People of Guam v Pugh [2018] GUSC 14; 2018 Guam 14 (21 September 2018)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,
Plaintiff-Appellee,

v.

JOSEPH LEE PUGH,
Defendant-Appellant.

Supreme Court Case No.: CRA15-018
Superior Court Case No.: CF0572-12

AMENDED OPINION ON REHEARING

Filed: September 21, 2018

Cite as: 2018 Guam 14

Appeal from the Superior Court of Guam
Argued and submitted on February 11, 2016

Hagåtña, Guam

Appearing for Defendant-Appellant: James N. Spivey, Jr., Esq. Assistant Alternate Public Defender Alternate Public Defender 238 Archbishop F.C. Flores St., Ste. 902 Hagåtña, GU 96910

Appearing for Plaintiff-Appellee: Joseph B. McDonald, Esq. Assistant Attorney General Office of the Attorney General Prosecution Division 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.

CARBULLIDO, J.:
[1] On August 11, 2016, we issued an earlier opinion in People v. Pugh, 2016 Guam 22. The opinion overlooked the impact of unfairly prejudicial error on the defendant’s affirmative defenses. On rehearing, we determined that this court misapprehended this analysis. People v. Pugh, CRA15-018 (Order Granting Pet. Reh’g, June 14, 2017). We now issue this Amended Opinion, which supersedes our prior opinion in People v. Pugh, 2016 Guam 22, in its entirety.
[2] Defendant-Appellant Joseph Lee Pugh appeals his convictions for illegal possession of a concealed firearm, possession of a firearm without a firearm-identification card, and possession of an unregistered firearm. Pugh argues that the People’s evidence relating to an uncharged and unrelated burglary, where the weapon he possessed was stolen from its owner, was unfairly prejudicial and resulted in the denial of a fair trial. Additionally, Pugh asserts a Fifth Amendment violation due to a comment on his silence during questioning, made by a Guam Police Department officer testifying at trial. For the following reasons, we reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

[3] A grand jury returned an indictment charging Pugh with one count each of illegal possession of a concealed firearm under 10 GCA § 60121(c), possession of a firearm without a firearm-identification card under 10 GCA § 60121(e), possession of an unregistered firearm under 10 GCA § 60121(a), and reckless conduct under 9 GCA § 19.40(a)(2), as well as three counts of child abuse under 9 GCA § 31.30(a)(2)(C).
[4] Before trial, Pugh filed a memorandum indicating that he planned to assert duress or necessity as affirmative defenses to the weapons charges, claiming he feared for his safety and the safety of his family, following an altercation near his residence. Additionally, Pugh’s Motion in Limine sought to exclude evidence that the gun had been stolen, questioning the relevance to his charges, asserting it was overly prejudicial, could confuse the issues, and mislead the jury. Admitting this evidence, Pugh argued, would be a violation of Guam Rule of Evidence (“GRE”) 403, and would also constitute impermissible evidence of bad character or prior bad acts in violation of GRE 404(a) and (b). The People asserted that establishing that the gun belonged to another person and that the gun was stolen was necessary to show ownership by someone other than Pugh, and thus Pugh could not argue he acquired the gun legally and simply forgot to register it.^[1] The People also argued that evidence of the almost two-month gap between Pugh’s altercation and when the gun was stolen was relevant to undermine the affirmative defenses of duress or necessity. The trial court denied the motion to exclude evidence of the burglary, finding the evidence relevant and not unduly prejudicial in light of the People’s intended arguments.
[5] At trial, the People first put on evidence of the gun’s origin. John Travers testified that in July 2012, he bought a SIG Sauer P266 handgun in Las Vegas, Nevada, for his wife, Marthella, bringing it to Guam on August 12, 2012. Travers reported the gun missing after a burglary of their home on September 18, 2012. Travers also testified about getting in contact with the Guam Police, who had recovered the gun in the possession of Pugh, after identifying the serial number. He identified photographs of the weapon in court, matching the serial number with his records. On cross-examination, both of the Traverses admitted they had no way of knowing how the weapon ended up in Pugh’s hands, or if he was involved in the burglary of their home. The Traverses also testified that they were able to obtain firearm-identification cards in ten and thirty days’ time.
[6] Following the Traverses’ testimony, Pugh moved for a mistrial, reasserting that evidence of the gun being stolen was not relevant to prove it was unregistered, and regardless, any relevance was outweighed by the risk of unfair prejudice. The trial court denied the motion for the same reasons that it allowed the evidence in the first place and expressed concern that Pugh had asked questions on cross-examination regarding the subject he claimed was grounds for a mistrial.
[7] In large part, the trial court allowed the testimony to disprove an affirmative defense explaining why Pugh was in possession of an unregistered gun. Pugh had asserted the defense of necessity, based on an altercation at his home that transpired almost three months before the burglary. Pugh’s live-in partner, Vanessa Aguilo, testified that a group of neighbors attacked Pugh with rocks and a kitchen knife, resulting in his injury. L.P., Pugh’s minor daughter, similarly described this incident. Officer Benjamin Palomo of the Guam Police Department testified that he responded to the fight at Pugh’s home, taking a report of the incident that Aguilo had described in court. Aguilo further testified that it was her understanding that Pugh obtained the gun for their family’s protection following this incident, claiming that she still felt threatened by their neighbors. On cross-examination, Aguilo admitted she did not know where Pugh had obtained the weapon, or whether he had the proper license.
[8] Pugh was arrested for the current charges about a month after the burglary. Guam Police Officers Donny Pangelinan and William Naval responded to reports of a man with three children pointing a gun at several individuals who had been following or approaching them. The officers located Pugh, who matched the caller’s description, in the parking lot of Harmon Drugs. Finding him nervous, the officers patted Pugh down, recovering the gun. Officer Pangelinan testified that when asked, Pugh stated he possessed the correct documents for possession of the gun, but did not have them on his person at the time of the arrest. Officer Pangelinan continued:

