Com. of Northern Mariana Islands v. Mendiola

• Decision Date: 14 January 1993
• Docket Number: No. 91-10093,91-10093
• Citation: 976 F.2d 475
• Parties: COMMONWEALTH OF The NORTHERN MARIANA ISLANDS, Plaintiff-Appellee. v. Mariano Faisao MENDIOLA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 475

976 F.2d 475

COMMONWEALTH OF The NORTHERN MARIANA ISLANDS, Plaintiff-Appellee. v. Mariano Faisao MENDIOLA, Defendant-Appellant.

No. 91-10093.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 15, 1992.

Decided Sept. 23, 1992.

As Amended Jan. 14, 1993.

Lecia M. Eason, Wiseman & Eason, Saipan, MP, for defendant-appellant.

Steven P. Pixley, Asst. Atty. Gen., Commonwealth of the Northern Mariana Islands, Saipan, MP, for plaintiff-appellee.

Appeal from the Supreme Court of the Northern Mariana Islands.

Before TANG, PREGERSON, and BOOCHEVER, Circuit Judges.

PREGERSON, Circuit Judge:

Mariano F. Mendiola was convicted by a jury in the trial court of the Commonwealth of the Northern Mariana Islands ("CNMI") for first degree murder, robbery kidnapping, and illegal possession of firearms. The Appellate Division of the United States District Court for the Northern Mariana Islands reversed the convictions and remanded to the trial court. Before the appellate division rendered its decision, however, the newly-created CNMI Supreme Court assumed jurisdiction over Mendiola's appeal and affirmed the convictions. Mendiola appeals.

On appeal, Mendiola contests the jurisdiction of the CNMI Supreme Court and raises several substantive errors. We hold that the CNMI Supreme Court had jurisdiction over Mendiola's appeal. On the merits, we hold that Mendiola's confessions, including those represented by the photographs, were involuntarily made based on the totality of the circumstances and that the confessions were therefore inadmissible. In particular, we note that Mendiola was not adequately apprised of his right to appointed counsel, if he could not afford one. Accordingly, we reverse Mendiola's convictions.

FACTUAL AND PROCEDURAL BACKGROUND

On October 27, 1987, Galen Mack and Remedios Conley were robbed and fatally shot. Their bodies were discovered in the Obyan Beach area of Saipan in dense undergrowth known as the "boonies."

Police conducted an intensive investigation for over four months with no success. Then, Mario Reyes, a boyhood classmate of Mendiola's, informed law enforcement authorities that Mendiola had killed Mack and Conley. Reyes also admitted that he had been present during the murders but stated that he had not participated in the crimes. When Reyes implicated Mendiola, Reyes was incarcerated on other charges. Mendiola was also in custody on unrelated murder charges for which he was later acquitted. Both Reyes and Mendiola were confined in the same facility.

Reyes told police that three days after the murder he buried near his house the gun used to kill Mack and Conley. Later, he told his brother to dig up the gun. When he went with police to retrieve the gun, it was not there. The appellate division found that there was evidence that the gun belonged to Reyes and that some of the stolen items were in Reyes' possession.

Reyes was never charged with any offense related to the Mack/Conley murders. At trial, he testified that Mendiola committed the charged offenses. ¹

Mendiola was interrogated on at least five occasions during March 17-19, 1988, regarding the Mack/Conley murders. The facts concerning the interrogations are not in dispute. At the first session, a Saipan police officer told Mendiola "he have [sic] a right not to talk to me--to talk to me, and he had a right to see a lawyer." At each subsequent session, Mendiola was given local statutory rights as well as Miranda rights in both English and Chamorro, his native language. Mendiola waived his rights each time before any police questioning began.

During the interrogations, the interrogating police officer wrote down in English each of the questions asked and each of Mendiola's responses. Mendiola was instructed to review the notes and to sign at the bottom of each page indicating that the notes were accurate. Mendiola complied, although his ability to read English is doubtful. Mendiola admitted killing Mack and Conley.

One of the interrogation sessions lasted five hours, but questioning stopped whenever Mendiola so requested. Mendiola was permitted to smoke and take coffee breaks.

Following the fifth session, Sergeant Camacho and Captain Castro of the Saipan Police Department took Mendiola to the location of the murders and instructed Mendiola to reenact the murders while they photographed him. He complied. Mendiola was finally arraigned in early April 1988. He had not been provided with counsel until this time.

It is uncontroverted that Mendiola is at least borderline mentally retarded. One psychologist, however, concluded that Mendiola was indeed mentally retarded. His academic skills were at or below the first grade level and he dropped out of school after the sixth grade. Additionally, Mendiola's ability to read English is doubtful; apparently, he can read only a few simple English words.

