Guam v Farata [2007] GUSC 8; 2007 Guam 08 (10 September 2007)

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Appeal from the Superior Court of Guam
Argued and submitted on February 20, 2007
Hagåtña, Guam

For Plaintiff-Appellant:	For Defendant-Appellee:
Marianne Woloschuk, Esq. Office of the Attorney General 287 West O’Brien Dr. Hagåtña, Guam 96910	Ana Maria C. Gayle, Esq. (argued) Phillip J. Tydingco, Esq. (briefed) Hannah Gutierrez-Arroyo, Esq. (briefed) Alternate Public Defender Office Suite 902 Pacific News Building 238 A.F.C. Flores St. Hagåtña, Guam 96910

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

[1] Defendant-Appellee Ternes Farata filed a motion to suppress oral and written statements he made during a police investigation of criminal sexual conduct allegations against him. The Superior Court suppressed Farata’s statements, holding that they were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). The trial court held alternatively that the oral and written statements were inadmissible after discussing Missouri v. Seibert, 542 U.S. 600 (2004), and Oregon v. Elstad, 470 U.S. 298 (1985). Plaintiff-Appellant People of Guam appealed the Superior Court’s grant of Farata’s motion, arguing that the trial court’s bases for suppression were improper.

[2] We hold that the trial court properly suppressed, pursuant to Miranda, the oral statements Farata made in the patrol car and thus affirm in part its decision to grant the motion. We also hold that its suppression of a statement Farata wrote at the police precinct was erroneously based on Miranda because the trial court did not make an adequate finding on whether the police obtained a waiver of Miranda rights from him before or after the statement was written. We therefore reverse the suppression of the written statement and remand this case to the trial court to determine when Farata waived his rights at the precinct. We further hold that neither Seibert nor Elstad warranted suppression of Farata’s statements because the trial court did not apply the analyses in those cases. We therefore reverse the suppression of Farata’s statements based on Seibert or Elstad and additionally remand this case to the trial court to determine whether either case provides proper grounds for suppressing the statements.

[3] On November 28, 2004, a criminal sexual conduct complaint was filed against Defendant-Appellee Ternes Farata.

[4] On November 29, 2004, Officer Scott M. Arceo and Officer Donny J. Tainatongo conducted a "suspect check" at the home of Farata’s mother along Bing Blas Street in Ordot. Appellant’s Excerpts of Record ("ER"), p. 88 (Arceo Report). Upon departing the home, Officer Arceo recognized and pulled over a vehicle driven by Farata, who was with his girlfriend Yolanda Arongaw. Officer Arceo informed Farata of the criminal sexual conduct allegations against Farata and requested Farata’s presence at the Hagåtña precinct. Farata agreed to be transported to the precinct.

[5] The following events are in dispute. First, Officer Arceo testified that he and Officer Tainatongo were with Farata in the patrol car when Farata was transported to the precinct. However, Officer Tainatongo and Farata testified that Officer Tainatongo was not in the patrol car with Officer Arceo and Farata. Officer Arceo’s report and Officer Tainatongo stated that Officer Tainatongo transported Farata’s girlfriend to the precinct.

[6] Second, Officer Arceo and Officer Tainatongo testified that Farata had not been handcuffed prior to transport. Farata testified that he was handcuffed at that time.

[7] Third, Officer Arceo testified that he did not question or converse with Farata en route to the precinct. Farata, however, testified that while he was being transported, Officer Arceo asked Farata "is that true you rape" and Farata responded "no." Transcripts ("Tr."), p. 50 (Pre-Trial Conf. Mot. Hr’g, April 10, 2006). Farata also stated that Officer Arceo "was saying I better tell him the - - everything, the truth," and that Farata proceeded to "tell him everything that I know." Tr., p. 58 (Pre-Trial Conf. Mot. Hr’g, April 10, 2006).

[8] Fourth, Officer Arceo testified that he advised Farata of Miranda rights at the precinct by providing Farata with a form. Officer Arceo replied that he reviewed the rights with Farata before Farata waived the rights. Furthermore, he replied that he questioned and obtained a written statement from Farata only after Farata waived the rights. Officer Arceo’s report stated that Farata was advised at the precinct of Miranda rights at 1:30 p.m. and interviewed at 1:35 p.m. The time indicated on the "Waiver of Rights" form is 1:30 p.m. Farata responded that he was interviewed in the patrol car but not at the precinct. Tr., p. 57 (Pre-Trial Conf. Mot. Hr’g, April 10, 2006). Farata testified that he was told by Officer Arceo at the precinct "to write everything I tell him inside the car." Tr., p. 58 (Pre-Trial Conf. Mot. Hr’g, April 10, 2006). Farata stated that he then made a written statement. Farata testified that he wrote his statement before he signed the waiver form, and that Officer Arceo did not explain the Miranda rights listed on the form.

