People of Guam v Rasauo [2011] GUSC 1; 2011 Guam 01 (1 February 2011)

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Appeal from the Superior Court of Guam
Argued and submitted on March 8, 2010
Hagåtña, Guam

Appearing for Plaintiff-Appellee:
Shane F.T. Black, Esq.
Office of the Attorney General
Prosecution Division
287 W O'Brien Dr.
Hagåtña, GU 96910

Appearing for Defendant-Appellant:
Maria G. Fitzpatrick, Esq.
Public Defender Services Corp.
110 W O'Brien Dr.
Hagåtña, GU 96910

BEFORE: ROBERT J. TORRES, Chief Justice[1]; F. PHILIP CARBULLIDO, Associate Justice and KATHERINE A. MARAMAN, Associate Justice.

[1] Defendant-Appellant Kesner Rasauo, a "citizen" of Chuuk but longtime resident of Guam, was convicted after a jury trial of two charges of drunk driving as a misdemeanor. Prior to trial, the Superior Court denied two defense motions that are the subject of this appeal: a motion to suppress various pieces of evidence due to a violation of Rasauo's Miranda rights, and a motion to dismiss, alleging that Rasauo's speedy trial rights were violated when the appearance date set by the Notice to Appear was more than one year from the initial date of the arrest, and the arraignment date was more than ninety days from the date the complaint was filed.

[2] For the reasons set forth below, we hold that Rasauo never validly waived his Miranda rights, but that any error in denying the motion to suppress was harmless. Furthermore, Rasauo failed to demonstrate prejudice from the pre-trial delay, and consequently his speedy trial claims fail.

[4] On December 1, 2007, Officer D. R. Flickinger of the Guam Police Department greeted drivers, including Defendant-Appellant Kesner Rasauo, at a pre-scheduled and pre-announced sobriety checkpoint located on Route 1 in Tamuning, Guam. Officer Flickinger observed that Rasauo exhibited common indicators of alcohol intoxication, including an odor of alcohol, bloodshot watery eyes, and slurred speech. When the officer asked Rasauo if he had had anything to drink, Rasauo responded that he had two to four beers. The officer noticed that Rasauo spoke English slowly with an accent, but did not offer him the assistance of an interpreter, nor inquire into his ability to speak English.

[5] The officer asked Rasauo to step out of the car and submit to standardized field sobriety tests, which were administered in English. The tests in question were the horizontal gaze and nystagmus test, the one-legged stand, and the walk and turn.[2] At the tests' conclusion, the officer determined that Rasauo was under the influence and arrested him for Driving Under the Influence of Alcohol ("DUI").

[6] Rasauo was then brought to a DUI van at the checkpoint, where he was processed by Officer Julian Laxamana, who was responsible for advising Rasauo of his constitutional rights, administering testing pursuant to Guam's implied consent statute, and further interrogation. At the suppression hearing, Officer Laxamana testified that he explained to Rasauo his Constitutional rights paragraph by paragraph, using a standard Custodial Interrogation waiver form. When Rasauo had trouble understanding certain parts of the form, the officer attempted to provide clarification, and moved on when Rasauo indicated that he understood.

[7] Officer Laxamana also administered an implied consent form, which explained that, under Title 16 GCA 18201(a), any person who operates a motor vehicle on Guam roads is deemed to have consented to a blood, urine, or breath test. Rasauo signed the form in the place indicating that he should write his initial if he agreed to take a breath test. Afterward, Rasauo answered several basic questions in English about whether he was drinking and driving and where he was going at the time he was pulled over. The answers, as understood by Officer Laxamana, were included in a Report of Alcohol Influence that was part of the evidence Rasauo sought to suppress

[8] Police booked and released Rasauo after having him sign a notice to appear ("NTA") in court on December 10, 2008, more than one year from the date of arrest. Nine months later, on September 4, 2008, the People filed the NTA and a complaint in the Superior Court of Guam. The People did not request a summons for an earlier date.

[9] When Rasauo did not show up for the December 10, 2008 hearing, the court issued a bench warrant. Rasauo was taken into custody two days later. Id. On December 17, 2008, the judge signed an order of conditional release and appearance bond. Id. Rasauo was not arraigned at this time, but instead was given the complaint, advised of the charges, advised of his rights and appointed a counsel with a continued arraignment date of December 24, 2008. On December 24, 2008, Rasauo appeared for his arraignment, pleaded not guilty and waived his right to speedy trial. Rasauo first asserted speedy trial on February 10, 2009

[10] On February 19, 2009, Rasauo filed separate pre-trial motions to dismiss and to suppress. The court held separate hearings on each motion at the end of March and in early April. In separate Decision and Orders filed in April 2009, the Superior Court denied both the motion to suppress and the motion to dismiss. Rasauo was convicted after a jury trial which commenced on April 9, 2009. The judgment of conviction was filed and entered on the docket and Rasauo timely filed this appeal.

[11] Throughout the motion hearings and trial, Rasauo testified through an interpreter, Mr. Johnny.

[12] The Supreme Court of Guam has jurisdiction of this appeal of a criminal conviction pursuant to 48 U.S.C.A. §1424-3(d) (Westlaw current through Pub. L. 111-311 (2011)); and 7 GCA §§ 3107(a) and (b) (2005); and 8 GCA §§ 130.10 and 130.15 (2005).