People of Guam v. Phillip Vincent Caso

2022 Guam 6

• Court: Supreme Court of Guam
• Decided: July 13, 2022
• Docket: CRA19-006
• Status: Published

Opinion

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM, Plaintiff-Appellee,

v.

PHILLIP VINCENT CASO, Defendant-Appellant.

Supreme Court Case No.: CRA19-006 Superior Court Case No.: CF0585-18

OPINION

Appeal from the Superior Court of Guam Argued and submitted on August 24, 2021 Via Zoom video conference

Appearing for Defendant-Appellant: Appearing for Plaintiff-Appellee: Peter C. Perez, Esq. Sean Brown, Esq. Law Office of Peter C. Perez Assistant Attorney General DNA Bldg. Office of the Attorney General 238 Archbishop Flores St., Ste. 802 Prosecution Division Hagåtña, GU 96910 590 S. Marine Corps Dr., Ste. 901 Tamuning, GU 96913 People v. Caso, 2022 Guam 6, Opinion Page 2 of 27

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

MARAMAN, J.:

[1] Defendant-Appellant Phillip Vincent Caso appeals a final judgment of conviction for one

count of Delivery of a Schedule II Controlled Substance (as a First Degree Felony) in violation of

9 GCA § 67.401.1(a)(1) and (b)(1) and one count of Possession of a Schedule II Controlled

Substance (as a Third Degree Felony) in violation of 9 GCA § 67.401.2(a) and former (b)(1). On

appeal, Caso argues the trial court erred in admitting improperly authenticated evidence, failing to

make adequate findings to designate a witness as an expert witness, admitting allegedly unreliable

expert testimony, and admitting hearsay statements. Caso argues that the prejudicial effect of these

evidentiary errors warrants a reversal of the trial court’s decision and an order for a new trial. For

the reasons discussed below, we affirm the conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

[2] Caso was arrested following a “controlled buy” by the Guam Police Department’s (“GPD”)

Mandaña Task Force. Caso was indicted on one count of Delivery of a Schedule II Controlled

Substance (as a First Degree Felony) and one count of Possession of a Schedule II Controlled

Substance (as a Third Degree Felony). After a jury trial, Caso was convicted of both counts. Caso

timely appeals his conviction.

[3] The controlled buy was conducted with the cooperation of a source of information, Cheryl

Brewer. Before the controlled buy, Brewer was found with methamphetamine on her person and

identified Caso as her source. Brewer agreed to cooperate in conducting a controlled buy targeting

Caso. People v. Caso, 2022 Guam 6, Opinion Page 3 of 27

[4] Brewer and her vehicle were “sanitized” by Officer Joneen Terlaje before the controlled

buy. Transcript (“Tr.”) at 5, 75 (Jury Trial, Feb. 26, 2019). This involved a search of her person

and vehicle for drugs, weapons, and money. Officer Terlaje then fitted Brewer with a recording

device. The audio feed was monitored in real time by Officer Christopher Champion, who

stationed his vehicle near Caso’s home, where the controlled buy was to take place.

[5] The conversation between Caso and Brewer was recorded during the controlled buy. The

trial transcript noted that the recording was “inaudible” in many places. Id. at 20-22. Officer

Champion testified that the quality of the recording was low, but he could recognize the voices of

Brewer and Caso and also understand parts of their conversation. Officer Champion also testified

that the recording was a fair and accurate representation of what he heard during the controlled

buy. This recording was admitted into evidence as Exhibit 12.

[6] After completing the controlled buy, Brewer was followed to a pre-arranged location by

Officer Terlaje and Customs Officer Eugene Igros. Officer Terlaje testified that at the pre-arranged

location, Brewer handed her a baggie containing a crystalline substance. Officer Terlaje then

transported the evidence to the Mandaña Task Force office, where she tested the substance with a

field test kit. The field test produced a presumptive positive for methamphetamine. Officer Terlaje

then attached an evidence custody receipt to the evidence and submitted that evidence to the GPD

Crime Lab. The methamphetamine recovered from Brewer was admitted into evidence as Exhibit

13 before Officer Terlaje’s testimony. Officer Terlaje was presented with Exhibit 13 at the time

of her testimony, and she identified Exhibit 13 as containing her evidence label and handwriting.

[7] Sometime later, GPD Criminalist John Cayton, an employee of the Crime Lab, performed

several tests on Exhibit 13 including a stereoscopic examination, a “color test,” and analysis using

a Fourier transform infrared spectrometer (“FTIR”). Id. at 96. Cayton received a presumptive People v. Caso, 2022 Guam 6, Opinion Page 4 of 27

positive result for methamphetamine from the color test. At trial, Cayton opined that the FTIR

analysis indicated Exhibit 13 contained methamphetamine hydrochloride based on a comparison

of the results of the test with a known sample of methamphetamine hydrochloride.

[8] At trial, Officer Champion identified Exhibit 13 as the “suspected methamphetamine”

seized from Brewer following the controlled buy. See id. at 15-16. When presented with Exhibit

13, Officer Champion testified Exhibit 13 was a “vial of white crystalline substance” that was “the

dope that was seized off of Cheryl.” Id. at 16. When asked if Exhibit 13 was the same “dope” that

he observed on the date of the controlled buy, Officer Champion responded, “It appears so, sir.”

Id. Officer Champion testified that the “suspected methamphetamine was field tested and [a]

presumptive positive reading for methamphetamines was obtained.” Id. at 15. When asked who

performed the field test, Officer Champion testified, “I don’t know off-hand.” See id. Officer

Champion stated that, based on the presumptive positive result, he “started working on the search

warrant” for Caso’s residence. See id. at 12, 15. Officer Champion testified that, aside from the

results of the field test, he recognized the substance as methamphetamine based on his training and

experience. Following this testimony, the trial court admitted Exhibit 13 without objection from

defense counsel.

