People of Guam v Angoco [2007] GUSC 1; 2007 Guam 01 (27 March 2007)

	Home \| Databases \| WorldLII \| Search \| Feedback Supreme Court of Guam

Appeal from the Superior Court of Guam
Argued and submitted on October 6, 2006
Hagåtña, Guam

For Plaintiff-Appellant:
Marianne Woloschuk, Esq.
Assistant Attorney General
Office of the Attorney General
287 West O’Brien Drive
Hagåtña, Guam 96910

For Defendant-Appellee:
Michael F. Phillips, Esq.
Leslie A. Travis, Esq.
Phillips & Bordallo, P.C.
410 West O’Brien Drive
Hagåtña, Guam 96910

BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, JR., Associate Justice;
and RICHARD H. BENSON, Justice Pro Tempore.

[1] Defendant-Appellee Ryan Paul Angoco filed a motion to suppress certain statements he made to police, including a written statement he gave after he signed a waiver of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). The Superior Court applied the analysis of the United States Supreme Court in Missouri v. Seibert, 542 U.S. 600 (2004), in determining the validity of the Miranda waiver and suppressed the post-Miranda written statement. The trial court also found that the police failed to comply with 19 GCA § 5111 and held that violation of the statute provided partial justification for suppressing the post-Miranda written statement. Plaintiff-Appellant People of Guam appealed the trial court’s suppression of the post-Miranda statement. We hold that the trial court erred in its application of Seibert and therefore reverse the trial court’s suppression of Angoco’s post-Miranda written statement. We also remand the case to the trial court to determine whether the interrogating officer deliberately used a “question-first” interrogation technique, according to the rules set forth in this opinion. We further hold that violation of 19 GCA § 5111 alone does not warrant suppression of the post-Miranda written statement.

[2] On September 30, 2005, at 12:40 a.m., Officer Allan Guzman met Defendant-Appellee Ryan Paul Angoco at the Tumon precinct. Angoco was earlier handcuffed and brought to the precinct after he admitted that he was the driver of a truck allegedly involved in a fatal hit-and-run in Tumon.[1]

[3] Officer Guzman questioned Angoco without issuing Miranda warnings. During questioning, Angoco stated that he was the driver of the truck and that he did not remember the accident because he blacked out.

[4] Angoco’s parents were later contacted and arrived at the Tumon precinct at 2:20 a.m. Officer Guzman told the parents that he believed Angoco drove the truck that killed a Japanese tourist. Officer Guzman then questioned Angoco with the parents present, in the same room where Angoco was earlier questioned. Officer Guzman subsequently left Angoco and his parents alone in the room.

[5] At 2:35 a.m., Officer Guzman returned to the room with a “Custodial Interrogation” form, which listed Miranda rights and included a waiver of the rights. Angoco and his parents signed the form.

[6] Officer Guzman then instructed Angoco to make a written statement. Angoco started writing at 3:31 a.m. and completed his written statement at 4:20 a.m. Angoco stated in writing that he and his friend inhaled an “air duster” while driving the truck to Tumon, that Angoco lost consciousness, that Angoco awoke to his friend saying that Angoco hit a pedestrian with the truck, and that Angoco did not remember hitting anyone.

[7] On October 7, 2005, a grand jury returned an indictment charging Angoco with Manslaughter (As a 1st Degree Felony), Vehicular Homicide (As a 2nd Degree Felony), Negligent Homicide (As a 2nd Degree Felony), Leaving the Scene of an Accident (A Felony), Reckless Conduct (As a Misdemeanor), Reckless Driving with Injuries (As a Misdemeanor), Leaving the Scene of an Accident (As a Petty Misdemeanor), and Reckless Driving (As a Petty Misdemeanor).

