7ASR3d49

AMERICAN

SAMOA GOVERNMENT, Plaintiff,

 

v.

 

PAULAVA

MALALA, Defendant.

 

High

Court of American Samoa

Trial

Division

 

CR

No. 49-02

 

January

7, 2003

 

 

[1] The

government bears the burden of proving by a preponderance of the evidence that

a defendant waived his Miranda rights.

 

[2] The

government bears the burden of proving by a preponderance of the evidence that

a statement was voluntarily made.

 

[3] The court’s

determinations that a criminal defendant has waived his Miranda rights and voluntarily

made a confession are both based upon the totality of the circumstances.

 

[4] A suspect’s

right against self-incrimination arises in the context of custodial

interrogation.

 

[5] If a

suspect requests counsel during custodial interrogation, interrogation must

cease until counsel is made available, even if the suspect later attempts to

waive that right.

 

[6] Once a

suspect has invoked the right to counsel, he must initiate any subsequent

conversation.

 

[7] The rule that

interrogation must cease once a suspect invokes his right to counsel applies

even if renewed interrogation concerns a separate investigation.

 

[8] The right

to have the assistance of counsel attaches at or after the time that judicial

proceedings have been initiated.

 

[9] After the

right to the assistance of counsel attaches, the accused has the right to rely

on counsel as a ‘medium’ between himself and the State.

 

[10] The right

to the assistance of counsel is violated when the State obtains incriminating

statements by knowingly circumventing the accused’s right to have counsel

present in a confrontation between the accused and a state agent.

 

[11] Where

right to assistance of counsel attaches, if an accused does not affirmatively

request counsel, further interrogation is not forbidden as long as the accused

properly waives his right.

 

[12] If an

accused affirmatively requests the assistance of counsel, further interrogation

is prohibited without counsel present, despite a waiver of Miranda rights.

 

[13]

Despite the fact that suspect’s right to assistance of counsel had attached,

because suspect had not requested counsel, had been warned and had validly

waived his rights, there was no constitutional bar to the interrogation.

 

[14] The right

to counsel, unlike the right against self-incrimination, only applies to crimes

that constitute the same offense.

 

[15] When the

right to counsel attaches, it encompasses offenses that, even if not formally

charged, would be considered the same offense under the Blockburger test.

 

[16] Even if a

suspect waives his Miranda rights, a court must still determine whether

his confession was voluntary and obtained according to due process of law.

 

[17] The

determination as to whether a confession is voluntarily made is based upon the

totality of circumstances, including the length of the interrogation, its

location, its continuity, the defendant’s maturity, education, physical

condition, and mental health, the failure of police to advise the defendant of

his rights and whether any overt police coercion was employed such as threats,

violence or promises.

 

[18] A

confession is not voluntary if circumstances show that the defendant’s will has

been overborne or his capacity for self-determination critically impaired.

 

Before

RICHMOND, Associate Justice, MAMEA, Associate Judge, and TUPUIVAO, Associate

Judge.

 

Counsel:          For Plaintiff, Frederick J. O’Brien

                         For Defendant, Bentley C. Adams III

 

ORDER

DENYING MOTION TO SUPPRESS

 

Before

the court is a motion to suppress statements given by the defendant in the

course of police interrogation.  We deny

the motion.

 

Findings

of Fact

 

Based on the evidence

adduced at the hearing on the motion on November 15, 2002, and judicial notice

of the record in American Samoa Government v. Paulava Malala, CR No.

30-01, we make the following findings of fact. 

 

Around 2:00 a.m. on

Sunday July 14, 2002, there was a brawl in front of the Curve nightclub in

Faganeanea.  Several persons were

injured.  Because defendant Paulava

Malala (“Malala”) suffered a head wound, the police initially viewed him as a

victim.  Injured persons, including

Malala, were taken to the hospital for medical examination and treatment.  When he was released from the hospital,

around 5:00 a.m. the same day, he was taken to the central police station in

Fagatogo (“CPS”) for general questioning by Det. John Cendrowski about the

incident.

 

The police continued

their investigation of the melee at the Curve. 

After interviewing some witnesses, Malala became a suspect in the fatal

stabbing of another person and for discharge of a shotgun during the Curve

incident.  Malala was taken to the

correctional facility at Tafuna (“TCF”), apparently later on July 14, 2002,

allegedly for protection from possible retaliatory action by the deceased’s

family.  The following day, Monday, July

15, 2002, Malala was arrested under a warrant issued for an alleged violation

of a probation condition in CR No. 30-01. 

