Chuuk v Suzuki [2009] FMCSC 21; 16 FSM Intrm. 625 (Chk. S. Ct. Tr. 2009) (25 November 2009)

CHUUK STATE SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 56-2009

CHUUK STATE,
Plaintiff,

vs.

ANSON JOHN SUZUKI, JESSY (JC) MEFFY, and WILSON (W-TWO) WILIANDER,
Defendants.

MEMORANDUM AND ORDER DISPOSING OF PRE-TRIAL MOTIONS

Camillo Noket
Chief Justice

Hearing: October 5-6, 2009
Decided: October 8, 2009
Memorandum Entered: November 25, 2009

APPEARANCES:

For the Plaintiff: Jayson Robert
Deputy Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

For the Defendant: George Z. Isom
(Suzuki) Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

For the Defendant: Michael Marco
(Meffy) Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

For the Defendant: Kent Cheipot
(Wiliander) Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

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HEADNOTES

Criminal Law and Procedure - Interrogation and Confession; Criminal Law and Procedure – Motions

Since the government has the burden of proof to prove by a preponderance of the evidence that the defendants' statements were admissible; it presented its side first on the issue. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 629 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Interrogation and Confession

For the defendants' statements to be admissible, the government is required to prove three things: 1) that the defendants, once they were placed under arrest and before they made their statements, knowingly and intelligently waived their constitutional rights against self-incrimination, including their rights to counsel and to remain silent; 2) that the statements were voluntarily made by the defendants; and 3) that the confessions were made within 24 hours of the defendants' arrests. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 629 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Right to Counsel; Criminal Law and Procedure - Right to Silence

For a defendant to waive his right to silence or to counsel, he must do so knowingly and intelligently. The burden is on the government to show not only that the waiver was knowingly and intelligently given, but that it was given before any statement was made. There exists a presumption against such waivers. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 629 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Interrogation and Confession

The government has overcome the presumption against waiver when it has produced signed advice of rights forms showing timely waivers and the defendants do not controvert that evidence. Witness testimony is also admissible on the issue of whether a waiver was knowingly and voluntarily given. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 629 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Interrogation and Confession; Criminal Law and Procedure - Right to Silence

When the court, based upon the witnesses' testimony, including their respective demeanor in the courtroom during the hearing, concludes that the accused was properly advised of his rights, including the right to remain silent, before he confessed, the court will deny a motion to suppress a confession that is based on the ground that a waiver was not knowingly and intelligently given. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 629 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Interrogation and Confession

When the advice of rights form was written in English and contained accurate descriptions of each of the defendant's rights; when officers testified that the rights were explained in English and Chuukese; and when, although to avoid any confusion on the issue the form itself should be written in English and Chuukese, the defendants knew English, there is no issue with the defendants' understanding of the contents of the advice of rights form. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 629-30 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Interrogation and Confession; Criminal Law and Procedure - Right to Counsel

When an accused asked for counsel before he gave his statement, the government failed to overcome the presumption against the accused's waiver of his right to counsel and to remain silent. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 630 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Interrogation and Confession

Even if a defendant has been advised of and waived his rights, a subsequent statement may be used as evidence against him only if the statement was made voluntarily. To make the determination about whether a statement was voluntary, the court must examine the totality of the circumstances surrounding the confession and assess the psychological impact on the defendants of those circumstances. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 630 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Interrogation and Confession; Criminal Law and Procedure - Right to Counsel

When a defendant has expressed a wish to meet with counsel before further questioning, questioning must cease at once. Any attempt by police officers to ignore or override the defendant's wish, or to dissuade him from exercising his constitutional rights, is grounds for suppression of his subsequent statement. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 630 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Interrogation and Confession

The only circumstance in which the government may use a defendant's suppressed statement is if the defendant chooses to testify on his own behalf; in which case, the statement can be used to impeach his credibility. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 630 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Interrogation and Confession

An officer's hitting an arrestee during interrogation or during his detention immediately before interrogation is compelling evidence that any subsequent statement was not voluntary, but was the result of intimidation and coercion. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 630 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Interrogation and Confession

