77 Hawai'i 403, State v. Kekona

• Decision Date: 05 December 1994
• Docket Number: No. 16173,16173
• Citation: 886 P.2d 740
• Parties: 77 Hawai'i 403 STATE of Hawai'i, Plaintiff-Appellee, v. Shawn KEKONA, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 740

886 P.2d 740

77 Hawai'i 403

STATE of Hawai'i, Plaintiff-Appellee, v. Shawn KEKONA, Defendant-Appellant.

No. 16173.

Supreme Court of Hawai'i.

Dec. 5, 1994.

Joy Yanagida, on the briefs, Wailuku, for defendant-appellant.

James B. Takayesu, Deputy Pros. Atty., County of Maui, on the briefs, Wailuku, for plaintiff-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

RAMIL, Justice.

Defendant-Appellant Shawn Gregory Kealii Kekona was charged with Assault in the Second Degree in violation of Hawai'i Revised Statutes (HRS) § 707-711(1)(b) (Supp.1991) and Robbery in the First Degree in violation of HRS § 708-840(1)(a) (1985). Kekona pleaded no contest to the lesser included offense of Robbery in the Second Degree, HRS § 708-841 (1985 & Supp.1991), subject to his right to appeal the Second Circuit Court's order denying his motion to suppress his oral statement made to police upon arrest.

Kekona contends: (1) the trial court erred in finding that Kekona's statement was voluntary; (2) the trial court erred in finding that Kekona did not invoke his right to remain silent; and (3) the State failed to meet its burden of proof to establish that Kekona made a valid waiver of his rights since the State failed to tape record the interrogation.

We disagree and affirm.

I. FACTS

A. Background

On October 30, 1991, Fetakoi Pahulu was arrested in connection with a robbery that occurred in Lahaina, Maui on October 29, 1991. Although Pahulu made a written statement to police that implicated himself in the robbery, Pahulu placed primary responsibility for the crime on Kekona.

Kekona was arrested the following day and taken to the Lahaina police station where he was processed by Detective David Blair (Blair). Detective Neil Endo (Endo) was assigned as the primary investigator in the case. After processing, Detective Endo took Kekona to an interrogation room and gave Kekona his Miranda warnings using a copy of the Maui Police Department Warnings and Waiver Form 103 (Form 103).

Once Kekona initialed the warnings and waiver portion of Form 103, the interrogation commenced and Kekona proceeded to give a statement regarding the robbery. At this point, the stories of Kekona and Detectives Blair and Endo conflict.

According to Kekona, after he told the detectives his version of the events leading up to the robbery, they became angry and accused him of lying. Kekona then told the detectives "I no like talk," and both detectives left the room. Upon arriving back in the room, Detective Endo told Kekona: (1) that he knew various members of Kekona's family well; (2) that the robbery victim was in critical condition; (3) that he should tell the truth; and (4) that if he did not talk, he would end up like his brother. ¹ Kekona testified that he did not reinitiate the conversation and he was not given new Miranda warnings. Kekona then gave a different version of the robbery, which he maintains was a "bullshit" story. ²

In contrast, Detectives Endo and Blair testified that at no time during the interrogation session did Kekona invoke his right to remain silent or request an attorney. During the interrogation, Kekona gave them an initial version of the robbery and then asked for a break so that he could smoke a cigarette, which he was allowed to do. After five to ten minutes, Detective Endo reentered the room to continue the interrogation. Because Kekona's initial version of the robbery was plagued with inconsistencies, the detectives continued to question him. Detective Endo testified that Kekona admitted that he had "lied the first time" and then gave a second version of the robbery.

Kekona did not make a written statement and the session was not tape recorded, even though recording equipment was readily available. In addition, only Detective Endo took notes during the interrogation. Both detectives subsequently reduced Kekona's oral statement to writing in their police reports. Detective Endo drafted his report approximately ten days after the confession was taken. Detective Blair wrote his report within a week of the confession, finishing the report three weeks later.

B. Procedural History

On November 13, 1991, Kekona was charged with Robbery in the First Degree, HRS § 708-840, and Assault in the Second Degree, HRS § 707-711. On December 31, 1991, Kekona filed a motion to suppress his confession on the grounds that: (1) because there was no tape recording of the session, no record existed to indicate a voluntary statement or waiver; (2) the interrogation should have ceased after he invoked his right to remain silent; and (3) the confession was coerced and involuntary.

