People v. Tedtaotao

Opinion

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1 2 2021 FEB 2~+ PH 3: 55

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6 IN THE SUPERIOR COURT OF GUAM 7 PEOPLE OF GUAM, Criminal Case No. CF0237-19 8 v. GPDReportNos. 19-11127 18-31284/19-11117/ / 19-11179 9 CHRIS JUNIOR ANDERSON DECISION AND ORDER 10 TEDTAOTAO, GRANTING IN PART AND DENYING IN DOB: 03/07/1992 or 09/07/1992 PART DEFENDANT’S MOTION TO 11 SUPPRESS EVIDENCE 12 Defendant. 13 INTRODUCTION 14 This matter came before the Honorable Alberto C. Lamorena, III on February 5, 2021 for 15 hearing on Defendant Chris Junior Anderson. Tedtaotao’s (“Defendant’s”) Motion to Suppress 16 Evidence (“Motion”). Assistant Attorney General Sean Brown represents the People, and Alternate 17 Public Defender Heather Zona represents Defendant. Having duly considered the parties’ briefs, 18 oral arguments, witness testimony, and the applicable law, the Court now issues the following 19 Decision and Order and GRANTS IN PART AND DENIES IN PART Defendant’s Motion. 20 BACKGROUND 21 In April 2019, Defendant was charged with two (2) counts of Second-Degree Robbery (as a 22 2~’ Degree Felony) with Special Allegation Use of a Deadly Weapon in the Commission of a 23 Felony, one (1) count of Burglary to a Motor Vehicle (as a 2’~’ Degree Felony), and one (1) count 24 of Theft by Receiving (as a 2’”’ Degree Felony). Indictment (Apr. 29, 2019). According to the 25 police reports, Defendant was involved in robbing two Korean tourists named Dogyun and 26 Dogyeong Kim (collectively “the Kims”) at gunpoint. Id. Defendant is also accused of a car 27 burglary at Nikko Hotel in Tumon and receiving a stolen car. Id. 28

Decision and Order Granting in Part and Denying in Part Defendant’s Motion to Suppress Evidence CF0237-19, People of Guam v. Chris Junior Anderson Tedtaotao Page 1 of 9 1 The Kims called police immediately following the robbery and Officer M.L. Medina arrived 2 on scene to interview them. Court Recording (2/5/2021 at 1:55:20). Officer D..K. Yi served as a 3 telephonic translator during the initial questioning due to language barriers. ~. at 1:47:30. The 4 Kims told Officers Yi and Medina that a man, roughly 6’2” in height, with a large stomach, white 5 complexion, no facial hair, and tattoos on both his left shoulder and horizontally across his stomach 6 pointed a gun at their heads while robbing them of their wallets. j~. at 1:57:15-2:09:00. 7 The Kirns were then brought to the police precinct. Motion at 2. At the precinct, Officer 8 Medina spoke with Officer K.C. Pangelinan and asked Pangelinan whether he could think of 9 someone who fit the perpetrator’s description. Court Recording (2/5/2021 at 2:20:30). Officer 10 Pangelinan told Officer Medina that the description sounded like Chris Tedtaotao. ~. at 2:2 1:00. 11 This was spoken in the Kims’ presence. Id. at 2:46:40. However, there’s no indication that the 12 Kims overheard or understood any of the conversation as no translators were used. ic~.. at 2:24:05. 13 Officer Medina then typed Defendant’s name into the law enforcement database, and Defendant’s 14 mugshot appeared on the computer screen. Id. at 2:23:45. The Kirns incidentally oversaw the 15 Defendant’s mugshot, and they immediately pointed at his image and identified him as the 16 perpetrator. j~. at 2:24:00. Officer Pengelinan then continued to conduct a six-person lineup 17 including Defendant’s rnugshot. . at 11:35:00. The Kirns were brought in one-by-one and each 18 individually identified the Defendant as the perpetrator once more. Id. at 11:48:45. 19 The Kims also described the perpetrator’s car as a silver sedan and provided police a photo 20 of the car which partially showed the license plate number. j~. at 1:57:15 and 2:40:1.0. Officer 21. R.J.S. Carnacho saw the suspect’s vehicle, noticed the license plate matched the partial plate shown 22 in the photograph, and requested marked patrol units to help conduct a stop. Id. at 10:37:35. 23 Defendant was operating the vehicle at the time and was subsequently arrested. Id. at 10:38:20. 24 Following his arrest, Defendant was interviewed by Officers Carnacho and P.J. Leon 25 Guerrero. ~. at 11:09:50. Defendant verbally confessed to his involvement in both the robbery 26 and the car burglary, and gave a written confession mirroring his oral one. RI. at 10:48:00. 27 Defendant filed his Motion to Suppress on January 6, 2021. Defendant seeks to: 28