[8] On November 3, 2005, Angoco filed a motion to suppress the statements he made to police, including the written statement he gave after he signed the form waiving his Miranda rights. The Superior Court held hearings on the motion from November 15, 2005 to November 18, 2005. The trial court granted the motion on November 18, 2005. Plaintiff-Appellant People of Guam appealed the decision on November 21, 2005. The decision was entered on the docket on November 25, 2005. The appeal was timely filed. 8 GCA § 130.40 (2005).[2]

[9] This court has jurisdiction over an appeal from a Superior Court decision and order granting a motion to suppress evidence. 7 GCA § 3107(b) (2005); 8 GCA § 130.20(a)(6) (2005).

[10] A motion to suppress is reviewed de novo by this court. People v. Sangalang, 2001 Guam 18 ¶ 10 (citing People v. Hualde, 1999 Guam 3 ¶ 19). We review de novo the voluntariness of a waiver of Miranda rights, and review for clear error the knowing and intelligent nature of the waiver. Id.

[11] The legal question of whether Miranda warnings were adequate is subject to de novo review. United States v. Connell, 869 F.2d 1349, 1351 (9th Cir. 1989); see United States v. Hernandez, 93 F.3d 1493, 1501 (10th Cir. 1996). Jurisdictions applying this standard have stated:

De novo review is appropriate because the adequacy of Miranda warnings involves application of a legal standard to a set of facts, which require[s] the consideration of legal concepts and involves the exercise of judgment about the values underlying the legal principles. . . . In contrast, the factual findings underlying the adequacy challenge, such as what a defendant was told, are subject to clearly erroneous review.

Id. (citations and quotation marks omitted); see United States v. Caldwell, 954 F.2d 496, 501 n.8 (8th Cir.1992).

[12] The decision of the trial court was anchored by its analysis of Missouri v. Seibert, 542 U.S. 600 (2004), decided by the United States Supreme Court. Thus, the primary focus of the present case is the trial court’s interpretation and application of Seibert.

[13] The People argue that the trial court erred in applying Seibert when it applied the multi-factor test laid out in the plurality opinion instead of the test articulated in Justice Kennedy’s concurring opinion. The People thus assert that the trial court failed to make the requisite determination of whether the police deliberately used a “question-first” interrogation technique. Alternatively, the People maintain that even if the trial court found deliberate use of the question-first technique, the presence of Angoco’s parents during the post-Miranda phase of questioning and the length of time between the pre-Miranda and post-Miranda statements constituted sufficient curative measures that justified admission of the post-Miranda statement. The People further assert that Angoco’s waiver of Miranda rights and his statements thereafter were voluntary, knowing and intelligent.

[14] Angoco argues that the trial court properly employed Seibert since the trial court’s review considered the factors discussed in both the plurality opinion and concurrence. Angoco asserts that the facts of the instant case are substantially similar to those the plurality noted in justifying suppression. Angoco maintains that the trial court found that the question-first technique was deliberately used and that the record was devoid of evidence indicating curative measures taken by police. In addition, Angoco asserts that the trial court held that the waiver was neither knowing nor intelligent. Angoco further maintains that the failure to advise him of Miranda rights was neither accidental nor inadvertent.

[15] The first issue this court must determine is whether the trial court properly applied the Seibert analysis in suppressing Angoco’s post-Miranda statement.

[16] In Seibert, the defendant was arrested and transported to a police station, where she was questioned by an officer for 30 to 40 minutes without being advised of her Miranda rights. Seibert, 542 U.S. at 604-605. The officer later testified that he made a “conscious decision” to withhold Miranda warnings and used the “question-first” interrogation technique he had been taught. Id. at 605-606. An officer utilizing the question-first technique would “question first, then give the warnings, and then repeat the question ‘until [the officer] get[s] the answer that [the suspect] already provided once.’” Id. at 606. During the interrogation, the officer squeezed the defendant’s arm and repeated statements suggesting the defendant’s involvement in the crime. Id. at 604-605. After the defendant made incriminating statements, she was allowed to take a 20-minute break to smoke and drink coffee. Id. at 605. The officer then issued Miranda warnings to the defendant, obtained a signed waiver from her, and resumed questioning of the defendant, which he now recorded. Id. During this warned second phase of questioning, the officer mentioned that they had been talking about the incident and then confronted the defendant with her previous unwarned statements. Id. The officer “acknowledged that [the defendant’s] ultimate statement was ‘largely a repeat of information . . . obtained’ prior to the warning.” Id. at 606.