[9] Officer Champion also authenticated Exhibit 12 with his testimony. Officer Champion

testified that Brewer was fitted with an electronic monitoring device before the controlled buy,

though Officer Terlaje was the officer who placed the device on her. Officer Champion testified

that they tested the device to see if they could get “good audio.” Id. at 10. Officer Champion

testified that he arrived near the scene of the controlled buy before the other officers and Brewer

so he could have good reception with the audio recording device. Officer Champion stated he was

“monitoring” the conversation between Brewer and Caso in real time. Id. at 23. Officer Champion People v. Caso, 2022 Guam 6, Opinion Page 5 of 27

testified that after hearing the copy of the audio recording, Exhibit 12, that it was a “fair and

accurate representation” of the audio he heard on the date of the controlled buy. Id. at 22. Many

parts of the recording were recorded in the transcript as “indiscernible,” and Officer Champion

agreed that the recording was of “very low quality.” Id. at 18-23, 44. Officer Champion testified

that the audio quality was of the same quality as it was when created. Officer Champion testified

that, despite the low quality, he recognized what was said between Brewer and Caso.

[10] Officer Igros testified that Brewer was summoned to the Mandaña Task Force office after

she was found with “dope” earlier in the day. Officer Igros testified that Brewer was debriefed,

and she revealed Caso as her source. Specifically, Officer Igros testified, “I asked her . . . where

she got the dope that was found on her. She stated that she got it from Mr. Caso.” Id. at 68.

Officer Igros then provided testimony relating to how the controlled buy was organized and

executed.

[11] Officer Terlaje testified that Exhibit 13 was the bag of “crystalline substance” Brewer

handed to her after the controlled buy at the pre-arranged location. Id. at 81-82. Officer Terlaje

testified that her initials, identification number, and handwriting were on the packaging of the

evidence admitted as Exhibit 13. Officer Terlaje testified she transported the evidence to the

Mandaña Task Force officer, and, after performing certain tests, she attached an evidence receipt

to the bag and submitted it to the Crime Lab.

[12] Plaintiff-Appellee People of Guam (“People”) called on GPD Criminalist Cayton to

provide expert testimony identifying the substance in Exhibit 13 as methamphetamine.

//

// People v. Caso, 2022 Guam 6, Opinion Page 6 of 27

II. JURISDICTION

[13] This court has jurisdiction to hear appeals from a final judgment of the Superior Court. 48

U.S.C.A. § 1424-1(a)(2) (Westlaw current through Pub. L. 117-159 (2022)); 7 GCA §§ 3107(b),

3108(a) (2005); 8 GCA §§ 130.10, 130.15(a) (2005).

III. STANDARD OF REVIEW

[14] “Where a party fails to object to the trial court’s admission of evidence, we review the issue

for plain error.” People v. Roby, 2017 Guam 7 ¶ 18 (quoting Ramiro v. White, 2016 Guam 6 ¶ 17).

“On plain error review, we will not reverse unless ‘(1) there was an error; (2) the error is clear or

obvious under current law; (3) the error affected substantial rights; and (4) reversal is necessary to

prevent a miscarriage of justice or to maintain the integrity of the judicial process.’” Id. (quoting

People v. Meseral, 2014 Guam 13 ¶ 16) (footnote omitted).

IV. ANALYSIS

A. Exhibit 13 (Methamphetamine) Was Properly Authenticated

[15] Caso argues that the People “failed to establish any foundation upon which [Officer]

Champion could testify to or authenticate Exhibit 13.” Appellant’s Br. at 11 (Apr. 1, 2021). Caso

argues that Officer Champion was an incompetent witness to identify Exhibit 13 as the “dope” that

was seized from Brewer and that Officer Champion lacked personal knowledge to identify Exhibit

13 as methamphetamine. Caso argues that the trial court compounded the error by stating to the

jury, “Exhibit 13 is now [admitted] into evidence and that’s the methamphetamine.” Tr. at 17

(Jury Trial, Feb. 26, 2019). Each argument is addressed below.1

1 Caso also claims that Officer Champion lacked personal knowledge to testify that Exhibit 13 was methamphetamine and that his testimony was based on hearsay, derived from the statement of either the field test or the officer who conducted the field test. Caso further argues that Officer Champion made several hearsay statements, including this statement regarding Exhibit 13. The specific hearsay argument will be addressed later in this Opinion. People v. Caso, 2022 Guam 6, Opinion Page 7 of 27

[16] Guam Rule of Evidence (“GRE”) 601 states: “Every person is competent to be a witness

except as otherwise provided in these rules or by the laws of Guam.” Guam R. Evid. 601. “A

witness may not testify to a matter unless evidence is introduced sufficient to support a finding

that the witness has personal knowledge of the matter.” Guam R. Evid. 602.

[17] “GRE 901 requires ‘evidence sufficient to support a finding that the matter in question is

what its proponent claims,’ . . . for that evidence to be admissible.” People v. Tuncap, 2014 Guam

1 ¶ 31 (quoting Guam R. Evid. 901(a)). “[I]n order ‘[t]o satisfy the requirement of authenticating

or identifying an item of evidence, the proponent must produce evidence sufficient to support a

finding that the item is what the proponent claims it is.’” United States v. Gadson, 763 F.3d 1189,

1203 (9th Cir. 2014) (second alteration in original) (quoting Fed. R. Evid. 901(a)). “[T]he party

offering the evidence must make a prima facie showing of authenticity ‘so that a reasonable juror

could find in favor of authenticity or identification.’” Id. (quoting United States v. Chu Kong Yin,

935 F.2d 990, 996 (9th Cir. 1991)).

1. Officer Champion’s personal knowledge of Exhibit 13 as the “dope” seized from Cheryl Brewer

[18] Caso argues that Officer Champion could not testify that Exhibit 13 was the “dope seized

off of [Brewer]” as Officer Champion was not present when the item was seized, he was not the

seizing officer, he was not the officer who received the evidence, and he did not testify on the

chain of custody of Exhibit 13. Appellant’s Br. at 10-11. The People argue that Officer Champion

was a competent witness with personal knowledge of Exhibit 13 and that the prosecution

established a proper foundation through Officer Champion’s testimony about his background as a

police officer, his knowledge of Brewer, his knowledge of the controlled buy, and his surveillance

of the controlled buy via the audio recording device. People v. Caso, 2022 Guam 6, Opinion Page 8 of 27

[19] Officer Champion was involved with the first sanitization of Brewer’s vehicle. Following

the controlled buy, Champion testified that Officers Igros and Terlaje followed Brewer to another

pre-arranged location where they again sanitized Brewer’s car and her person, recovering the

evidence that would become Exhibit 13. Officer Champion also testified that he went directly to

his office after the controlled buy. By his own testimony, Officer Champion stated that he did not

participate in the recovery of evidence from Brewer at the second pre-arranged location.