In the absence of clear, unbroken testimony regarding the period when the statements were prepared and signed by the defendants, the court is unable to determine if their statements were voluntarily made, or whether they may have been coerced during the time periods not covered by the testimony. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 630 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Interrogation and Confession

By statute, statements taken as a result of a violation of the defendant's statutory right to be brought before a judicial officer without unnecessary delay, that is, twenty-four hours from arrest, are inadmissible, even if voluntary and the defendant has waived his rights against self-incrimination. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 631 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Interrogation and Confession

Evidence and statements lawfully obtained from a defendant before he had been illegally detained over 24 hours will be admissible, but the defendant is entitled to the suppression of any evidence or statements obtained from him after his first 24 hours of detention. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 631 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Interrogation and Confession

When the court has determined that a defendant's statement was taken after his invocation of his right to counsel and that neither his nor another's statements were voluntarily given, the timeliness of their statements does not save them from suppression. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 631 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Interrogation and Confession; Criminal Law and Procedure - Right to Confront Witnesses

The court is forbidden to consider as evidence against a defendant any part of a non-testifying codefendant's statement which inculpates another defendant since a statement cannot be cross-examined. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 631 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Interrogation and Confession

If the government seeks to admit a defendant's out-of-court statement, it ought to be redacted to eliminate references to his co-defendants. Failure to do so may result in reversal of convictions in the interests of justice. The parties should make all attempts to stipulate to redacted statements without the court's assistance. The court, especially when taking into account its fact-finding function, need not and should not view the statements until after the redactions have been made. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 631 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Bill of Particulars; Criminal Law and Procedure - Dismissal; Criminal Law and Procedure - Double Jeopardy

While a defendant cannot be sentenced to consecutive sentences on a greater and lesser-included offense arising from the same act, the government does not have to identify which of its charges in its criminal information it intends to pursue prior to conviction. Rather, it is entitled to pursue, at trial, multiple claims based on the same act, and a defendant's motion for pretrial dismissal or for a bill of particulars will be denied. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 631-32 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Dismissal; Criminal Law and Procedure – Information

A motion to dismiss conspiracy counts will be denied when the affidavit stated the essential facts constituting the charges and was based on the first-hand knowledge of the affiant who was the investigating officer; when the information clearly stated the nature of the acts charged; and when, although the affidavit referred to witness statements that were suppressed, the affidavit also contained a considerable amount of other evidence, including the substance of the affiant's interviews with eye-witnesses, which supported probable cause. Such hearsay statements, if reliable, may support a finding of probable cause for instituting a prosecution. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 632 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure - Conspiracy; Criminal Law and Procedure - Standard of Proof

A motion for a pretrial acquittal on conspiracy counts based on the government's failure to prove an agreement will be denied as premature because the existence of such an agreement is subject to proof at trial. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 632 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure – Dismissal

The suppression of witness statements does not necessitate a dismissal when there is other evidence that supports probable cause for the charges. Chuuk v. Suzuki, [2009] FMCSC 21; 16 FSM Intrm. 625, 632 (Chk. S. Ct. Tr. 2009).

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COURT'S OPINION

CAMILLO NOKET, Chief Justice:

I. Introduction

In this criminal prosecution for conspiracy, attempted robbery, burglary and threat, two of the three defendants, Anson John Suzuki and Wilson (W-Two) Wiliander, gave statements after their arrests and filed motions to suppress their statements. Defendant Wiliander also moved for a bill of particulars and to compel discovery. The third defendant, Jessy (JC) Meffy, who gave no statement that could be subject to suppression, joined Suzuki and Wiliander in moving to redact witness statements, and to dismiss. On October 8, 2009, the court orally delivered its ruling on the motions. This order memorializes that ruling.