[17] The United States Supreme Court in a plurality opinion denounced the question-first technique used by the officer, stating that “[b]y any objective measure, applied to circumstances exemplified here, it is likely that if the interrogators employ the technique of withholding warnings until after [the] interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content.” Id. at 613. “Thus, when Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and ‘depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.’” Id. at 613-614 (quoting Moran v. Burbine, 475 U.S. 412, 424 (1986)).

[18] The Court stated that “[t]he threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function ‘effectively’ as Miranda requires.” Id. at 611-612. The Court then considered five factors to be used in examining the effectiveness of Miranda warnings administered when suspects are so questioned first. The Court specifically considered:

[1] the completeness and detail of the questions and answers in the first round of interrogation, [2] the overlapping content of the two statements, [3] the timing and setting of the first and the second [rounds of interrogation], [4] the continuity of police personnel, and [5] the degree to which the interrogator’s questions treated the second round as continuous with the first.

Id. at 615. Viewing the facts in light of these five factors, the Court noted that “[t]he warned phase of questioning proceeded after a pause of only 15 to 20 minutes, in the same place as the unwarned segment” and “the police did not advise [the defendant] that her prior statement could not be used.” Id. at 616. The Court found that “[w]hen the police were finished there was little, if anything, of incriminating potential left unsaid.” Id. The Court also found that “[t]he impression that the further

questioning was a mere continuation of the earlier questions and responses was fostered by references back to the confession already given,” and concluded that “[i]t would have been reasonable to regard the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before.” Id. at 616-617. The Court then held that the defendant’s post-warning statements were inadmissible after concluding that “[t]hese circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk.” Id. at 617.

[19] The trial court in the present case stated: “When faced with a Miranda challenge, the court is required to engage in a totality of the circumstances inquiry in order to determine if the waiver is made voluntarily, knowingly and intelligently.” Appellant’s Excerpts of Record (“ER”) at 9 (Dec. & Ord. re Mot. to Supp.) (citing Wyrick v. Fields, 459 U.S. 42, 48-49 (1982)). The trial court then stated that the analysis in Seibert was applicable to a totality of the circumstances inquiry into the validity of a Miranda waiver. The trial court did not find the Seibert case to be independent grounds for suppression, separate from the Miranda inquiry. The trial court also did not assess the validity of the Miranda waiver according to the well-established principles previously recognized by this court. The trial court instead held that the Seibert analysis was controlling in determining the legitimacy of Angoco’s waiver of Miranda rights. In doing so, the trial court found the Seibert facts to be substantially similar to those in the present case. The trial court also listed the same five factors above and analyzed the facts of the present case in accordance with the factors, ultimately determining that Angoco’s post-Miranda written statement was inadmissible and must be suppressed.

[20] Because Seibert was decided by a plurality of the United States Supreme Court, the People argue that the trial court in the present case erred in applying the Seibert holding enunciated by the four Justices to the present case.

[21] “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as the position taken by those Members who concurred in the judgments on the narrowest grounds. . . .’” Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)). Citing this decree from the Court, a majority of circuits have held that Justice Kennedy’s concurrence represents the Seibert holding. United States v. Williams, 435 F.3d 1148, 1157-1158 (9th Cir. 2006); United States v. Ollie, 442 F.3d 1135, 1142 (8th Cir. 2006); United States v. Courtney, 463 F.3d 333, 338 (5th Cir. 2006); United States v. Mashburn, 406 F.3d 303, 308-309 (4th Cir. 2005); see United States v. Stewart, 388 F.3d 1079, 1086-1087, 1090 (7th Cir. 2004) and United States v. Kiam, 432 F.3d 524, 532 (3d Cir. 2006). We agree with these circuits, and conclude that the trial court erred by analyzing the present case according to the holding of the Seibert plurality. We therefore hold that the concurrence of Justice Kennedy is the holding of Seibert, and the rules therein should have been applied by the trial court in determining whether Angoco’s post-Miranda statement was admissible.

