State v. Liulama

• Decision Date: 18 December 1992
• Docket Number: No. 15505,15505
• Citation: 845 P.2d 1194,9 Haw.App. 447
• Parties: , 61 USLW 2596 STATE of Hawaii, Plaintiff-Appellee, v. Alfred LIULAMA, also known as "Freddy," Defendant-Appellant, and Wildon Ahana, Wallace Fo, also known as "Wally," Rollen Padello, also known as "Rolley," Defendants.
• Court: Hawaii Court of Appeals

Page 1194

845 P.2d 1194

9 Haw.App. 447, 61 USLW 2596

STATE of Hawaii, Plaintiff-Appellee, v. Alfred LIULAMA, also known as "Freddy," Defendant-Appellant and Wildon Ahana, Wallace Fo, also known as "Wally," Rollen Padello, also known as "Rolley," Defendants.

No. 15505.

Intermediate Court of Appeals of Hawai'i.

Dec. 18, 1992.

Reconsideration Denied Jan. 6, 1993.

Certiorari Denied Feb. 22, 1993.

Syllabus by the Court

1. An accused who, during a post-indictment interrogation following his arrest, has been fully advised of his constitutional rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), has been sufficiently apprised of the nature of his right to counsel under the sixth amendment of the United States Constitution. No additional warnings or discussions with the accused regarding his sixth amendment right to counsel are required, and a waiver by the accused of his Miranda right to counsel also constitutes a waiver of his sixth amendment right to counsel during the interrogation. Any statement made by the accused during the interrogation is admissible in evidence against him.

2. Nothing prevents the Hawaii Constitution from providing greater protection for criminal defendants than those in the United States Constitution.

3. The state constitution is to be construed not in total disregard of federal interpretations of identical language, but with reference to the wisdom of adopting those interpretations for our state.

4. The state constitution is to be construed with due regard for the intent of the framers and the people adopting it; the fundamental principle is to give effect to that intent.

5. The right to counsel is undoubtedly subject to a knowing, intelligent, and voluntary waiver.

6. Courts are most solicitous to assure an accused adequate legal representation and guardingly indulge in a strong presumption against waiver of this fundamental right.

7. A trial court's decision on a defendant's request to waive counsel in a criminal case and proceed pro se is governed by stringent requirements.

8. The trial court should first examine the particular facts and circumstances relating to the defendant, such as the defendant's age, education, mental capacity, background and experience, and his conduct at the time of the alleged waiver. This is necessary to allow the trial court to determine the level and depth to which its explanation and inquiry must extend.

9. Secondly, in order to fully assure that the defendant is informed of the risks of self-representation, the trial court should make him aware of the nature of the charge, the elements of the offense, the pleas and defenses available, punishments which may be imposed, and all other facts essential to a broad understanding of the whole matter.

10. Finally, the trial court should inform the defendant: of his right to counsel, whether private or appointed; that self-representation is detrimental to himself 11. The trial judge is not required to give the defendant a short course in criminal law and procedure, since a defendant's technical legal knowledge is not relevant to an assessment of his knowing exercise of the right to defend himself. However, the record should reflect some interchange on the above matters such as will indicate to a reviewing court that the defendant knew and understood the dangers and disadvantages of self-representation.

that he will be required to follow all technical [9 Haw.App. 449] rules and substantive, procedural, and evidentiary law; that the prosecution will be represented by able counsel; that a disruption of the trial could lead to vacation of the right to self-representation; and that if voluntary self-representation occurs, the defendant may not afterward claim that he had inadequate representation.

12. Under Rule 10.1(c) and (d), Hawaii Rules of Penal Procedure (HRPP) (1988), respectively, a defendant who appears for the first time in a criminal proceeding in the circuit court must be (1) advised of his right to counsel, and (2) allowed a reasonable time and opportunity to consult with counsel.

13. Rule 5(a), HRPP, requires the police to take a person arrested on a warrant before the district court without unnecessary delay. In the district court, Rules 5(b)(1) and (c)(1), HRPP, require the judge, in both felony and non-felony cases, to advise the defendant, inter alia, of his rights under Rule 10.1.

14. The trial court's duty to appoint counsel is not discharged by an assignment at such time or under such circumstance as to preclude the giving of effective aid in the preparation and trial of the case. Thus, the representation afforded a defendant must be one of substance and not form. The right to the assistance of counsel must not be an illusory guarantee.

