People v. Tedtaotao, (2016)

2016 Guam 9

PEOPLE OF GUAM, Plaintiff-Appellee, v. ALBERT TORRES TEDTAOTAO, Defendant-Appellant.

Supreme Court Case No.: CRA14-026

SUPREME COURT OF GUAM

Argued and submitted: August 10, 2015

March 14, 2016

Superior Court Case No.: CF0135-13

OPINION

Appeal from the Superior Court of Guam

Argued and submitted on August 10, 2015

Hagåtña, Guam

Appearing for Defendant-Appellant:

Peter C. Perez, Esq.

Law Office of Peter C. Perez

238 Archbishop Flores St., Ste. 802

Hagåtña, GU 96910

Appearing for Plaintiff-Appellee:

Brian D. Gallagher, Esq.

Assistant Attorney General

Office of the Attorney General

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.

TORRES, C.J.:

[1] Defendant-Appellant Albert Torres Tedtaotao appeals a final judgment following his criminal convictions for Burglary and Theft of Property in a jury trial, claiming that the trial court's numerous evidentiary errors warrant reversal of his convictions and vacating the judgment. For the reasons set forth herein, we affirm the judgment of the trial court.

I. FACTUAL AND PROCEDURAL BACKGROUND

[2] This case arises from Tedtaotao's criminal convictions for Burglary (Second Degree Felony) and Theft of Property (Third Degree Felony, as a lesser included offense of Theft of Property as a Second Degree Felony). The conduct underlying these charges involved an early morning convenience store break-in, in which the store owner and alleged victim, Mr. Kwang Mun Yu ("Yu"), responded to an alarm notification and encountered two burglars in the act of stealing his money and property, one of whom was purportedly Tedtaotao. Tedtaotao was indicted on one count each of Burglary and Theft of Property.

[3] At trial, during the prosecution's case-in-chief, Guam Police Officer Peter Paulino testified that he interviewed the alleged victim, Yu. He then testified, over Tedtaotao's objection, as to the answers Yu provided during the interview. Officer Paulino testified that Yu arrived at the store, noticed the damaged entrance, and observed a male exiting the store. He noted Yu's description of the man, and relayed the events of Yu's pursuit of him, explaining that Yu had recounted being attacked by the male, striking his assailant as the man attempted to enter a vehicle, and damaging the taillight of said vehicle. Officer Paulino conveyed Yu's statements that the cash register drawer had been removed, that around $150.00 was missing, and that a trash bag had been filled with cartons of cigarettes. Officer Paulino further testified that Yu allowed him to view the CCTV surveillance video showing the burglary and events Yu had described. In addition, Officer Paulino asserted that Yu's statements to him were corroborated by the video footage of the encounter.

[4] Yu testified that he was awoken early on the morning of December 16, 2012, by an automated phone call from his alarm system alerting him to a break-in. He stated that he arrived at his store prior to its normal operating hours to find one of the entrances damaged. He encountered a large man nearly a foot taller than himself and engaged him in an altercation as the man made his escape. Yu described pursuing the burglars to their getaway car, damaging the taillight and noting the license plate number. Additionally, Yu recounted returning to his store and discovering that the cash register had been broken and many cartons of cigarettes had been removed from their display and collected into a trash bag.

[5] Yu also testified regarding a surveillance video that he had shown to police from his CCTV system, as well as his preparation in copying an excerpt of the footage, which was then admitted into evidence and presented to the jury over Tedtaotao's objection.

[6] The People also presented testimony from Officer Donald Nakamura regarding his attempts to identify the individuals pictured in the surveillance video. Officer Nakamura testified that he had recognized one of the individuals as one Raymond Tedtaotao.¹ He began to explain an interaction with an informant regarding Tedtaotao, but the court sustained an objection for hearsay (though the testimony was not stricken from the record). Officer Nakamura thereafter testified that he presented the video footage of the crime to Probation Officer Leo Diaz and Parole Officers Dean Taitague, Ronald Santos, and Mark Fleming, who allidentified Tedtaotao in the videos. Officers Fleming and Santos testified at trial as well, identifying Tedtaotao in court as the man depicted in the video footage.

[7] The jury returned a verdict finding Tedtaotao guilty of the crimes of Burglary (Second Degree Felony) and Theft of Property (Third Degree Felony, as a lesser included offense of Theft of Property as a Second Degree Felony). The trial court sentenced Tedtaotao to ten years of incarceration and ordered him to attend the first available Residential Substance Abuse Treatment Program ("RSAT").

