State v. Mailo
| Decision Date | 02 February 1987 |
| Docket Number | No. 11269,11269 |
| Citation | 731 P.2d 1264,69 Haw. 51 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Joe MAILO, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. Once an accused has expressed his desire to deal with police interrogators only through counsel, he cannot be further questioned until counsel has been made available to him, unless the accused initiates further communication, exchanges, or conversations with the police.
2. Where the interrogating officer testified he clearly understood the Defendant's response as affirmative when asked if he desired an attorney, trial court's finding that the Defendant's answer was ambiguous is clearly erroneous.
Richard Wayne Pollack (Deborah Kim, with him on briefs), Deputy Public Defenders, Office of the Public Defender, Honolulu, for defendant-appellant.
Candace Kay Andersen, Deputy Pros. Atty., Dept. of Pros. Atty., Honolulu, for plaintiff-appellee.
Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.
This is an appeal from the criminal conviction of Defendant-Appellant Joe Mailo. Defendant argues that the lower court's failure to suppress statements made by him during a custodial interrogation violated his right to counsel and his right to remain silent under the fifth and sixth amendments to the federal constitution and article I, sections 10 and 14 of the Hawaii Constitution. For reasons set forth below, we reverse.
Defendant was charged on July 29, 1985 with kidnapping, sodomy in the first degree, and aiding and abetting sodomy in the first degree. On October 23, 1985, he filed a motion to suppress statements concerning the alleged incidents made to Officer Alvin Nishimura while in police custody on June 28, 1985.
Officer Nishimura was the only witness during the suppression hearing. He testified concerning the Defendant's assertion of his right to have counsel present during the interrogation. Prior to his testimony, the transcript of the taped interrogation was admitted into evidence by stipulation. The relevant portion of the transcript reads:
Q Okay.... I am gonna ask you questions about a Sodomy, Kidnapping which occurred on 6-27-85 at 1164 Maunakea Street. Okay, understand?
A Yeah.
Q You don't have to talk now if you don't want to. You don't have to say anything to me or answer any of my questions. Anything you say may be used against you at your trial. You have the right to counsel of your choice or to talk to anyone else you may want to. You also have the right to have an attorney present while I talk to you. You know what an attorney is? Attorney is lawyer. You know what a lawyer is?
A Oh, yeah.
Q Okay? Same thing. If you cannot afford an attorney, the court will appoint one for you. Do you want an attorney now?
A (Inaudible).
Q You want a lawyer here while I talk to you?
A Yeah.
Q You want a lawyer now? ... while I talk to you or don't you want a lawyer?
A Nah, 'as all right.
Q You don't want one?
A Uh.
Q Okay....
On direct examination, the officer stated that he did not recall the response of the Defendant. However, during cross-examination he testified he clearly understood "Yeah" as an affirmative response.
At trial on December 23, 1985, the complaining witness was the only witness for the prosecution. He gave conflicting testimony concerning the events surrounding the day in question. When the Defendant took the stand, his testimony was thoroughly excoriated by statements made during the interrogation by the police.
The jury found the Defendant guilty on all counts. This appeal followed.
We stress again that once an accused has expressed his desire to deal with police interrogators only through counsel, he cannot be further questioned until counsel has been made available to him, unless the accused initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378, 386 (1981); State v. Ikaika, 67 Haw. 563, 566, 698 P.2d 281, 284 (1985); State v. Brezee, 66 Haw. 162, 657 P.2d 1044, 1046 (1983).
This principle creates a bright-line rule that once the right to counsel has been invoked all questioning must cease. Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 494, 83 L.Ed.2d 488, 495 (1984) (per...
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83 Hawai'i 443, State v. Luton, 18084
...when he either remains silent or expresses "his desire to deal with police interrogators only through his counsel." State v. Mailo, 69 Haw. 51, 731 P.2d 1264 (1987). Thereafter, "he cannot be further questioned until counsel has been made available to him, unless the accused initiates furth......
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State v. Ketchum
...Ketchum an express refusal to discuss the case. Once the right to counsel has been invoked, all questioning must cease. State v. Mailo, 69 Haw. 51, 731 P.2d 1264 (1987). Herein, once Ketchum was informed of his right to counsel, and thereafter refused to speak, Officer Itomura proceeded to ......
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77 Hawai'i 403, State v. Kekona
...us on that subject as well. Specifically, in the absence of the Stephan rule, enforcement of this court's holdings in State v. Mailo, 69 Haw. 51, 731 P.2d 1264 (1987), and Hoey, supra, may be virtually In Mailo, the defendant appealed the circuit court's order denying his motion to suppress......
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State v. Wallace
...(1984) (per curiam). See also Solem v. Stumes, 465 U.S. 638, 646 [104 S.Ct. 1338, 1343, 79 L.Ed.2d 579] ... (1984). State v. Mailo, 69 Haw. 51, 53, 731 P.2d 1264, 1266 (1987). Id. at 34, 881 P.2d at 521 (brackets, ellipses points, and emphasis in The Hoey court observed, however, that: The ......