[9] Fifth, certain times noted on Farata’s written statement indicating when he completed a page were crossed out and replaced with different times. Officer Arceo stated that Farata wrote particular times, "scratched out" the times and then initialed the correction. Tr., pp 29, 31 (Pre-Trial Conf. Mot. Hr’g, April 10, 2006). Officer Arceo testified that he did not know the reason for the changed times. Officer Arceo testified that the room where Farata wrote his statement did not have a clock. Officer Arceo guessed that Farata had a watch or possibly asked for the time. Officer Arceo stated that he was unsure about the accuracy of the substituted times. In contrast, Farata testified that Officer Arceo instructed Farata to cross out and change certain times. Farata replied that Officer Arceo provided Farata with the specific times noted on the written statement.

[11] A grand jury returned an indictment charging Farata with two charges of Third Degree Criminal Sexual Conduct (As a 2nd Degree Felony). Farata filed a motion to suppress his statements, and the Superior Court held a pre-trial hearing on the motion. The Superior Court issued its decision and order granting Farata’s motion and suppressing "all oral and written statements made by Farata on November 29, 2004, from 12:00 p.m. to 6:00 p.m." ER, p. 15 (Decision). The decision and order was entered on the docket and the People timely appealed.

[12] Title 7 GCA § 3107(b) and 8 GCA § 130.20(a)(6) confer on the Supreme Court of Guam 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).

[13] This court conducts de novo review of a motion to suppress. People v. Sangalang, 2001 Guam 18 paragraph 10.

[14] We review de novo a trial court’s legal conclusions. Guam Imaging Consultants, Inc. v. Guam Mem’l Hosp. Auth., 2004 Guam 15 paragraph 15. A trial court’s factual findings are reviewed for clear error. Pac. Rock v. Dep’t of Educ., 2001 Guam 21 para 13. "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 paragraph 7 (quoting People v. Chargualaf, Crim. No. 88-00068A, 1989 WL 265040 at *2 (D. Guam App. Div. Sept. 26, 1989). "The facts are . . . construed in a light most favorable to the party prevailing at the trial level." People v. Johnson, 1997 Guam 9 paragraph 3.

[15] We undertake de novo review of the voluntary nature of a waiver of Miranda rights, and review for clear error the knowing and intelligent nature of the waiver. Sangalang, 2001 Guam 18 paragraph 10. This court reviews de novo the legal question of whether Miranda warnings were adequate. 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). "In contrast, ‘the factual findings underlying the adequacy challenge, such as what a defendant was told, are subject to clearly erroneous review.’" Connell, 869 F.2d at 1351 (quoting United States v. Doe, 819 F.2d 206, 210 n.1 (9th Cir. 1985)); United States v. Caldwell, 954 F.2d 496, 501 n.8 (8th Cir. 1992).

[16] The trial court purportedly applied Miranda v. Arizona, 384 U.S. 436 (1966), and, alternatively, Missouri v. Seibert, 542 U.S. 600 (2004), or Oregon v. Elstad, 470 U.S. 298 (1985), in its suppression of the oral and written statements made by Farata. This court will consider whether Miranda and either Seibert or Elstad provided proper grounds for the trial court to grant Farata’s motion to suppress.

[17] The first issue this court must address is whether the trial court properly suppressed Farata’s statements as violative of Miranda.

[18] The People contend that the trial court’s finding that Farata must have been handcuffed was clearly erroneous because: 1) the trial court lacked an evidentiary basis for taking notice of an alleged police handcuffing practice; 2) it mischaracterized the officers’ use of a police report at the hearing as heavy reliance; and 3) Shorehaven Corp. v. Taitano, 2001 Guam 16, reveals the inadequacy of Farata’s testimony as support for the handcuffing finding. While Farata points out that the trial court did not apply the factors for determining custody discussed in United States v. Beraun-Panez, 812 F.2d 578, 580 (9th Cir. 1987), and United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir. 2001), the People maintain that such factors would not support a finding that Farata was in custody. The People also contend that police testimony on whether Farata was "free to go" was irrelevant to determining custody. Appellant’s Reply Brief, p. 3 (Dec. 19, 2006). They alternatively assert that even if Farata was handcuffed, the trial court did not expressly find that he was interrogated and could not have done so based on the record. The People also argue that the changed times on Farata’s written statement did not support the trial court finding that he waived his Miranda rights after writing the statement.