He was either served with this warrant at the TCF or taken there after

this arrest.

 

During the midday of Tuesday July 16,

2002, at the direction of Capt. Va`a Sunia, the head of the Criminal

Investigation Division (“CID”) and lead investigator of the Curve incident, Lt.

Ta`ase Sagapolutele escorted Malala from the TCF to the CID office at the CPS

for questioning.  Lt. Sagapolutele had

not yet seen the autopsy report and was not sure of the cause of death.  However, because Lt. Sagapolutele intended to

conduct a custodial interrogation about Malala’s participation in the brawl, he

first gave Malala Miranda warnings that he had the right to remain silent and

to have an attorney, and that anything he said could be used against him.  Malala signed a waiver of his rights, written

in Samoan, and proceeded to give a statement to Lt. Sagapolutele, first orally

and then in his own handwriting, except for two changes made by Lt.

Sagapolutele.  The Lieutenant wrote

“doorman” above a striken word, which appears to be “door,” and “thrusted”

above the striken word “waved” after Malala demonstrated what he did with the

knife.  He did not, however, initial or

otherwise acknowledge the changes.  

 

In essence, Malala wrote, with the two

appended changes, that in self-defense he removed a knife from his pants and

thrusted it at someone, who may have been hurt a little.  After one person hit his head with a beer

bottle and another threw a bottle at his face, he was able to retrieve a

shotgun from his car and fired it in the air twice to scare off people before

his brother took the shotgun away from him. 

He then passed out.  This is the

written statement Malala seeks to suppress.  

 

There are two points of contention

regarding these events.  First of all,

Malala claims that when Lt. Sagapolutele told him to get into the police unit

at the TCF to take him to the CPS, Malala refused and said he wanted a

lawyer.  In response, Lt. Sagapolutele

hit the vehicle door, told him to get into the vehicle, and told him that there

would be no attorney at that time.  In

effect, Malala asserts that Lt. Sagapolutele ignored Malala’s plea for an

attorney.  Lt. Sagapolutele testified, on

the other hand, that throughout his contact with Malala on July 16, Malala was

cooperative and neither said, nor did, anything to make him believe that Malala

did not want to talk with him. 

 

The first issue boils down to

credibility.  We simply do not believe

Malala’s self-serving testimony.  We are

incredulous that Lt. Sagapolutele would ignore such a blatant appeal for an

attorney. 

 

The second point of contention concerns

the overall tone and manner of the interrogation.  In Malala’s version, at the CID office,

before he wrote the statement, Malala denied having a knife and stabbing the

deceased victim and Lt. Sagapolutle responded by banging his fist on the table

and screaming that something bad would happen to Malala if he did not speak the

truth.  He testified that several times

Lt. Sagapolutele threatened to beat him and said Malala would be locked up

forever.  He also claims that Lt.

Sagapolutele falsely stated that the deceased died of a gunshot wound, and if

Malala admitted to the knife stabbing, he would not be prosecuted for the

killing.  Malala maintains that he was

afraid and wrote what Lt. Sagapolutele told him what to write—untruths such as

admitting that he had a knife in his pants but did not intend to kill anyone

with one when he actually did not even have a knife on his person.  Malala also stated that Lt. Sagapolutele

offered to buy him lunch if he signed the written statement.         

 

Lt. Sagapolutele

contradicted Malala’s testimony.  He

indicated that throughout his contact with Malala on July 15, Malala was

cooperative, showed no fear, had no reservation about talking with him, and no

difficulty writing his statement.  Lt.

Sagapolutele maintained that he did not raise his voice, threaten Malala with

physical force, or make any promises or inducements.  He did grant Malala’s request for a cigarette

break while Malala was still writing his statement.  He had informed Malala that he would return

with him to the TCF after the questioning, but he did not offer Malala lunch

until he and Capt. Sunia, with Malala, were on the way there, because he knew

that the TCF lunch period was over.    

 

Again, the issue boils

down to credibility. We believe Lt. Sagapolutele’s version.   

