STATE COURT OF YAP
IN THE TRIAL DIVISION
Cite as State of Yap v. Laman, Gilead, Gootman,
(Yap 1996)
[page 1]
THE STATE OF YAP,
Plaintiff,
vs.
MARTIN LAMAN,
Defendant.
Case No. CR 1995-145
ORDER AND MEMORANDUM
OF DECISION
THE STATE OF YAP,
Plaintiff
vs.
BERNARD GILTAMMAD,
Defendant.
Case No. CR 1995-147
THE STATE OF
YAP
Plaintiff
vs.
FRANCIS
GOOTMAN,
Defendant.
Case No. CR 1995-148
Three defendants in these related cases moved for orders suppressing the statements they made to police officers on July 15 and 16, 1995. A consolidated evidentiary hearing was held on May 8 and 9, 1996. After carefully considering the facts presented and the arguments made on behalf of and in opposition to the motions, the Court granted the motion of Martin Laman, and denied the motion of Francis Gootman. Today,. the Court grants the motion of Bernard Giltammad. This Memorandum of Decision explains the Court's reasoning in its Orders.
[page 2]
FACTS
A. Investigation in Map
on the morning of Saturday, July 15, 1995, Yap State Police Detective Chris to Fugue was informed that Philip Kayo was in the hospital, injured in a beating a few hours earlier in Map. Officer Dabchicks gave Fugue a piece of paper listing seven boys who might be involved with or have some knowledge of the beating.1 Fugue went to Map with Officer Jensen Ru at 9:00.
1. The Plaw Village Intersection
At the intersection leading to Plaw village, Fugue and Ru stopped four persons who appeared to be drunk, including Bernard Giltammad and John Ranging, who were named on the list. Fugue asked Giltammad and Ranging if they had drinking permits. When they said they did not, Fugue took them into custody. He told them they would be taken to Public Safety and put in jail for violating the law regarding drinking permits, and for questioning about the beating of Kayo. At about the same time, Detectives Steven Niggle and Calais Rawel arrived at the Plaw intersection. Rawel and Ru drove Giltammad and Ranging to Public Safety in Colonia, while Fugue and Niggle continued to Waned village.
2. Waned Village
On the way to Waned, Fugue and Niggle stopped at the house of Thomas Waylay, the father of Laman. Fugue told Waylay they sought Laman as a suspect in the beating of Kayo, and that he
[page 3]
wanted to bring Laman to Colonia for questioning. Fugue and Niggle then proceeded to the house of John Ranging in Waned. Fugue told people in the village that they sought the five boys left on the list. Village people went to locate the boys while the detectives waited. About forty minutes later, four boys, including Laman and Gootman, came to the house.
Fugmoxa spoke with relatives of the four, `boys. He said he wanted to bring the boys to Public Safety in Colonia to question them about the beating of Kayo. The relatives of the boys gave their permission to take them. No one asked to accompany the boys to Colonia. Gootman's father, Doucher, asked if the boys would be returned. Fugue testified that he said the decision whether to return them would be made only after questioning. Gootman's father said returning the boys to Map was a good idea because they would have no other transportation. But in cross examination, Gootman's father admitted that if the boys confessed to the beating, he would not expect the police to bring them back.
The four boys were taken to Public Safety in Colonia for questioning. Laman, Gootman, and Robert Gilly rode in the back seat of the police sedan. The fourth boy, Sebastian Gimnang, rode in the back of the police pick-up truck. It was late morning when they left Waned. Upon leaving Wan Fugue stopped again to speak with Laman's father. He told Waylay that they were taking Laman for questioning. Waylay did not ask to go with them to Colonia, but asked the officers to return Laman to Map when
[page 4]
they were through. After that, the vehicles did not stop until they reached Colonia at approximately 1:00 p.m. A fifth boy was brought in for questioning later in the day.
B. Questioning at Public Safety
1. First Interview of Martin Laman
Detective Fugue first questioned Robert Gilly, while Laman and Gootman sat in the lobby of the Public Safety building. They were given some food by police officers while they waited. Around 3:00 p.m., Fugue learned that Kayo had died. Fugue testified that he then told the boys that they were under arrest for the murder of Kayo.
Detective Niggle began the first interview of Laman shortly after 3:00 p.m. He testified that he read in English and translated to Yapese all the rights listed on the Advice of Rights form, then asked Laman if he understood them. Laman said he understood his rights and agreed to make a statement. Fugue signed the Advice of Rights form as a witness, then left the Niggle to interrogate Laman alone. Niggle kept no notes of the first interview. He testified that he wrote down all the important parts of the first interview longhand and in English as a statement two or three pages long. Niggle said he then gave the handwritten statement to Laman to read. He did not translate it or offer to translate it. Laman did not ask him and Niggle knew that Laman had gone to high school. Laman changed nothing in the first statement, asked no questions, and signed it.