Decision and Order Granting in Part and Denying in Part Defendant’s Motion to Suppress Evidence CF0237-19, People of Guam v. Chris Junior Anderson Tedtaotao Page 2 of 9 1 a) Suppress any identification of Defendant made by the Kims in this case on the 2 ground the pre-trial identification procedures implemented by law enforcement 3 were unduly suggestive; 4 b) Suppress all statements made to law enforcement by Defendant after he was 5 arrested as a result of an overly suggestive identification 6 c) Suppress all statements made to law enforcement by Defendant on the grounds 7 that Defendant’s Miranda rights were violated 8 d) Suppress all statements made to law enforcement by Defendant on the grounds 9 his statements were not made voluntarily; and 10 e) Suppress all statements made to law enforcement by Defendant on the grounds 11 such statements were not recorded by video or audio; 12 otion at 1. 13 The Court held a hearing on February 5, 2021. After hearing the arguments of the parties, the 14 Court took the matter under advisement. 15 DISCUSSION 16 I. The p re-trial identification procedures used were unduly suggestive and violated 17 Defendant’s due process rights. 18 Defendant first challenges the pre-trial identification procedures as unduly 19 suggestive, in violation of his due process rights. A pretrial photographic identification 20 procedure violates due process and requires exclusion of the identification testimony if 21 the procedure is “so impermissibly suggestive as to give rise to a very substantial 22 likelihood of irreparable misidentification.” Simmons v. U.S., 390 U.S. 377, 384 (1968). 23 Whether the danger of misidentification reaches this level is judged by “the totality of the 24 circumstances.” Neil v. Biggers, 409 U.S. 188, 196 (1972). “This danger will be 25 increased if the police display to the witness only the picture of a single individual.” Id. 26 at 383. This is because one-on-one show-ups are inherently suggestive; conveying a 27 message that the police have reason to believe the suspect shown is guilty. United States 28 v. Funches, 84 F.3d 249, 254 (7th Cir. 1996).

Decision and Order Granting in Part and Denying in Part Defendant’s Motion to Suppress Evidence CF0237-19, People of Gua,n v. Chris Junior Anderson Tedtaotao Page 3 of 9 1 The totality of the circumstances here indicates the pre-trial identification was 2 impermissibly suggestive. Although the Defendant’s mugshot was among six shown in 3 the line-up, it was the only one shown to the Kims prior to the line-up. By exclusively 4 showing the Defendant’s mugshot before the line-up, the police subconsciously sent a 5 message that they believe the Defendant is the perpetrator and would commit such 6 crimes. The Defendant’s image stood out from the others in the line-up because it was 7 solely shown to the Kims just moments before: The suggestive nature of the line-up 8 procedure damages any identification credibility, despite the fact that there was no police 9 coaching or instruction to specifically choose Defendant’s image in the line-up. 10 Taken all together, the circumstances do show a “very substantial likelihood of 11 irreparable misidentification.” Simmons, 390 U.S. at 384. Any in-court identification 12 from the victims would likely be biased by the pre-trial identification procedures used, 13 providing grounds for suppression. However, in-court identifications made by the 14 victims will otherwise be allowed if shown to rest on an independent and reliable 15 recollection of the encounter. See People v. Chargualaf, 2001 Guam 1 ¶ 37. 16 II. Charge One of Second Degree Robbery with Special Allegation Possession or Use of 17 a Deadly Weapon in the Commission of a Felony is dismissed without prejudice 18 because the Kims won’t be present to testify as to Defendant’s identity. 19 Although the Kims’ in-court identification of Defendant will be allowed if shown 20 to rest on reliable memories independent from the overly-suggestive pre-trial 21 identification, the issue remains whether they’ll be present to testify at all. 22 Under the Sixth Amendment of the U.S. Constitution, a defendant has the right to 23 cross-examine any testimonial statements used against him in court, or the statements 24 will be labeled inadmissible hearsay. Crawford v. Washington, 541 U.S. 36, 51-52 25 (2004). Statements are testimonial if they “were made under circumstances which would 26 lead an objective witness reasonably to believe that the statement would be available for 27 use at a later trial.” . at 52. The Kims’ pre-trial identification of the Defendant is 28 testimonial in nature, as it was part of the law enforcement investigation. Because

