People of Guam v Borja [2017] GUSC 20 (17 December 2017)

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Appeal from the Superior Court of Guam
Argued and submitted on February 23, 2017
Dededo, Guam

Appearing for Defendant-Appellant:
Joaquin C. Arriola, Jr., Esq.
Arriola, Cowan & Arriola
259 Martyr St., Ste. 201
Hagåtña, GU 96910

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

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

[1] Defendant-Appellant Roland Vincent Borja was convicted of First Degree Criminal Sexual Conduct (“CSC”) (As a First Degree Felony), two counts of Second Degree CSC (As a First Degree Felony), and Child Abuse (As a Misdemeanor). Borja appealed, presenting several arguments. First, he argues he received ineffective assistance of counsel as a result of his trial counsel’s failure to object to the admission of improper character evidence and failure to request a limiting instruction once the evidence was admitted. Borja alleges his trial counsel should have objected on the grounds that the prosecution failed to provide notice of the evidence pursuant to Guam Rule of Evidence (“GRE”) 404(b) and the danger of unfair prejudice outweighed the evidence’s probative value and therefore should have been excluded under GRE 403. Second, Borja argues the trial court improperly replaced a juror with an alternate juror because it did so after the jury retired to consider its verdict. Finally, Borja argues Plaintiff-Appellee People of Guam (the “People”) failed to provide advance disclosure of prior sexual conduct evidence, in violation of GRE 413(b), but we find he has conceded this issue as discussed below.
[2] For the reasons stated herein, we affirm the trial court’s judgment of conviction.

[3] An officer of the Guam Police Department (“GPD”) responded to a sexual assault complaint concerning a minor, T.A.B. Between 2014 and 2015, T.A.B., who was then under fourteen years old, lived with her mother, her mother’s boyfriend, her older sister L.B., L.B.’s three children, and her older brother S.B., in a two-bedroom apartment. Borja was a regular overnight guest at their home.
[4] The family’s regular sleeping arrangement was for the mother and mother’s boyfriend to sleep in one room, while T.A.B., L.B., L.B.’s children, and S.B. slept in the living room. Borja would also sleep in the living room when he stayed overnight. S.B. occasionally slept on a mattress in a second bedroom that was used for storage. The officer who visited the home reported this room contained garbage, open alcohol and food containers, and was in an unsanitary condition, as was the rest of the apartment.
[5] In opening arguments and through questioning, defense counsel implicated T.A.B. was subjected to a substandard home environment as a result of her living conditions, her mother and sister’s possible prostitution activities, her forced absence from school, and her responsibility to care for L.B.’s three children. The defense presented this picture to support the theory that T.A.B. lied about the assault to draw attention to her situation, hoping it would get her removed from the home.
[6] L.B. recalled the night of the assault, explaining that she did not notice anything out of the ordinary about T.A.B. She discussed various aspects of their lives, including the family’s living and sleeping arrangements; T.A.B.’s extended absence from school; T.A.B.’s role in caring for her kids; and various male visitors to the household. Of particular relevance to Borja’s arguments on appeal, L.B. also testified that, prior to the night of the assault, she engaged in sexual intercourse with Borja on the same couch that T.A.B. identified as the couch where the assault took place. According to L.B., Borja told her that he would stop providing her with food and other necessities if she did not have sex with him. This occurred in the middle of the night while her three children were asleep on the bed beside the couch and her mother and her mother’s boyfriend were asleep in the bedroom.
[7] T.A.B. also gave lengthy testimony, including recalling the assault and identifying Borja as the perpetrator. She recalled the assault took place in the middle of the night on a brown couch in the living room, while several family members were at home sleeping. T.A.B. testified Borja left the apartment after the assault. On cross-examination, the defense elicited certain seeming inconsistencies in T.A.B.’s testimony. The defense also asked questions regarding T.A.B.’s feelings about her home life in general, including whether she wanted to watch L.B.’s children “all the time,” why she did not go to school for two years, and the period when her family lived in a motel. Transcript (“Tr.”) at 69-73 (Trial, Apr. 26, 2016).
[8] Multiple witnesses testified, in addition to T.A.B. and L.B. These included: T.A.B.’s brother, S.B.; two GPD officers; a serologist in the GPD Forensic Science Division who tested the substances from the couch covers for semen and reported the confirmatory test results came back negative, offering various explanations for that result; an FBI forensic analyst who stated that the DNA testing of the couch covers came back inconclusive; the program manager at Healing Hearts Crisis Center who conducted the intake of T.A.B.’s case; two of L.B.’s friends, who were also neighbors, to whom T.A.B. confided about the assault; and T.A.B.’s judicial therapist.
[9] Following the two days of testimony, both parties rested their cases. The parties returned the following morning for jury instructions. Defense counsel did not have any objections to the instructions and did not request any limiting instructions as to L.B.’s testimony regarding her sexual encounter with Borja that took place on the same couch where T.A.B. was assaulted. In closing, the prosecution referenced L.B.’s encounter with Borja as a means of explaining how sexual intercourse could occur undetected in a small room with other people sleeping nearby. The defense closed by highlighting inconsistencies in the evidence and questioning T.A.B.’s credibility, on the theory that she was motivated to lie as a means of escaping her home life. During closing, the defense also specifically referred to L.B.’s sexual intercourse with Borja, as an alternative explanation for the semen and blood found on the couch where the assault occurred.
[10] After reading instructions to the jury, the judge told the jury, “You shall now retire . . . .” Tr. at 56 (Closing Args., Jury Instrs., Apr. 27, 2016). Shortly thereafter he realized T.A.B.’s date of birth was omitted from the instructions as read. He called a bench conference to explain the matter to counsel. After the bench conference, the judge informed the jury of T.A.B.’s date of birth. The court then gave the jurors a “smoke break” and stated it would fix the jury instructions and put together the exhibits before the jury began deliberations. Id. at 58. The jury was then excused.
[11] During the break, the court received a note from a juror regarding his inability to write in English and his difficulty understanding English. The juror was called in and questioned by the court with counsel present. After discussion with counsel, the court decided to excuse the juror and explicitly clarified in response to counsel’s questioning that no deliberations had taken place. Defense counsel objected, arguing that the juror was competent, but did not otherwise object to the procedural timing employed by the court in substituting the juror with an alternate juror. The jurors were then given final instructions to retire to the jury room and were told they would be given the “exhibits and [their] notebooks so that [they] can begin [their] deliberations.” Id. at 76-77. The jury returned a verdict, finding Borja guilty on all charges. Tr. at 3-4 (Trial, Apr. 28, 2016). A judgment was entered, and Borja timely appealed.