II. Background

On August 21, 2009, defendant Wiliander filed his omnibus motion. On September 2, 2009, the Government filed its opposition, conceding only, in its answer to Wiliander's motion to compel production of the police blotter and record of arrest, that the requested discovery materials would be provided. On September 22, 2009, defendants Suzuki and Meffy filed their motions on substantially similar bases as Wiliander. On September 28, 2009, the Government filed its opposition to Suzuki's motion and, on September 29, 2009, it filed its opposition to Meffy's motion.

III. Analysis

A. Admissibility of Defendants' Statements

In their motions, Wiliander and Suzuki argued that any statements they made after their arrests should be suppressed. The burden of proof was on the Government to prove by a preponderance of the evidence that the statements were admissible; therefore, it presented its side first on the issue. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520 (Chk. 2009) (July 28, 2009 memorandum and order disposing of pre-trial motions); FSM v. Sam, [2008] FMSC 18; 15 FSM Intrm. 491, 492-93 (Chk. 2008). For the defendants' statements to be admissible, the government was required to prove three things:

1. First, that the defendants, once they were placed under arrest and before they made their statements, knowingly and intelligently waived their constitutional rights against self-incrimination, including their rights to counsel and to remain silent.

2. Second, the Government was required to prove that the statements were voluntarily made by the defendants.

3. Third, the Government was required to prove that the confessions were made within 24 hours of the defendants' arrests.

1. Waiver of Rights to Counsel and to be Silent

With respect to the first issue for determining admissibility, for a defendant to waive his right to silence or to counsel, he must do so knowingly and intelligently. FSM v. Menisio, [2006] FMSC 44; 14 FSM Intrm. 316, 319 (Chk. 2006). The burden is on the government to show not only that the waiver was knowingly and intelligently given, but that it was given before any statement was made. Aliven, 16 FSM Intrm. at 528-29. There exists a presumption against such waivers. Menisio, 14 FSM Intrm. at 319 (Chk. 2006). The government has overcome that presumption when it has produced signed advice of rights forms showing timely waivers and the defendants does not controvert that evidence. Aliven, 16 FSM Intrm. at 528-29; FSM v. Sam, [2006] FMSC 46; 14 FSM Intrm. 328, 335 (Chk. 2006). Witness testimony is also admissible on the issue of whether a waiver was knowingly and voluntarily given. FSM v. Tosy, [2008] FMSC 14; 15 FSM Intrm. 463, 466 (Chk. 2008). And, when the court, based upon the witnesses' testimony, including their respective demeanor in the courtroom during the hearing, concludes that the accused was properly advised of his rights, including the right to remain silent, before he confessed, the court will deny a motion to suppress a confession that is based on the ground that a waiver was not knowingly and intelligently given. Id.

At the October 5 and 6, 2009 hearing on the motion, the court heard testimony from the arresting and interrogating officers. With respect to the first part of the analysis, whether defendants waived their constitutional rights to counsel and to remain silent, the government presented into evidence advice of rights forms signed by Suzuki and Wiliander. These forms, written in English, contain accurate descriptions of each of the defendant's rights. Officers testified that the rights were explained in English and Chuukese. The court notes that to avoid any confusion on this issue, the form itself should be written in English and Chuukese. But, in this case, since the defendants knew English, there is no issue with the defendants' understanding of the contents of the advice of rights form.

Both Suzuki and Wiliander signed the forms. Suzuki, however, indicated in his signed form that he wanted to talk with some one and that he wished to speak to counsel. A testifying officer also stated that Suzuki asked for counsel before he gave his statement. Therefore, based on the evidence that Suzuki asked for counsel before he gave his statement, the court found that the Government failed to overcome the presumption against Suzuki's waiver of his right to counsel and to remain silent. Wiliander, on the other hand, indicated on the form that he had waived his rights and he presented no evidence to controvert the evidence of waiver. Aliven, 16 FSM Intrm. at 528-29; Sam, 14 FSM Intrm. at 335. Therefore, the court concluded that the Government met its burden to prove that Wiliander knowingly and intelligently waived his rights.

