People of Guam v Kanistus [2017] GUSC 26 (29 December 2017)

IN THE SUPREME COURT OF GUAM

THE PEOPLE OF GUAM,

Plaintiff-Appellee,

v.

BERNARDINO R. KANISTUS,

Defendant-Appellant.

Supreme Court Case No.: CRA16-010
Superior Court Case No.: CF0281-15

OPINION

Filed: December 29, 2017
Cite as: 2017 Guam 26

Appeal from the Superior Court of Guam
Argued and submitted on March 2, 2017
Hagåtña, Guam

Appearing for Defendant-Appellant: Leevin T. Camacho, Esq. Law Office of Leevin T. Camacho 194 Hernan Cortez Ave., Ste. 216 Hagåtña, GU 96910

Appearing for Plaintiff-Appellee: Yoav S. Sered, Esq. Assistant Attorney General Office of the Attorney General Prosecution Division 590 S. Marine Corps Dr. Tamuning, GU 96913

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

CARBULLIDO, J.:
[1] Defendant-Appellant Bernardino R. Kanistus appeals his conviction by jury for attempted murder, arguing the trial court erred by giving deficient jury instructions that did not require the jury to find the proper mens rea to support his conviction on a theory of accomplice liability. In response, Plaintiff-Appellee People of Guam (the “People”) maintain that the trial court’s instructions were sufficient under People v. Diego, 2013 Guam 15, and People v. Demapan, 2004 Guam 24.
[2] For the reasons stated herein, we affirm the conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

[3] Kanistus and Saul Sos got into an argument that escalated into a physical altercation.^[1] BJ Johnny,^[2] Kanistus’s co-defendant, began shooting pieces of rebar at Sos using a slingshot. Sos then ran at Johnny wielding a machete, which he subsequently used to attack Johnny.^[3]
[4] Kanistus, Johnny, and a third co-defendant, Siren Nathan, all ended up fighting with Sos. During the melee, Kanistus got behind Sos and started choking him. While this was happening, Johnny and Nathan struck Sos’s head and legs with machetes. The fight continued until witnesses intervened, with one witness striking Kanistus in the face with her fist. After being struck, Kanistus and the other co-defendants stopped their attack. When the fight was over, Kanistus, Johnny, and Nathan got into a car while Sos remained lying unconscious on the ground. Kanistus sat on the passenger seat, Nathan sat on the back seat, and Johnny sat on the driver’s seat. Johnny then drove the vehicle over Sos’s legs.
[5] The People initially charged Kanistus with two counts of Attempted Murder and two counts of Aggravated Assault. The People alleged for the first count of Attempted Murder that Kanistus “intentionally or knowingly attempt[ed] to cause” Sos’s death and, by way of special allegation, that he used an automobile to do so. The People based its second count on the theory that Kanistus had aided and abetted Johnny and Nathan. This second count read:

On or about the 2^nd day of May 2015, in Guam, [Kanistus] did commit the offense of Attempted Murder, in that he did, with the intention of promoting or assisting in the commission of attempted murder, a violation of 9 GCA §§ 16.40(a)(1) and 13.10, induce and aid [Johnny] and [Nathan] to commit attempted murder, by restraining [Sos] while [Johnny] and [Nathan] struck him with a machete, in violation of 9 GCA § 4.60.

Record on Appeal (“RA”), tab 15 at 4-5 (Indictment, May 14, 2015). The Superseding Indictment and Amended Superseding Indictment returned against Kanistus contained the identical charge of attempted murder based on the theory that Kanistus had aided and abetted Johnny and Nathan—identified as the Fifth Charge. The Indictments also contained a charge of attempted murder, which included a special allegation of possession and use of a deadly weapon—an automobile—in the commission of a felony, which was identified as the Seventh Charge.
[6] After the close of evidence, the trial court instructed the jury that the following were the essential elements of the Fifth Charge, Attempted Murder based on the theory of aiding and abetting:

[T]he essential elements of attempted murder as a first-degree felony, charge five -- the People must prove beyond a reasonable doubt that [Kanistus], one, on or about the 2nd day of May, 2015, two, in Guam, three, did with the intention of promoting or assisting in the commission of attempted murder, four, induce and aid [Johnny] and [Nathan] to commit attempted murder by restraining [Sos] while [Johnny] and [Nathan] struck him with a machete. He did not act in reasonable self-defense, five.
See Tr. at 225 (Jury Trial, July 17, 2015). The trial court gave the following instruction to the jury regarding the Seventh Charge of Attempted Murder:

[T]he essential elements of attempted murder as a first-degree felony, noted in charge seven of the indictment against [Kanistus] – and it reads, the People must prove beyond a reasonable doubt that on or about the 2nd day of May, 2015, two, in Guam, three, he intentionally or knowingly attempted to cause the death of another human being, that is, [Sos].
Id. at 227. The jury was also instructed on self-defense and mere presence. Importantly, before providing the jury with instructions on attempted murder based on the theory of aiding and abetting and on attempted murder itself, the trial court also provided the jury with instructions on complicity and criminal homicide as to both defendants. The trial court read the following complicity instruction to the jury:

[G]uilt established by complicity -- a person is guilty of an offense if, with the intention of promoting or assisting in the commission of the offense, he induces or aids another person to commit the offense.
Id. at 211-12. The trial court also read the following criminal homicide instruction to the jury:

[M]urder defined -- criminal homicide constitutes murder when it is committed intentionally or knowingly or is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Murder is a felony of the first degree.
Id.