The People Of Guam v. Rasauo, (2011)

• Court: Guam Supreme Court
• Writing for the Court: CARBULLIDO, J.
• Citation: People v. Rasauo, 2011 Guam 1, Superior Court Case No.: CM0742-08, Supreme Court Case No.: CRA09-006 (Guam Feb 02, 2011)
• Docket Number: Supreme Court Case No.: CRA09-006,Superior Court Case No.: CM0742-08
• Decision Date: 02 February 2011
• Parties: THE PEOPLE OF GUAM, Plaintiff-Appellee, v. KESNER RASAUO, Defendant-Appellant.

2011 Guam 1

THE PEOPLE OF GUAM, Plaintiff-Appellee,

v.KESNER RASAUO, Defendant-Appellant.

Supreme Court Case No.: CRA09-006 Superior Court Case No.: CM0742-08

SUPREME COURT OF GUAM

Filed: February 2, 2011

OPINION

Appeal from the Superior Court of Guam

Argued and submitted on March 8, 2010

Hagatna, Guam

Appearing for Plaintiff-Appellee:

Shane F.T. Black, Esq.

Office of the Attorney General

Prosecution Division

Appearing for Defendant-Appellant:

Maria G. Fitzpatrick, Esq.

Public Defender Services Corp.

BEFORE: ROBERT J. TORRES, Chief Justice¹; F. PHILIP CARBULLIDO, Associate Justice and KATHERINE A. MARAMAN, Associate Justice.

CARBULLIDO, J.

[1] Defendant-Appellant Kesner Rasauo, a "citizen" of Chuuk but longtime resident of Guam, was convicted after a jury trial of two charges of drunk driving as a misdemeanor. Prior to trial, the Superior Court denied two defense motions that are the subject of this appeal: a motion to suppress various pieces of evidence due to a violation of Rasauo's Miranda rights, and a motion to dismiss, alleging that Rasauo's speedy trial rights were violated when the appearance date set by the Notice to Appear was more than one year from the initial date of the arrest, and the arraignment date was more than ninety days from the date the complaint was filed.

[2] For the reasons set forth below, we hold that Rasauo never validly waived his Miranda rights, but that any error in denying the motion to suppress was harmless. Furthermore, Rasauo failed to demonstrate prejudice from the pre-trial delay, and consequently his speedy trial claims fail.

[3] The judgment below is AFFIRMED.

I. FACTUAL AND PROCEDURAL BACKGROUND

[4] On December 1, 2007, Officer D. R. Flickinger of the Guam Police Department greeted drivers, including Defendant-Appellant Kesner Rasauo, at a pre-scheduled and pre-announced sobriety checkpoint located on Route 1 in Tamuning, Guam. Officer Flickinger observed that Rasauo exhibited common indicators of alcohol intoxication, including an odor of alcohol, bloodshot watery eyes, and slurred speech. When the officer asked Rasauo if he had had anything to drink, Rasauo responded that he had two to four beers. The officer noticed that Rasauo spoke English slowly with an accent, but did not offer him the assistance of an interpreter, nor inquire into his ability to speak English.

[5] The officer asked Rasauo to step out of the car and submit to standardized field sobriety tests, which were administered in English. The tests in question were the horizontal gaze and nystagmus test, the one-legged stand, and the walk and turn.² At the tests' conclusion, the officer determined that Rasauo was under the influence and arrested him for Driving Under the Influence of Alcohol ("DUI").

[6] Rasauo was then brought to a DUI van at the checkpoint, where he was processed by Officer Julian Laxamana, who was responsible for advising Rasauo of his constitutional rights, administering testing pursuant to Guam's implied consent statute, and further interrogation. At the suppression hearing, Officer Laxamana testified that he explained to Rasauo his Constitutional rights paragraph by paragraph, using a standard Custodial Interrogation waiver form. When Rasauo had trouble understanding certain parts of the form, the officer attempted to provide clarification, and moved on when Rasauo indicated that he understood.

[7] Officer Laxamana also administered an implied consent form, which explained that, under Title 16 GCA 18201(a), any person who operates a motor vehicle on Guam roads is deemed to have consented to a blood, urine, or breath test. Rasauo signed the form in the place indicating that he should write his initial if he agreed to take a breath test. Afterward, Rasauo answered several basic questions in English about whether he was drinking and driving and where he was going at the time he was pulled over. The answers, as understood by Officer Laxamana, were included in a Report of Alcohol Influence that was part of the evidence Rasauo sought to suppress

[8] Police booked and released Rasauo after having him sign a notice to appear ("NTA") in court on December 10, 2008, more than one year from the date of arrest. Nine months later, on September 4, 2008, the People filed the NTA and a complaint in the Superior Court of Guam. The People did not request a summons for an earlier date.

