State v. Kekona

886 P.2d 740, 77 Haw. 403

• Court: Hawaii Supreme Court
• Decided: December 5, 1994
• Docket: 16173
• Status: Published

Opinions

RAMIL, Justice.

Defendant-Appellant Shawn Gregory Kea-lii Kekona was charged with Assault in the Second Degree in violation of Hawaii Revised Statutes (HRS) § 707-711(l)(b) (Supp. 1991) and Robbery in the First Degree in violation of HRS § 708-840(l)(a) (1985). Kekona pleaded no contest to the lesser in-' eluded offense of Robbery in the Second Degree, HRS § 708-841 (1985 & Supp.1991), subject to his right to appeal the Second Circuit Court’s order denying his motion to suppress his oral statement made to police upon arrest.

Kekona contends: (1) the trial court erred in finding that Kekona’s statement was voluntary; (2) the trial court erred in finding that Kekona did not invoke his right to remain silent; and (3) the State failed to meet its burden of proof to establish that Kekona made a valid waiver of his rights since the State failed to tape record the interrogation.

We disagree and affirm.

I. FACTS

A. Background

On October 30, 1991, Fetakoi Pahulu was arrested in connection with a robbery that occurred in Lahainá, Maui on October 29, 1991. Although Pahulu made a written statement to police that implicated himself in the robbery, Pahulu placed primary responsibility for the crime on Kekona.

Kekona was arrested the following day and taken to the Lahainá police station where he was processed by Detective David Blair (Blair). Detective Neil Endo (Endo) was assigned as the primary investigator in the case. After processing, Detective Endo took Kekona to an interrogation room and gave Kekona his Miranda warnings using a copy of the Maui Police Department Warnings and Waiver Form 103 (Form 103).

Once Kekona initialed the warnings and waiver portion of Form 103, the interrogation commenced and Kekona proceeded to give a statement regarding the robbery. At this point, the stories of Kekona and Detectives Blair and Endo conflict.

According to Kekona, after he told the detectives his version of the events leading up to the robbery, they became angry and accused him of lying. Kekona then told the detectives “I no like talk,” and both detectives left the room. Upon arriving back in the room, Detective Endo told Kekona: (1) that he knew various members of Kekona’s family well; (2) that the robbery victim was in critical condition; (3) that he should tell the truth; and (4) that if he did not talk, he would end up like his brother.¹ Kekona testified that he did not reinitiate the conversation and he was not given new Miranda warnings. Kekona then gave a different vension of the robbery, which he maintains was a “bullshit” story.²

In contrast, Detectives Endo and Blair testified that at no time during the interrogation session did Kekona invoke his right to remain silent or request an attorney. During the interrogation, Kekona gave them an initial version of the robbery and then asked for a break so that he could smoke a cigarette, which he was allowed to do. After five to ten minutes, Detective Endo reentered the room to continue the interrogation. Because Kekona’s initial version of the robbery was plagued with inconsistencies, the detectives continued to question him. Detective Endo testified that Kekona admitted that he had “lied the first time” and then gave a second version of the robbery.

Kekona did not make a written statement and the session was not tape recorded, even though recording equipment was readily available. In addition, only Detective Endo took notes during the interrogation. Both detectives subsequently reduced Kekona’s oral statement to writing in their police reports. Detective Endo drafted his report approximately ten days after the confession was taken. Detective Blair wrote his report within a week of the confession, finishing the report three weeks later.

B. Procedural History

On November 13, 1991, Kekona was charged with Robbery in the First Degree, HRS § 708-840, and Assault in the Second Degree, HRS § 707-711. On December 31, 1991, Kekona filed a motion to suppress his confession on the grounds that: (1) because there was no tape recording of the session, no record existed to indicate a voluntary statement or waiver; (2) the interrogation should have ceased after he invoked his right to remain silent; and (3) the confession was coerced and involuntary.

On March 17,1992, the circuit court denied Kekona’s motion to suppress his confession. The court found that: (1) Kekona was properly advised of his rights; (2) Kekona understood his rights, despite his learning disabilities; (3) at no time during the interrogation process did Kekona invoke his right to remain silent; (4) no coercion was used to elicit Kekona’s statement; and (5) Kekona voluntarily and intelligently waived his rights prior to making his statement.