 

Analysis

 

[1-3]

Plaintiff American Samoa Government (“ASG”) “bears the burden of proving by a

preponderance of the evidence that a defendant waived his Miranda

rights.”  United States v. Garibay,

143 F.3d 534, 536 (9th Cir. 1998); see also Colorado v. Connelly, 479

U.S. 157, 168 (1986). Likewise, ASG “bears the burden of proving by a

preponderance of the evidence that [a] statement was voluntary.”  United States v. Braxton, 112 F.3d

777, 781 (4th Cir. 1997).  Our ultimate

determination of both these issues is based on the totality of the

circumstances.  Garibay, 143 F.3d

at 536 (waiver); Braxton, 112 F.3d at 781 (voluntariness).

 

A.  Request for Counsel

 

Malala argues that

because he requested an attorney, the police were required to cease all

interrogation until counsel had been made available.  A little background is necessary. 

 

[4-7]

A suspect’s right against self-incrimination, and the now familiar Miranda

doctrine, arise in the context of custodial interrogation.  See Am.

Samoa Rev. Const. art. I,

§ 6; U.S. Const. amend. V;

Miranda v. Arizona, 384 U.S. 436 (1966). 

In this setting, if a suspect requests counsel interrogation must cease

until counsel is made available, “even if the suspect later attempts to waive

that right.”  United States v. Avants,

278 F.3d 510, 514-15 (5th Cir. 2002) (explaining Edwards v. Arizona, 451

U.S. 477 (1981)).  “Once the suspect has

invoked the right to counsel, any subsequent conversation must be initiated by

him.”  Michigan v. Jackson, 475

U.S. 625, 626 (1986) (quoting Solem v. Stumes, 465 U.S. 638, 641 (1984))

(explaining Edwards rule).  The Edwards

rule that interrogation must cease applies even if renewed interrogation

concerns a separate investigation.  See

Arizona v. Roberson, 486 U.S. 675 (1988).  Furthermore, the rule that an attorney be

“made available” means that interrogation cannot resume “without counsel

present.”  Minnick v. Mississippi,

498 U.S. 146, 153 (1990).

 

[8-12]

Under the right to have the assistance of counsel, the rules are a little

different.  Am. Samoa Rev. Const. art. I, § 6; U.S. Const. amend VI.  The right attaches “at or after the time that

judicial proceedings have been initiated.” 

Main v. Moulton, 474 U.S. 159, 176 (1985) (quoting Brewer v.

Williams, 430 U.S. 387, 398 (1977)); see also Massiah v. United States,

377 U.S. 201 (1964).  In terms of

interrogation, after the right attaches, the accused has “the right to rely on

counsel as a ‘medium’ between him and the State.”  Moulton, 474 U.S. at 176.  The right “is violated when the State obtains

incriminating statements by knowingly circumventing the accused’s right to have

counsel present in a confrontation between the accused and a state agent.”  Id. 

However, even though the right attaches, if an accused does not

affirmatively request counsel, further interrogation is not forbidden as long

as the accused properly waives his right. 

Patterson v. Illinois, 487 U.S. 285, 290-297 (1988) (finding that

Miranda warnings are sufficient to apprise a suspect of his Sixth

Amendment rights).  On the other hand, if

an accused affirmatively requests the assistance of counsel, further

interrogation is prohibited without counsel present, despite a waiver of Miranda

rights.1  See Michigan v. Jackson, 475 U.S. 625,

636 (1986) (extending Edwards cease-interrogation and waiver rules to

the Sixth Amendment); see generally Daniel A. Klein, Annotation, Requirement,

under Federal constitution, that law enforcement officer’s custodial

interrogation cease after suspect requests assistance of counsel–Supreme Court

cases, 129 L.Ed.2d 955.  But see

Texas v. Cobb, 532 U.S. 162, 174-177 (2001) (Kennedy, J., concurring)

(questioning continuing validity of Jackson).

 

B.  Right to Counsel

 

Because we have

explicitly found, by a preponderance of the evidence, that Malala did not

request an attorney, we can declare that the cease-interrogation rule is not

applicable to this case.  Therefore, as

to this argument, it is irrelevant whether the interrogation took place under

the rubric of the right against self-incrimination or the right to assistance

of counsel.

 

[13]

Nonetheless, even though Malala did not request an attorney, he argues that

because he was in custody for the parole violation, and because he was

represented in that matter, the statements concerning the events at the Curve

were taken in violation of his right to counsel.  As already noted, once this right attaches,

and the suspect does not ask for counsel, the police can interrogate a suspect

without counsel present provided he validly waives that right.  See Patterson, 487 U.S. at

290-297.  Assuming the right had

attached, because Malala did not request counsel, and because he validly waived

his rights—Malala was given Miranda warnings and signed a waiver—there

was no constitutional bar to the interrogation. 

