People of Guam v. Jeffrey Guerrero Cruz

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,
Plaintiff-Appellee,

v.

JEFFREY GUERRERO CRUZ,
Defendant-Appellant.

Supreme Court Case No. CRA21-007
Superior Court Case No. CF0301-18

OPINION

Cite as: 2023 Guam 1

Appeal from the Superior Court of Guam
Argued and submitted on March 23, 2022
Via Zoom video conference

Appearing for Defendant-Appellant: Appearing for Plaintiff-Appellee:
F. Randall Cunliffe, Esq. Christine Santos Tenorio, Esq. (briefed)
Cunliffe & Cook Stephanie E. Mendiola, Esq. (argued)
A Professional Corporation Office of the Attorney General
210 Archbishop Flores St., Ste. 200 Prosecution Division
Hagåtña, GU 96910 590 S. Marine Corps Dr., Ste. 801
Tamuning, GU 96913
People v. Cruz, 2023 Guam 1, Opinion Page 2 of 17

BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice;
and KATHERINE A. MARAMAN, Associate Justice.1

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.

1
The signatures in this opinion reflect the titles of the justices at the time this matter was argued and
submitted.
People v. Cruz, 2023 Guam 1, Opinion Page 3 of 17

[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.
People v. Cruz, 2023 Guam 1, Opinion Page 4 of 17

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
People v. Cruz, 2023 Guam 1, Opinion Page 5 of 17

¶ 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
People v. Cruz, 2023 Guam 1, Opinion Page 6 of 17

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

binding unless it creates ‘manifest injustice’ . . . or was made inadvertently or on the basis of a

legal or factual error.” Pittman by Hamilton v. County of Madison, 863 F.3d 734 (7th Cir. 2017);
People v. Cruz, 2023 Guam 1, Opinion Page 7 of 17

see, e.g., Hawkins v. Hannigan, 979 F. Supp. 1397, 1405 (D. Kan. 1997) (finding no habeas corpus

relief warranted by defendant’s stipulation to admit hearsay evidence of victim because “[i]t is

clear that constitutional rights can be waived”), aff’d, 185 F.3d 1146 (10th Cir. 1999).

[14] When conduct is “legitimate trial strategy,” it cannot provide the basis for a claim of

ineffective assistance of counsel. In re Dependency of S.M.H., 115 P.3d 990, 999 (Wash. Ct. App.

2005). Scrutiny of counsel’s performance is highly deferential, and the conduct of trial counsel

need not be perfect to fall within the wide range of reasonable professional assistance. See

Strickland, 466 U.S. at 669. “We presume that counsel’s choices at trial fall under the wide range

of reasonableness and professionalism granted to [counsel]; and reasonable choices of trial

strategy, no matter how ill-fated they appear in hindsight, cannot alone serve as a basis for a claim

of ineffective assistance.” Harding v. State, 613 S.W.3d 522, 531 (Mo. Ct. App. 2020).

[15] Other jurisdictions have considered the challenge now posed by Cruz: stipulations during

trial proceedings and subsequent ineffective assistance of counsel claims. In State v. Mederos, the

Supreme Court of Montana determined that the defendant’s stipulation to introduce video

recordings of the victims’ forensic interviews was a strategic move, as counsel used the recording

to highlight inconsistencies between testimony at trial and during the forensic interviews. 312

P.3d 438, 443-44 (Mont. 2013). Counsel was found to have acted within “prevailing professional

norms,” as the stipulation could help the defendant’s case and was therefore reasonable

professional assistance. Id. at 444.

[16] Similarly, in Hawkins v. Hannigan, the U.S. District Court for the District of Kansas found

no ineffectiveness in defense counsel’s stipulation to the admission of hearsay evidence of the

victim’s identification of the defendant as her assailant. 979 F. Supp. at 1401-03. The court

determined that the stipulation reflected a strategic choice to keep the frail and elderly victim from
People v. Cruz, 2023 Guam 1, Opinion Page 8 of 17

taking the stand, and defense counsel used the audiotaped testimony of the victim to highlight

inconsistencies between the victim’s description of her assailant and her identification of the

defendant. Id. at 1402. The Tenth Circuit affirmed, finding that “counsel’s decision to enter the

stipulation was a matter of prudent trial strategy.” Hawkins v. Hannigan, 185 F.3d 1146, 1155

(10th Cir. 1999).

[17] In Curtis v. State, the Indiana Court of Appeals found that trial counsel’s decision to

stipulate to the admission of children’s pretrial hearsay statements alleging sexual abuse by the

defendant did not amount to ineffective assistance of counsel. 905 N.E.2d 410, 414-15 (Ind. Ct.

