People of Guam v. Ojeda (2025 Guam 5): Defense Counsel’s Duty to Proactively Preserve Third‑Party Digital Surveillance Evidence—Deficient Performance Without Per Se Prejudice

Introduction

In People of Guam v. Nathan Jon Ojeda, the Supreme Court of Guam affirmed a conviction for aggravated murder with a special allegation for use of a deadly weapon, while issuing a notable clarification in ineffective-assistance jurisprudence for the digital evidence era. The court held that defense counsel’s failure to take reasonable, independent steps to preserve or obtain third‑party cloud-based surveillance (Ring) footage constituted deficient performance under Strickland v. Washington. Nonetheless, the court concluded the lapse did not prejudice the defense on this record.

The appeal presented three ineffective-assistance claims:

Whether trial counsel performed deficiently by moving to remove unsolicited jury instructions on self-defense;
Whether trial counsel was ineffective for failing to preserve or obtain the victim’s Ring camera footage; and
Whether counsel’s failure to request an adverse inference instruction for the missing Ring footage constituted ineffective assistance.

The case arises from a January 4, 2023 street shooting outside the victim’s home. The jury was shown partially obstructed surveillance video and a neighboring home’s footage with audio of gunshots. Witnesses placed Ojeda’s purple Jeep at the scene; a witness reported seeing an arm extend from the Jeep with a handgun; ballistic evidence linked casings in the Jeep to the caliber recovered at autopsy; and Ojeda told police his Jeep was shot at while he was driving past. The victim had a Ring camera pointed at the scene, but its cloud-stored footage expired after 90 days. The prosecution’s preservation request came too late; defense counsel repeatedly demanded discovery from the prosecution but made no documented independent attempt to secure the Ring footage.

Summary of the Opinion

The Supreme Court of Guam affirmed the conviction. Applying Strickland’s two-prong framework:

Self-defense instructions: Not ineffective. Removal of unsolicited self-defense instructions was consistent with the defense theory of innocence and supported by the absence of any record evidence that could support a self-defense instruction. The defendant was not entitled to the instruction.
Ring footage: Deficient performance, but no prejudice. Counsel’s failure to take reasonable independent steps to preserve or obtain the third‑party digital surveillance footage fell below professional norms; however, there was no reasonable probability of a different outcome given the strength of the prosecution’s case.
Adverse inference instruction: Not ineffective. The trial court gave a “weaker or less satisfactory evidence” instruction directed at the government, and defense counsel argued the point to the jury; on this record, failure to request a specific adverse inference instruction neither fell below professional norms nor prejudiced the defense.

The court left open for a future case whether Guam law requires a missing-evidence/adverse-inference instruction when the prosecution fails to preserve evidence absent bad faith, but held that the instruction used here was an adequate substitute under the circumstances.