Therefore, Officer Champion did not have personal knowledge if Exhibit 13 was, in fact, the

evidence seized from Brewer following the controlled buy.

[20] Officer Champion could not provide the testimony to authenticate Exhibit 13, and thus its

admission was in error. However, defense counsel did not object to the admission of Exhibit 13.

See id. at 19. The error is reviewed for plain error. See Roby, 2017 Guam 7 ¶ 18.

[21] Officer Champion did not have personal knowledge to testify that Exhibit 13 was the

“dope” seized from Brewer. He was not present to receive the substance after the controlled buy

from Brewer and did not have any involvement in the chain of custody. The trial court committed

error in allowing Officer Champion to testify to this point, and the error was clear and obvious.

[22] But Officer Terlaje, who had knowledge of the controlled buy and was directly involved

in the seizure of the evidence, testified at trial as to Exhibit 13’s chain of custody, providing

extensive and admissible testimony relating to the substance seized from Brewer. Officer Terlaje

testified extensively as to her involvement in preparing for the controlled buy and the seizure of

the evidence admitted as Exhibit 13. Officer Terlaje testified that Exhibit 13 was the bag of

“crystalline substance” that Brewer handed to her after the controlled buy at the pre-arranged

location. Tr. at 80-81 (Jury Trial, Feb. 26, 2019). Officer Terlaje testified that her initials,

identification number, and handwriting were on the packaging of the evidence admitted as Exhibit People v. Caso, 2022 Guam 6, Opinion Page 9 of 27

13. Officer Terlaje testified she transported the evidence to the Mandaña Task Force office, and,

after performing a methamphetamine-detecting field test, she attached an evidence receipt to the

bag and submitted it to the Crime Lab. Officer Terlaje had sufficient personal knowledge to testify

as to the chain of custody of the evidence provided by Brewer and admitted as Exhibit 13. Officer

Terlaje’s testimony provides sufficient foundation for a jury to conclude beyond a reasonable

doubt that Exhibit 13 was authentic. Caso was not prejudiced by the admission of this evidence.

Therefore, under the third prong of plain error review, Caso’s substantial rights were not affected

by the admission of Exhibit 13.

2. Officer Champion’s personal knowledge of the field test conducted on Exhibit 13

[23] Caso next argues that Officer Champion lacked the personal knowledge to identify Exhibit

13 as the “suspected methamphetamine” that Brewer purchased during the controlled buy.

Appellant’s Br. at 10. Caso asserts that Officer Champion did not field test the seized substance

and did not know who performed the field test, and thus lacked personal knowledge. The People

counter that Officer Champion was “aware” that another officer conducted a preliminary field test

which returned a presumptive positive for methamphetamine. Appellee’s Br. at 13 (May 3, 2021).

And the People argue that Officer Champion also visually inspected Exhibit 13 on the witness

stand and identified it as the “same dope” observed on the date which it was seized from Brewer.

[24] When presented with Exhibit 13, Officer Champion testified Exhibit 13 “looks to be a vial

of white crystalline substance” that was “the dope that was seized off of Cheryl.” Tr. at 16 (Jury

Trial, Feb. 26, 2019). When asked if Exhibit 13 was the same “dope” that he observed on the date

of the controlled buy, Officer Champion responded, “It appears so, sir.” Id. Before the prosecutor

presented Exhibit 13 to Officer Champion, he testified that the “suspected methamphetamine was

field tested and [a] presumptive positive reading for methamphetamine was obtained.” Id. at 15. People v. Caso, 2022 Guam 6, Opinion Page 10 of 27

Officer Champion did not know who conducted the field test and was not present during the field

test. When the prosecutor inquired why Officer Champion suspected that the substance was

methamphetamine, Officer Champion stated that, aside from the field test, the contents of the vial

were what he knew methamphetamine to look like based on his training. The prosecution elicited

no other testimony relating to when or where Officer Champion previously “observed” the

evidence seized from Brewer on the date of the controlled buy.

[25] Officer Champion did not have personal knowledge of the field test and lacked the personal

knowledge to testify that the evidence seized from Brewer was “suspected methamphetamine” if

his testimony was based on the results of the field test. As Officer Champion lacked personal

knowledge for the chain of custody for Exhibit 13, and he lacked personal knowledge of the field

test, he lacked the required personal knowledge to authenticate Exhibit 13 as the suspected

methamphetamine seized from Brewer.

[26] The trial court admitted Exhibit 13 without objection from defense counsel. Therefore, we

review for plain error. The admission of Officer Champion’s testimony identifying Exhibit 13 as

methamphetamine when he did not have personal knowledge of the field test was in error. See

Roby, 2017 Guam 7 ¶ 18. But the erroneous admission of Exhibit 13, based on Champion’s

testimony, was not prejudicial to Caso and did not affect his substantial rights. Officer Terlaje

testified that once she seized the substance from Brewer, she transported the evidence to the

Mandaña Task Force office to test the substance. There, she tested the sample using the field test

kit, which resulted in a presumptive positive for methamphetamines. Officer Terlaje then

submitted the evidence to the Crime Lab for further testing.

[27] In People v. Mateo, 2017 Guam 22, we recognized that a police officer who testified to

performing a field test that provided a presumptive positive for methamphetamine was sufficiently People v. Caso, 2022 Guam 6, Opinion Page 11 of 27

reliable under the Daubert test to be admissible where a criminalist discussed the scientific basis

for the field test conducted by the officer. 2017 Guam 22 ¶ 31; see also Daubert v. Merrell Dow

Pharms. Inc., 509 U.S. 579 (1993). In Mateo, the appellant challenged the reliability of the test

on Daubert grounds, see 2017 Guam 22 ¶ 27, unlike this case where Caso challenges the testimony

of Officer Champion as lacking personal knowledge of the field test result to testify to those results.