[19] Farata maintains that his testimony and the handcuffing practice noted by the trial court sufficiently supported the custody finding. Even without the trial court’s finding that he was handcuffed, Farata argues in the alternative that application of the Beraun-Panez and Hayden factors would establish custody. He asserts that the record supports the trial court’s determination that his statements were obtained in violation of Miranda and thus no clear error was made.

"To safeguard the uncounseled individual’s Fifth Amendment privilege against self-incrimination," the United States Supreme Court held in Miranda that "suspects interrogated while in police custody must be told that they have a right to remain silent, that anything they say may be used against them in court, and that they are entitled to the presence of an attorney, either retained or appointed, at the interrogation."

People v. Santos, 2003 Guam 1 paragraph 45 (quoting Thompson v. Keohane, 516 U.S. 99, 107 (1995)). "Persons must be advised of their rights prior to a custodial interrogation." People v. Palomo, Nos. DCA 91-00061A, DCA 91-00062A, 1993 WL 129624 at *6 (D. Guam App. Div. April 8, 1993) (emphasis added). "Custodial interrogation" is defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." People v. Manibusan, Crim. No. 89-000136A, 1990 WL 320756 at *7 (D. Guam App. Div. Feb. 16, 1990) (quoting Miranda, 384 U.S. at 444) (internal quotation marks omitted). "Generally, statements elicited by law enforcement officials while a defendant is in custody must be preceded by Miranda warnings or they are inadmissible." People v. Ulloa, DCA No. 88-0016A, 1988 WL 242606 at *3 (D. Guam App. Div. Nov. 7, 1988).

[21] The trial court stated that the threshold issue was "at what point did a custodial interrogation take place, i.e., at what point should Farata have been advised of his Miranda rights." ER, p. 13 (Decision). It considered conflicting testimony on whether Farata was transported to the precinct by both officers, handcuffed and interrogated en route, and whether he waived his Miranda rights before or after making his written statement at the precinct, stating that "its analysis turns on the accepted credibility of the witnesses presented to it." ER, p. 13 (Decision). The trial court then observed that the officers did not recall details of the incident and heavily relied on the police report. The trial court stated that "overwhelming evidence" contradicted Officer Arceo’s testimony that both officers transported Farata. ER, p. 14 (Decision). It also reiterated its statement at the pre-trial hearing that "if there is only one officer in a vehicle, general Guam Police practice requires the handcuffing of a suspect before transport." ER, p. 14 (Decision). The trial court then found that Farata "must have been handcuffed" prior to transport to the precinct and found that "Farata was not advised of his Miranda rights at that point, and no waiver of those rights was obtained." ER, p. 14 (Decision). It did not, however, expressly resolve the factual conflict on interrogation in its discussion of Miranda. The Miranda discussion also did not specifically address whether Farata waived his rights before or after making the written statement at the precinct. The trial court then granted Farata’s motion, holding that "any confession or admission subsequently obtained was in violation of Miranda and must be suppressed." ER, p. 14 (Decision).

[22] Again, "[p]ersons must be advised of their rights prior to a custodial interrogation." Palomo, 1993 WL 129624 at *6. "Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’" Santos, 2003 Guam 1 paragraph 45 (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). However, "the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation." Rhode Island v. Innis, 446 U.S. 291, 300 (1980). This court must determine whether Farata was "in custody" and whether he was "interrogated" such that police subjected him to "custodial interrogation" warranting advisement of Miranda rights prior to such custodial interrogation.

[23] "The issue of ‘whether a suspect is ‘in custody,’ and therefore entitled to Miranda warnings, presents a mixed question of law and fact qualifying for independent review.’" Santos, 2003 Guam 1 paragraph 50 (quoting Thompson, 516 U.S. at 102). "Miranda . . . holds that an individual is in custody when he or she is ‘taken into custody or otherwise deprived of his freedom of action in any significant way.’" People v. Muritok, 2003 Guam 21 paragraph 12 (quoting Miranda, 384 U.S. at 444). "In Thompson [v. Keohane, 516 U.S. 99 (1995)], the United States Supreme Court set forth two discrete inquiries to ascertain whether a person is ‘in custody’":

The first inquiry is, "what were the circumstances surrounding the interrogation." The second inquiry is "given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave." After addressing the two inquiries, the court must then resolve "the ultimate inquiry," which is "[was] there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest."