I inquired if he had pointed the firearm at anybody. He stated that he has no idea what I’m talking about. Then when I inquired as to where he had acquired the firearm, he stated he does not want to speak to me any further.
Transcript (“Tr.”) at 83 (Jury Trial, Jan. 30, 2015) (emphasis added). Upon this comment, Pugh objected and moved for a mistrial on the grounds that this comment violated his Fifth Amendment right to remain silent. The People asserted that the officer’s comment was simply an ill-phrased indication that the conversation ended at that point. The trial court denied the motion for a mistrial and overruled the objection. Pugh did not move to strike the testimony. Notably, the People did not comment on this testimony during the remaining portions of the trial.
[9] Lorraine Alcantara of the Guam Police Department testified that while a firearm-identification card is required to register a gun and obtain a concealed permit, Pugh possessed no registration or firearm-identification card. John Tyquiengco, of the Firearm Identification Unit, testified that the gun indeed was a functioning firearm.
[10] Finally, the People called private investigator Agnes Blas without objection as a rebuttal witness. Blas was hired by the Traverses to investigate the burglary of their home which resulted in Blas interviewing Aguilo, who had testified as to not remembering the substance of this conversation. The People wished to show that, contrary to her testimony at trial, Aguilo had told Blas that she was not aware of Pugh owning a gun for protection, which presumably tended to undermine the defense of necessity. A controversy then arose over how Blas had obtained Aguilo’s name in the investigation of the burglary. Blas testified that after receiving a list of possible witnesses from Marthella Travers, she “was able to locate [Aguilo].” Tr. at 7 (Jury Trial, Feb. 5, 2015). Pugh objected that this testimony could be wrongly interpreted as evidence that Pugh committed the Travers burglary, casting him in a prejudicial light to the jury. The People responded that Blas simply stated that she received the name during her investigation, and the trial court found no violation, advising that Pugh could inquire into the subject. On cross-examination, Pugh asked Blas if she had obtained Pugh or Aguilo’s name based only on Pugh’s arrest. Blas responded, “No, that’s incorrect.” Id. at 10. Pugh immediately ceased questioning and objected that this testimony was irrelevant and overly prejudicial in implying Pugh was a suspect, and tending to implicate him in the burglary. The trial court overruled the objection. Pugh then moved for another mistrial for the same reasons given for his objection. The People responded that Blas had not stated that Pugh committed the burglary, and that the purpose of her testimony was to show the timeline of when the gun was stolen, helping to rebut Pugh’s affirmative defense. The trial court denied the motion for mistrial, noting that it could give curative instructions if Pugh so desired—an offer that was not accepted. Pugh next moved for judgment of acquittal on the child abuse charges under 8 GCA § 100.10, which the court also denied.
[11]