[12] This court has jurisdiction over an appeal from a final judgment of the Superior Court. 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 115-90 (2017)); 7 GCA §§ 3107(b), 3108(a) (2005); 8 GCA §§ 130.10, 130.15(a) (2005).

[13] Ineffective assistance of counsel claims are reviewed de novo. People v. Katzuta, 2016 Guam 25 ¶ 19 (citing People v. Meseral, 2014 Guam 13 ¶ 13). The court will review such claims where the record is sufficiently complete to make a proper finding. People v. Leon Guerrero, 2001 Guam 19 ¶ 12 (citing People v. Root, 1999 Guam 25 ¶ 14).
[14] Although Borja’s trial counsel objected to the recusal of the replaced juror generally, he did not object at trial to the timing of the court’s replacement of the excused juror, which is the specific issue that Borja argues on appeal. See Tr. at 58-77 (Closing Args., Jury Instrs.); Appellant’s Br. at 8-10 (Nov. 21, 2016) (arguing the alternate jurors should have been dismissed because the jury had “retired”); Reply Br. at 6-7 (Jan. 12, 2017) (arguing the jury had “retired” within the meaning of 8 GCA § 85.45). Issues not raised by defendant at trial are reviewed for plain error. Katzuta, 2016 Guam 25 ¶ 15 (citation omitted). Plain error is error that is clear or obvious under current law and so affects the defendant’s substantial rights such that reversal is necessary to prevent a miscarriage of justice or to maintain the integrity of the judicial process. Id. Under the plain error standard, the defendant bears the burden of demonstrating that reversal is warranted. Id. (citation omitted).

[15] To bring a successful claim of ineffective assistance of counsel, a defendant must demonstrate two elements: (1) that counsel’s performance was deficient and (2) that this deficiency prejudiced his or her defense. People v. Quintanilla, 1998 Guam 17 ¶ 8 (adopting the test established in Strickland v. Washington, 466 U.S. 668, 687 (1984)). The benchmark for judging an ineffective assistance claim 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.” Strickland, 466 U.S. at 686. Although an ineffective assistance claim is better heard under a writ of habeas corpus because it usually requires an evidentiary inquiry beyond the record, a court may hear an ineffective assistance claim directly on appeal where the record is sufficiently complete to make a proper finding. E.g., People v. Ueki, 1999 Guam 4 ¶ 5.
[16] To establish the first element of deficient performance, a defendant must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Quintanilla, 1998 Guam 17 ¶ 9 (quoting Strickland, 466 U.S. at 687). We review the reasonableness of counsel’s conduct “on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. (quoting Strickland, 466 U.S. at 690). Considering the totality of the circumstances, the court must determine whether counsel’s conduct was “outside the wide range of professionally competent assistance.” Id. (quoting Strickland, 466 U.S. at 690). The court must keep in mind that counsel’s function “is to make the adversarial testing process work in the particular case,” and we give deference to defense counsel’s strategic decisions by “strongly presuming” counsel has “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. (quoting Strickland, 466 U.S. at 690); see also United States v. Snyder, 872 F.2d 1351, 1358 (7th Cir. 1989).
[17] In cases involving the specific question of counsel’s failure to object to improper character evidence, some courts have found deficient performance where the evidence is irrelevant or unfairly prejudicial. E.g., Hall v. State, 161 S.W.3d 142, 154 (Tex. App. 2005). However, courts have also found a failure to object can be a matter of sound trial strategy. See, e.g., Meseral, 2014 Guam 13 ¶ 52 (no deficiency for failure to repeatedly object when objection already made); Snyder, 872 F.2d at 1358 (no deficiency where failure to object was for legitimate reason and objection unlikely to be sustained); Graves v. State, 994 S.W.2d 238, 248 (Tex. App. 1999) (no deficiency where objection would have drawn attention to damaging statement).
[18] To demonstrate the second element of prejudice, the defendant must establish that there is a reasonable probability the result of the proceeding would have been different but for counsel’s errors. Quintanilla, 1998 Guam 17 ¶ 15 (citing Strickland

Supreme Court of Guam

People of Guam v Borja [2017] GUSC 20 (17 December 2017)