State v. Mariano, 27303.

• Decision Date: 31 May 2007
• Docket Number: No. 27303.,27303.
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Bernardino MARIANO, Defendant-Appellant.
• Court: Hawaii Court of Appeals

160 P.3d 1258

STATE of Hawai`i, Plaintiff-Appellee, v. Bernardino MARIANO, Defendant-Appellant.

No. 27303.

Intermediate Court of Appeals of Hawai`i.

May 31, 2007.

Phyllis J. Hironaka, on the briefs, Deputy Public Defender, for Defendant-Appellant.

James M. Anderson, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff-Appellee.

WATANABE, Presiding Judge, LIM and FOLEY, JJ.

Opinion of the Court by LIM, J.

Under Article I, section 7 of the Hawai`i Constitution, and contrary to the United States Supreme Court's holding in New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990), a statement taken at the police station after an unlawful arrest in the suspect's home remains subject to suppression as the "fruit of the poisonous tree," even though the police had probable cause to arrest all along. Accordingly, we vacate the May 3, 2005 amended judgment of the Family Court of the First Circuit (family court) that convicted Bernardino Mariano (Bernardino or Defendant) of terroristic threatening in the second degree.¹

Bernardino raises three points of error on appeal:

1. The lower court erred in failing to suppress as a "fruit of the poisonous tree" [Bernardino's] statement made during his custodial interrogation which was a product of his unlawful arrest.

2. The lower court erred in . . . finding that [Bernardino] had voluntarily, knowingly, and intelligently waived his Miranda rights when, (1) without having been offered the assistance of an interpreter and (2) following an ambiguous request for counsel, he submitted to [Honolulu Police Department (HPD) detective Andrew Brito's (Detective Brito)] custodial interrogation and provided a statement.

3. The trial court erred in admitting into evidence virtually the ENTIRETY of [Bernardino's wife's (Mrs. Mariano)] taped interview with [Detective] Brito as a "prior consistent statement" under [Rule 613(c), Hawaii Rules of Evidence (HRE), Chapter 626, Hawaii Revised Statutes (1993)].²

Opening Brief at 8, 10 & 14 (bolding omitted; emphasis in the original; footnote supplied). Because we vacate on Bernardino's first point, we do not decide his other two.

I. Background.

A. Bernardino's Arrest.³

On October 26, 2003, at around 9:30 in the morning, HPD officer Bil Keni (Officer Keni)⁴ was the first of four police officers to arrive at Bernardino's house on an "abuse-type" call. Officer Keni found Mrs. Mariano and her two daughters standing near their neighbor's carport. When Officer Keni approached, Mrs. Mariano told him that her husband had threatened her during an argument and that she was frightened for herself and her daughters. Mrs. Mariano mentioned that Bernardino held a pouch in his hand during the argument, which possibly contained a knife. She then told Officer Keni that Bernardino was still in their residence. Officer Keni asked Mrs. Mariano for permission to enter the residence, but she did not respond to his request. No sound emanated from the Mariano household. Officer Keni and the other officers entered the house accompanied by the landlord. The police did not have a warrant.

One of the other police officers knocked on the front door. Officer Keni was under the impression that the knock caused the front door to open, but later admitted he was not The officers announced their presence and entered the house after getting no response. At Bernardino's bedroom door — which, according to Officer Keni, was definitely ajar — the police knocked and announced their presence and went in without waiting for a response. Bernardino was asleep in his bed. The police woke him up and had him identify himself. Bernardino was removed from the bedroom, handcuffed and arrested. On his way out of the bedroom, Officer Keni noticed a knife sheathed in a leather pouch on the dresser. He took the pouch from the dresser and opened it in the living room. Bernardino was then transported to the police station. By then, it was about 10:30 in the morning.

B. Bernardino's Interrogation.

Later that day, Detective Brito was assigned to investigate Bernardino's case. At about 4:40 in the afternoon, Detective Brito took a statement from Bernardino in the police cell block. At a hearing to determine the voluntariness or suppression of the statement, Detective Brito described Bernardino's demeanor during the interview. "For the most part, he was composed. When he spoke of his children and some of the events, he had injected some of the events that had happened, he became very emotional, and he was crying at certain points."

