People of Guam v Damian [2016] GUSC 8 (22 February 2016)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,
Plaintiff-Appellee,

v.

KURT ANDERSON DAMIAN,
Defendant-Appellant.

Supreme Court Case No.: CRA14-023
Superior Court Case No.: CF0107-14

OPINION

Filed: February 22, 2016

Cite as: 2016 Guam 8

Appeal from the Superior Court of Guam
Argued and submitted on August 17, 2015
Hagåtña, Guam

Appearing for Defendant-Appellant: Peter C. Perez, Esq. Law Office of Peter C. Perez DNA Bldg. 238 Archbishop Flores St., Ste. 802 Hagåtña, GU 96910

Appearing for Plaintiff-Appellee: James C. Collins, Esq. Assistant Attorney General 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.

MARAMAN, J.:

[1] Defendant-Appellant Kurt Anderson Damian appeals from a final judgment convicting him of one count of theft by receiving stolen property and one count of eluding a police officer. On appeal, Damian argues that the trial court erred in failing to preliminarily instruct the jury regarding certain principles of criminal law and failing to consider his mental health issues as a mitigating factor when sentencing him to the maximum term of imprisonment. He also argues that he was deprived of effective assistance of counsel due to several alleged errors by trial counsel. For the reasons herein, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

[2] On March 2, 2014, the police were dispatched to respond to a domestic disturbance complaint at the house of Janessa Tydingco. When the police arrived, Tydingco's ex-boyfriend, Kurt Anderson Damian, was leaving the scene in a Toyota Corolla. Tydingco informed the police that Damian had assaulted her and stolen her cellphone, laptop and iPad. The police pursued in their vehicles for several miles until Damian got out of the Corolla and attempted to flee on foot. The police canvassed the area and managed to apprehend Damian with a taser. He was arrested and charged with aggravated assault, robbery and eluding the police. It was revealed that the Toyota Corolla was stolen, and Damian was also charged with theft by receiving stolen property and felony vehicle identification for using a false or defaced license plate.

[3] Following arraignment, a pretrial conference was held, wherein defense counsel raised the issue of Damian's mental state. A psychiatric evaluation was requested and submitted to the court.

[4] The case went to trial and, following jury selection, the jury was empaneled, sworn, and given preliminary instructions on its duties and conduct. Thereafter, the trial recessed for two weeks. When trial resumed, the court repeated similar preliminary instructions as those issued previously. During the delivery of the preliminary instructions, the trial court did not instruct the jury as to the People's burden of proof, the defendant's presumption of innocence and right not to testify, or the fact that the indictment was not evidence of the defendant's guilt. The defense did not object to these preliminary instructions or request additional instructions.

[5] Following the prosecution's case, the trial court granted Damian's motion for a judgment of acquittal as to the charges of aggravated assault and second degree robbery. At the close of trial, the court again instructed the jury. At that point, the trial court informed the jury that the People bore the burden of proof beyond a reasonable doubt, that the defendant was entitled to a presumption of innocence, that the defendant is under no obligation to testify, and that the indictment is not evidence of the defendant's guilt. Considering the remaining charges, the jury returned a verdict of not guilty on the charges of felony vehicle identification and misdemeanor assault, but guilty of theft by receiving stolen property and eluding a police officer.

[6] The Office of Probation submitted a Pre-sentence Investigation Report ("PSI"), which was later amended. The court held a sentencing hearing wherein it requested sentencing memoranda from the parties. The defense proceeded to submit a sentencing memorandum, with the previously performed psychiatric evaluation attached. At a continued sentencing hearing, the trial court imposed the maximum sentence of ten years for the offense of theft by receiving stolen property. For the offense of eluding a police officer, the court sentenced Damian to a term of one year, to run concurrently with the previous sentence.

[7] This appeal followed.

II. JURISDICTION

[8] This court has jurisdiction over this appeal pursuant to 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 114-114 (2015)), and 7 GCA §§ 3107 and 3108(a) (2005).

III. STANDARD OF REVIEW

[9] If no objections to jury instructions are made at the time of trial, the standard of review is plain error. People v. Perry, 2009 Guam 4 ¶ 9. "Plain error is highly prejudicial error." People v. Quitugua, 2009 Guam 10 ¶ 11. "The plain error standard is met when: '(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. Diego, 2013 Guam 15 ¶ 23 (quoting People v. Felder, 2012 Guam 8 ¶ 19).

[10] "We review the trial court's imposition of a sentence for abuse of discretion." People v. Diaz, 2007 Guam 3 ¶ 59.

[11] "Ineffective assistance of counsel claims are questions of law which this court reviews de novo." People v. Moses, 2007 Guam 5 ¶ 9 (quoting People v. Ueki, 1999 Guam 4 ¶ 5).
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IV. ANALYSIS

A. Preliminary Jury Instructions

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