Analysis

Precedents Cited and Their Roles

Strickland v. Washington, 466 U.S. 668 (1984): The governing standard for ineffective assistance. The court reiterated both prongs: (1) deficient performance—conduct falling below an objective standard of reasonableness, judged with strong deference to strategy; and (2) prejudice—a reasonable probability that, but for counsel’s errors, the result would have been different.
People v. Soram, 2024 Guam 10; People v. Cruz, 2023 Guam 1; Mendiola v. Ishizaki, 2019 Guam 26; People v. Meseral, 2014 Guam 13: Guam authorities confirming de novo review of mixed questions, the deference owed to strategic choices, and that failure on one Strickland prong obviates the other.
People v. Camacho, 1999 Guam 27: Counsel is not ineffective for choosing a consistent theory of defense; self-defense and “I didn’t do it” are inherently irreconcilable. This underpinned the court’s approval of counsel’s motion to remove self-defense instructions.
People v. Root, 2005 Guam 16; United States v. Jackson, 726 F.2d 1466 (9th Cir. 1984): A defendant is entitled to a self-defense instruction only if there is evidence upon which the jury could rationally sustain the defense. No such evidence existed here.
Wiggins v. Smith, 539 U.S. 510 (2003); Mickey v. Ayers, 606 F.3d 1223 (9th Cir. 2010); Eggleston v. United States, 798 F.2d 374 (9th Cir. 1986): Deficient investigation claims are evaluated against the strength of the government’s case; prejudice turns on whether the noninvestigated evidence likely would have been pursued by reasonable counsel and could have undermined the verdict.
People v. Towai, 2024 Guam 9: No prejudice where omitted/suppressed material is cumulative of properly admitted evidence. Used to reinforce the prejudice analysis.
People v. Reyes, 1998 Guam 32; People v. Morales, 2022 Guam 1; People v. Jones, 2006 Guam 13; People v. Cox, 2018 Guam 16: On failure-to-request-instruction claims, courts assess instructions as a whole; absence of a standalone instruction is not necessarily prejudicial if the theory was otherwise presented.
People v. Cruz, 2020 Guam 11: The “weaker or less satisfactory evidence” instruction is generally disfavored but may be appropriate in exceptional circumstances (e.g., where the government spoiled/destroyed evidence or in a modified version applying only to the government). The court relied on this to conclude the instruction used here adequately covered the point.
People v. Kitano, 2011 Guam 11: Due process claims for destroyed evidence generally require bad faith. The court noted the absence of bad faith here and reserved whether a missing-evidence instruction is nevertheless required absent bad faith.
State v. Wilson, 174 Ohio St. 3d 476, 2024-Ohio-776: Distinguished. There, the defendant’s testimony supported self-defense under Ohio’s statute; here, no record evidence supported such an instruction, and Guam has no analogous statutory entitlement triggered without evidentiary support.
State v. Trussell, 213 P.3d 1052 (Kan. 2009); Weighall v. Middle, 215 F.3d 1058 (9th Cir. 2000); United States v. Haddock, 12 F.3d 950 (10th Cir. 1993): Authorities emphasizing noninterference with a chosen defense theory and that a properly framed closing argument plus other instructions can adequately place an issue before the jury without a specific instruction.

Legal Reasoning

1) Removal of self-defense instructions

The court first clarified that the presence of self-defense instructions in draft materials was inadvertent; neither party requested them, and the defense mounted a pure innocence theory. Guam law entitles a defendant to a self-defense instruction only if the record contains evidence upon which a jury could rationally sustain the defense. The record—statements attributed to Ojeda that he never stopped and was shot at, a witness describing an arm with a handgun from the Jeep, and no testimony suggesting Ojeda fired defensively—contained no such evidence.

Given the irreconcilability between “I didn’t do it” and self-defense, it was reasonable, indeed prudent, for defense counsel to ask the court to remove unsolicited instructions that could have confused the jury and undermined the chosen theory. Under the strong presumption of reasonableness, this was sound trial strategy rather than deficient performance.

2) Failure to obtain or preserve Ring footage

Here the court set an important benchmark for digital-evidence practice. Applying Strickland’s duty-to-investigate principle, the court found that merely demanding the prosecution obtain the Ring video—without independent defense action—was unreasonable. Counsel was appointed two days after the shooting and had more than 80 days before Ring’s 90‑day cloud retention window closed. Yet the record showed no defense subpoenas, preservation letters, or efforts to obtain the footage through the victim’s account/phone, Amazon/Ring, or court process.

Given the camera’s placement facing the driveway and street, the footage “would have likely captured the entire incident,” making it quintessentially “key evidence.” Failing to take proactive steps to preserve or obtain it fell below professional norms and was therefore deficient performance.

On prejudice, however, the court emphasized the strong trial record: witnesses placed Ojeda at the scene; the neighbor’s surveillance captured gunshots; a witness saw a handgun extended from the Jeep; and ballistics tied casings in the Jeep to the autopsy caliber. Against that evidentiary backdrop, and with the defense theory denying the shooting altogether, the court concluded there was no reasonable probability that the verdict would have been different if the Ring footage had been obtained. The claim failed for want of prejudice.

3) Failure to request an adverse inference instruction

The court rejected the claim that counsel was ineffective for not requesting a specific “adverse inference” or “missing evidence” instruction against the government for the lost Ring video. The trial court provided a modified “weaker or less satisfactory evidence” instruction directed at the government, telling jurors they could distrust evidence offered by the People if stronger evidence within the People’s power existed. Defense counsel forcefully argued the point in closing, asserting that the government could and should have secured the Ring video with subpoena power.

In the aggregate, the instruction and argument adequately placed the issue before the jury. On this record, not requesting a distinct adverse-inference instruction was within the wide range of reasonable professional assistance. The court also found no prejudice: there was no showing that the jury would have drawn a harsher adverse inference than the skepticism they were already invited to apply. The court expressly left for another day whether Guam law affirmatively requires a missing-evidence instruction when evidence is not preserved absent bad faith.

