did "not know at least the quality and the wrongfulness of his homicidal acts." Tr. at 27-28 (Jury Trial, July 9, 2014). Following Dr. Blinder's testimony, De Soto rested his case-in-chief.

[11] During rebuttal, the People called Dr. Leitheiser, who was employed as a psychologist at the Department of Corrections. The defense objected to her qualification as an expert because she was a psychologist rather than a psychiatrist, but the objection was overruled. Furthermore, the court noted that the defense "opened the door and talked about Dr. Leitheiser's testimony [sic] vigorously." Tr. at 25 (Jury Trial, July 10, 2014). There does not appear to have been an objection on privilege grounds. Dr. Leitheiser was qualified as an expert in psychology by the court, and her mental health assessment of De Soto was admitted. Dr. Leitheiser first evaluated De Soto on or about February 14, 2013. She testified that her role at the Department of Corrections was to provide "oversight of the mental health provision of services, and also . . . direct mental health care to the detainees and inmates." Id. at 65. She generated a clinical record of De Soto for the period between February 14, 2013, and March 13, 2013, and diagnosed him with major depression, generalized anxiety disorder, and a personality disorder due to challenged coping. In her observations, however, his thought processes were "logical and organized," and he did not display evidence of hallucinations or delusions.

[12] The People also called Officer Rivera to testify about an interview he conducted with Acasio. Rivera testified that Acasio told him the last thing De Soto said to her was "You will forgive me for what I will do tonight. You will find out tomorrow." Tr. at 8 (Jury Trial, July 10, 2014). The People next called Blake Anderson of the FBI in rebuttal. Anderson interviewed Acasio about three days after the Incident in Salt Lake City, Utah. Anderson testified that Acasio stated the last thing De Soto told her before the Incident was "'[w]hatever I do tonight, I want you to forgive me.'" Id. at 16. Additionally, Pay-Tel recordings between De Soto and Acasio obtained through the Guam Department of Corrections phone system were played for the jury to rebut Acasio's testimony.

[13] During opening statements, the defense indicated they were relying on the insanity defense. Soon after, defense counsel attempted to explain diminished capacity and the respective burdens of proof to the jury, but the People objected:

If at the end of this evidence, you have a strong gut feeling that he's guilty, but you still have reasonable doubt as to whether he had the mental capacity to commit these crimes - -

MR. MILLER: His capacity is always an issue, Your Honor. That's the Jung case.

MR. MILLER: The standard -- the Jung case tells us that in addition to not guilty by reason of mental defect, and the statute that covers that, the Government still has to prove mental capacity. To have capacity to have the intention mens rea necessary to commit the crime. And the jury may consider his mental illness as to what the Government is proved to the capacity issue. The capacity never goes away, it's still an issue.

MR. TYDINGCO: Objections to burdens shifting, Your Honor. (Indiscernible 2:11:45).

Tr. at 19 (Jury Trial, Opening Statements, June 16, 2014). The court's ruling is not clear from the record, but defense counsel proceeded to a new topic following a sidebar conference.

[14] At the end of the trial, the court read the instructions for the affirmative defense of insanity by mental illness, disease, or defect. Following the jury instruction regarding insanity, the court provided a diminished capacity instruction:

Jury instruction 1G, diminished capacity -- you may consider evidence of the Defendant's mental illness, disease, or defect on the issue of whether the prosecution has met its burden of proof beyond a reasonable doubt as to whether the Defendant has the requisite state of mind as to each and every element of the charge against him.

Tr. at 69 (Jury Trial, July 17, 2014); Record on Appeal ("RA"), tab 181 at 1G (Jury Instructions, Aug. 4, 2014).[1] This instruction was suggested by De Soto's counsel, and was derived from People v. Jung, 2001 Guam 15.

Supreme Court of Guam

People of Guam v De Soto [2016] GUSC 12 (11 April 2016)