Based on its findings, the circuit court concluded as a matter of law that Kekona’s statement “was freely and voluntarily given, after proper warnings of his rights and the voluntary and intelligent waiver of said rights[.]” In addition, the court concluded that “the tape recording or verbatim stenographic recording of a defendant’s oral statement is not a prerequisite for establishing its voluntariness and admissibility in this jurisdiction[.]”

On March 17,1992, Kekona entered his no contest plea to the charge of robbery in the second degree, HRS § 708-841 (1985), subject to his right to appeal the Second Circuit Court’s order denying his motion to suppress his oral statement.³ The circuit court’s judgment was filed on May 21, 1992, sentencing Kekona to ten years in prison and ordering him to make restitution in the amount of $1,390.50. This timely appeal followed.

II. DISCUSSION

A. Voluntariness of Statement

Kekona contends that his oral statements to the police were involuntary and the product of coercion. In reviewing whether a statement was in fact coerced, we apply “the clearly erroneous standard to the findings on which the decision to admit the statement are based.” State v. Villeza, 72 Haw. 327, 330, 817 P.2d 1054, 1056 (1991), reconsideration denied, 72 Haw. 617, 841 P.2d 1074 (1991) (citations omitted). Moreover, the court is required to examine the entire record and make an independent determination of the ultimate issue of voluntariness based on the totality of circumstances. State v. Kelekolio, 74 Haw. 479, 502, 849 P.2d 58, 69 (1993).

In State v. Kreps, 4 Haw.App. 72, 661 P.2d 711 (1983), the Intermediate Court of Appeals of Hawaii stated that evidence that a defendant has read and signed a police rights and waiver form can be sufficient to establish a valid waiver, provided that the court considers “whether the words used, considering the age, background, and intelligence of the individual being interrogated, impart a clear understandable warning of all of his rights.” 4 Haw.App. at 76-77, 661 P.2d at 715.

Although the record indicates that Kekona suffers from a learning disability, the fact that he reads at the fourth grade level does not necessarily mean he lacks the ability to knowingly waive his Miranda rights. See Derrick v. Peterson, 924 F.2d 813, 824 (9th Cir.1990) (sixteen year old with mental age of nine year old and I.Q. of 62 capable of understanding and waiving Miranda rights), cert. denied, 502 U.S. 853, 112 S.Ct. 161, 116 L.Ed.2d 126 (1991). In addition, Detectives Blair and Endo testified at the suppression hearing that prior to the interrogation, Detective Endo read each sentence of Form 103 aloud and Kekona read along. Also, each of the constitutional rights and the waiver provisions were explained to Kekona by Detective Endo prior to Kekona signing the form. Moreover, the circuit court determined that Kekona understood all of his rights. The circuit court stated in its order denying Kek-ona’s motion to suppress statements that:

[the] Defendant acknowledged that he had been similarly warned in past encounters with the police and on at least one prior occasion invoked his rights. The Court’s finding that Defendant understood his rights is based upon the content and credibility of [Endo and Blair’s] testimony, as well as an appraisal of Defendant’s own testimonial responses to direct and cross-examination questioning as to the arrest, warning and waiver process[.]

Record on Appeal at 201.

In addition to the necessary waiver, the court must also find that such a statement was voluntarily made. State v. Kreps, 4 Haw.App. at 77, 661 P.2d at 715. The conditions surrounding Kekona’s interrogation do not suggest that any impermissible tactics were employed by the detectives to coerce Kekona into making a statement. Kekona was interrogated for about an hour and a half by two detectives. The interrogation took place at approximately 3:00 p.m. on a weekday. Kekona asked for and was allowed to take a break during the course of the interrogation—to smoke a cigarette—and was offered something to drink. Moreover, Kekona himself admitted that he was not physically threatened during the interrogation and that no promises were made to him by the detectives.

Kekona contends, however, that he was coerced into making the’ second statement when confronted by the Detective Endo’s admonition that “[i]f you don’t talk, you’ll end up like your brother.” However, Detective Endo denied making such a statement. As the trier of fact, it is for the trial court to assess the credibility of witnesses, including defendant, and it may accept or reject such testimony in whole or in part. State v. Aplaca, 74 Haw. 54, 65-66, 837 P.2d 1298, 1305-1306 (1992) (citation omitted). Thus the trial court, as trier of fact, “may draw all reasonable and legitimate inferences and deductions from the evidence adduced, and findings of the trial court will not be disturbed unless clearly erroneous.” State v. Batson, 73 Haw. 236, 245-246, 831 P.2d 924, 930, reconsideration denied, 73 Haw. 625, 834 P.2d 1315 (1992) (citation omitted). Apparently, the circuit court chose to believe the testimony of Detective Endo over the contrary assertions of Kekona. There is nothing in the record to suggest this determination was clearly erroneous.