[Page 5]
Niggle remembered very little about the first statement except that in his second statement Laman said he used a different weapon. Niggle conferred with Fugue after the first interview. Based in part on differences from the statement taken from Gilly, Fugue and Niggle decided that Laman was lying. Niggle then threw away the first statement. He did not ask anybody about whether he should destroy the document. Niggle threw Laman's first statement away because he did not think it was important and would not be used. Fugue testified that the first statement was not important. He beeped that Laman was lying when he made it. Laman was questioned again the next day.
2. Francis Gootman
Niggle interrogated Francis Gootman starting at about 5:30 p.m. on July 15, 1995. Gootman was sober, and did not complain of being hungry, thirsty, or tired. Niggle advised Gootman of his rights in English and translated to Yapese, and checked off the items on the Advice of Rights Form. Gootman understood his rights and agreed to give a statement. Niggle asked Gootman about what happened in the village and wrote down the answers longhand and in English. Niggle gave Gootman the statement to read. Gootman made no changes and signed the statement.
3. Bernard Giltammad
Fugue interrogated Be and Giltammad after 9:00 p.m. on July 15. By then, Giltammad was sober, and he did not complain of being hungry, thirsty, or tired. Fugue testified that he advised Giltammad of his rights in English and translated to
[page 6]
Yapese, including Item No. 3 of the Advice of Rights form, the right to talk to a lawyer and have the lawyer present at any time. Although Fugue testified that he filled out the Advice of Rights form as he informed Giltammad of his rights, Fugue forgot to check Item No. 3 on the Advice of Rights form. Fugue and Giltammad signed the form with Niggle as witness. Fugue testified that Giltammad said he understood his rights and agreed to make a statement. Niggle then left Fugue and Giltammad.
Fugue typed a statement in English for Giltammad to read. Fugue did not translate or offer to translate,the statement to Yapese, because he knew that Giltammad graduated from high school. Giltammad read the statement. Fugue asked Giltammad if he wanted to change any part of the statement. Giltammad said no. Fugue watched as Giltammad signed the statement.
4. Second Interview of Martin Laman
The following day, Sunday, July 16, about 1:00 p.m., Fugue interviewed Laman. Fugue read Laman his rights in English from the Advice of Rights form and translated them to Yapese. Fugue and Laman then signed the form. Niggle signed the form as witness, and remained for a portion of the second interrogation of Laman. Fugue stated first that they thought Laman had lied in his first statement. After questioning Laman, Fugue typed a statement in English. He did not translate the state to Yapese because he knew Laman had gone to school. Fugue asked Laman to read the typewritten statement, and asked it he wanted to change any of it. Laman did not, and signed the statement.
[page 7]
Fugue could not recall how the second statement was different from the first. He did recall that in the second statement Laman said he used a different weapon than in the first. Fugue thought it was significant to know which weapon each of the suspects used in the beating. Aside from the type of weapon, Fugue could not recall other differences from the first. Niggle likewise did not recall in which ways Laman's second statement was different from his first statement. Because Niggle destroyed Laman's first statement the day before, no one could compare the two statements side-by-side.
Laman moved to suppress his statements to the police and to dismiss. The motion to suppress was on two points: that Laman was not informed of the cause and authority of his arrest in violation of 12 T.T.C. 64, and that he was not informed of the rights enumerated in 12 F.S.M.C. 218. Laman moved to dismiss for violation of his right to due process of law because the police destroyed his first statement. At the hearing, Laman's counsel amended the motion to dismiss, agreeing that under the facts suppression of the second statement was proper relief.
Defendant Bernard Giltammad requested suppression of his statement to the police, claiming he was not informed of the cause-and authority of his arrest in vio anion of 12 T.T.C. 64, and that he was not informed of the rights enumerated in 12 F.S.M.C. 218. Giltammad further asserted that he was not
[page 8]
adequately informed of his constitutional rights before he made a statement, so a waiver could not be voluntary and intelligent.
Defendant Francis Gootman requested suppression of his statement to the police. Gootman claimed he was not informed of the cause and authority of his arrest in violation or 12 T.T.C. 64, and that he was not informed of the rights enumerated in 12 F.S.M.C. 218. Gootman claimed that waiver of h,is constitutional rights was not voluntary and intelligent because his statement was made in reliance on a promise to return him to his village.
Defendant Robert Giliney requested supression of his statement, but withdrew his motion before the hearing. The State opposed all the motions.
Due to the common issues of law and fact, the evidentiary hearings were consolidated. The Court heard testimony from five witnesses: Police Officers Chris to Fugue, Steven Niggle, and Johannes Tamara, and from Thomas Waylay and Doucher. There were ten exhibits. None of the defendants testified.
LAW AND ANALYSIS
I. DUE PROCESS OF LAW
It is undisputed that Detective Niggle obtained and destroyed the first written statement from Martin Laman on July 15, 1995. Niggle discussed the statement with Detective Fugue that afternoon. The offices believed that Laman was lying and agreed that he should be questioned again. After the discussion, Niggle destroyed the first statement. Since he took no notes of
[page 9]
the first interrogation, Niggle destroyed all recorded evidence of what was said in the first interrogation.