Before reading Bernardino his Miranda⁵ rights, Detective Brito asked him for some preliminary information, such as his name, address and phone number. Bernardino could not spell his name for the detective. He could remember his home address only after prompting by the detective. During the same preliminary colloquy, Detective Brito asked, "Anything unusual, you know, that happened to you . . . when you were arrested and when you were transported to the station?" Apparently still shaken by his arrest, Bernardino answered,

I . . . I . . . just worried that I only, that they come by my house. Because I just stay sleep, wake me up one guy, plenty guy, somebody stay like shoot me already. What happened, I cry like this, what happened. I no do nothing to you guys, I told them. I just like . . . I cry, you know.

(Ellipses in the original.)

Bernardino testified at the voluntariness/suppression hearing that his primary language is Ilocano, which is what he speaks at home. Bernardino recalled that he went to school in the Philippines, but that he got up to "Grade 2 only" before coming to Hawai`i in 1979. At the time of the interview, Bernardino was working as a janitor at the Aloha Stadium. He said that he can speak English "a little." He maintained that he cannot read English and can write English only with difficulty. He claimed that he asked for an Ilocano interpreter because he could not understand Detective Brito, but the detective ignored his request and started the interview audiotape. Nevertheless, Bernardino was able to answer Detective Brito's questions, in English, over the course of a forty- or fifty-minute interview.

Bernardino further testified at the voluntariness/suppression hearing that he could neither read nor understand the HPD Miranda rights form Detective Brito read to him. He initialed the form when and where instructed. It was all the more difficult to understand what was going on because he was trembling, crying and not feeling well. Bernardino claimed that Detective Brito forced him to give the statement. Bernardino was asked, "What does the right to silence mean?" He answered, "He said I stop — you stop." When asked whether, as he sat at the witness stand, he understood constitutional rights, Bernardino responded, "What is the Constitution?" At one point during the reading of the Miranda rights, Bernardino interjected words to the effect of, "I no can understand. Sorry about that." At the hearing, Detective Brito testified:

When he said, "I no can understand," it appeared to me that he was saying that he was incredulous, that he couldn't believe that he could stop this interview at any time, not that he didn't understand what I was saying. He didn't understand the concept that he could stop at any time and that he did not have to talk to me.

C. Bernardino's Statement.

After being apprised of his Miranda rights, Bernardino made a statement to Detective Brito. In the redacted audiotape of the interview that was played for the jury, Bernardino told the detective that he came home from work that morning feeling very sick from a cold. He asked his wife to heat up some food for him, but she refused and started yelling. This made Bernardino angry. He told his wife, "fuck you I going bust your head[.]" When they started arguing about money, Bernardino got even angrier. "I, I'm mad, I'm more mad." He admitted he might have told his wife he was going to kill her, but "I . . . don't remember because I really mad." He also admitted pulling his knife in the presence of his wife, but denied opening it to expose the blade.

D. Pretrial Proceedings.⁶

The day after the incident, the State filed a complaint charging Bernardino with terroristic threatening in the second degree. A number of motions followed. On November 19, 2003, the State filed a motion to determine the voluntariness of the statement Bernardino made to Detective Brito. On March 1, 2004, Bernardino filed a motion to suppress the knife seized from his bedroom. About a month later, Bernardino supplemented his motion to include the statement he made to Detective Brito.

The hearing on Bernardino's motion to suppress the knife was held on April 19, 2004. On May 20, 2004, the family court entered findings of fact, conclusions of law and an order granting Bernardino's motion to suppress the knife. The family court concluded that, inasmuch as the police entered the Mariano residence with neither warrant nor consent nor exigency, the intrusion was unlawful.

On August 24, 2004, the family court held a consolidated hearing on the State's motion to determine the voluntariness of Bernardino's statement to Detective Brito and on Bernardino's supplemental motion to suppress it. In its argument, the State put particular emphasis on the Supreme Court's holding in Harris, supra. At the close of the hearing, the family court stated:

With respect to the fruit of the poisonous tree, the Court had earlier ruled that the initial entry into the house was illegal. Therefore, the Court suppressed recovery of the knife. However, the question is whether or not the statement constitutes the fruit of the poisonous tree. The Court says no to that, because there was a basis for the arrest of the defendant based upon the verbal threats — alleged verbal threats by the defendant made to the wife. Therefore, the Court's explanation for the statement is separate from the...