2. Voluntariness of Defendants' Statements

With respect to the second issue for admissibility, even if a defendant has been advised of and waived his rights, a subsequent statement may be used as evidence against him only if the statement was made voluntarily. FSM v. Edward, [1988] FMKSC 6; 3 FSM Intrm. 224, 236 (Pon. 1987). To make the determination as to whether a statement was voluntary, the court must examine the totality of the circumstances surrounding the confessions and assess the psychological impact on the defendants of those circumstances. Edward, 3 FSM Intrm. at 238. When a defendant has expressed a wish to meet with counsel before further questioning, questioning must cease at once. Any attempt by police officers to ignore or override the defendant's wish, or to dissuade him from exercising his constitutional rights, violates 12 F.S.M.C. 218 and is grounds for suppression of his subsequent statement. Edward, 3 FSM Intrm. at 235. The only circumstance in which the Government may use the statement is if the defendant chooses to testify on his own behalf, in which case, the statement can be used to impeach his credibility on rebuttal. Sam, 15 FSM Intrm. at 493.

In this case, during the hearing, the court heard testimony from an officer that the officer slapped one or all of the defendants during the period after their arrest and before they made their statements. Although it was not clear from the testimony which defendant or defendants the officer hit, since the burden of proof was on the Government, the court assumes that the officer hit both defendant Suzuki and defendant Wiliander. An officer's hitting of an arrestee during interrogation or during a defendant's detention immediately before interrogation is compelling evidence that any subsequent statement was not voluntary, but was the result of intimidation and coercion.

On the issue of voluntariness, the court also found a deficiency in the time periods covered in the testimony of the Government's witnesses. During the extensive testimony of three officers involved in the arrests and interrogations, none of them testified that they were present during the entire period when the confessions were prepared and signed by the defendants. From the record, therefore, there were time periods during the interrogation before the confessions were made that were not covered by the testimony. In the absence of clear, unbroken testimony regarding the period when the statements were prepared and signed by the defendants, the court was unable to determine if the statements were voluntarily made, or whether they may have been coerced during the time periods not covered by the testimony.

Therefore, taking into account the totality of the circumstances surrounding defendants' confessions, the court was not persuaded that the Government met its burden of proof to show that Suzuki's and Wiliander's confessions were voluntarily given.

3. Timeliness of Defendants' Statements

With respect to the third issue for admissibility, by statute, statements taken as a result of a violation of the defendant's statutory right to be brought before a judicial officer without unnecessary delay, that is, twenty-four hours from arrest, are inadmissible, even if voluntary and the defendant has waived his rights against self-incrimination. Chuuk v. Arnish, [1994] FMCSC 11; 6 FSM Intrm. 611, 613 (Chk. S. Ct. Tr. 1994). Thus, evidence and statements lawfully obtained from a defendant before he had been illegally detained over 24 hours will be admissible, but the defendant is entitled to the suppression of any evidence or statements obtained from him after his first 24 hours of detention. Aliven, 16 FSM Intrm. at 528; FSM v. Sato, [2008] FMSC 46; 16 FSM Intrm. 26, 30 (Chk. 2008).

In this case, there was no dispute that the statements were made the morning after defendants' arrests, within twenty-four hours of their arrests. Since the court determined that Suzuki's statement was taken after his invocation of his right to counsel and that neither Suzuki nor Wiliander's statements were voluntarily given, the timeliness of the statements does not, however, save them from suppression.

B. Order to Compel Discovery

Wiliander also requested an order compelling production of the police blotter and arrest documentation. The issue was moot by the time of the hearing as the documents were produced.