[22] Justice Kennedy’s concurrence in Seibert stated that the question-first technique was “designed to circumvent Miranda,” and “further[ed] no legitimate countervailing interest.” Seibert, 542 U.S. at 618, 621. Again, the question-first technique involves unwarned questioning, followed by the advisement of Miranda rights after a confession has been made. Id. at 613. Departing from the plurality, Justice Kennedy’s concurrence held that the question-first technique should be

scrutinized only when it has been deliberately used, stating that “a multifactor test that applies to every two-stage interrogation may serve to undermine [Miranda’s] clarity.” Id. at 622. Under this narrower test, if the question-first technique was “used in a calculated way to undermine the Miranda warning,” then post-Miranda statements “that are related to the substance of prewarning statements” must be suppressed, unless “specific, curative steps” were taken before the post-Miranda statements were made. Id. at 621-622. The concurrence stated that such curative steps included: a substantial break in time and circumstances between the unwarned statements and the Miranda warning; or, an additional warning regarding the inadmissibility of unwarned statements. Id. at 622. These curative steps must “ensure that a reasonable person in the suspect’s situation would understand the import and effect” of the warning and the waiver. Id. If the interrogator does not use “this deliberate, two-step strategy, predicated upon violating Miranda during an extended interview,” the concurrence held that Oregon v. Elstad, 470 U.S. 298 (1985), governed the admissibility of post-Miranda statements. Id. at 621-622.

[23] Considering the Seibert facts, the concurrence found that “[t]he police used a two-step questioning technique based on a deliberate violation of Miranda.” Id. at 620. The concurrence stated:

The officer confronted the defendant with her inadmissible prewarning statements and pushed her to acknowledge them. . . . Reference to the prewarning statement was an implicit suggestion that the mere repetition of the earlier statement was not independently incriminating. The implicit suggestion was false.

Id. at 621. The concurrence then held that the defendant’s post-Miranda statements were inadmissible because “[n]o curative steps were taken.” Id. at 622.

[24] The Seibert concurrence[3] did not establish a test for determining whether the question-first technique was deliberately used. Seibert, 542 U.S. at 618-622. One circuit has offered guidance on the deliberateness inquiry. Williams, 435 F.3d at 1158; compare Ollie, 442 F.3d at 1141-1143; Stewart, 388 F.3d at 1089-1090; Kiam, 432 F.3d at 532. The Ninth Circuit, recognizing that such a test was lacking, held that “in determining whether the interrogator deliberately withheld the Miranda warning, courts should consider whether objective evidence and any available subjective evidence, such as an officer’s testimony, support an inference that the two-step interrogation procedure was used to undermine the Miranda warning.” Williams, 435 F.3d at 1158. The Ninth Circuit stated that “[s]uch objective evidence would include the timing, setting and completeness of the prewarning interrogation, the continuity of police personnel and the overlapping content of the pre- and postwarning statements.” Id. at 1159.

[25] The objective evidence listed by the Ninth Circuit is similar to four of the factors listed in the Seibert plurality opinion: “the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, and the continuity of police personnel.” Seibert, 542 U.S. at 615. The Seibert plurality, however, used the factors to determine whether mid-interrogation Miranda warnings were effective in informing the defendant of his rights and the consequences of waiving them. Id. at 614-617. The factors were not used to determine whether the question-first technique was deliberately used. Though the Ninth Circuit did not reconcile this difference in laying out its test, it stated that the objective inquiry into deliberateness “function[s] practically as an analysis of whether the facts of a particular case more closely resemble those in Seibert or Elstad.” Williams, 435 F.3d at 1162 n.16. Again, the officer in Seibert testified that he intentionally withheld warnings and used a technique he had been taught. Seibert, 542 U.S. at 604-606. In Elstad, the United States Supreme Court characterized the officer’s failure to warn as an “oversight.” Elstad, 470 U.S. at 315-316. In short, under the Ninth Circuit test, the objective evidence is relevant to the extent it demonstrates the facts of a case to be comparable to those in either Seibert or Elstad.