Here, Officer Terlaje, and not Officer Champion, had sufficient personal knowledge to testify as

to the results of the field test. Further, GPD Criminalist Cayton testified on the scientific basis for

the field test and more specifically how the test is performed.2 Therefore, though it was error for

Officer Champion to testify as to the field test results of the substance admitted as Exhibit 13, the

combined testimony of Officer Terlaje and Criminalist Cayton established sufficient foundational

knowledge to identify Exhibit 13 as containing methamphetamine. Thus, Caso’s substantial rights

were not affected because of the trial court’s error, and no plain error occurred.

3. Compound error

[28] Caso argues that the errors claimed above were compounded when the trial court, in

admitting Exhibit 13, stated, “Exhibit 13 is now into evidence and that’s the methamphetamine.”

Appellant’s Br. at 11. The People argue that any error in the admission of Exhibit 13 was remedied

by later testimony of other witnesses. The People point to this court’s finding in Mateo that the

trial court did not commit plain error in admitting a presumptive field test into evidence.

Appellee’s Br. at 18 (citing Mateo, 2017 Guam 22 ¶ 33).

[29] The People’s argument is convincing. Though Officer Champion’s testimony on Exhibit

13 was admitted in error, the later admission of Officer Terlaje’s testimony about the presumptive

positive test result and Criminalist Cayton’s testimony relating to the results of the color testing

2 Cayton testified that the “field tests” and the “color tests” operate on the same chemistry principles, though he did not specify that they are, in fact, the same tests. Transcript (“Tr.”) at 93 (Jury Trial, Feb. 26, 2019). People v. Caso, 2022 Guam 6, Opinion Page 12 of 27

and the FTIR analysis provided a sufficient basis to authenticate Exhibit 13. Still, the trial court’s

comment was inappropriate and, in another case, may have been prejudicial had the jury believed

that the trial court had taken judicial notice that Exhibit 13 contained methamphetamine. The jury

instructions were clear that the People still had the burden to prove beyond a reasonable doubt that

Caso did knowingly possess or distribute an amphetamine-based controlled substance. See Record

on Appeal, tab 72 at Instr. Nos. 1E, 1H, 7A, 7B (Jury Instrs., Mar. 5, 2019). Thus, this comment

by the trial court was not prejudicial.

B. Exhibit 12 (Recording) Was Properly Authenticated

[30] Caso argues that Exhibit 12, the audio recording of the controlled buy, was improperly

admitted. Caso asserts that the prosecution failed to properly authenticate Exhibit 12 according to

the factors in People v. Tuncap, 2014 Guam 1, for authenticating video recordings. Appellant’s

Br. at 12 (citing Tuncap, 2014 Guam 1). Caso further argues that Officer Champion’s testimony

about the authenticity of the recording was “deficient” and did not satisfy the alternative means of

authenticating recordings presented in Tuncap. Id. at 13-14. The People argue that satisfying the

Tuncap factors is secondary to the trial court’s consideration of specific circumstances of each

recording. The People argue that Officer Champion provided sufficient testimony to authenticate

the recording when he testified that he had participated in recording the controlled buy, that he had

listened to the conversation in real time, that he had reviewed the recording, and confirmed at trial

that the recording was a fair and accurate representation of the conversation.

[31] In Tuncap, we outlined five factors which may be used to authenticate video recordings

under the “silent witness” theory. 2014 Guam 1 ¶ 35. These factors include:

testimony 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. People v. Caso, 2022 Guam 6, Opinion Page 13 of 27

Id. We outlined an alternative method of authenticating a recording where testimony about the

recording system is lacking:

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 corroborate that the surveillance video accurately depicts what occurred.

Id. ¶ 36 (internal citations omitted); see also People v. Tedtaotao, 2016 Guam 9 ¶ 14. These

principles also apply to audio recordings. See 2 McCormick On Evid. § 216 (8th ed. 2020) (“As

with video or film recordings of real events, if a percipient witness overheard the voices as they

were recorded, this witness may provide the required authentication foundation by testifying that

the sound recording is an accurate record of what the witness did hear. In such a case, no chain of

custody is required either, since the purpose of proving the chain is to show that the recording is

in the same condition as when first recorded.”); see, e.g., United States v. Thomas, 294 F.3d 899,

904-05 (7th Cir. 2002) (holding that an audio recording could be authenticated by testimony that

demonstrates accuracy and trustworthiness of recording; this standard was satisfied when witness

testified that he had listened to each recording, recognized the voices on the tapes, and was present

for most of the conversation, even though he was not present for some of the conversations on the

tapes); United States v. Polk, 56 F.3d 613, 632 (5th Cir. 1995) (holding that tape recordings of a

drug transaction were properly authenticated when an officer testified that he attached the People v. Caso, 2022 Guam 6, Opinion Page 14 of 27

recording device to the confidential informant, and simultaneously listened to the recorded

transaction).

[32] Officer Champion did not testify to many of the system factors outlined in Tuncap. He

did, however, testify that he was near the scene of the controlled buy so he could have good

reception with the audio recording device, and he stated he was “monitoring” the conversation

between Brewer and Caso in real time. Tr. at 21 (Jury Trial, Feb. 26, 2019). After hearing the

copy of the audio recording, Exhibit 12, Officer Champion testified that it was a “fair and accurate

representation” of the audio he heard during the controlled buy. Id. at 22. Many parts of the

recording were transcribed in the trial transcript as “inaudible,” and Officer Champion agreed that

the recording was of “very low quality.” Id. at 18-22, 44. Officer Champion testified that the

audio quality was of the same quality as it was when created. Officer Champion testified that,

despite the low quality, he recognized what was said between Brewer and Caso. Id. at 44-45.