App. 2009). The court agreed with the post-conviction court’s finding that counsel stipulated to

the admission of the children’s statements “because they ‘were different, inconsistent, and bizarre’

and therefore would serve to give the defense ‘the upper hand in creating reasonable doubt.’” Id.

at 414. The Court of Appeals concluded that counsel’s stipulation was strategic and did not rise

to the level of ineffective assistance, even though the children never testified at trial about the

sexual abuse. See id. at 415.

[18] Here, comparable to the attorneys in Mederos, Hawkins, and Curtis, Cruz’s counsel’s

stipulation to admit the recording into evidence was a strategic choice. Trial counsel tried to use

the recording to attack and discredit K.T.C.’s parents, see Transcript (“Tr.”) at 68-70 (Jury Trial,

Nov. 6, 2019); Tr. at 130-32 (Jury Trial, Nov. 8, 2019), to cast doubt on K.T.C.’s testimony, see

id. at 148, 150, 152 (Jury Trial, Nov. 8, 2019), and to suggest possible motives behind the

allegations, see id. at 166, 172; Tr. at 11 (Jury Trial, Nov. 6, 2019) (explaining on first day of trial

the “theory” behind Cruz’s defense was that the parents used their influence to “force these

children to say that [Cruz touched them]”). We agree with the People that this strategy is

exemplified throughout the record. Specifically, counsel demonstrated this strategy by: (1)
People v. Cruz, 2023 Guam 1, Opinion Page 9 of 17

initially objecting to the recording as hearsay and refusing to agree to the introduction of the

recorded call before K.T.C.’s testimony, though admitting a desire to eventually introduce the

recording when K.T.C. testified, see Tr. at 2-10, 122 (Jury Trial, Nov. 6, 2019); (2) not challenging

K.T.C. during cross-examination about omitting Count Seven from her testimony, see id. at 128-

50; (3) moving for a judgment of acquittal on Count Seven, based on the argument that the

recording was not substantive evidence and that K.T.C.’s statements during the call were

inconsistent with her testimony, see Tr. at 87-88, 92-95 (Jury Trial, Nov. 7, 2019) (“The biggest

problem with this is that [K.T.C.] got up on the stand and did not say this allegation at all. She put

on no evidence of it. What the Prosecution is going to tell you is that the video claims that but that

is not substantive evidence. I cannot cross examine a video.”); (4) centering closing arguments

around the recording to attack K.T.C.’s parents by maintaining that K.T.C.’s father was under the

influence of drugs and had coached K.T.C. and her siblings to lie, see Tr. at 128-77 (Jury Trial,

Nov. 8, 2019) (“It’s so proven on there it’s not even funny that that drug addict of a human being

[K.T.C.’s father] -- he is. He’s a major drug addict and an evil person just by the testimony.”);

and (5) discrediting K.T.C.’s testimony by comparing the recording to her statements on the stand,

arguing that K.T.C.’s parents had asked her leading questions while recording to supply

allegations, see id. at 135-36, 140 (“[K.T.C.] doesn’t really say it. [K.T.C.’s father] keeps saying

crazy things, and she’s like going yes, no, yes, no, yes, no. Okay. That’s how you train a child to

do something. You get in their face and start demanding this is what happened and then one time

he says remember.”).

[19] Considering these instances, we recognize that the admission of the recording into evidence

was essential to trial counsel’s deliberate strategy to show the allegations were fabricated. While

the admission may not have materialized as counsel intended, being the only evidence of Count
People v. Cruz, 2023 Guam 1, Opinion Page 10 of 17

Seven, the strategy was successful in aiding in Cruz’s acquittal on the other charges. See Tr. at 43

(Jury Trial, Nov. 12, 2019). The stipulation was strategic, and taken in this light, counsel’s actions

do not appear to fall below an objective standard of reasonableness. Cruz’s stipulation with the

People, as a legitimate trial strategy, cannot be the basis for an ineffective assistance of counsel

claim.2

2. Trial counsel’s failure to cross-examine K.T.C.

[20] Next, Cruz challenges trial counsel’s failure to question K.T.C. about the incidents for

which Cruz was convicted. Cruz alleges “counsel’s failure to inquire into the circumstances of the

alleged incidents precluded him from being able to reasonably argue that the incidents did not

occur, or could not have occurred as testified to.” Appellant’s Br. at 10.

a. Prong One: Deficient Performance

[21] Instead of cross-examining K.T.C. about the acts committed by Cruz, trial counsel cross-

examined K.T.C. and her siblings about the layout of the room where the incident took place, about

their relationship with their parents, and about whether Cruz had ever been “mean” to them. See

Tr. at 137-49, 176-81 (Jury Trial, Nov. 6, 2019); Tr. at 19-31, 53-69 (Jury Trial, Nov. 7, 2019).