[26] The Ninth Circuit also stated that in determining whether the question-first technique was deliberately used, a court should also consider “available expressions of subjective intent suggesting that the officer acted deliberately to undermine and obscure the warning’s meaning and effect.” Williams, 435 F.3d at 1160. The Ninth Circuit reasoned that:

By focusing on both “facts apart from intent that show the question-first tactic at work,” . . . and any available subjective evidence of deliberateness, courts will better ensure that law enforcement officers do not circumvent the Fifth Amendment right against self-incrimination through the use of “interrogation practices . . . likely . . . to disable [an individual] from making a free and rational choice” about speaking.

[27] Because the Seibert concurrence is silent on a method for determining whether the question-first technique was deliberately used to undermine Miranda, we therefore adopt the Ninth Circuit test in Williams discussed above. In addition, to provide clarity, we hold that a trial court must evaluate “the timing and setting of the first and the second [rounds of interrogation]” as part of the objective evidence considered under the Williams test. Seibert, 542 U.S. at 615. Pursuant to the Williams test, this additional objective evidence, originally discussed in the Seibert plurality opinion, is relevant to the extent it demonstrates the facts of a case to be comparable to those in either Seibert or Elstad. Williams, 435 F.3d at 1162 n.16. Consequently, two things must be considered in determining such

deliberateness: objective evidence, including the timing, setting and completeness of the unwarned phase of questioning, the timing and setting of the first and the second rounds of interrogation, the continuity of police personnel and the overlapping content of the warned and unwarned statements; and, available subjective evidence, such as an officer’s testimony.

[28] The Seibert concurrence also did not establish the burden of proof for establishing the deliberate use of the question-first technique, and thus which party bore such a burden. Seibert, 542 U.S. at 618-622; Williams, 435 F.3d at 1159 n.11; Ollie, 442 F.3d at 1142. Noticing this omission, the Eighth Circuit held that “when a defendant moves to suppress a post-warning statement that he contends was given as part of a question-first interrogation, the prosecution must prove, by a preponderance of the evidence, that the officer’s failure to provide warnings at the outset of questioning was not part of a deliberate attempt to circumvent Miranda.” Ollie, 442 F.3d at 1142-1143. The Eighth Circuit noted that its holding comported with Supreme Court precedent and other practical considerations. Id. at 1143.

[29] We therefore hold that the prosecution bears the burden of proof for establishing deliberateness, and thus must prove by a preponderance of the evidence that the failure to issue Miranda warnings was not pursuant to the deliberate use of the question-first technique.

[30] If the objective evidence and available subjective evidence discussed above demonstrate that the question-first technique was deliberately used to undermine Miranda, then the Seibert concurrence requires suppression of post-Miranda statements related in substance to unwarned statements, unless curative measures were taken prior to procurement of the warned statements. Seibert, 542 U.S. at 621-622. Again, the curative measures discussed in the Seibert concurrence

were: a substantial break in time and circumstances between the unwarned statements and the Miranda warning; or, an additional warning regarding the inadmissibility of the unwarned statements. Id. at 622.