[33] The prosecution need not establish the “chain of custody” of the recordings by the five

Tuncap factors, and Caso’s challenges to Officer Champion’s testimony largely turn on the low

quality of the recording and that Officer Champion seemed not to recognize the actual disc

containing the copy of the recording. Officer Champion’s testimony satisfies the alternative means

of authentication announced in Tuncap. Officer Champion was present at the scene of the

recording, though he could not visually observe the transaction, and he could listen to the

conversation as it was taking place. Further, Officer Champion testified that he recognized the

voices of Caso and Brewer, though it was never established whether Officer Champion was

familiar with Caso’s voice before listening to the recording.

[34] Therefore, the trial court did not err in admitting Exhibit 12 as Officer Champion provided

sufficient foundation to authenticate the recording. People v. Caso, 2022 Guam 6, Opinion Page 15 of 27

C. GPD Criminalist Cayton Was Properly Admitted as an Expert in Controlled Substance Recognition

[35] Caso argues that the trial court erred in qualifying Cayton as an expert in controlled

substance recognition because the People failed to introduce evidence to qualify Cayton as an

expert under GRE 702 and the trial court failed to make explicit findings that the requirements of

GRE 702 were satisfied. Caso asserts that the record is “barren of facts establishing the application

and satisfaction of [GRE] 702.” Appellant’s Br. at 16. The People disagree, citing that Cayton

testified to his education and his experience in conducting controlled substance recognition

analysis.

[36] Cayton testified that he was a Criminalist employed by Guam Police Department for over

three years. Cayton testified that as a criminalist, he receives “evidence from various law

enforcement agencies to determine for [sic] controlled substances.” Tr. at 90 (Jury Trial, Feb. 26,

2019). Cayton testified that he holds a bachelor’s degree in Health Sciences and has conducted

chemical analysis to determine whether a substance contains a controlled substance in about 181

cases. Cayton stated that he has testified as an expert witness in the area of “controlled substance

drug recognition” about six times. Id. at 93. When the People moved to have Cayton recognized

as an expert in controlled substance drug recognition, defense counsel conducted a brief voir dire.

In response to defense counsel’s question about Cayton’s training with equipment used to analyze

suspected narcotics, Cayton testified that he had been trained to use gas chromatography mass

spectrometer and Fourier transform infrared spectrometer (“FTIR”). Cayton testified that he used

both the gas chromatograph and the FTIR in an estimated 5,000 examinations. Defense counsel

did not object to the court’s recognizing Cayton as an expert under GRE 702.

// People v. Caso, 2022 Guam 6, Opinion Page 16 of 27

[37] Under GRE 702, an expert may present opinion testimony. GRE 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Guam R. Evid. 702. This court has stated, “It is well established that under [Federal Rule of

Evidence] 702, ‘[a]ll you need to be an expert witness is a body of specialized knowledge that can

be helpful to the jury.’” People v. Roten, 2012 Guam 3 ¶ 28 (second alteration in original) (quoting

United States v. Williams, 81 F.3d 1434, 1441 (7th Cir. 1996)).

[38] Caso argues that the trial court did not make specific findings that GRE 702 was satisfied.

The record does not show that the trial court made any specific findings on Cayton’s qualifications

as an expert. While a trial judge is not typically required to make findings when ruling on the

admissibility of evidence, the better practice is to make at least some findings setting forth the

rationale used in deciding the admissibility of proffered expert evidence that is challenged. People

v. Santos, 2021 Guam 12 ¶ 29. “A trial judge should strive to ensure a proper record is developed

in resolving challenges to proffered expert evidence, which includes the analysis and rationale

applied by the court. Further, the trial court’s analysis should reflect proper consideration of the

factors required by GRE 702 . . . .” Id.

[39] Despite the lack of findings, Cayton was qualified to be an expert on controlled substance

recognition. In Roten, we found that a police officer was qualified to provide expert testimony on

the prevalence of delayed reporting in sexual assault cases based on his testimony that he had 14

years of experience as a police officer, that he had investigated about 150 sexual assault cases, and

that he had conducted 60 to 70 interviews with victims alleging sexual assault. 2012 Guam 3 ¶ People v. Caso, 2022 Guam 6, Opinion Page 17 of 27

27. We found that the police officer’s level of experience with victims of sexual assault was

“clearly beyond that of ordinary lay persons,” and “it [was] accurate to characterize [his] testimony

as testimony ‘based on scientific, technical, or other specialized knowledge within the scope of

Rule 702.’” Id. (quoting Guam R. Evid. 701(c)). Cayton’s testimony about his personal

experience performing the controlled substance recognition analysis and the technical nature of

the analysis is clearly beyond the experience and knowledge of ordinary lay persons. Thus, the

record reflects that Cayton provided sufficient testimony to establish his qualifications as an expert

in controlled substance recognition despite the trial court failing to make specific findings as to

Cayton’s scientific, technical, or other specialized knowledge.

[40] The record reflects that Criminalist Cayton was qualified as an expert in controlled

substance recognition, and the trial court did not err in failing to make specific findings as to his

scientific, technical, or other specialized knowledge.

D. Testimony of GPD Criminalist Cayton Was “Reliable” Under GRE 702

[41] Caso argues that Cayton’s testimony about his identification of the substance in Exhibit 13

as methamphetamine hydrochloride was not “reliable” as required by GRE 702 because Cayton

was unable to testify as to when the FTIR equipment used to identify the substance was last

calibrated. Caso asserts that Cayton’s expert testimony was “premised on the foundational premise

that the instrumentation was properly calibrated.” Appellant’s Br. at 18. Caso asserts that the

prosecution failed to meet its burden of establishing that Cayton’s testimony was reliable. The

People assert that the “calibration issue matters for the weight of the evidence, not its

admissibility.” Appellee’s Br. at 23.

[42] “Expert ‘testimony is admissible only if it is both relevant and reliable.’” See Mateo, 2017

Guam 22 ¶ 30 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999)). “When People v. Caso, 2022 Guam 6, Opinion Page 18 of 27

determining whether an expert’s methodology is reliable, a court should consider factors such as

‘testing, peer review, error rates, and “acceptability” in the relevant scientific community.’” Id.

(quoting Kumho Tire Co., 526 U.S. at 141).

