Monday, September 8, 2014

Chit Chat with a Cop Didn't Arise to Custodial Interrogation

OVERRULED!

State v. Kazanas (ICA August 29, 2014)
Background. On Halloween night, a complainant was driving his car through Waikiki to watch the Halloween festivities. The driver got to Kuhio Avenue at an intersection and stopped to let a group of people cross. As he entered the intersection, a straggler ran across the road and ran into the car. A group surrounded the car and started pounding the windows and kicking the car. The back window cracked. The complainant saw a man on the hood with heavy boots stomping the windshield. The man then got off the hood, walked around to the driver, and punched the driver several times in the face.

Ex-cop, James Easley identified Gregory Kazanas as the man who punched the driver. Easley remembered Kazanas because when he was a cop, he jumped or fell from the ninth floor of a condo in Waikiki, landed on a beach chair on the pool deck, and was coherent when he responded to the scene. The driver in the meantime was able to drive off and find the police. Easley later saw police near the car. Easley walked through Waikiki and found Kazanas. He called the cops and they arrested Kazanas. One of the officers, Christy-Lynn Avilla took Kazanas to the hospital. She saw that Kazanas had cuts on his hands.

In the hospital waiting room, Avilla struck up a conversation with Kazanas in order to calm him down. She later testified that Kazanas was making rude comments at the hospital and she wanted to ask him questions unrelated to the case. She asked him if he had enjoyed Halloween and about the costumes he saw. She admitted that she did not apprise Kazanas of his right to remain silent, his right to counsel, or any other Miranda-Santiago rights. Instead, Avilla “told him that he was not allowed to talk about the case or say anything about what he had been arrested for.”

According to Avilla, out of this small talk, Kazanas said, “I wouldn’t have to punch people if they didn’t upset me.” The circuit court allowed the prosecution to use this statement against him at trial. He was found guilty of unauthorized entry into a motor vehicle in the first degree and sentenced to probation with 90 days jail. Kazanas appealed.

Small Talk with a Police Officer is not a Custodial Interrogation. The ICA’s analysis did not begin with the black-letter recitation of Miranda  warnings and when they are required to be given to suspects. Instead, it discussed why we have Miranda  in the first place. According to the ICA, Miranda warnings were “designed to safeguard a defendant’s privilege against compulsory self-incrimination.” It noted that the Miranda court back in the 1960s, “cited a number of police interrogation techniques that used psychological ploys and pressure to obtain statements from suspects in custody.” Thus, the Supreme Court of the United States required a suspect in custody to receive warnings of specific rights before being subjected to the “custodial interrogation.”

And so in this case there was no question that Kazanas was in custody. The issue was whether he was subjected to an “interrogation” by Avilla. “Interrogation” means “express questioning or its functional equivalent.” Innis v. Rhode Island, 446 U.S. 291, 300-01 (1980). It includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301. In addition to the Fifth Amendment, there’s Article I, Section 10 in the Hawaii Constitution. According to the ICA, the Innis definition was adopted for the state constitution. See State v. Ketchum, 97 Hawaii 107, 119, 34 P.3d 1006, 1018 (2001).

Here, the ICA held that Kazanas’ statement to Avilla was not the product of an “interrogation.” Although he had never been Mirandized, he was warned not to talk about the case. Once at the hospital, Avilla tried to engage in “small talk” to calm Kazanas down. There was no way, according to the ICA, that she could have anticipated that he would make an incriminating statement. It was not responsive to her questions about Halloween in Waikiki.

Judge Foley’s Dissent. Judge Foley wrote that when examining whether the circumstances point to an “interrogation,” the court must determine if the police officer should have known that “their words or actions were reasonably likely to elicit an incriminating response from the person in custody.” See State v. Naititi, 104 Hawaii 224, 236, 87 P.3d 905 (2004). Judge Foley agreed with Kazanas that even though Avilla did not intend to elicit an incriminating response from him through the seemingly innocuous questions about Halloween, she should have known it was likely to have elicited such a response. Avilla, unlike the detectives in Ketchum and State v. Ikaika, 67 Haw. 563, 698 P.2d 281 (1985), knew about the investigation. By asking Kazanas about his Halloween night she had invited him to describe his involvement in the events leading to his arrest. Thus, his statement about punching people was the product of a custodial interrogation. Moreover, Judge Foley believed that the use of the statement by the prosecution at trial was not harmless beyond a reasonable doubt. Accordingly, the statement should have been suppressed.