State v. Maluia, 5608

CourtSupreme Court of Hawai'i
Citation539 P.2d 1200,56 Haw. 428
Docket NumberNo. 5608,5608
PartiesSTATE of Mawaii, Plaintiff-Appellee, v. Sapatumoeese MALUIA, Defendant-Appellant.
Decision Date11 September 1975

Page 1200

539 P.2d 1200
56 Haw. 428
STATE of Mawaii, Plaintiff-Appellee,
Sapatumoeese MALUIA, Defendant-Appellant.
No. 5608.
Supreme Court of Hawai'i.
Sept. 11, 1975.

Page 1202

Syllabus by the Court

1. In the application of the Miranda doctrine, the crucial test is whether the words in the context used, considering the age, background, and intelligence of the individual being interrogated, impoart a clear, understandable warning of all his rights.

2. The trial judge is vested with wide discretion to determine the credibility of the witnesses and to weigh the evidence in order to ascertain whether the prerequisites to admissibility under the Miranda doctrine are present.

3. Miranda does not require that attorneys be producible on call, or that a Miranda warning include a timetable for an attorney's arrival.

4. H.R.Cr.P. Rule 17(h) is essentially the same as the Jencks Act, Pub.L. 85-269; the background of the rule is to be found in that act; and the plain intent is to protect

Page 1203

government files by a restrictive definition of 'statements.'

5. When a detective, a government witness, has interviewed the defendant and taken his oral statement, the longhand notes which he made at the interview, and destroyed after using them to type out his investigation report, are not a 'statement' of a government witness within the meaning of H.R.Cr.P. Rule 17(h). Only the report which the detective turned in is his 'statement.'

6. It is not error to permit a detective to testify to an oral statement of the defendant, although he destroyed the longhand notes which he made at the interview after using them to type out the investigative report which he turned in and which has been made available to the defendant.

7. The government's duty of disclosure is operative as a duty of preservation, but that principle must be applied on a case-by-case basis.

8. Discovery before trial under H.R.Cr.P. Rule 16 has a purpose different from [56 Haw. 429] that of H.R.Cr.P. Rule 17(h). The latter provides for production of statements for impeachment purposes. The former provides for preparation of the defense.

9. H.R.Cr.P. Rule 16, which reads the same as F.R.Cr.P. Rule 16 prior to the 1966 amendment of that rule, does not provide for the production of defendant's statements. Nevertheless, the trial court has discretion to order such discovery.

10. When a defendant has been fully informed before trial as to the government's case in respect of the statements he has made, there is no issue of fundamental unfairness, and denial of the defendant's motion to exclude testimony as to one of the statements on the ground of destruction of longhand notes taken at the interview, presents only an issue under H.R.Cr.P. Rule 17(h).

[56 Haw. 443] David S. Hobler, Sp. Deputy, Public Defender, Donald K. Tsukiyama, Public Defender, Honolulu, for defendant-Appellant.

George K. K. Kaeo, Jr., Deputy Pros. Atty., Barry Chung, Pros. Atty., City and County of Honolulu, Honolulu, for plaintiff-appellee.

[56 Haw. 428] Before RICHARDSON, C. J., KOBAYASHI and MENOR, JJ., and CHANG, Circuit Judge in place of OGATA, J., disqualified and LEWIS, J., retired, assigned by reason of vacancy.

LEWIS, Justice.

On March 15, 1973, at approximately 6 p.m., defendant-appellant appeared at the receiving desk of the police station, and asked to see the captain. Declining at first to give a reason, he finally said he wanted to be arrested, that he had just shot his girl friend and her mother. After it was confirmed that a double homicide had occurred at the address given by defendant, he was placed under arrest.

Detective Mateo Chang, assigned to the case, took two statements from defendant that night, one an oral statement commencing at 8:40 p.m., and the other a stenographic statement commencing at 10:55 p.m., with an interval of about an hour and a half between the of about an hour and appeal brings before the court the admissibility of the statements under the Miranda doctrine. 1

After a pretrial hearing on the admissibility of the statements 2 the court found them in compliance with Miranda and voluntary, and denied defendant's motion to suppress them. Defense counsel then requested the production at trial of Detective

Page 1204

Chang's longhand notes of defendant's oral statement. The detective's typed report made from these notes already had been produced. The [56 Haw. 430] prosecutor agreed that he would tell the detective to bring the notes, and the court so directed. However, it subsequently was ascertained that the notes were unavailable, whereupon defendant moved at the trial that the evidence concerning statements by defendant be restricted to the stenographic statement. The court's denial of this motion constitutes the second point on appeal.