[43] We are presented with the novel question of the reliability of FTIR analysis.3 We hold that

the results of the FTIR analysis were probative and reliable, and they were sufficient for Cayton

to opine as to the identity of the substance in Exhibit 13. See United States v. Zajac, 749 F. Supp.

2d 1299, 1302, 1306 (D. Utah 2010). In Zajac, a forensic chemist with the Bureau of Alcohol,

Tobacco, Firearms and Explosives, performed several tests on adhesive used to create a bomb. Id.

at 1301. The chemist first performed a visual inspection of the substances, a sample from the

crime scene and a sample from the defendant’s home, then inspected the chemical composition of

the substances for similarities using FTIR analysis and a “pyrolysis gas chromatograph mass

spectrometer.” Id. at 1301-02. The court found that “[t]he instruments were designed to analyze

many compounds and there is no evidence before the court that [the chemist] misapplied

techniques or methods when she conducted her analysis.” Id. at 1306. The court concluded that

the tests performed were both probative and reliable, as they were well-accepted in the scientific

community. Id. Similarly, Cayton testified that he had performed a stereoscopic examination on

the sample and then a “color test,” which resulted in a presumptive positive result. Tr. at 97 (Jury

Trial, Feb. 26, 2019). Cayton testified that he conducted the FTIR analysis and testified to the

steps he took in conducting the analysis and how FTIR analysis worked. Cayton testified that the

FTIR required calibration usually conducted by an off-island expert, and that he was unaware if

3 This court has considered the reliability of field tests which produce “presumptive” results, rather than the results of “confirmatory tests” like FTIR analysis. In People v. Mateo, 2017 Guam 22, we acknowledged that field tests, which are presumptive tests, for controlled substances can be found reliable under the Daubert standard under some circumstances. 2017 Guam 22 ¶ 33. We noted that “[t]he mere fact that [an expert] could not perform a confirmatory test does not invalidate the [presumptive] test or inhibit its admissibility but rather reflects on the weight of her testimony.” Id. ¶ 32 (alterations in original) (quoting Sciaraffa v. State, 28 N.E.3d 351, 358 (Ind. Ct. App. 2015)). People v. Caso, 2022 Guam 6, Opinion Page 19 of 27

the FTIR had been calibrated in the three years that he was employed. However, this court has not

required that the expert lay the foundation as to the calibration and functionality of the FTIR before

testifying on the results of the FTIR analysis. Nor has Caso cited case law which supports a finding

that results from an FTIR without proof of calibration are unreliable, a factor we considered in

evaluating the reliability of field tests in Mateo. See 2017 Guam 22 ¶ 32. Therefore, we find

Cayton’s testimony sufficient to establish the reliability of the FTIR test results because Cayton, a

qualified expert in the use of such machine, testified that he initiated the self-analysis function in

which the FTIR machine analyzes itself to determine whether it is within set parameters for

analysis, and that it was the practice of the Crime Lab not to perform analysis if the FTIR did not

meet these parameters.

[44] The trial court did not err in admitting Cayton’s expert testimony about the results of the

FTIR analysis.

E. Certain Testimony by Witnesses Were Inadmissible Hearsay

[45] Caso argues that Officers Champion, Igros, and Terlaje each gave inadmissible hearsay

testimony.

[46] “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial

or hearing, offered in evidence to prove the truth of the matter asserted.” Guam R. Evid. 801(c);

see also Tedtaotao, 2016 Guam 9 ¶ 19. “A hearsay statement is not admissible as evidence ‘unless

it falls into a known exception.’” Tedtaotao, 2016 Guam 9 ¶ 19 (quoting J.J. Moving Servs., Inc.

v. Sanko Bussan (Guam) Co., 1998 Guam 19 ¶ 32); see also Guam R. Evid. 802.

1. Officer Champion

[47] Caso alleges three instances where Officer Champion provided hearsay testimony. People v. Caso, 2022 Guam 6, Opinion Page 20 of 27

a. Officer Champion’s statement relating to Caso as Brewer’s source

[48] First, Caso claims that Officer Champion gave hearsay testimony identifying Caso as

Brewer’s source of the methamphetamine. Officer Champion testified that Brewer “identified Mr.

Caso as her source” of a substantial amount of methamphetamine. Tr. at 7 (Jury Trial, Feb. 26,

2019). The People claim this statement was not hearsay as the purpose of the statement was “to

help the jury understand Officer Champion’s thinking when preparing the plan of investigation

and controlled buy for the future operation against Caso.” Appellee’s Br. at 24. The People argue

that this case presents a situation like that in People v. Camaddu, 2015 Guam 2, where a nurse

provided non-hearsay testimony on what a sexual assault victim told her because that conversation

led the nurse to conduct an examination. Id. (citing Camaddu, 2015 Guam 2 ¶ 68). The People

argue this statement by Officer Champion was submitted to show why he conducted an operation

against Caso. The People also claim that the statement is non-hearsay under GRE 801(d)(1)(C),

which defines a statement of identification of a person made after perceiving the person as non-

hearsay.

[49] When a statement is offered for its effect on the listener, rather than offered for its truth,

that statement is non-hearsay. See United States v. Torres, 794 F.3d 1053, 1059 (9th Cir. 2015)

(“The Advisory Committee Note clarifies that the effect of the ‘statement’ definition is to ‘exclude

from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended

as an assertion. The key to the definition [of a statement] is that nothing is an assertion unless

intended to be one.’” (alteration in original) (citing Fed. R. Evid. 801 advisory committee’s note

to Subdivision (a) of the 1972 Proposed Rules)). In Camaddu, we held that a nurse’s testimony

about a victim’s claim of penetration was offered to explain why the nurse conducted an

examination of the victim, rather than to prove that penetration had occurred. 2015 Guam 2 ¶ 68. People v. Caso, 2022 Guam 6, Opinion Page 21 of 27

In contrast, we found in Tedtaotao that a police officer’s testimony about statements made to him

by the victim of a robbery were not being presented for “the limited purpose of providing

background or explaining the course of [the officer’s] investigation.” 2016 Guam 9 ¶ 21.4