Kekona also maintains that at the time he was questioned, Pahulu’s statement had already implicated him in the robbery. Thus, Kekona contends that the police tactics used were not employed to solve a crime, but to extract trial testimony, a factor which Kekona argues prompted the United States Supreme Court in Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), to deem a confession involuntary. However, a careful reading of Spano indicates that where it is shown that police officers intended to extract a confession, rather than solve a crime, “the confession obtained must be examined with the most careful scrutiny.” Id. at 324, 79 S.Ct. at 1207.

In addition, Spano is factually distinguishable. The defendant in Spano repeatedly invoked his right to counsel. Id. at 318-19, 79 S.Ct. at 1204-05. Furthermore, the defendant was subjected to continuous interrogation by an assistant prosecutor and several police officers for over eight hours. The interrogation lasted until the early morning hours when the defendant finally confessed. Kekona’s version of the facts, even if accepted as true, does not rise to the same level of egregiousness that confronted the Supreme Court in Spano.

Considering the totality of circumstances surrounding Kekona’s statement and the testimony presented at the suppression hearing, the circuit court did not err in concluding that Kekona’s statement was freely and voluntarily given.

B. Whether Kekona Invoked His Right to Remain Silent

Kekona also contends that the trial court erred in finding that he did not invoke his right to remain silent.⁴ A trial court’s determination of whether a defendant invoked his right to remain silent is a question of fact. Cf. State v. Nelson, 69 Haw. 461, 469, 748 P.2d 365, 370 (1987) (whether defendant invoked his right to counsel is a question of fact). A trial court’s findings of fact will not be disturbed unless clearly erroneous. State v. Batson, 73 Haw. at 246, 831 P.2d at 930. A finding of fact is not clearly erroneous unless after reviewing the entire record, the supreme court is left with the definite and firm conviction that a mistake has been made. Id. (citation omitted).

The only evidence of whether Kekona invoked his right to remain silent is testimony elicited during the suppression hearing, when Kekona claimed that he told the detectives, “I no like talk no more.” In contrast, Detectives Endo and Blair both testified that while Kekona requested a break to smoke a cigarette, at no time did Kekona invoke either his right to remain silent or his right to counsel. The trial court, after assessing “the content and credibility” of the detectives’ testimony, “as well as an appraisal of Defendant’s own testimonial responses to direct and cross-examination,” obviously believed the Detectives.

The trial court, as the finder of fact, may draw reasonable and legitimate inferences and deductions from the evidence. State v. Batson, 73 Haw. at 245-46, 831 P.2d at 930. Moreover, it is for the trial court to assess the credibility of witnesses, including defendant, and it may accept or reject such testimony in whole or in part. State v. Aplaca, 74 Haw. 54, 65-66, 837 P.2d 1298, 1305-1306 (1992) (citation omitted). Thus, because the circuit court is empowered to assess the credibility of witnesses in making its findings of fact, weigh conflicting evidence, and draw reasonable inferences, the circuit court’s finding that Kekona did not invoke his right to remain silent is not clearly erroneous.

C. Tape Recording Requirement

Finally, Kekona argues that in order for the State to meet its burden of proving that he validly waived his constitutional rights, the police were required to tape record all of his oral statements. Because we have not previously addressed this issue,⁵ Kekona relies for support on the Alaska Supreme Court’s decision in Stephan v. State of Alaska, 711 P.2d 1156 (Alaska 1985).

in Stephan, defendants appealed the trial court’s refusal to grant their motion to suppress confessions made during their interrogations by police. At the suppression hearing, there was conflicting testimony about what occurred during the unrecorded portions of the interviews. Defendants claimed, inter alia, that they were not informed of their Miranda rights and that questioning continued after they had asserted their right to remain silent and had requested an attorney. The police officers testified to the contrary.