[22] It is not an uncommon tactic for defense counsel to avoid cross-examining victims of

criminal sexual conduct about the sex acts performed. For example, in Tucker v. State, the

defendant argued that trial counsel was ineffective for failing to cross-examine the victims about

2
Before the stipulation to introduce the recording was made, the People argued that the recording could be
admitted under the excited utterance exception. Tr. at 42 (Jury Trial, Nov. 5, 2019). But because of the stipulation,
the trial court did not make an evidentiary ruling on this hearsay exception. See Tr. at 2, 5-10 (Jury Trial, Nov. 6,
2019). The People argue that the stipulation was not ineffective assistance because the recording would have been
admissible as an excited utterance regardless of the stipulation. Appellee’s Br. at 8-10 (Sept. 29, 2021). However, as
an appellate court, we are limited to the review of errors and rulings made by the trial court. In instances where the
trial court does not rule on evidentiary matters, “it is not the function of an appellate court to make such evidentiary
rulings in the first instance.” Mateel Env’t Just. Found. v. Edmund A. Gray Co., 9 Cal. Rptr. 3d 486, 496 (Ct. App.
2003) (quoting Sambrano v. City of San Diego, 114 Cal. Rptr. 2d 151, 159 (Ct. App. 2001)). Even so, because Cruz
waived this hearsay objection by stipulating to the introduction of the recording, we need not address the excited
utterance contention further.
People v. Cruz, 2023 Guam 1, Opinion Page 11 of 17

the inconsistencies in their accounts of sexual abuse. 468 S.W.3d 468, 474 (Mo. Ct. App. 2015).

The court disagreed, finding that trial counsel’s decision to avoid cross-examining the child sex

abuse victims altogether, and instead cross-examining the victims’ mother to reinforce the theory

that the mother made the children fabricate the sex abuse allegations, was a strategy to avoid

further upsetting the victims in front of the jury. Id. at 474-75. Because of the circumstances, this

strategic decision was considered reasonable and did not constitute ineffective assistance. Id. at

475.

[23] In Jackson v. State, the Supreme Court of Wyoming determined that counsel made a

strategic choice, that did not constitute ineffective assistance of counsel, when failing to cross-

examine a juvenile victim. 445 P.3d 983, 990 (Wyo. 2019). The court noted that counsel’s belief

that it was not to the “fundamental advantage” of the defense to cross-examine the victim because

the cross-examination would be potentially detrimental was “sound trial strategy” that should not

be questioned. Id.

[24] Thus, in line with the procedural stance in other jurisdictions, were it not for the

uncontested stipulated evidence, trial counsel’s strategy to avoid confronting K.T.C. and her

siblings would not “fall below prevailing professional norms” and thus not satisfy the first

Strickland prong. We do not find Cruz’s contention particularly compelling, as trial counsel was

arguably acting strategically while cross-examining K.T.C., even if this strategy did not work as

expected. Trial counsel is “not deficient merely because he chose to pursue a different line of

defense than appellate counsel would have pursued.” People v. Quintanilla, 1998 Guam 17 ¶ 12

(quoting United States v. Chambers, 918 F.2d 1455, 1461 (9th Cir. 1990)). “[T]he manner in

which counsel cross-examines a particular witness is a strategic choice and therefore ‘virtually
People v. Cruz, 2023 Guam 1, Opinion Page 12 of 17

unchallengeable.’” Kessler v. Cline, 335 F. App’x 768, 770 (10th Cir. 2009) (unpublished)

(quoting Strickland, 466 U.S. at 690). The conduct here does not satisfy the first Strickland prong.

b. Prong Two: Prejudice

[25] In considering the second Strickland prong, the People claim that trial counsel’s failure to

cross-examine K.T.C. on the sex acts did not prejudice Cruz, and that any cross-examination

regarding the incident would not have changed the outcome of the trial. See Appellee’s Br. at 12.

After K.T.C. and her siblings testified, trial counsel put Cruz on the witness stand to testify in his

defense. Cruz refuted all allegations and maintained that the children made inconsistent statements

regarding the allegations. Tr. at 28-43 (Jury Trial, Nov. 8, 2019). Cruz was acquitted of five of

the original eight counts (and another count—Count Four—was dismissed upon motion), despite

trial counsel avoiding discussing the sex acts with the child witnesses. See Appellee’s Br. at 12.

