Thursday, April 19, 2012

Telling the Suspect a Confession is his Chance to Tell his Side of the Story was an Interrogation

State v. Eli (HSC April 13, 2012)

Background. Pulumata'ala Eli was suspected of seriously injuring his seven-month-old daughter in a minivan at Ala Moana Beach Park. He decided to turn himself in and called the police to tell them that he will meet them at Kapiolani Hospital the next day. He showed up at the agreed-upon place and time, was arrested, and taken to the police station. At the station he was taken to an investigation room where an officer told Eli that this was his "chance to give me his side of the story." Eli agreed to make a statement. The officer turned on his tape recorder, and read a standard waiver form to Eli. Eli was provided a copy and followed along and seemed to understand his rights. Eli told the police that he did not want an attorney for the moment.

On October 27, Eli told the police that he had been trying to work things out with his girlfriend in the minivan. He was frustrated at the time and his daughter sitting in the back seat would not stop crying. He hit her feet and slapped her four times. Then he took her out of her car seat and dropped her by accident. He later admitted to throwing her daughter on the car seat face first twice.

Eli was indicted for attempted murder in the second degree with the special circumstances of a complainant under the age of eight. HRS §§ 705-500, 707-701.5, 706-756. At trial, Eli moved to suppress the statement and a mistrial on the grounds that none of the evidence from the follow-up interview was provided. Eli also argued that the statement was tainted because Eli agreed to waive his rights by "telling his side of the story" without being apprised of his constitutional rights. The motions were denied. The circuit court found that the question of whether he wanted to tell his side of the story was not the equivalent of securing a waiver of his constitutional rights. The taped recording was played for the jury. The jury found Eli guilty of the lesser-included attempted manslaughter of a child under the age of eight. Eli appealed to the ICA, and applied for a transfer to the HSC, which was granted.

Statements from a Custodial Interrogation require Miranda Warnings and Waiver of Rights. "No person shall . . . be compelled in any criminal case to be a witness against himself." Haw. Const. Art. I, Sec. 10. Evidence, including confessions, obtained in violation of this right may not be used "to secure a defendant's criminal conviction." State v. Pau'u, 72 Haw. 505, 509, 824 P.2d 833, 835 (1992). "It is a fundamental tenent of criminal law that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." State v. Wallace, 105 Hawai'i 131, 137, 94 P.3d 1275, 1281 (2004). So without a warning of constitutional rights and waiver of those rights, statements from a custodial interrogation are inadmissible. Id.

Offering to Tell Defendant his Side of the Story is Interrogation. The HSC rejected the circuit court's finding that the pre-Miranda exchange was "preliminary." According to the HSC, the issue was simply whether Eli was in custody and, if so, whether the officer's questions constituted an "interrogation." An interrogation arises when "the officer should have known that his words or conduct were "reasonably likely to elicit an incriminating response from the person in custody." State v. Ketchum, 97 Hawai'i 107, 119, 34 P.3d 1006, 1018 (2001). Here, the HSC noted that Eli was arrested for injuring his daughter. He knew that Eli was aware of the pending charges and had no intention in thinking that Eli's statement would change the pendency of the charge. Nonetheless, the officer told Eli that this was his chance to tell his side of the story. According to the HSC, the officer should have known that asking Eli for his version of events was "reasonably likely to elicit an incriminating response." Because the officer did not Mirandize Eli before engaging in that conduct, the officer violated Eli's constitutional right to remain silent.

The Subsequent Miranda Warnings and Waiver did not Cure the Taint. "[T]he fruit of the poisonous tree doctrine prohibits the use of [a statement] at trial which [has] come [] to light as a result of the exploitation of a pervious illegal act of the police." State v. Joseph, 109 Hawai'i 482, 498, 128 P.3d 795, 811 (2006). The HSC held that the subsequent statement made after the Miranda warnings and waiver was obtained by the exploitation of the unlawful interrogation. According to the HSC, "there were no intervening circumstances from which it can reasonably be said that the taint from the pre-interview violation had dissipated preceding the Miranda statement. By the time Eli was actually Mirandized, he had already agreed to provide the police with a statement. The taint, according to the HSC, had not dissipated and the statement should have never been played for the jury.

An Interesting Twist. In light of the constitutional violation, the HSC remanded the case for a new trial. But in a footnote, the HSC observed that because the jury found Eli guilty of the lesser-included manslaughter charge he had been impliedly acquitted of the murder charge. Thus, double jeopardy prohibits retrial on that offense. State v. Kalaola, 124 Hawai'i 43, 52, 237 P.3d 1109, 1118 (2010).

Justice Nakayama's Dissent. Justice Nakayama dissented because she did not believe that the officer interrogated Eli before Mirandizing him and thus, the statement was not a fruit of the poisonous tree. Justice Nakayama agreed that in Joseph, it was clear that incriminating statements made prior to Miranda warnings tainted the subsequent statement. But here, that was not the case.

According to Justice Nakayama, the only question asked to Eli was if he wanted to provide a statement. He said yes and at that point, the officer asked no other questions and immediately Mirandized and sought a waiver, which he got. Only then did the substantive questioning begin. Preliminary questions to the defendant do not amount to an "interrogation." State v. Naititi, 104 Hawai'i 224, 227, 87 P.3d 893, 896 (2004). For Justice Nakayama, the officer's question to Eli was a "preliminary 'yes-or-no' question[]" that did not amount to an interrogation. Id. at 237, 87 P.3d at 906. Chief Justice Recktenwald joined.

Chief Justice Recktenwald's Dissent and Concurrence. The Chief Justice agreed with Justice Nakayama, but wrote separately to address the fruit-of-the-poisonous-tree analysis. According to Chief Justice Recktenwald, even if the detective should have given Miranda warnings and a waiver before asking if he would like to provide a statement, the subsequent warning and waiver cured any taint. Chief Justice Recktenwald did not dispute the majority's standard: a post-Miranda statement is not admissible when "it results from the exploitation of the prior illegality" or when there is no attenuation to dissipate the taint of any illegality obtained before the statement. State v. Luton, 83 Hawai'i 443, 455, 927 P.2d 844, 856 (1996); State v. Joseph, supra. Exploitation may occur when the unlawfully-obtained evidence is used to induce the suspect into making another statement. Luton, 83 Hawai'i at 455, 927 P.2d at 856.

But here, according to Chief Justice Recktenwald, nothing in the record showed exploitation of Eli's pre-Miranda agreement to provide a statement "since the detective did not mention Eli's pre-Miranda response to 'induce' Eli's subsequent waiver and confession." There is also nothing showing that Eli gave his waived confession as a result of his pre-Miranda response. Chief Justice Recktenwald would have admitted the statement because there was no evidence of exploitation by the constitutional violation.

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