Impact

A. A clear duty for defense counsel in the cloud era

The opinion establishes that defense counsel must take timely, reasonable, and independent steps to preserve and obtain third-party digital surveillance when it is foreseeably ephemeral (e.g., cloud retention windows like Ring’s 90 days). Reliance on the prosecution’s discovery efforts alone is insufficient where counsel can act to preserve the evidence. This is a concrete articulation of Strickland’s duty to investigate applied to modern, consumer cloud-video ecosystems.

Practical implications for the defense bar include:

Immediate issuance of preservation letters to third-party providers (e.g., Amazon/Ring) upon appointment;
Early subpoenas or court orders, coupled with motions to compel if necessary;
Prompt contact with victims/witnesses/families to secure consent-based access to device accounts or to the underlying phones (where lawful);
Documenting all steps to preserve the record for prejudice arguments or remedial instructions; and
Seeking court-set preservation orders at initial appearances where surveillance is known or suspected.

B. Prosecutorial preservation obligations and trial consequences

Although the prosecution was not found to have acted in bad faith, the opinion underscores that the government’s failure to timely preserve important digital evidence may expose it to remedial jury instructions. The “weaker or less satisfactory evidence” instruction—though disfavored in Guam—is available in exceptional circumstances, including where the government fails to preserve key material. Prosecutors should implement immediate preservation protocols with providers like Ring when notified of critical incidents.

C. Jury instructions: discipline and fit to theory

Trial courts are cautioned against “unsolicited” instructions that conflict with a defendant’s chosen theory. Defense counsel’s request to remove unsupported self-defense instructions was validated as sound strategy. Courts should confirm that any defensive instruction is grounded in record evidence and aligns with articulated defense theories to avoid juror confusion and appellate risk.

D. The unresolved question: missing-evidence instruction absent bad faith

The court deliberately reserved whether Guam should require a missing-evidence/adverse-inference instruction against the government when evidence is not preserved without a showing of bad faith (cf. due process destruction-of-evidence doctrine). Practitioners should watch for a future case that squarely presents this question with a developed record.

Complex Concepts Simplified

Ineffective Assistance (Strickland): A defendant must show both (1) deficient performance—lawyer conduct outside the bounds of reasonable professional assistance; and (2) prejudice—a reasonable chance the result would have been different without the error. One without the other is not enough.
Duty to Investigate: Lawyers must make reasonable investigative efforts or reasonably decide further investigation is unnecessary. In the digital age, that includes timely steps to preserve short-lived cloud evidence (such as Ring’s 90-day window).
Self-Defense Instruction Entitlement: A jury may be instructed on self-defense only if there is actual evidence to support it. Merely theorizing self-defense, without record support, does not trigger the instruction.
Adverse Inference vs. “Weaker Evidence” Instructions: An “adverse inference” instruction tells jurors they may infer missing evidence would be unfavorable to the party who lost/destroyed it. A “weaker or less satisfactory evidence” instruction tells jurors to distrust evidence presented when stronger evidence was within a party’s power but not produced. The latter, though disfavored, can sometimes function as a practical substitute.
Prejudice in Investigation Cases: Courts consider the whole trial record. If the prosecution’s case is strong and the missing evidence is unlikely to change the verdict, the defendant cannot show prejudice even if counsel’s investigation was deficient.

Conclusion

People v. Ojeda affirms a life-without-parole conviction while carving out a forward-looking rule tailored to contemporary digital evidence practice: defense counsel’s failure to proactively seek key third‑party cloud surveillance can be deficient performance. Yet Strickland’s prejudice requirement remains decisive; deficiency alone does not entitle a defendant to relief.

The court also reinforces two complementary trial-management principles. First, self-defense instructions must be anchored in evidence and may properly be removed if they conflict with a chosen innocence theory. Second, where the government fails to preserve superior evidence, a tailored “weaker or less satisfactory evidence” instruction, coupled with defense argument, can suffice in lieu of a formal adverse-inference instruction—at least absent bad faith and on an otherwise strong record for the prosecution.

In sum, Ojeda advances Guam’s ineffective-assistance jurisprudence into the cloud era, sharpening expectations for defense and prosecution alike in preserving ephemeral digital video, while preserving the centrality of Strickland’s prejudice inquiry and the discipline of evidence-based jury instructions.