[26] We are inclined to agree with the People for two reasons. First, there are few cases in

which failure to cross-examine constitutes prejudice, and those occur only in exceptional

circumstances when there are no other witnesses or corroborating evidence, and the case comes

down to the victim’s word against the defendant’s word. See, e.g., Brown v. State, 877 P.2d 1071,

1073 (Nev. 1994) (trial counsel failed to cross-examine the only witness at the correct time due to

a misapprehension of proper trial procedure, demonstrating extreme ineptitude); Higgins v.

Renico, 470 F.3d 624, 633-35 (6th Cir. 2006) (trial court found prejudice where trial counsel failed

to cross-examine the only eyewitness to the crime, and where the failure was due to lack of

preparation). But see John M. Burkoff & Nancy M. Burkoff, Ineffective Assistance of Counsel §

7:33 (Aug. 2022 Update) (“Whether or not courts address counsel’s performance when impeaching

and cross-examining witnesses at trial, under a variety of circumstances, courts have concluded

that alleged errors regarding witnesses did not prejudice the defendant.”).
People v. Cruz, 2023 Guam 1, Opinion Page 13 of 17

[27] Second, while cross-examining K.T.C. might have worked in Cruz’s favor, it might have

worked against him. While K.T.C. was on the stand and the recording was first introduced, the

prosecutor played only the first minute of the recording before quickly moving on. Tr. at 122-24

(Jury Trial, Nov. 6, 2019). The following day, the prosecutor stated to the judge during sidebar

that the reason the video was not played in its entirety when it was first admitted was “because it

was torturing [K.T.C.]. I saw her crying. She was rubbing her face, and it made me feel bad. So

I didn’t want to torture her for another 11 minutes of that.” Tr. at 75 (Jury Trial, Nov. 7, 2019).

Pressing a witness to contradict previously recorded statements might be an effective strategy;

however, understanding human emotion is also essential in this scenario. If the jury saw trial

counsel pressing a crying child for details of her sexual abuse, sympathy might be elicited for the

victim, threatening any jury favor that trial counsel may have gained for Cruz. See Guam v.

Jackson, D.C. No. 84-00062A, S.C. Crim. No. 13F-84, 1986 WL 68512, at *3 (D. Guam App.

Div. Feb. 28, 1986). Were K.T.C. the only witness present, a presumption of prejudice for failing

to cross-examine might be warranted. However, here, multiple witnesses and the recording

corroborated her testimony. The effect of additional cross-examination of K.T.C. is unknown.

Given this uncertainty, we do not find there is a reasonable probability that, “but for counsel’s

unprofessional errors, the result of the [trial] would have been different.” Therefore, the second

Strickland prong is unsatisfied. Strickland, 466 U.S. at 669.

3. Trial counsel’s demeanor and closing argument

[28] Finally, Cruz argues that trial counsel’s manner throughout the trial and his “bizarre”

closing argument resulted in the denial of a fair trial. Appellant’s Br. at 10. Cruz alleges trial

counsel’s behavior and demeanor during proceedings, in addition to an “unintelligible” closing

argument, was detrimental and constituted ineffective assistance. Id.
People v. Cruz, 2023 Guam 1, Opinion Page 14 of 17

a. Prong One: Deficient Performance

[29] Throughout the trial, Cruz’s counsel presented a theory that K.T.C. and her siblings were

forced by their parents, who were under the influence of drugs, to fabricate the accusations. To

communicate this theory, during the proceedings and closing arguments, trial counsel attacked the

family as neglectful and abusive, and disparaged the prosecution as “liars.” See, e.g., Tr. at 128,

130, 145 (Jury Trial, Nov. 8, 2019); Tr. at 18-19, 156 (Jury Trial, Nov. 7, 2019).

[30] When considering trial counsel’s summation technique, judicial review is highly

deferential. Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (per curiam). “[C]ounsel has wide latitude

in deciding how best to represent a client, and deference to counsel’s tactical decisions in his

closing presentation is particularly important because of the broad range of legitimate defense

strategy at that stage.” Id. at 5-6. Relatedly, having “arrogant and insulting” demeanor towards

the court and witnesses is not dispositive in making a finding of deficient performance. See, e.g.,

United States ex rel. Kleba v. McGinnis, 796 F.2d 947, 955 (7th Cir. 1986). This is so even when

this behavior results in admonishment of the attorney by the trial judge. Id.