At trial, the notes of the interrogation sessions, which Mendiola had signed, were admitted as "transcripts" of the sessions. Mendiola's attorney objected to the introduction of each statement. The record does not reflect that the trial court made a determination of voluntariness. The photographs of Mendiola reenacting the crime and the bloody, foul-smelling clothing of the victims were also admitted over the objections of Mendiola's attorney.

With the exception of the confessions and photographs, the only evidence against Mendiola is the testimony of the informer Reyes. There is no physical evidence linking Mendiola with the charged offenses.

Additionally, the murder weapon was never found. In closing argument, the prosecutor played on this fact by arguing to the jury that the community would be living in fear that Mendiola would come after them with the missing gun if he were acquitted. The jury found Mendiola guilty on all charges. Mendiola was sentenced to life in prison.

On September 29, 1988, Mendiola timely filed a notice of appeal to the Appellate Division of the district court for the Northern Mariana Islands ("appellate division"). At that time, the appellate division functioned as a three-judge appellate court, hearing cases from local trial courts deemed appealable by the CNMI legislature. While Mendiola's appeal was pending in the appellate division, the local legislation known as the Commonwealth Judicial Reorganization Act of 1989, Pub.L. 6-25, § 3109 ("Act"), became effective. The Act conferred appellate jurisdiction over judgments of the local trial court to a newly-created CNMI Supreme Court. It also purported to divest the appellate division of jurisdiction over all appeals pending before it on May 2, 1989, the effective date of the Act. ² Pub.L. No. 6-25, § 3109(b).

On March 14, 1990, the CNMI Supreme Court ordered that all cases pending in the appellate division file a Notice of Appeal to the CNMI Supreme Court. The appellate division decided that it would be manifestly unjust to require Mendiola to refile his appeal with the CNMI Supreme Court and retained jurisdiction over his case. It vacated Mendiola's convictions on April 30, 1990, and remanded the case to the trial court. The final mandate issued on May 24, 1990. The appellate division ordered the trial court to conduct hearings on Mendiola's competency to stand trial ³ and on the voluntariness of his confessions. It further ordered the exclusion of the photographs and ordered that Mendiola was not to be interrogated in the absence of his attorney.

During pre-trial proceedings upon remand, the CNMI Supreme Court decided that the appellate division lacked jurisdiction after the enactment of Pub.L. 6-25 and issued a writ of prohibition directing the trial court to halt all proceedings in Mendiola's case. Mendiola's appeal was then heard by the CNMI Supreme Court in an expedited manner. His convictions were affirmed on January 10, 1991. This timely appeal followed. ⁴

Mendiola contends that a local legislature cannot divest the appellate division of jurisdiction over pending appeals. In the alternative, he argues that it would be manifestly unjust to apply Pub.L. 6-25 retroactively to his case. On the substantive issues, Mendiola contends that the administration of his Miranda rights was inadequate and that the trial court erred in admitting his "confessions" (written and photographic) in the absence of a voluntariness hearing. He also contends that the prosecutor's closing argument was unduly prejudicial.

I. Jurisdiction

A.

Under 48 U.S.C. § 1694b(a), ⁵ the jurisdiction of the appellate division is to be determined by CNMI law. CNMI Pub.L. 6-25 established the CNMI Supreme Court and conferred upon it jurisdiction over those cases previously appealable to the appellate division.

Mendiola contends that Pub.L. 6-25 cannot divest a federal court of jurisdiction over pending appeals. We addressed this issue in CNMI v. Kawano, 917 F.2d 379 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1116, 113 L.Ed.2d 224 (1991). In Kawano, an appeal from the appellate division to this court was filed after passage of the Act. We held that we lacked jurisdiction to hear the appeal. In reaching this conclusion, we first considered whether the appellate division had jurisdiction to hear the case. Id. at 380. After examining § 1694b(a) and Pub.L. 6-25, we concluded that the local statute had divested the appellate division of jurisdiction over the case. Id. at 381. See also Mafnas v. United States District Court for the Northern Mariana Islands, 919 F.2d 101, 102 (9th Cir.1990) (applying Kawano to civil case and holding that appellate division lost jurisdiction over all appeals for which its final mandate had not yet issued at the time the Act became effective). Accordingly, we could not assume jurisdiction.

Mendiola contends that Kawano is inapposite because we merely assumed, rather than decided, that CNMI had authority to divest the appellate division of jurisdiction over pending cases. We reject this contention. Implicit in our holding that...