Reversing the court below, the Alaska Supreme Court held that in order to be admissible under the due process clause of the Alaska State Constitution, all custodial confessions must be recorded when the interrogation occurs in a place of detention and recording is feasible.⁶ Id. at 1159-60. The supreme court reasoned that a recording in such circumstances is “a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self incrimination and, ultimately, his right to a fair trial.” Id. The supreme court also noted that a recording would “aid law enforcement efforts, by confirming the content and the voluntariness of a confession, when a defendant changes his testimony or claims falsely that his constitutional rights were violated.” Id. at 1161. In addition, the court held that exclusion is the appropriate remedy for an unexcused failure to electronically record an interrogation, when such recording is feasible. Id. at 1163.

While other jurisdictions have also recognized the importance of recording custodial interrogations,⁷ a majority of jurisdictions have specifically declined to adopt the Stephan rule that mandates the electronic recording of a suspect’s statements as a requirement of due process. See People v. Raibon, 843 P.2d 46, 48 (Colo.App.1992), cert. denied, (January 11, 1993); State v. Rhoades, 121 Idaho 63, 73, 822 P.2d 960, 970 (1991), cert. denied, — U.S. -, 113 S.Ct. 962, 122 L.Ed.2d 119 (1993); Jimenez v. State, 105 Nev. 337, 775 P.2d 694, 696 (1989); State v. Spurgeon, 63 Wash.App. 503, 504, 820 P.2d 960, 961 (1991), review denied, 118 Wash.2d 1024, 827 P.2d 1393 (1992); Coleman v. State, 189 Ga.App. 366, 366, 375 S.E.2d 663, 664 (1988); People v. Everette, 187 Ill.App.3d 1063, 1075, 135 Ill.Dec. 472, 479, 543 N.E.2d 1040, 1047 (1989); State v. Buzzell, 617 A.2d 1016, 1018 (Me.1992); Commonwealth v. Fryar, 414 Mass. 732, 740 n. 8, 610 N.E.2d 903, 909 n. 8 (1993); Williams v. State, 522 So.2d 201, 208 (Miss.1988); State v. Gorton, 149 Vt. 602, 606, 548 A.2d 419, 421 (1988). See generally People v. Wimberly, 5 Cal.App.4th 773, 791 n. 13, 7 Cal.Rptr.2d 152, 162 n. 13 (1992).

Although having an electronic recording of all custodial interrogations would undoubtedly assist the trier of fact in ascertaining the truth, we do not agree that the due process clause of our State Constitution requires such a practice. Article I, section 5 of the Hawai'i Constitution provides that “[n]o person shall he deprived of life, liberty, or property without due process of law[.]” The due process clause “serves to protect the right of an accused in a criminal case to a fundamentally fair trial.” State v. Matafeo, 71 Haw. 183, 185, 787 P.2d 671, 672 (1990) (citing State v. Keliiholokai, 58 Haw. 356, 569 P.2d 891 (1977)). We cannot say that the failure of the police to manufacture a tape recording of Kekona’s station house interrogation was so detrimental to his defense that it necessarily resulted in a unfair trial.

At the suppression hearing, the defense had an opportunity to thoroughly cross-examine Detectives Endo and Blair. In addition, Kekona himself provided testimony of his version of the events that transpired during the interrogation. The circuit court, after hearing the evidence, found the testimony of the detectives to be more reliable. Indeed, the concern in this case centers on the credibility of the accused and the police officers who testified, not some unconstitutional action. See Jimenez, 775 P.2d at 696. “When a motion to suppress evidence is heard, [i]t is for the trial [court] as factfinder to assess credibility of witnesses, including defendants, and to resolve all questions of fact[.]” State v. Nelson, 69 Haw. 461, at 468, 748 P.2d 365.

While the trial judge determines the admissibility of a confession, the “defendant [still] retains the right to put before the jury, as the trier of fact, all evidence, including the facts and circumstances surrounding the making of his confession, 'relevant to weight or credibility.’ ” State v. Kelekolio, 74 Haw. 479, 516, 849 P.2d 58, 75 (1993). Therefore, whether the failure of the police to create a record of the defendant’s confession undermines its accuracy and detracts from the credibility of later testimony is an issue uniquely left to the sound discretion of the trier of fact.

Undeniably, recording a custodial interrogation is important in many contexts. A recording would be helpful to both the suspect and the police by obviating the “swearing contest” which too often arises when an accused maintains that she asserted her constitutional right to remain silent or requested an attorney and the police, testify to the contrary. A recording would also “help to demonstrate the voluntariness of the confession, the context in which a particular statement was made and of course, the actual content of the statement.” Williams, 522 So.2d at 208. Consequently, although we decline to interpret the due process clause of the Hawai'i Constitution as requiring that all custodial interrogations be recorded, we nevertheless stress the importance of utilizing tape recordings during custodial interrogations when feasible.

