People v. Cruz, (2023)

2023 Guam 1

PEOPLE OF GUAM, Plaintiff-Appellee, v. JEFFREY GUERRERO CRUZ, Defendant-Appellant.

No. CRA21-007

Supreme Court of Guam

February 22, 2023

Argued and submitted on March 23, 2022 Via Zoom video conference

Appeal from the Superior Court of Guam Case No. CF0301-18.

Appearing for Defendant-Appellant: F. Randall Cunliffe, Esq. Cunliffe &Cook A Professional Corporation

Appearing for Plaintiff-Appellee: Christine Santos Tenorio Esq. (briefed) Stephanie E. Mendiola, Esq. (argued) Office of the Attorney General Prosecution Division BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice; and KATHERINE A. MARAMAN, Associate Justice. ^[1]

OPINION

MARAMAN, J.

[1] Defendant-Appellant Jeffrey Guerrero Cruz appeals from a judgment of conviction on two counts of Second Degree Criminal Sexual Conduct (as a First Degree Felony) against minor victim K.T.C. On appeal, Cruz asserts ineffective assistance of counsel, challenging trial counsel's stipulation to admit prejudicial evidence, failure to cross-examine K.T.C. regarding the allegations, and trial counsel's demeanor throughout the trial and closing argument. We reject Cruz's argument and affirm the judgment of conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

[2] Jeffrey Guerrero Cruz was accused of, and arrested for, inappropriately touching minor victim K.T.C. while babysitting K.T.C. and her siblings. During the trial, K.T.C. testified that Cruz was helping her with homework when he touched her vagina. K.T.C. testified that she told Cruz to "stop" and tried to push him away before asking to use the restroom. Instead of using the restroom, K.T.C. went next door and sought help from family members. K.T.C. stated that she informed her godmother and grandmother that Cruz had touched her vagina. K.T.C. then called her mother, who was driving K.T.C.'s father to work, so K.T.C. could speak with her about what had happened. At some point during the conversation, K.T.C.'s mother recorded the call. During the call, K.T.C. told her mother that Cruz had touched her vagina, and that Cruz made her touch his genitals. K.T.C.'s parents returned home and confronted Cruz, after which the police were called.

[3] An indictment was filed against Cruz, charging him with Second Degree Criminal Sexual Conduct (as a First Degree Felony) against minors K.R.T. (Counts One and Two), K.T.C. (Counts Three, Four, and Eight), K.N.T. (Counts Five and Six), and K.S.C. (Count Seven). The original indictment was later amended to dismiss Count Four.

[4] During the trial, Cruz's defense counsel stipulated with Plaintiff-Appellee People of Guam ("People") to admit into evidence the recording of K.T.C.'s conversation with her parents, in which K.T.C. alleged that in addition to Cruz touching her vagina, Cruz made her touch his genitals (Count Seven, formerly Count Eight). On the stand, K.T.C. testified that Cruz had touched her vagina (Count Three), but she did not testify that Cruz had caused her to touch his genitals (Count Seven, formerly Count Eight). The recording of the phone call between K.T.C. and her parents was played to the jury while K.T.C. was on the witness stand, but the prosecutor stopped the playback after about a minute, before the part of the recording about Count Seven-i.e., where K.T.C. reports that Cruz made her touch his genitals. During cross-examination, Cruz's counsel did not question K.T.C. regarding the recording or Count Three, nor did he press her on omitting testimony on Count Seven. Before the People rested its case, the prosecutor sought to replay the recording of the phone call between K.T.C. and her parents, explaining to the judge at sidebar he had interrupted the earlier playback while K.T.C. was on the stand because he could see that she was becoming upset. The judge noted that the video had been admitted into evidence, and defense counsel agreed. The prosecutor played the entire recording to the jury during closing arguments. Defense counsel replayed several parts of the recording during his closing arguments.

[5] The jury found Cruz guilty of Counts Three and Seven. Cruz was acquitted of Counts One, Two, Four, Five, and Six. Cruz timely appealed.

II. JURISDICTION

[6] This court has jurisdiction over an appeal from a final judgment of conviction under 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 117-262 (2022)), 7 GCA §§ 3107 and 3108(a) (2005), and 8 GCA § 130.15(a) (2005).

