83 Hawai'i 443, State v. Luton, 18084

• Decision Date: 08 November 1996
• Docket Number: No. 18084,18084
• Citation: 927 P.2d 844
• Parties: 83 Hawai'i 443 STATE of Hawai'i, Plaintiff-Appellant, v. Brian LUTON, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 844

927 P.2d 844

83 Hawai'i 443

STATE of Hawai'i, Plaintiff-Appellant, v. Brian LUTON, Defendant-Appellee.

No. 18084.

Supreme Court of Hawai'i.

Nov. 8, 1996.

[83 Hawai'i 445] Donn Fudo, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, Honolulu, for plaintiff-appellant.

Joyce K. Matsumori-Hoshijo, Deputy Public Defender, on the briefs, Honolulu, for defendant-appellee.

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

RAMIL, Justice.

On May 10, 1993, Defendant-Appellee Brian Luton was charged with murder in the second degree, in violation of Hawai'i Revised Statutes (HRS) § 707-701.5(1), ¹ and burglary in the first degree, in violation of HRS § 708-810(1)(c). ²

On March 16, 1994, Luton filed a Motion in Limine to Determine the Voluntariness of Defendant's Statements. The trial court filed its findings of fact (FOF), conclusions of law (COL), and order regarding Luton's motion in limine on April 26, 1994. Based on its COL, the trial court ordered the suppression of several statements made by Luton to Honolulu Police Department (HPD) officers. Thereafter the prosecution timely appealed. ³

The prosecution contends that the trial court erred in holding that, pursuant to State v. Liulama, 9 Haw.App. 447, 845 P.2d 1194 (1992), Luton had a sixth amendment right under the United States Constitution to assistance of counsel, which attached at the Judicial Determination of Probable Cause ⁴

[83 Hawai'i 446] (JDPC), because the same is a constitutionally "critical stage" in a criminal proceeding and, therefore, Luton's voluntary waiver of his right against self incrimination was invalid. The prosecution also argues that the defendant voluntarily waived his fifth amendment rights to counsel and against self-incrimination. For the following reasons we agree and vacate the judgment of the circuit court.

BACKGROUND

On April 26, 1993, shortly after one o'clock in the morning, HPD received a report of a stabbing at the Tahitian Lanai in Waikk. The victim's adult daughter told police at the scene that she had seen a black male with a ponytail run out of her mother's bedroom. The police immediately sent out an all points bulletin (APB) which provided a description of the suspect.

Within minutes, Luton, who matched the description in the APB, was spotted walking in the Fort DeRussy area. When an officer attempted to speak with him, Luton fled into the ocean. Several police officers tried to coax him from the water, yet Luton insisted he wanted to die and that he wanted them to shoot him. Eventually, several officers entered the water and pulled Luton from the ocean. Once ashore, Luton was arrested.

Shortly thereafter Police Officer Brenda Medeiros (Officer Medeiros) heard Luton say: "We've all got to make a living somehow, I needed the money, just kill me already." When Officer Medeiros asked Luton for his name, Luton responded, "I didn't do it, it was someone else." Officer Medeiros then questioned Luton about the stabbing. Luton claimed that a person named "Max" was responsible for the crime. Thereafter, Luton was taken to Queen's Medical Center for treatment of hand lacerations, but he refused any medical care. ⁵

Detective James Kinimaka (Detective Kinimaka) was assigned to investigate the case. He reviewed several police reports concerning the incident, and learned that: (1) two eye-witnesses had identified Luton as the man running out of the victim's bedroom shortly after the stabbing; and (2) after police apprehended Luton, they found several items on his person that had been taken from the victim's hotel room.

On April 27, Luton appeared before the district court for a JDPC. Prior to the JDPC proceeding, a public defender met with Luton, informed Luton that he was his lawyer, and advised him not to say anything to anyone, including the police. At the JDPC, the court determined there was probable cause for the arrest and Luton was returned to the police station.

Later that same day, Detective Kinimaka and Detective Stephen Dung (Detective Dung) questioned Luton, unaware that he had been represented by counsel at the JDPC hearing. Prior to the interrogation, the detectives advised Luton of his constitutional rights. He indicated that he understood his rights, and agreed to waive them and to make a videotaped statement. Luton thereafter admitted being in the victim's hotel room at the time of the stabbing, but insisted that a person named "Max" was responsible for the attack.