C. Redaction of Co-Defendant Witness Statements

In case the court ruled in favor of the Government and did not suppress defendants Wiliander's and Suzuki's statements, the defendants each argued that any such statements must be redacted before their admission into evidence to eliminate any testimony incriminating a co-defendant. Since the court ruled that the statements were inadmissible, the issue was moot. The court notes on this issue, however, that it is forbidden to consider as evidence against a defendant any part of a non-testifying codefendant's statement which inculpates another defendant since a statement cannot be cross-examined. Sam, 14 FSM Intrm. at 335. If the Government seeks to admit a defendant's out of court statement, it ought to be redacted to eliminate references to his co-defendants. Failure to do so may result in reversal of convictions in the interests of justice. The court also asks that the parties make all attempts to stipulate to redacted statements without the assistance of the court. The court, especially when taking into account its fact finding function, need not and should not view the statements until after the redactions have been made. Sam, 14 FSM Intrm. at 335; Hartman v. FSM, [1993] FMSC 53; 6 FSM Intrm. 293, 301-02 & n.12 (App. 1993).

D. Bill of Particulars

Wiliander also argued that either a bill of particulars was required or, in the alternative, that counts IX, X, and XI must be dismissed because each of these charges was for conspiracy, but only one conviction of conspiracy could be entered against each defendant or it would violate his right against double jeopardy. The government contended that it was entitled to pursue multiple charges based on the same act at trial and that double jeopardy would only be violated if, after a finding of guilty on multiple charges, convictions were entered on more than one of those charges.

While it is true that a defendant cannot be sentenced to consecutive sentences on a greater and lesser-included offense arising from the same act, see Laion v. FSM, [1984] FMSC 9; 1 FSM Intrm. 503, 528 (App. 1984) (applying rule against double jeopardy against punishment for both greater and lesser included offense and the rule of lenity preventing consecutive sentences for crimes arising from the same act absent clear legislative direction); see also Palik v. Kosrae, [1998] FMSC 35; 8 FSM Intrm. 509, 516 (App. 1998)), the government did not have to identify which of its charges in its criminal information it intended to pursue prior to conviction. Rather, at trial, it was entitled to pursue multiple claims based on the same act. Chuuk v. Menisio, [2007] FMCSC 40; 15 FSM Intrm. 276, 279 n.1 (Chk. S. Ct. Tr. 2007); see also, generally, Aliven, 16 FSM Intrm. at 530-31 (July 28, 2009 memorandum and order disposing of pre-trial motions).

Therefore, the motion for a bill or particulars and to dismiss charges IX, X, and XI was denied.

E. Sufficiency of Affidavit of Probable Cause

Defendants next argued for suppression of the affidavit of probable cause as non-supportive of the conspiracy charges (IX, X, and XI). Defendants asserted that the essential facts constituting the charges were not sufficiently set forth, as there was no indication from the affidavit that defendants agreed to a conspiracy. That motion was denied. The affidavit stated the essential facts constituting the charges and was based on the first-hand knowledge of the affiant who was the investigating officer. Further, the information also clearly stated the nature of the acts charged. See Sato, 16 FSM Intrm. at 29 (to determine whether an information is deficient, the information and its supporting affidavit must be read together). Although the affidavit referred to witness statements that were suppressed, the affidavit also contained a considerable amount of other evidence, including the substance of the affiant's interviews with eye-witnesses, which supported probable cause. Although such eye-witness accounts may be objected to at trial as hearsay, if sought to be testified to by the affiant, such hearsay statements, if reliable, may support a finding of probable cause for instituting a prosecution. Chk. Crim. R. 41(c)(1). The court therefore concluded that the affidavit, even after striking any references to the defendants' own statements, was sufficient.

F. Motion for Judgments of Acquittal

Finally, defendants appeared to argue for acquittal on counts IX, X and XI based on the Government's failure to prove an agreement. The existence of such an agreement is subject to proof at trial. The motion was therefore denied as premature. In any case, suppression of witness statements did not necessitate dismissal when there was other evidence that supported probable cause for the charges. Chuuk v. Sipenuk, [2007] FMCSC 38; 15 FSM Intrm. 262, 265 & n.2 (Chk. S. Ct. Tr. 2007).

IV. Conclusion

Therefore, defendants Suzuki's and Wiliander's motions to suppress were granted. The motions to compel and to redact were denied as moot. The motions for a bill of particulars, challenging the sufficiency of the affidavit of probable cause, and for judgments of acquittal were also denied.

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