[31] Other circuits that have analyzed the Seibert concurrence agree that the presence of curative measures must be considered upon establishing that the question-first technique had been deliberately used. Williams, 435 F.3d at 1160-1161; Ollie, 442 F.3d at 1142; Stewart, 388 F.3d at 1089-1090; Courtney, 463 F.3d at 338; Mashburn, 406 F.3d at 309; Kiam, 432 F.3d at 532. The Ninth Circuit, however, stated that where deliberateness has been shown, the five factors discussed by the Seibert plurality must also be applied in determining the effectiveness of the later Miranda warnings. Williams, 435 F.3d at 1160-1161. This test for the effectiveness of the warning departs from other circuits’ interpretation of the concurrence. Ollie, 442 F.3d at 1142; Stewart, 388 F.3d at 1089-1090; Courtney, 463 F.3d at 338; Mashburn, 406 F.3d at 309; Kiam, 432 F.3d at 532. Though the Seibert concurrence was silent on the method for determining deliberate use of the question-first technique, it explicitly discussed certain curative measures to be considered. Seibert, 542 U.S. at 621-622. We decline to adopt the Ninth Circuit’s test for the effectiveness of mid-interrogation Miranda warnings, and conclude that upon a finding of deliberateness, only curative measures need be considered in determining whether post-Miranda statements should be suppressed.

[32] If consideration of objective evidence and available subjective evidence pursuant to the test for deliberateness indicates that the question-first technique was not deliberately used to undermine Miranda, the Seibert concurrence states that Elstad governs the admissibility of post-Miranda statements. Id. at 622.

[33] In Elstad, police arrived at the defendant’s home with a warrant for his arrest in connection with a criminal investigation. Elstad, 470 U.S. at 300-301. An officer questioned the defendant without issuing Miranda warnings in the living room, where the defendant confessed to being present at the crime scene. Id. at 301. “The arresting officers’ testimony indicate[d] that the brief stop in the living room before proceeding to the station house was not to interrogate the suspect but to notify his mother of the reason for his arrest.” Id. at 315. The defendant was then transported to a sheriff’s headquarters about an hour later, where he was advised of and subsequently waived his Miranda rights. Id. at 301. The defendant explained his involvement in the crime by giving a full statement, which he reviewed, and which was read back to him for correction. Id. The defendant and the two arresting officers signed the statement. Id.

[34] The United States Supreme Court stated that the failure to issue Miranda warnings “may have been the result of confusion as to whether the brief exchange qualified as ‘custodial interrogation’ or it may simply have reflected [the officer’s] reluctance to initiate an alarming police procedure” before speaking with the defendant’s mother. Id. at 315-316. The Court then characterized the failure to warn as an “oversight,” and found that “the incident had none of the earmarks of coercion.” Id. at 316. It held that “a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” Id. at 318.

[35] The Seibert concurrence noted that the suspect in Elstad “had not received a Miranda warning before making the statement, apparently because it was not clear whether the suspect was in custody at the time.” Seibert, 542 U.S. at 619. The concurrence then distinguished Elstad, stating

that in Seibert the “Miranda warning was withheld to obscure both the practical and legal significance of the admonition when finally given.” Id. at 620.

[36] The United States Supreme Court in Elstad recognized that a “simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will” did not alone render a later warned statement inadmissible. Elstad, 470 U.S. at 309. “In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights.” Id. at 314. The Court stated that “[t]hough Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” Id. at 309. “As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements.” Id. at 318.

[37] “The voluntariness of a statement is an issue of fact that must be proven by the Government by a preponderance of the evidence.” Borja v. People, Crim. No. 81-00049A, 1983 WL 29949 at *3 (D. Guam App. Div. May 26, 1983). “Whether a statement is voluntary or not depends on whether the [suspect] knowingly and intelligently waived his constitutional rights pursuant to Miranda . . . .” Id. This court has stated that the voluntary, knowing and intelligent nature of a Miranda waiver is to be gleaned from the totality of the circumstances, which includes “the background, experience and conduct of the defendant.” Sangalang, 2001 Guam 18 ¶ 13 (quoting United States v. Garibay, 143 F.3d 534, 536 (9th Cir. 1998)). “Two distinct dimensions” must be considered in determining the validity of a waiver:

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

[38] In short, if deliberate use of the question-first technique is not found, then the admissibility of post-Miranda statements hinges on: whether the warned statements were given knowingly and voluntarily; and, whether the warned statements were made subsequent to unwarned statements that were neither coerced nor the product of “other circumstances calculated to undermine the suspect’s ability to exercise his free will.” Elstad, 470 U.S. at 309.