Following the interview, Detective Tracy Griffin (Detective Griffin) administered a polygraph examination after first apprising Luton of his Miranda rights. Once again, Luton waived his rights, including his right The next day, after advising Luton again of his constitutional rights, Detectives Kinimaka and Dung questioned him regarding his statements to Detective Griffin. ⁷ Luton confessed to stabbing the victim, but asserted that the act had been unintentional. He then made a videotaped statement to that effect.

[83 Hawai'i 447] to have an attorney present. Subsequently, Luton made several incriminating statements to Detective Griffin and informed her that he wished to make changes to the initial statement he had given to Detectives Kimimaka and Dung. ⁶

Luton was charged with murder in the second degree and burglary in the first degree. Prior to trial, he filed a motion to suppress evidence, arguing that the statements he made to police were not voluntary and were made in violation of his fifth and sixth amendment rights to counsel. The trial court agreed with Luton and suppressed several of the statements he made to Officer Medeiros and to Detectives Kinimaka, Dung, and Griffin.

The prosecution has not appealed the suppression of Luton's admissions to Officer Medeiros. At issue on appeal are several FOF and COL, all of which were relied upon by the trial court in its order suppressing the statements. FOF 15 provides:

15. The decision to initiate the process for a judicial determination of probable cause was initiated by the State.

COL 4 and 5 provide:

4. After the defendant was initially taken into custody, and after Detective Kinimaka had initially reviewed the reports of the other officers which indicated that two eyewitnesses had identified the defendant was a suspect in the stabbing and that at the time of his initial arrest the defendant was in possession of property belonging to the victim, the investigation had focused on the defendant. When the decision was made to seek a judicial determination of probable cause the police had already determined that they were not going to release the defendant. Therefore, the hearing on the judicial determination of probable cause, under the totality of the circumstances, was a critical stage in the adversarial process. In addition, at the proceeding to determine probable cause, the defendant had accepted and exercised his right to be represented by counsel. Once the defendant had exercised his fundamental right to counsel, the police were required to take affirmative steps to protect the defendant's right to counsel by at least contacting the defendant's attorney before commencing any custodial interrogation and to give the defendant an opportunity to meet with and to be properly advised by his counsel. Even though Detective Kinimaka was unaware that the defendant had been represented by an attorney, the State had initiated the critical judicial determination of probable cause and the defendant was represented by counsel at the probable cause hearing; therefore, having failed to protect the defendant's right to meet with counsel that had already been appointed for him 5. Although the defendant waived his right to counsel prior to providing Detectives Dung, Kinimaka and Griffin with his statements, and acknowledged that waiver both orally as well as on the HPD forms, under State v. Liulama, 9 Haw.App. 447, 845 P.2d 1194 (ICA 1992), defendant's waiver was invalid.

[83 Hawai'i 448] defendant's statements to Detective Kinimaka and Detective Dung on April 27, 1993 and April 28, 1993, and the defendant's statements to Detective Griffin on April 27, 1993 were obtained in violation of the defendant's right to counsel.

DISCUSSION

A. An Accused's Right to Counsel under the Sixth Amendment

to the United States Constitution and Article I, Section 14

of the Hawai'i Constitution

The trial court based its ruling in favor of Luton solely on its understanding of his sixth amendment rights:

[PROSECUTION]: My only concern is that if it goes up on the quote Liulama, an issue without a finding as to voluntariness, assume that he has not gone to a J.D.P.C., would this court hold that the statements made to Kinimaka, Dung and Griffin were then voluntary [sic] given into evidence?

THE COURT: Yes.

[PROSECUTION]: Thank you. And can that be included in the court's order?

THE COURT: Yes. And that includes the fact that the court--and it'll be included in the findings of fact that the court has reviewed the video tapes and the court is satisfied, based on reviewing the video tapes as well as the testimony in this case, that the defendant voluntarily waived his right to counsel.

(Emphasis added.)

An individual has a right to counsel under "the sixth amendment to the United States Constitution [ ⁸] and article I, section 14 of the [Hawai'i] State Constitution [ ⁹] [which] guarantees an accused the right to assistance of counsel for his or her defense." State v. Liulama, 9 Haw.App. 447, 453 n. 5, 845 P.2d 1194, 1199 n. 5 (1992). However, this right "attaches at critical stages of the criminal prosecution[,]" State v. Masaniai, 63 Haw. 354, 358, 628 P.2d 1018, 1022 (1981) (citing Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)), "only 'at or after the initiation of adversarial judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information or arraignment.' " Masaniai, 63 Haw. at 359, 628 P.2d at 1022 (...