Compliance with Miranda

Before the oral statement, and again before the stenographic statement, Detective Chang warned defendant of his constitutional rights using the form known as HPD 81. The body of Form HPD 81 appears below 3 as marked by Detective Chang in accordance with defendant's answers to the questions on the form and initialed by defendant before the oral statement was taken. This paper was signed by defendant and by the detective as a witness. At the time, defendant was asked if he had been drinking and replied that he had not since the night before. Asked if he had taken any drugs [56 Haw. 431] recently he answered in the negative. Detective Chang testified that he 'acted very calm and cool and very matter of fact.'

Page 1205

The gravamen of defendant's appeal on the Miranda point, as set out in the Statement of Questions Presented, 4 is as follows:

'Are the precepts of Miranda v. Arizona, 384 U.S. 436, (86 S.Ct. 1602, 16 L.Ed.2d 694) (1966) violated when, prior to any incriminating statement, the only explanation given Appellant of his 'right to counsel' was a verbatim reading to him of Honolulu Police Department Form 81 ('Warning Suspects of Constitutional Rights') and the language of Form 81 is in face contradictory and confused the Appellant?'

In State v. Green, 51 Haw. 260, 264, 457 P.2d 505, 508 (1969), this court accepted a signed Form 81, marked as in this case, 5 as corroborating the knowing and intelligent waiver of the right to counsel before and during interrogation [56 Haw. 432] required by Miranda. But Green involved the effect of defendant's alleged requests to use the telephone. The right to court-appointed counsel played no part in the case. That situation is presented here. 6

Defendant argues that: 'The * * * language (in Form 81) did not inform the Defendant that if he was too poor to pay for a lawyer, one would be furnished him before questioning. * * * To say that a lawyer will be appointed by the court without further explanation is the same as saying that the lawyer will be appointed at some unspecified time in the future and is contradictory to the statement that he has a right to counsel now. This is not the 'effective and express explanation' of the right to counsel required by the Miranda case.'

We agree with the State that: 'The crucial test is whether the words in the context used, considering the age, beckground and intelligence of the individual being interrogated, impart a clear, understandable warning of all of his rights.' 7

In Form 81 the question: 'Do you want an attorney now? (Yes _ _ No _ _' was preceded by the statement: 'You also have a right to have an attorney present while I talk to you. If you cannot afford an attorney, the court will appoint one for you.' The placing of the statement as to the right to appointed counsel immediately after the statement concerning the right to counsel at the interview, in itself indicated that defendant had the right to appointed counsel at the interview. United States v. Noa, 443 F.2d 144, 146 (9th Cir. 1971). In this context, the question: 'Do you want an attorney now?' asked defendant to decide whether he wanted an attorney before proceeding further. Moreover, the warning must be read in the light of the additional language: 'If you decide to answer my questions without a lawyer being present, you still have the right to stop answering at anytime,' which immediately [56 Haw. 433] followed. People v. Campbell, 26 Mich.App. 196, 182 N.W.2d 4 (1970). Thus, defendant was told that any decision he made to proceed was tentative, and he could stop the interview at any time. Despite defendant's subjective testimony, 8 we

Page 1206

find no abuse of discretion by the trial court. That defendant was not misled as to his right to counsel is borne out by what happened when Form 81 was used the second time, preceding the taking of the stenographic statement. Defendant when asked if he wanted an attorney 'now' at first answered: 'Not necessarily.' This shows that he was considering the matter. When asked again, he answered: 'No.'

The argument that the form was defective in failing to explain when the court would appoint an attorney for the defendant, is not supported by Miranda. As stated in Mayzak v. United States, 402 F.2d 152, 155 (5th Cir. 1968):

'Stripped of its cry of pain, defendant's contention is simply that he was entitled to be warned not only of his right to counsel, but of his right to instant counsel. Miranda however, does not require that attorneys be producible on call, or that a Miranda warning include a time table for an attorney's arrival. * * *'

In Miranda the Court summarized the required warning as follows:

'He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to [56 Haw. 434] the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.' (384 U.S. 436, 479, 86 S.Ct. 1602, 1630).

However, the Court also pointed out at page 490, 86 S.Ct. 1602 that no particular form of words was required,...

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