[9] When Rasauo did not show up for the December 10, 2008 hearing, the court issued a bench warrant. Rasauo was taken into custody two days later. Id. On December 17, 2008, the judge signed an order of conditional release and appearance bond. Id. Rasauo was not arraigned at this time, but instead was given the complaint, advised of the charges, advised of his rights and appointed a counsel with a continued arraignment date of December 24, 2008. On December 24, 2008, Rasauo appeared for his arraignment, pleaded not guilty and waived his right to speedy trial. Rasauo first asserted speedy trial on February 10, 2009

[10] On February 19, 2009, Rasauo filed separate pre-trial motions to dismiss and to suppress. The court held separate hearings on each motion at the end of March and in early April. In separate Decision and Orders filed in April 2009, the Superior Court denied both the motion to suppress and the motion to dismiss. Rasauo was convicted after a jury trial which commenced on April 9, 2009. The judgment of conviction was filed and entered on the docket and Rasauo timely filed this appeal.

[11] Throughout the motion hearings and trial, Rasauo testified through an interpreter, Mr. Johnny.

II. JURISDICTION

[12] The Supreme Court of Guam has jurisdiction of this appeal of a criminal conviction pursuant to 48 U.S.C.A. §1424-3(d) (Westlaw current through Pub. L. 111-311 (2011)); and 7 GCA §§ 3107(a) and (b) (2005); and 8 GCA §§ 130.10 and 130.15 (2005).

[13] This court conducts de novo review of a denial of a motion to suppress. People v. Sangalang, 2001 Guam 18 ¶10. We review de novo the legal conclusions of the trial court, the voluntariness of a waiver of Miranda rights, and whether Miranda warnings were adequate. People v. Farata, 2007 Guam 8¶¶14-15.

[14] Both parties assert that the Superior Court's ruling on a motion to dismiss criminal charges should generally be reviewed under an abuse of discretion standard, except where the issues present purely legal questions. Appellant's Br. at 2 (Sept. 18, 2009), citing People v. Rios, 2008 Guam 22 ¶ 8; Appellee's Br. at 9 (Oct. 16, 2009). We have stated that we review for an abuse of discretion the denial of a motion to dismiss alleging a violation of the statutory speedy trial periods set forth in 8 GCA § 80.60. People v. Flores, 2009 Guam 22 ¶ 9. We have not previously set forth a standard of review for the grant or denial of a motion to dismiss alleging unnecessary delay in bringing a defendant to trial, in violation of 8 GCA § 80.70(b). Such alleged error will ordinarily be reviewed for abuse of discretion. See United States v. Sears, Roebuck, & Co., 877 F.2d 734, 737 (9th Cir. 1988). We have also never set forth a standard of review for the grant or denial of a motion to dismiss alleging a violation of the guarantee to a prompt arraignment set forth in 8 GCA § 60.10(a). We have stated this provision is a statutory expression of the speedy trial right. People v. Stephen, 2009 Guam 8 ¶ 32. Consequently, we

III. STANDARD OF REVIEW

will apply the same standard of review we apply to speedy trial claims brought under 8 GCA §80.60

IV. ANALYSIS

[15] Rasauo contends the trial court erred in denying his pre-trial motion to suppress and his pre-trial motion to dismiss. We consider each in turn.

A. Motion to Suppress

[16] The Fifth Amendment provides: "No person... shall be compelled in any criminal case to be a witness against himself...." U.S. Const, amend. V. It is applicable to criminal prosecutions in the Territory of Guam through our Organic Act. 48 U.S.C.A. § 1421b(d) (Westlaw current through Pub. L. 111-311 (2011)). Admissibility of any statement given during custodial interrogation depends on whether the police provided the suspect with four warnings:

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 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.

Miranda v. Arizona, 384 U.S. 436, 479 (1996). A suspect informed of his Miranda rights may waive those rights, provided that the waiver is "voluntary, knowing, and intelligent." U.S. v. Garibay, 143 F.3d 534, 536 (9th Cir. 1998) (internal citations omitted). There is, however, a presumption against waiver. The burden rests on the government to prove a valid waiver by a preponderance of the evidence. Colorado v. Connellv, 479 U.S. 157, 168 (1986).

[17] Rasauo was born in Chuuk where he completed school up until the eighth grade. Although he remains a citizen of the Federated States of Micronesia, Rasauo has resided on Guam for thirteen years. He speaks English slowly and with an accent. Rasauo contends that, in light of his limited knowledge of English, he had a right to receive the Miranda warnings in a language he understood. He argues that Officer Laxamana's translation of one of the Mirandawarnings was incorrect and incomplete, and by implication, inadequate to result in a knowing and intelligent waiver.

1. Adequacy of Miranda warnings

[18] The adequacy of a Miranda warning is reviewed de novo. Farata, 2007 Guam 8

[19] Miranda is satisfied where, prior to the initiation of questioning, the police "fully apprise the suspect of the State's intention to use his statements to secure a conviction [...]." Moran v. Burbine, 475 U.S. 412, 420 (1986). A court assessing the sufficiency of Miranda warnings considers whether the warnings reasonably convey to an individual their rights against self-incrimination. Duckworth v. Eagan, 492 U.S. 195, 203 (1989). While the wording of...