[8] Tedtaotao timely filed a Notice of Appeal challenging his convictions.

II. JURISDICTION

[9] This court has jurisdiction over appeals from a final judgment of the Superior Court pursuant to 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 114-114 (2015)); 7 GCA §§ 3107 and 3108 (2005); and 8 GCA § 130.15 (2005). This is an appeal of a final judgment issued by the Superior Court. See Record on Appeal ("RA"), tab 83 (Judgment, Nov. 10, 2014).

III. STANDARD OF REVIEW

[10] This court "review[s] the trial court's ruling on the admissibility of evidence for an abuse of discretion." People v. Tuncap, 2014 Guam 1 ¶ 12; see also People v. Muritok, 2003 Guam 21 ¶ 32. "Specifically, a trial court's decision concerning the admission of evidence over a hearsay objection is reviewed under an abuse of discretion standard." People v. Roten, 2012 Guam 3 ¶ 13; see also People v. Hayes, No. CR-92-00140A, 1993 WL 469357, at *2 (D. Guam App. Div. Oct. 12, 1993).

[11] We review admission of evidence of prior similar bad acts under Rule 404(b) of the Guam Rules of Evidence ("GRE") for an abuse of discretion. People v. Evaristo, 1999 Guam 22 ¶ 6 (citing United States v. Santiago, 46 F.3d 885, 888 (9th Cir. 1996)); see also People v. Quintanilla, 2001 Guam 12 ¶ 9. "However, the trial court's determination of whether the evidence falls within the scope of Rule 404(b) is reviewed de novo." People v. Palisoc, 2002 Guam 9 ¶ 7 (citing United States v. Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir. 1993)). The trial court's analysis under GRE 403 is subject to review for an abuse of discretion. Evaristo, 1999 Guam 22 ¶ 6 (citation omitted).

[12] Where the trial court has abused its discretion in admitting certain evidence, the proper standard for evaluating whether reversal is required is the harmless error standard. See People v. Jesus, 2009 Guam 2 ¶¶ 53-55. "The test for harmless error is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." People v. Flores, 2009 Guam 22 ¶ 112 (quoting Neder v. United States, 527 U.S. 1, 15 (1999)) (internal quotation marks omitted).

IV. ANALYSIS

A. Whether the Trial Court Erred in Admitting Video Footage of the Burglary

[13] Tedtaotao begins by challenging the admission of video footage that was copied from a CCTV system via recording on a smartphone and transferred to a USB drive. Appellant's Br. at 14-16 (Apr. 1, 2015). Tedtaotao argues that such evidence was not properly authenticated under GRE 901 and that the court erred in admitting the video without considering the relevant factors articulated by this court for determining whether video evidence has been properly authenticated. Id.

[14] Both parties correctly call attention to this court's prior decision in Tuncap, 2014 Guam 1, in which we directly addressed the standard for determining admissibility of a surveillance video. Tedtaotao is correct that this court did provide specific factors relevant to deciding whether video evidence has been properly authenticated, including:

[T]estimony about (1) how the recording system operates, (2) the system's working condition and pattern of maintenance, (3) who operates the system, has access to it, and maintains its archive of recordings, (4) the quality of the recording, and (5) the means by which the recording was copied to the format viewed at trial.

Tuncap, 2014 Guam 1 ¶ 35. However, this court also explicitly cautioned that this list of factors was not required in every case and that the trial court maintains flexibility to consider relevant factors specific to the case before it. Id. In doing so, we emphasized that these factors were merely guidelines to aid the trial court's consideration of specific circumstances, rather than a rigid set of tests to be satisfied. Id. ¶ 34. This court further explained in detail how video evidence might be properly authenticated even absent the satisfaction of these factors, stating:

Where testimony about the system is lacking, testimony about the particular recording and the events it recorded may still be "sufficient to support a finding that the matter in question is what its proponent claims." To authenticate in this manner, the trial court should look to when and where the video was first viewed by the testifying witness. If the video is viewed at the scene soon after the event in question and is viewed not from a copy but directly from the system established on-site, there is little to no risk of tampering or editing the tape. To confirm this reasoning, there should also be an affirmance that the contents of the recording viewed contemporaneously with the recorded event are the same as the contents of the recording sought to be introduced into evidence. Authentication can be bolstered where the testifying witness was present at the scene of the recorded event soon after it happened and acknowledges that the recording depicts events that match with the scene observed. Such testimony would further

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