Santos, 2003 Guam 1 paragraph 51 (quoting Thompson, 516 U.S. at 102) (indentation not in original).

[24] The trial court stated that if it "accepts Farata’s testimony that he was handcuffed before being placed in Officer Arceo’s police vehicle for transport to the [Hagåtña] Precinct, then it is clear that Farata should have been advised of his Miranda rights when handcuffed." ER, p. 13 (Decision). It did not conduct the inquiries for determining custody established by the Supreme Court and recognized by this court in People v. Santos, 2003 Guam 1 paragraph 51. The trial court instead determined that Farata "must have been handcuffed" prior to transport to the precinct after apparently finding his testimony on being handcuffed to be more credible than the testimonies of Officer Arceo and Officer Tainatongo, and supposedly taking notice of a "general Guam police practice" purportedly requiring the handcuffing of a suspect prior to transport by a single officer. ER, p. 14 (Decision).

[25] "A trial judge, based on his or her experience, is in the best position to weigh and determine the credibility of the evidence received at a suppression hearing." People v. Santos, 1999 Guam 1 paragraph 19. "The appellate court affords deference to the trial court regarding such credibility determinations . . . ." State v. Irvin, 210 S.W.3d 360, 363 n.3 (Mo. Ct. App. 2006); see Commonwealth v. Myers, 722 A.2d 649, 651-652 (Pa. 1998). Credibility determinations have been upheld under different standards of review. An appellate court may "accept the trial court’s . . . evaluations of credibility, if supported by substantial evidence." People v. Whitson, 949 P.2d 18, 29 (Cal. 1998) (emphasis added). "[S]ubstantial evidence is defined as ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’" Bondoc v. Worker’s Comp. Comm’n, 2000 Guam 6 paragraph 6 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). A reviewing court may "adopt the trial court’s determinations on . . . credibility if there is any evidence to support them." McFadden v. State, 461 S.E.2d 542, 544 (Ga. Ct. App. 1995) (emphasis added). It may "scrutinize the court’s factual findings, including credibility determinations, for clear error."[1] United States v. Mendez-de Jesus, 85 F.3d 1, 2 (1st Cir. 1996) (emphasis added); see United States v. Chirinos, 112 F.3d 1089, 1102 (11th Cir. 1997); Valle v. State, 638 S.E.2d 394, 395-396 (Ga. Ct. App. 2006). A reviewing court may uphold "witness credibility determinations of the trial court unless they are against the manifest weight of the evidence." People v. Smith, 803 N.E.2d 1074, 1080 (Ill. App. Ct. 2004) (emphasis added). "Manifest weight means the clearly evident, plain and indisputable weight of the evidence." Gettemy v. Grgula, 323 N.E.2d 628, 630 (Ill. App. Ct. 1975). These authorities indicate essentially that a trial court’s determinations of witness credibility must have support in the record. We hold that credibility determinations of a trial court should be upheld if such determinations are not clearly erroneous. This standard of review affords the trial court the proper degree of deference with regard to assessing the credibility of witnesses.

[26] The trial court noted conflicting testimony on whether Farata was handcuffed prior to transport to the Hagåtña precinct. It deemed inaccurate Officer Arceo’s testimony that Farata was taken to the precinct by both officers. The trial court also acknowledged the officers’ admissions that they did not recall certain details about the incident and their heavy reliance on their reports. Focusing on the unreliability of the officers’ testimony, the trial court apparently found Farata’s statements to be more dependable and thus seemingly accepted his testimony that he had been handcuffed.

[27] The People argue that the characterization of the officers as heavily relying on their reports was factually incorrect. The trial court’s observations that the officers’ testimonies were inaccurate and independently unreliable are supported by the statements they made at the pre-trial hearing. The record thus supports the trial court’s determination of the officers’ credibility. The People further assert that Farata’s testimony was an insufficient basis for suppression and should have been "met with a certain degree of skepticism." Appellant’s Opening Brief, p. 12 (Nov. 20, 2006). Again, this court is tasked with determining whether the credibility evaluations of the trial court are clearly erroneous,