On March 17, 1992, the circuit court denied Kekona's motion to suppress his confession. The court found that: (1) Kekona was properly advised of his rights; (2) Kekona understood his rights, despite his learning disabilities; (3) at no time during the interrogation process did Kekona invoke his right to remain silent; (4) no coercion was used to elicit Kekona's statement; and (5) Kekona voluntarily and intelligently waived his rights prior to making his statement.

Based on its findings, the circuit court concluded as a matter of law that Kekona's statement "was freely and voluntarily given, after proper warnings of his rights and the voluntary and intelligent waiver of said rights[.]" In addition, the court concluded that "the tape recording or verbatim stenographic recording of a defendant's oral statement is not a prerequisite for establishing its voluntariness and admissibility in this jurisdiction[.]"

On March 17, 1992, Kekona entered his no contest plea to the charge of robbery in the second degree, HRS § 708-841 (1985), subject to his right to appeal the Second Circuit Court's order denying his motion to suppress his oral statement. ³ The circuit court's judgment was filed on May 21, 1992, sentencing Kekona to ten years in prison and ordering him to make restitution in the amount of $1,390.50. This timely appeal followed.

II. DISCUSSION

A. Voluntariness of Statement

Kekona contends that his oral statements to the police were involuntary and the product of coercion. In reviewing whether a statement was in fact coerced, we apply "the clearly erroneous standard to the findings on which the decision to admit the statement are based." State v. Villeza, 72 Haw. 327, 330, 817 P.2d 1054, 1056 (1991), reconsideration denied,72 Haw. 617, 841 P.2d 1074 (1991) (citations omitted). Moreover, the court is required to examine the entire record and make an independent determination of the ultimate issue of voluntariness based on the totality of circumstances. State v. Kelekolio, 74 Haw. 479, 502, 849 P.2d 58, 69 (1993).

In State v. Kreps, 4 Haw.App. 72, 661 P.2d 711 (1983), the Intermediate Court of Appeals of Hawaii stated that evidence that a defendant has read and signed a police rights and waiver form can be sufficient to establish a valid waiver, provided that the court considers "whether the words used, considering the age, background, and intelligence of the individual being interrogated, impart a clear understandable warning of all of his rights." 4 Haw.App. at 76-77, 661 P.2d at 715.

Although the record indicates that Kekona suffers from a learning disability, the fact that he reads at the fourth grade level does not necessarily mean he lacks the ability to knowingly waive his Miranda rights. See Derrick v. Peterson, 924 F.2d 813, 824 (9th Cir.1990) (sixteen year old with mental age of nine year old and I.Q. of 62 capable of understanding and waiving Miranda rights), cert. denied, 502 U.S. 853, 112 S.Ct. 161, 116 L.Ed.2d 126 (1991). In addition, Detectives Blair and Endo testified at the suppression hearing that prior to the interrogation, Detective Endo read each sentence of Form 103 aloud and Kekona read along. Also, each of the constitutional rights and the waiver provisions were explained to Kekona by Detective Endo prior to Kekona signing the form. Moreover, the circuit court determined that Kekona understood all of his rights. The circuit court stated in its order denying Kekona's motion to suppress statements that:

[the] Defendant acknowledged that he had been similarly warned in past encounters with the police and on at least one prior occasion invoked his rights. The Court's finding that Defendant understood his rights is based upon the content and credibility of [Endo and Blair's] testimony, as well as an appraisal of Defendant's own testimonial responses to direct and cross-examination questioning as to the arrest, warning and waiver process[.]

Record on Appeal at 201.

In addition to the necessary waiver, the court must also find that such a statement was voluntarily made. State v. Kreps, 4 Haw.App. at 77, 661 P.2d at 715. The conditions surrounding Kekona's interrogation do not suggest that any impermissible tactics were employed by the detectives to coerce Kekona into making a statement. Kekona was interrogated for about an hour and a half by two detectives. The interrogation took place at approximately 3:00 p.m. on a weekday. Kekona asked for and was allowed to take a break during the course of the interrogation--to smoke a cigarette--and was offered something to drink. Moreover, Kekona himself admitted that he was not physically threatened during the interrogation and that no promises were made to him by the detectives.

Kekona contends, however, that he was coerced into making the second statement when confronted by the Detective Endo's admonition that "[i]f you don't talk, you'll end up like your brother." However, Detective Endo denied making such a statement. As the trier of fact, it is for the trial court to assess the credibility of witnesses, including defendant, and it may accept or reject such testimony in whole or in part. State v. Aplaca, 74 Haw. 54, 65-66, 837 P.2d 1298, 1305-1306 (1992) (citation omitted). Thus the trial court, as trier of fact, "may draw all reasonable and legitimate inferences...