[31] In United States ex rel. Kleba v. McGinnis, trial counsel exchanged hostile words with

witnesses, the court, and the prosecution. Id. at 955. While the trial court reprimanded counsel

for this conduct, the Seventh Circuit held that this behavior did not constitute deficient

performance because the finder of fact “did not appear to hold [counsel’s] conduct against the

petitioner” and because “[t]he record reveal[ed] that the trial court conducted the proceedings fairly

and impartially.” Id. at 955-56. The court noted that even if counsel’s performance were deficient,

the record would fail to support an allegation that counsel’s demeanor prejudiced the defendant

during trial. Id. at 956.
People v. Cruz, 2023 Guam 1, Opinion Page 15 of 17

[32] Similarly, other courts have held that defense counsel was not ineffective for making

disparaging remarks about the prosecutor, even when such remarks resulted in rebukes from the

trial court. See, e.g., Cammon v. State, 500 S.E.2d 329, 334 (Ga. 1998). In Cammon v. State, the

Georgia Supreme Court noted that counsel apologized and that “the remark was the apparent result

of an overly zealous and emotional representation” of the defendant. Id. “[A]lthough counsel was

rebuked, it was for exceeding, not falling short of, the bounds of effective representation.” Id.

[33] While some courts have indicated belligerent trial counsel to be deficient, this has typically

been done only where trial counsel’s behavior was highly prejudicial and affected the proceedings.

See, e.g., Ward v. United States, 995 F.2d 1317, 1322 (6th Cir. 1993) (court record indicated that

jurors were openly laughing at defense counsel; that judge stated on several occasions he could

not follow defense counsel’s arguments; that defense counsel was inappropriately hostile,

paranoid, confused, and rambling; and that defense counsel opened the door to damaging character

evidence against his client even after the judge and government counsel intervened in an effort to

stop him).

[34] Here, we understand Cruz’s trial counsel to have made a strategic decision to criticize the

People and the children’s parents, instead of attacking the alleged victims. While counsel’s

comments towards the prosecution should not be excused or overlooked, the tactical deference

provided trial counsel, in addition to the lack of evidence in the record indicating this conduct

affected the fairness of the trial, is sufficient to demonstrate that counsel’s performance did not fall

short of the bounds of effective representation. Thus, while trial counsel’s representation may not

have entirely fulfilled professional standards, it does not constitute deficient performance, and

therefore does not satisfy the first Strickland prong.
People v. Cruz, 2023 Guam 1, Opinion Page 16 of 17

b. Prong Two: Prejudice

[35] The People argue that even if trial counsel’s summation technique constituted deficient

performance, it did not prejudice Cruz because the jury acquitted Cruz on all but two of the

charges. See Appellee’s Br. at 14. The People note that counsel made a strategic choice to vilify

the parents and the prosecutor rather than rebuke the children, as attacking the children could have

alienated the jury. Id. at 15. Cruz makes no rebuttal to this specific issue, claiming only a general

lack of strategy by trial counsel. See Appellant’s Reply Br. at 6 (Oct. 13, 2021). Again, we agree

with the People.

[36] “[W]e must normally presume that a jury has been persuaded by the strength of the

evidence and not by the eloquence of counsel” because “[o]ne man’s belligerent

argumentativeness is another man’s vigorous advocacy.” People v. Caballero, 533 N.E.2d 1089,

1092 (Ill. 1989). Here, the jury was given explicit instructions that the arguments and statements

of the lawyers were not evidence. Tr. at 27-28 (Jury Trial, Nov. 12, 2019); Record on Appeal, tab

50 at 26 (Jury Instrs., Nov. 8, 2019). Because we can presume that the jury abided by these

instructions and based the verdict on the strength of the evidence and not the eloquence of counsel,

any personal attacks by defense counsel would not equate to deficient performance. Because the

jury did not appear to hold counsel’s conduct against Cruz as shown by verdicts of acquittal for

Counts One, Two, Four, Five, and Six, and because the record indicates that the trial court

conducted the proceedings fairly and impartially, the record fails to support an allegation that

counsel’s demeanor prejudiced Cruz during trial. See McGinnis, 796 F.2d at 956. Cruz’s claim

likewise does not satisfy the second Strickland prong.

//

//
People v. Cruz, 2023 Guam 1, Opinion Page 17 of 17

V. CONCLUSION

[37] Cruz’s decision to stipulate and waive any objection to the introduction of the recording

was a deliberate strategy, and given the circumstances, this trial strategy was reasonable and did

not amount to ineffective assistance of counsel. Further, we reject these ineffective assistance

claims because Cruz has not satisfied the Strickland test concerning trial counsel’s demeanor,

closing statements, and failure to cross-examine K.T.C. The judgment of conviction is

AFFIRMED.

/s/ /s/
ROBERT J. TORRES KATHERINE A. MARAMAN
Associate Justice Associate Justice

/s/
F. PHILIP CARBULLIDO
Chief Justice