Decision and Order Granting in Part and Denying in Part Defendant’s Motion to Suppress Evidence CF0237-19, People of Guam v. Chris Junior Anderson Tedtaotao Page 4 of 9 1 Defendant has not yet had the opportunity to cross-examine the Kims, any statements 2 they made to the police would be excluded on Sixth Amendment grounds. 3 This raises concern over how the People plan to convict Defendant on charge one. 4 A Defendant’s uncorroborated confession is not enough to support a conviction. U.S. v. 5 Morales, 893 F.3d 1360, 1370 (1 1th Cir. 2018). Rather, the government must introduce 6 substantial independent evidence to establish the trustworthiness of the confession. Id. at 7 1370-1371. Here the People have made it clear the Kims “will not be testifying in this 8 case.” See People’s Opposition to Defendant’s Motion to Suppress Evidence at 2 (Jan. 8, 9 2021). This People can only prove this charge with the Kims’ in-court testimony and 10 identification of Defendant, as their pre-trial identification would otherwise be excluded 11 as both overly-suggestive and as testimonial hearsay. The Defendant’s uncorroborated 12 confession alone is not enough to support conviction of Charge One. Thus the court will 13 dismiss Charge One without prejudice, allowing the People to refile if the Kims agree to 14 testify. Charges 2 and 3 may remain because they concern events unrelated to the 15 Defendant’s supposed encounter with the Kims, and don’t require the Kims’ testimony in 16 order to convict. 17 III. Defendant’s post-arrest statements made to law enforcement will not be suppressed 18 because his arrest was based on grounds beyond the improper pre-trial 19 identification used. 20 Defendant also argues his post-arrest statements made to law enforcement should 21 be excluded as a result of the overly-suggestive identification. Under the “fruit of the 22 poisonous tree” doctrine, evidence that is discovered through government illegality will 23 be excluded. Wong Sun v. U.S., 371 U.S. 471, 488 (1963). 24 As discussed, the identification procedures used were overly suggestive and 25 illegal. However, the basis for Defendant’s arrest stems far beyond his mugshot 26 identification. Defendant was arrested because he was found driving the suspect vehicle 27 photographed by the victims. This car was reported as stolen at the time of Defendant’s 28 arrest and its license plate matched the partial plate photographed by the victims.

Decision and Order Granting in Part and Denying in Part Defendant’s Motion to Suppress Evidence CF0237- 19, People of Guam v. Chris Junior Anderson Tedtaotao Page5of9 1 Magistrate’s Complaint (April 20, 2019). Any post-arrest statements Defendant made 2 are admissible and are not “fruit of the poisonous tree” because the police had legitimate 3 reasons to arrest Defendant beyond the improper identification. Id. at 488. 4 IV. No Miranda rights violation exists or warrants exclusion of Defendant’s statements 5 to police because Defendant knowingly and voluntarily waived these rights prior to 6 his custodial interrogation. 7 The Fifth Amendment privilege against self-incrimination requires a defendant to 8 be advised of, and both knowingly and voluntarily waive his Miranda rights before any 9 statements from a custodial interrogation may be admitted. Miranda v. Arizona, 384 10 U.S. 436, 444 (1966). This is because custodial interrogations present “inherently 11 compelling pressures which work to undermine the individual’s will to resist... and 12 compel him to speak where he would not otherwise do so freely.” Id. at 467. 13 The statements in question are from a custodial interrogation because Defendant 14 was at the police station, under arrest, and all questioning took place in an interrogation 15 room at the police station. California v. Beheler, 463 U.S. 1121, 1125 (1983) (suspect is 16 “in custody” within the meaning of Miranda if there exists a “restraint on freedom of 17 movement”). Thus the Defendant must have been advised of, and knowingly and 18 voluntarily waived his Miranda rights before subsequent statements may be admitted. 19 Miranda, 384 U.S. at 444. 20 a. Defendant knowingly waived his Miranda rights. 21 Defendant argues that he did not knowingly waive his Miranda rights as they 22 were not read to him until after he provided the incriminating statements in question. 23 Motion at 8. Furthermore, Defendant claims he never signed a Miranda waiver form. 24 Court Recording (2/5/202 1 at 3:2 1:30). 25 A waiver is made knowingly if Defendant has a “full awareness of both the nature 26 of the right being abandoned and the consequences of the decision to abandon it.” 27 Moran 475 U.S. at 421. Knowledge is determined by a “totality of the circumstances” 28 standard. Id. at 421.