15. A defendant's decision to waive counsel and answer questions put to him by the police in a post-indictment interrogation is tantamount to a decision to proceed pro se. It follows that, since our law requires the courts to carefully assure itself of the accused's awareness of the circumstances of his situation, his right to counsel, the value of counsel, and the dangers of proceeding without counsel before allowing the accused to proceed pro se in the courts, the courts should also be required to ensure that an accused had that same level of awareness at the time he allegedly waived his right to counsel prior to a post-indictment interrogation during which he gave an incriminating statement to the police. To support a knowing waiver at such a critical stage, the advice accorded to an accused regarding his rights under article I, section 14, of the Hawaii State Constitution should not be narrower in scope or substance than the advice the courts are required to give. Miranda warnings do not satisfy that requirement.

16. Where an accused has been arrested and interrogated by the police and has not been specifically advised by a court or by his own counsel that he has the constitutional right to counsel at every stage of the proceeding following that arrest, he cannot be held to have knowingly and intelligently waived that right, and any statements made by him to the police absent such advice are inadmissible against him.

17. After a person has been indicted, and before he or she has been arraigned, the government should not initiate a conversation with the defendant concerning the charges against him without the consent of defense counsel.

18. Matters not raised in the briefs will not ordinarily be considered by the appellate court.

Keith S. Shigetomi (Shigetomi & Thompson, of counsel), Honolulu, for defendant-appellant.

Patricia A. Loo, Deputy Pros. Atty., City and County of Honolulu, Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and HEEN and WATANABE, JJ.

HEEN, Judge.

The dispositive issue in this appeal by Defendant-Appellant Alfred Liulama (Defendant) from his June 27, 1991 judgment of conviction for the offenses of Unlawful Imprisonment in the Second Degree, Hawaii Revised Statutes (HRS) § 707-722 (1985), Theft in the Fourth Degree, HRS § 708-833 (Supp.1992), and Hindering Prosecution in the First Degree, HRS § 710-1029 (1985), is whether the circuit court erred in denying his pre-trial motion to suppress incriminating statements he made to police officers following his arrest under a grand jury indictment. We conclude from our examination of the record that the lower court erred. Therefore, we vacate the judgment and remand for a new trial.

On October 4, 1989, the body of one Charles Pregill (Pregill) was discovered on Sand Island. Several days later, officers of the Honolulu Police Department (HPD), acting on information imparted to them by one Rhonda Antone (Antone), began looking for Defendant and other individuals whom they suspected as perpetrators of the abduction of Pregill and Antone and the murder of Pregill. ¹

On October 17, 1989, the grand jury indicted Defendant on charges of kidnapping, ² robbery in the first degree, ³ and hindering prosecution in the first degree. On October 20, 1989, Defendant was arrested by police officer Joseph Self (Self) at Defendant's girl friend's home. Although the arrest was effected on the basis of the arrest warrant that followed the indictment, Self did not have a copy of the warrant with him at the time. On the way to the police station, Self told Defendant that "all he had to do was tell the truth."

At the police station, Defendant was given a copy of the arrest warrant; however, it does not appear that the police officers told him that he was indicted. When Defendant asked what was going to happen to him, he was told that no one could help him if they didn't know what he knew.

Defendant was interrogated by Detectives Rufus Kaukani (Kaukani) and Andrew Glushenko. Prior to questioning Defendant, Kaukani gave him a copy of HPD form 81, used by police officers to inform individuals being subjected to a custodial interrogation that they have a constitutional right to refuse to answer any questions put to them, that they are entitled to have an attorney present during the interrogation, and that an attorney will be appointed by the court if they cannot afford one. The form 81 also informs those individuals that whatever they say can be used against them in further proceedings. Defendant read the form, stated that he understood his rights, indicated on the form that he did not wish to have an attorney, and signed it. Defendant then gave the first of two inculpatory statements concerning the offenses charged against him. After an intervening polygraph test, Defendant gave the second statement.

Defendant filed a pre-trial motion to suppress (Motion) the two statements. After an evidentiary hearing, the lower court entered findings of fact, conclusions of law, and an order denying the Motion. The court found that Defendant was informed of all his applicable rights, including his right to counsel, before he made the two...