Id.

 

[14-15]

Furthermore, even had Malala not waived his rights, the police officers were

not precluded from asking Malala questions concerning a different offense from

the one in which he was represented.  The

right to counsel, unlike the right against self-incrimination, only applies to

crimes that constitute the same offense. 

Compare McNeil, 501 U.S. at 175 (“The [right to counsel] is

offense-specific.”), with Roberson, 486 U.S. at 684 (Because of the

privilege against self-incrimination, a “suspect’s request for counsel should

apply to any questions the police wish to pose”).  “[T]he definition of an ‘offense’ is not

necessarily limited to the four corners of a charging instrument.”  Cobb, 532 U.S. at 173.  Relying on its Double Jeopardy jurisprudence,

the United States Supreme Court has held that “when the . . . right to counsel

attaches, it does encompass offenses that, even if not formally charged, would

be considered the same offense under the [Blockburger v. United States,

284 U.S. 299 (1932)] test.”  Id.  The Court rejected, as applied by various

lower courts, an expansive exception to the offense-specific definition “for

crimes that are ‘factually related’ to a charged offense.”  Id. at 168. 

 

Therefore,

Malala’s right to counsel did not apply to the interrogation concerning the

events at the Curve.  Malala was on

parole after having entered a plea of guilty to stealing, A.S.C.A. § 46.4103,

in June 2001.  In that matter, Malala was

represented by the public defender (“PD”). 

He now asserts that this representation extended to his detention for

the probation violation.  We assume

without deciding that this is true. 

Nonetheless, the interrogation in this case dealt with the incident at

the Curve, and not with Malala’s probation violation.  Applying the Blockburger test to

determine whether the two offenses are the same for purposes of the right to

counel, it is clear that a probation violation “requires proof of a fact which

[the offenses that arose out of the incident at the Curve] do[] not.”  Cobb, 532 U.S. at 173 (quoting Blockburger,

284 U.S. at 304; see Avants, 278 F.3d at 517 n.5. Compare

A.S.C.A. § 46.2209 (requiring violation of condition of probation), with

A.S.C.A. 46.4203 (requiring the carrying of a concealed weapon), A.S.C.A. §

46.4221 (requiring possession of arms without a license), and A.S.C.A. §

46.4231 (requiring discharge of arms).2 

 

C.  Voluntariness

 

[16-18]

Finally, Malala argues that his confession was not voluntary.  Even if a suspect waives his Miranda

rights, a court must still determine whether his confession was voluntary and

not obtained under the due process of law. 

Am. Samoa Rev. Const. art.

I, § 2; U.S. Const. amend XIV; see

Withrow v. Williams, 507 U.S. 680, 688-89 (1993); Colorado v. Connelly,

479 U.S. 157, 163 (1986); Miller v. Fenton, 474 U.S. 104, 109-110

(1985); People v. Massie, 967 P.2d 29, 46 (Cal. 1998).  Our determination is based on the totality of

the circumstances.  See Williams,

507 U.S. at 688-89.

 

Those

potential circumstances include not only the crucial element of police

coercion, the length of the interrogation, its location, its continuity, the

defendant’s maturity, education, physical condition, and mental health.  They also include the failure of police to

advise the defendant of his rights to remain silent and to have counsel present

during custodial interrogation.

 

Id.

at 693-94 (1993) (citations omitted). 

Also, voluntariness is determined by “whether the confession was

extracted by any sort of threats or violence, [or] by any direct or implied

promises, however slight, [or] by the exertion of any improper

influences.”  United States v. Braxton,

112 F.3d 777, 780 (4th cir. 1997) (internal quotations omitted).  A confession is not voluntary if any of these

circumstances show that “the defendant’s will has been overborne or his

capacity for self-determination critically impaired.”  Id. (internal quotations

omitted). 

 

Given our findings of

facts, we hold that Malala’s statement was indeed voluntary.  The police officers did not use physical

threats or violence, nor did they induce Malala.  Furthermore, Malala made no claims, nor does

the evidence support any, concerning other factors, such as age, education, or

location of interrogation.

 

Conclusion

 

For the reasons stated

above, the motion to suppress is denied.

 

It

is so ordered.