[39] Thus, pursuant to the Seibert concurrence, the first issue is whether the question-first technique was deliberately used to undermine Miranda. If it was so used, the next issue is whether certain curative measures were employed. If such deliberate use of the question-first technique is not found, then Elstad governs, and the inquiry shifts to an examination of the knowing and voluntary nature of the warned and unwarned statements, based on the totality of the circumstances.

[40] In the present case, the trial court essentially found that the question-first technique was utilized by Officer Guzman. The trial court did not, however, make a specific factual finding as to whether the technique was deliberately used.

[41] “This court undertakes de novo review of the trial court’s legal conclusion[s] . . . . “ Guam Imaging Consultants, Inc. v. Guam Mem’l Hosp. Auth., 2004 Guam 15 ¶ 15 (quoting People v. Johnson, 1997 Guam 9 ¶ 3.) “We review a trial court’s findings of fact for clear error.” Pac. Rock Corp. v. Dep’t of Educ., 2001 Guam 21 ¶ 13. “The facts are . . . construed in a light most favorable to the party prevailing at the trial level.” People v. Johnson, 1997 Guam 9 ¶ 3. “A finding is clearly erroneous when, even though some evidence supports it, the entire record produces the definite and firm conviction that the court below committed a mistake.” Yang v. Hong, 1998 Guam 9 ¶ 7 (quoting People v. Chargualaf, Civ. No. 88-00068A, 1989 WL 265040 at *2 (D. Guam App. Div. Sept. 26, 1989)).

[42] Again, the trial court failed to make a factual finding on deliberate use of the question-first technique. Thus, this court cannot conduct a review for clear error since there is no factual finding by the trial court which can be subjected to such review.

[43] The record also contains testimony with regard to the use of the question-first technique that may or may not support a finding of deliberateness. Officer Guzman described the officers’ questioning of Angoco, including the questions Officer Guzman asked before Miranda warnings were issued, as an “interview.” Transcripts (“Tr.”), Vol. III at 81-82 (Cont’d. Mot. to Supp., Nov. 16, 2005). Officer Guzman stated that an unwarned interview was permissible as part of the “crash investigation process.” Tr., Vol. III at 129 (Cont’d. Mot. to Supp., Nov. 16, 2005). Officer Guzman said that unwarned interviews were “not a specific technique” he was taught, and that “[i]t’s more or less common sense too that you first have to ask what’s going on before you get in detail as to the investigation itself.” Tr., Vol. III at 163 (Cont’d. Mot. to Supp., Nov. 16, 2005). Officer Guzman replied that an interview differed from an interrogation. Tr., Vol. III at 169 (Cont’d. Mot. to Supp., Nov. 16, 2005). Officer Guzman responded that he believed the unwarned interviews complied with Miranda. Tr., Vol. III at 170 (Cont’d. Mot. to Supp., Nov. 16, 2005). Officer Guzman also replied that the unwarned interviews were part of the training he received. Tr., Vol. III at 171 (Cont’d. Mot. to Supp., Nov. 16, 2005).

[44] Without a factual finding by the trial court of deliberate use, this court cannot determine the appropriate analysis pursuant to the Seibert concurrence. This is so because an inquiry into the use of curative measures or application of the Elstad test hinges on a finding of deliberateness. Under these circumstances, we decline to make a determination of whether the question-first technique was deliberately used. We therefore reverse the trial court’s decision to suppress Angoco’s post-Miranda written statement and remand this case to determine whether Officer Guzman deliberately used the question-first technique to undermine Miranda.

[45] The trial court, pursuant to this remand, must weigh the objective evidence and available subjective evidence previously discussed to determine whether the question-first technique was deliberately used by Officer Guzman to undermine Miranda

Supreme Court of Guam

People of Guam v Angoco [2007] GUSC 1; 2007 Guam 01 (27 March 2007)