[50] Here, it is clear that the statement was being offered as part of the explanation as to why

the police officers undertook their investigation rather than to prove that Caso was Brewer’s

source. The prosecution posed the question: “And how did the defendant come to your attention

on September 25, 2018?” Tr. at 6 (Jury Trial, Feb. 6, 2019). Officer Champion responded, “He

came to our attention through a source of information.” Id. at 6-7. The prosecutor then asked,

“And what about the source of information led to Mr. Caso?” Id. at 7. Officer Champion replied

that “[Brewer] was found to be in possession of -- what I consider to be a substantial amount of

methamphetamine; basically, she identified Mr. Caso as her source.” Id. In context, Officer

Champion’s testimony was describing how Caso became the target of the investigation. As there

was no objection to Officer Champion’s testimony, the prosecutor did not clarify specifically

whether it was offered for the truth or for background information. However, the context

surrounding the line of questioning demonstrates that the statement was elicited to explain the

background of events that led to the controlled buy. Thus, this statement was non-hearsay as it

was introduced for the effect on the listener.

b. Officer Champion’s statement relating to the relationship between Caso and Brewer

[51] Second, Caso claims that Officer Champion provided inadmissible hearsay about the

relationship between Caso and Brewer. Specifically, Officer Champion testified that “[Brewer]

4 In People v. Tedtaotao, 2016 Guam 9, we acknowledged that, in some cases, “law enforcement testimony regarding a declarant’s out-of-court statement is not hearsay if used for the purpose of explaining why a government investigation was undertaken or as background to explain an officer's state of mind and actions.” 2016 Guam 9 ¶ 20 (citing cases). People v. Caso, 2022 Guam 6, Opinion Page 22 of 27

also expressed some regret at wanting to execute a controlled buy against Mr. Caso as, I guess . .

. they were rather -- rather close.” Tr. at 8 (Jury Trial, Feb. 26, 2019). Because Caso did not object

to Officer Champion’s testimony, we again apply the plain error test.

[52] While Officer Champion is repeating the declaration made by Brewer, it is unclear for what

purpose the prosecution sought to admit the statement. The transcripts show that the prosecutor

asked Officer Champion how “eager” Brewer was to participate in the controlled buy. Id. at 7-8.

But it is unclear how such a statement, even if offered to prove that Brewer was eager to participate

in the controlled buy, would prejudice Caso. While the admission of the statement does seem to

be in error, Caso has not attempted to show how this statement was prejudicial beyond adding to

alleged cumulative effect of evidentiary errors by the trial court.

[53] The trial court erred in admitting this statement as it was hearsay not within any exception.

But Caso failed to argue how the admission of this statement was prejudicial error, and it is not

apparent how Caso was prejudiced by its admission. We conclude that Caso’s substantial rights

have not been affected as there appears to be no prejudice resulting from the admission of Officer

Champion’s statement about the relationship between Caso and Brewer. Thus, we find no plain

error.

c. Officer Champion’s statement identifying Exhibit 13

[54] Third, Caso argues that Officer Champion provided hearsay testimony identifying Exhibit

13. Caso challenges two statements. Officer Champion testified, “[Brewer] relinquished custody,

I believe, it was 1.2 grams of suspected methamphetamine.” Tr. at 15 (Jury Trial, Feb. 26, 2019).

Officer Champion also testified, “The suspected methamphetamine was field tested and

presumptive positive reading for methamphetamines was obtained.” Id. As above in Part IV.A.1,

Caso argues that Officer Champion had no personal knowledge of the field testing of Exhibit 13, People v. Caso, 2022 Guam 6, Opinion Page 23 of 27

and thus his statements were “based upon inadmissible hearsay in violation of Rule 802.” See

Appellant’s Br. at 20-21, 23-24. The People counter that Officer Champion’s knowledge of the

drugs in Exhibit 13 was not solely based on hearsay. The People assert that Officer Champion

testified that he observed the item taken from Brewer on the day of the controlled buy and

identified that in court. The People also assert that Officer Champion testified to the characteristics

of methamphetamine based on his experience as a police officer. The People conclude the

testimony was based on Officer Champion’s personal knowledge, which is allowable under GRE

602.

[55] “A witness may not testify to a matter unless evidence is introduced sufficient to support a

finding that the witness has personal knowledge of the matter. . . . This rule is subject to the

provisions of rule 703, relating to opinion testimony by expert witnesses.” Guam R. Evid. 602.

“Personal knowledge means knowledge produced by the direct involvement of the senses.” United

States v. Lopez, 762 F.3d 852, 863 (9th Cir. 2014) (citing 3 Mueller & Kirkpatrick, Federal

Evidence § 6.6 (3d ed. 2012)). In United States v. Lopez, a border agent testified to the defendant’s

deportation at the border of the United States and Mexico, an element of the offense the

government had to prove beyond a reasonable doubt. Id. at 856-57. The border agent testified on

the process normally conducted on deportation, but the agent was not physically present for the

defendant’s removal at the border. Id. at 857. The court found that the border agent could not

have testified based on his personal knowledge as required by Federal Rule of Evidence 602. Id.

at 863. The border agent was also not qualified as an expert under Federal Rule of Evidence 702

and could not provide expert testimony on how removals normally occur. Id. at 857. Ultimately,

the court determined that error was harmless because of the introduction of a properly People v. Caso, 2022 Guam 6, Opinion Page 24 of 27

authenticated verification form which the court found “legally sufficient to support a finding of

physical removal beyond a reasonable doubt.” Id. at 865, 867.

[56] Here, as in Lopez, the record does not reflect that Officer Champion had personal

knowledge of the results of the field test. Despite the People’s contention that Officer Champion

stated he observed the substance in Exhibit 13 on the day of the controlled buy, the record does

not reflect when or where that may have occurred. Officer Champion testified that he did not

follow Brewer to the pre-arranged spot after the controlled buy. Officer Champion stated that

Brewer was followed by Officers Igros and Terlaje, and that he was unsure who performed the

field test. Officer Terlaje testified that only two officers, neither of whom was Officer Champion,

were present at the pre-arranged location to meet Brewer after the controlled buy. Nor is there any

testimony that Officer Terlaje interacted with Officer Champion after performing the field test and

submitting the evidence to the GPD Crime Lab. Further, Officer Terlaje authenticated the evidence

forms and provided the testimony which established the chain of custody for Exhibit 13 at trial. It

is unclear on what basis Officer Champion could claim personal knowledge of the field testing.