Decision and Order Granting in Part and Denying in Part Defendant’s Motion to Suppress Evidence CF0237- 19, People of Guam v. Chris Junior Anderson Tedtaotao Page 6 of 9 1 Here, Officer Camacho testified about how he went over the Miranda rights with 2 the Defendant, who acknowledged understanding them before waiving these rights and 3 providing the statements in question. Court Recording (2/5/2021 at 10:40:15). 4 Furthermore, Exhibit One clearly shows Defendant’s signature and waiver of his 5 Miranda rights on a custodial interrogation form. See Exhibit One. Defendant also 6 initialed his understanding of each of these rights, including the right to remain silent. 7 Id. The totality of the circumstances here indicates Defendant was aware of his Miranda 8 rights when he waived them. 9 b. Defendant voluntarily waived his Miranda rights. 10 Defendant also argues that his Miranda rights were violated because his 11 statements made to law enforcement were involuntary and coerced by improper police 12 pressure. Defendant claims that Officer Leon Guerrero threatened to plant drugs in his 13 girlfriend’s car if he didn’t admit to both the armed robbery and the car burglary. Court 14 Recording (2/5/2021 at 3:13:20-3:16:30). 15 A waiver is made voluntary if it is the “product of a free and deliberate choice 16 rather than intimidation, coercion, or deception.” Moran v. Burbine, 475 U.S. 412, 421 17 (1986). Voluntary confessions must not be extracted by any sort of threats or violence. 18 Malloy v. Hogan, 378 U.S. 1, 17-18 (1964). 19 Here, Officers Leon Guerrero, Camacho, and Burt Carbullido all testified that 20 none of them threatened to plant drugs in Defendant’s girlfriend’s vehicle absent a 21 confession, nor did they hear other officers make such threats. Id. at 11:10:00, 10:48:00, 22 and 10:24:40. All three officer’s testimony corroborates with one another’s. The 23 officer’s interactions with and supervision over Defendant also cover his initial arrest up 24 through his confession. Thus, the court believes these officers are telling the truth and 25 that no such threats were made towards the Defendant. As such, the Defendant’s waiver 26 of his Miranda rights and decision to speak with the officers was done so voluntarily. 27 V. Defendant’s post-arrest statements to law enforcement will not be suppressed under 28 lack of video or audio recording.

Decision and Order Granting in Part and Denying in Part Defendant’s Motion to Suppress Evidence CF0237-19, People of Guam v. Chris Junior Anderson Tedtaotao Page 7 of 9 1 Lastly, Defendant argues that all his statements made to law enforcement should 2 be suppressed because they weren’t recorded by video or audio. 3 Some states have adopted rules mandating the recording of interrogations before 4 admitting statements obtained in response. See State v. Scales, 518 N.W.2d 587, 592 5 (Minn. 1994) (requiring the recording of all custodial interrogations); Stephen v. State, 6 711 P.2d 1156, 1159 (Alaska 1985) (requiring the recording of all interrogations 7 occurring in a place of detention, so long as recording is feasible). 8 While this court considers outside state precedent as persuasive when making its 9 decisions, such precedent is not binding. U.S. Const. amend. X. There are no binding 10 laws, either on Guam or federally which mandate recording police interrogations. It is 11 not within this court’s authority to suddenly start making up and enforcing laws, and the 12 court will not start doing so today. Even if the court had the discretion to make this 13 requirement, doing so would be extremely costly and delay investigations. Thus the lack 14 of video or audio recording of Defendant’s interrogation does not provide grounds to 15 suppress his statements. 16 CONCLUSION 17 For the reasons stated above, the Court DENIES Defendant’s Motion. 18 • The Kims’ in-court identification of the Defendant will be suppressed unless 19 shown to rest on reliable memories of the robbery independent from the overly- 20 suggestive pre-trial identification. 21 • Chare One of Second Degree Robbery with Special Allegation Possession or Use 22 of a Deadly Weapon in the Commission of a Felony is dismissed without 23 prejudice. 24 • Statements Defendant made to police are admissible despite the improper 25 identification procedure, because Defendant’s arrest was based on other 26 legitimate bases. 27 • The Court will not suppress any statements made by Defendant to law 28 enforcement on grounds of Miranda violation or involuntariness

Decision and Order Granting in Part and Denying in Part Defendant’s Motion to Suppress Evidence CF0237-19, People of Guam v. Chris Junior Anderson Tedtaotao Page 8 of 9 1 . Defendant’s post-arrest statements to law enforcement will not be suppressed for 2 lack of video or audio recording. 3 4 IT IS SO ORDERED this Feb .24 ,2021 5 6 7 8

9 HONORABLE ALBERTO C. LAMORENA, III Presiding Judge, Superior Court of Guam 10 11 12 13 14 15

16 17 18 19 20 21 22 23 24 SERVICE VIAJE-M~.IL i acknowledge that an electrOp~C ~ 25 26 ~Tie~ 27 28 Deputy Clerk, Superior Court of Guam

Decision and Order Granting in Part and Denying in Part Defendant’s Motion to Suppress Evidence CF0237-19, People of Guam v. Chris Junior Anderson Tedtaotao Page 9 of 9