The dissent suggests that, as the song goes, there’s going to be a “hush all over the [state] tonight” when audio and video cassette recorders are being turned off in interrogation rooms across the state in response to the majority opinion. Yet, according to the cynical nature of the dissent’s argument, even if we were to hold that the due process clause mandates the recording of station house interrogations, there would still be a “hush all over the [state] tonight.” This time, however, the silence in the station houses would come from the new police policy of conducting all interrogations out in the field where, the minority apparently concedes, the due process clause does not require that interrogations be recorded. We refuse to adopt such a pessimistic outlook towards the potential consequences of our opinion.

III. CONCLUSION

We decline to hold that the State must tape record a custodial interrogation in order to establish a valid waiver of a criminal defendant’s constitutional rights. We further hold that the circuit court did not err in ruling that Kekona’s statement was freely and voluntarily given and that Kekona did not invoke his right to remain silent.

The circuit court’s order denying Kekona’s motion to suppress his statement made to police is affirmed.

1 . Kekona’s adoptive "brother” is Anthony Keko-na, Jr., who was serving a life sentence for murder at the time.

2 . In his second version, Kekona stated that he and Pahulu were looking for someone to rob to get money to buy drugs. They selected Dumot because he was carrying a fanny pack that appeared large. Dumot was accosted and attempted to escape. Kekona threw a tire iron at Dumot which struck Dumot on the back of the head causing him to lose consciousness and fall to the ground. According to Kekona, Pahulu then proceeded to bash Dumot’s face into the ground several times while Kekona kicked Dumot’s body. (Pahulu claimed that Kekona bashed Du-mot's face into the ground). Pahulu and Kekona then took the fanny pack, retrieved the money and threw the fanny pack on the roof of a public restroom. Prior to leaving the scene, Pahulu allegedly threatened an eye-witness. The eyewitness happened to be a former school teacher of both Pahulu and Kekona. The teacher, however, could only positively identify Pahulu as one of the perpetrators.

3 . The second degree assault charge was dismissed pursuant to a plea and sentencing agreement.

4 . "[I]f an individual indicates in any manner, at any time prior to or during interrogation that he wishes to remain silent, the interrogation must cease." State v. Uganiza, 68 Haw. 28, 31, 702 P.2d 1352, 1354 (1985) (citations omitted). See also Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, reh’g. denied, 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981).

5 . The State erroneously asserts that this issue was fully considered in State v. Kalani, 3 Haw., 649 P.2d 1188 (1982). While the facts of Kalani involve the tape recording of a confession, the issue of whether an accused is constitutionally entitled to have his custodial interrogation tape recorded was not presented to the court.

6 . The supreme court agreed that the due process clause of the United States Constitution does not require the recording of custodial interrogations under the constitutional materiality test enunciated by the United States Supreme Court in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). Consequently, the court expressly based its ruling upon its interpretation of the due process clause of the Alaska State Constitution. Id. at 1160. Alaska Const, art. I, § 7 provides, in part: "No person shall be deprived of life, liberty, or property without due process of law.”

7 . See Hendricks v. Swenson, 456 F.2d 503 (8th Cir.1972) (suggesting that videotapes of interrogations protected defendant’s rights); Smith v. State, 548 So.2d 673 (Fla.Dist.Ct.App.1987) (quoting Stephan v. State of Alaska, supra, with approval); Ragan v. State, 642 S.W.2d 489 (Tex.Crim.App.1982) (Tex.Code Crim.Proc.Ann. art. 38.22 § 3 (Vernon 1979) requires that oral statements of the accused must be recorded in order to be admissible); A Model Code of Pre-arraignment Procedure § 130.4 (Official Draft 1975) (requiring sound recordings of custodial interviews); Unif.R.Crim.P. Rule 243 (1987) ("The information of rights, any waiver thereof, and any questioning shall be recorded whenever feasible and in any case where questioning occurs at a place of detention.”); Ingrid Kane, Note, No more Secrets: Proposed Minnesota State Due Process Requirement That Law Enforcement Officers Electronically Record Custodial Interrogation and Confessions, 77 Minn.L.Rev. 983 (1993).