Thus, we conclude that Officer Champion lacked the personal knowledge to testify about the field

testing.

[57] As Caso did not object to Officer Champion’s testimony at the time of trial, the admission

of these hearsay statements is reviewed for plain error. See Lopez, 762 F.3d at 859. The error was

clear, but Caso’s substantial rights were unaffected. As in Lopez, the testimony provided by

Officer Champion about the results of the field testing and the chain of custody of Exhibit 13 were

properly authenticated by another means. Officer Terlaje testified about both the field testing of

the substance received from Brewer, the results of her field test on the substance, and the

submission of that substance into evidence with the GPD Crime Lab. Therefore, Caso was not People v. Caso, 2022 Guam 6, Opinion Page 25 of 27

prejudiced by the trial court’s error as the substance of Officer Champion’s hearsay statements

was also introduced by a witness with personal knowledge.

[58] Though several of Officer Champion’s statements were hearsay, Caso’s substantial rights

were not affected as other evidence was properly admitted which established the claims made by

Officer Champion.

2. Officer Igros

[59] Caso asserts that Officer Igros provided hearsay testimony that Caso was Brewer’s source

of the methamphetamine. Officer Igros testified that he “asked [Brewer] where she got the dope

that was found on her. She stated she got it from Mr. Caso.” Tr. at 60 (Jury Trial, Feb. 26, 2019).

[60] This statement by Officer Igros is non-hearsay, as it was providing background information

on why Caso was targeted for the controlled buy rather than being introduced for its truth. Officer

Igros testified that Brewer was summoned to the Mandaña Task Force office after she was found

with “dope” earlier in the day. Id. at 59. When asked by the prosecutor what happened after

Brewer arrived at the office, Officer Igros testified that Brewer was debriefed, and she revealed

Caso as her source. The prosecutor then asked Officer Igros questions about the “setting up of the

controlled buy.” Id. It is apparent from the record that Officer Igros’s statement was not intended

to prove that Caso was the source of the methamphetamine sold to Brewer during the controlled

buy, but that Caso was the source of the methamphetamine found on Brewer in the incident earlier

in the day which led to her cooperation in the controlled buy. Like in Mateo, Officer Igros testified

to Brewer’s statement to provide context for initiating the controlled buy.

[61] The trial court did not commit error in admitting Officer Igros’s statement. The statement

was non-hearsay, introduced for the effect it had on the listener. People v. Caso, 2022 Guam 6, Opinion Page 26 of 27

3. Officer Terlaje

[62] Caso asserts that Officer Terlaje provided hearsay testimony that Brewer handed her

methamphetamine after the controlled buy. Specifically, Caso argues that Officer Terlaje testified

that Exhibit 13 contained methamphetamine even though she did not perform the laboratory test.

Presumably, Caso is arguing that without personal knowledge of the laboratory test, Officer Terlaje

lacked the personal knowledge to state that Exhibit 13 was methamphetamine. The People’s

arguments are non-responsive to Caso’s arguments that Officer Terlaje’s testimony identifying the

substance Brewer gave her as methamphetamine was hearsay.5

[63] Caso does not identify a particular statement by Officer Terlaje relating to her testimony

that Exhibit 13 contained methamphetamine.6 Officer Terlaje testified that after Brewer, referred

to as “she” or “SOI” (source of information), handed her the baggie, Officer Terlaje transported

the evidence to the Mandaña Task Force office, where she conducted a field test kit for

methamphetamines. Tr. at 81-83 (Jury Trial, Feb. 26, 2019). Officer Terlaje testified that the field

test produced a presumptive positive for methamphetamines. This is all the testimony that Officer

Terlaje gave as to the identity of the substance in Exhibit 13. Officer Terlaje did not testify about

the results of the laboratory test conducted later by Cayton, but the results of the field test she

conducted. Officer Terlaje had the personal knowledge to testify as to the results of the field test

5 The People address the statement as “the statement that Caso gave Brewer methamphetamine during the controlled buy . . . .” Appellee’s Br. at 26. Caso only argues that “[a]lthough [Officer Terlaje] did not conduct the laboratory test of Exhibit 13, Officer Terlaje gave the hearsay testimony that it was methamphetamine.” Appellant’s Br. at 22. Caso challenges no other testimony by Officer Terlaje as hearsay. 6 Caso cites only to Officer Terlaje’s testimony that “[s]he handed me a baggie, which contained crystalline substance.” Tr. at 80 (Jury Trial, Feb 26, 2019). Caso claims that Officer Terlaje never identified Brewer in court and thus never connected her with Exhibit 13. It is unclear how Caso intends this line of reasoning to allege hearsay. The record does not reflect that Brewer informed Officer Terlaje of what the baggie contained, nor did Officer Terlaje testify that the act of Brewer handing her the baggie was understood as a statement that the substance contained within the baggie was methamphetamine. Therefore, Caso must be challenging Officer Terlaje’s statement on the results of the field test which registered a presumptive positive for methamphetamine. People v. Caso, 2022 Guam 6, Opinion Page 27 of 27

she personally conducted. Officer Terlaje conducted the field testing, observed the results of the

test, and testified in court as to the results. Therefore, Officer Terlaje’s statement was non-hearsay.

V. CONCLUSION

[64] The trial court made certain errors during Caso’s trial, such as the erroneous admission of

Exhibit 13 based on Officer Champion’s testimony and the erroneous admission of Officer

Champion’s hearsay testimony relating to the results of the field testing conducted by Officer

Terlaje. Ultimately, these errors were not prejudicial to Caso’s substantial rights, as each error

was remedied by testimony provided by other witnesses during the trial. We AFFIRM the

judgment of conviction.

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

/s/ F. PHILIP CARBULLIDO Chief Justice