III. STANDARD OF REVIEW

[7] "Ineffective assistance of counsel claims are mixed questions of law and fact, which we review de novo." People v. Guerrero, 2017 Guam 4 ¶ 18 (quoting People v. Meseral, 2014 Guam 13 ¶ 13). Although an ineffective assistance of counsel claim may be heard on direct appeal, these claims are typically more appropriately brought on a petition for a writ of habeas corpus, as these claims usually require an "evidentiary inquiry beyond the official record." People v. Leon Guerrero, 2001 Guam 19 ¶ 12 (quoting People v. Root, 1999 Guam 25 ¶ 14); see also Guerrero, 2017 Guam 4 ¶ 60. This court has, however, reviewed ineffective assistance of counsel claims if the record is "sufficiently complete to make a proper finding." People v. Moses, 2007 Guam 5 ¶ 9 (quoting Leon Guerrero, 2001 Guam 19 ¶ 12).

IV. ANALYSIS

A. The Strickland Test

[8] The Sixth Amendment states that "the accused shall enjoy the right . . . to have the Assistance of Counsel for his defen[s]e." U.S. Const. amend. VI. The Organic Act confers this same right to criminal defendants in Guam. See 48 U.S.C.A. § 1421b(g) (Westlaw through Pub. L. 117-262 (2022)) ("In all criminal prosecutions the accused shall have the right . . . to have the assistance of counsel for his defense."). In determining whether a defendant was deprived of effective assistance of counsel, this court uses a two-part test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). Guerrero, 2017 Guam 4 ¶ 59. The first part requires that a defendant demonstrate that his trial counsel's performance was deficient and fell below prevailing professional norms. The second part requires that the defendant prove the deficient performance prejudiced him and deprived him of a fair trial. Strickland, 466 U.S. at 687; see also Angoco v. Bitanga, 2001 Guam 17 ¶ 8; Guerrero, 2017 Guam 4 ¶ 59.

[9] To fulfill the first prong of Strickland, Cruz must show that "the behavior complained of falls below prevailing professional norms." United States v. McMullen, 98 F.3d 1155, 1158 (9th Cir. 1996) (citing Strickland, 466 U.S. at 689). To prove deficient performance, the defendant must show "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. An inquiry into counsel's performance probes "whether counsel's assistance was reasonable considering all the circumstances." Id. at 688. Significantly, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689; see also Moses, 2007 Guam 5 ¶ 42 ("High deference is given when reviewing an attorney's performance."). In engaging in such an inquiry, "[the] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Meseral, 2014 Guam 13 ¶ 46 (quoting Strickland, 466 U.S. at 689).

[10] To satisfy the second prong and establish prejudice by counsel's ineffective assistance, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. Cruz must "affirmatively prove prejudice" to support his claim. Id. at 693. Both prongs of the Strickland analysis must be satisfied for Cruz to show ineffective assistance of counsel. Id. at 697.

[11] Cruz now urges that, during trial proceedings, counsel made several errors that constituted ineffective assistance. Specifically, Cruz challenges trial counsel's stipulation to admit into evidence the recording of K.T.C.'s call with her parents, counsel's failure to cross-examine K.T.C. regarding the two counts of Second Degree Criminal Sexual Conduct, and counsel's demeanor throughout the trial and closing argument.

1. Cruz's stipulation with the People

[12] Cruz claims that trial counsel's stipulation to admit the recorded call constituted deficient performance, as it prejudiced the trial's outcome by introducing evidence of Count Seven, which K.T.C. did not testify to at trial. Appellant's Br. at 8 (Aug. 30, 2021). Cruz further contends that the stipulation constituted ineffective assistance because the admission of the recording was purely detrimental and provided him no benefit. Id. The People dispute this, arguing that the stipulation was not ineffective assistance because it was part of trial counsel's overall strategy. Appellee's Br. at 3, 5-7 (Sept. 29, 2021).

[13] "Courts have 'liberally enforced' agreements to waive" evidentiary rules, and the U.S. Supreme Court has held that "agreements to waive hearsay objections are enforceable." United States v. Mezzanatto, 513 U.S. 196, 202 (1995). Stipulations, which by nature signal the intentional relinquishment of all rights to challenge the admissibility of the stipulated evidence, are clear examples of waiver. United States v. Aptt, 354 F.3d 1269 1281 (10th Cir. 2004). Existing case law is clear that parties can waive a hearsay objection by stipulation, "and a stipulation is...