Laman moved the court to suppress the second statement because the destruction of the first statement violated his right to due process of law. Laman argued that destruct sion of the first statement denied him the right to obtain and use potentially exculpatory evidence, based on tie disclosure cases that follow Brady v. Maryland, 373 U.S. 83, 10 L.Ed. 2d 215 (1963). The State argues that in these circumstances the Brady rule should not apply. The government's duty to take affirmative steps to preserve evidence is only roughly analogous to the question presented in nondisclosure cases. California v. Trombetta, 467 U.S. 479, 486, 81 L.Ed. 2d 413, 420-21 (1984).
The State proposed a different test for destroyed evidence.The United States Supreme Court's test to measure the standard of constitutional materiality is that the evidence possessed apparent exculpatory value before it was destroyed, and was ofsuch a nature that the defendant would be unable to obtain comparable evidence by reasonably available means. Id. at 489, 81 L.Ed. 2d at 422. The U.S. Supreme Court added a requirement of officer bad faith in Arizona v Youngblood, 488 U.S. 51, 102L.Ed. 2d 281 (1988). The State urged adoption of the Trombetta Youngblood rule. This too the Court declines.
The nature of the evidence destroyed by the police here takes it out of the realm of the Trombetta Youngblood decisions. Those cases and some others cited by the State involved the
[page 10]
degradation of evanescent physical evidence. In those cases, the government would have to undertake immediate action and certain expense to preserve such evidence. In other cases cited by the State, the evidence destroyed could be reconstructed from portions that did survive.
Here the destroyed evidence is the defendant's statement. Neither party cited a case involving the destruction of a confession. The nature of the evidence, a confession, makes this case distinct from all the cited authority. First, a confession is not physical evidence, and not merely an officer's notes. Second, unlike Trombetta and Youngblood, only minimal effort was needed to preserve the evidence. The officer here need only place the first confession in the case file. Third, the officer here destroyed the only written record of the first statement. It cannot be reconstructed.
Applying the Trombetta -Youngblood test presents,
unique difficulties when the evidence destroyed is the defendant's own
statement. The Trombetta -Youngblood test demands proof of both the nature of the destroyed evidence and that the evidence is not available in some other fashion. It is the second point that is most troubling. By adopting the rule in a case like this, a defendant might be tempted to waive his right against compelled self-incrimination at trial by taking the stand to discuss the subject of a prior interrogation. This Court will not lightly adopt a rule that may require a defendant to waive one
[page 11]
constitutional right in order to prove the violation of another. Cf. FSM v. Hartman, 6 FSM Intrm. 293, 301-3 (App. 1993).
The Court rules instead on the question of fundamental fairness to the defendant. The Court holds that destruction of the first statement denied Laman his right to due process of law. Due process in this circumstance includes that a defendant's statement to the police be preserved so that: the other participants in the criminal justice system may have the opportunity to review it. The Attorney General's office should review all evidence of an offense in exercise of prosecutorial discretion. Once a person is charged, the defendant's counsel may discover and review the statement to consider potential defenses or measure possible plea bargains. The Court as trier of law may review the statement by motion to determine its admissibility. The Court as trier of fact may consider the statement at trial to determine a defendant's culpability for an offense and at sentencing for the extent to which a convicted defendant may be punished. The officer's destruction of the first statement reduced all these layers of potential review by different persons, to one decision, by one person, to place Laman's first statement in the trash instead of the case file.
The Court notes that in similar circumstances, the Yap State Court has suppressed a seed statement in conditions where the first statement which may have been identical to the second was destroyed. State of Yap v. James Raech, CR Case 1994-256 (March 17, 1995). The ech decision was rendered four months
[page 12]
before Laman's interrogation. The State and its officers were on full notice that such evidence must be preserved. The Court sees no reason to rule differently than it did in Raech. Laman's second statement is suppressed.
II. ARREST
Gootman moved to suppress his statement based on the failure of the polif-e to comply with 12 T.T.C. 64.2 Tie State argued that 12 T.T.C. 64 does not apply for the reasons set out in State v. Alexander Maw, Case No. CR 1994-116 (July 14, 1995). But the State reads that ruling too broadly. The.,,8tate Court there ruled on those portions of Title 12 of the Trust Territory Code that deal with the same subjects as certain of the Yap State Rules of Criminal Procedure. The State Court found in such circumstances,the Yap State Criminal Rules control over Trust Territory law on the same subject.
But there is no Rule of Criminal Procedure that deals with the same subject of 12 T.T.C. 64, Arrested person to be informed of cause and authority for arrest. The Court must apply the Transition Clause. Yap State Const. Art. XV, 2. The Yap State Legislature did not amend or repeal 12 T.T.C. 64, either directly, or by implication by failing to modify the State Court's adoption of a rule of criminal procedure on the same subject. The Court therefore concludes that police officers must comply with 12 T.T.C. 64.
[page 13]
Applying the statute requires answering when Gootman was placed under arrest. The parties have not cited a decision by the Yap State Court that considers the definition of "arrest." The Court therefore looks to other FSM authorities.
[O]ne should be considered "arrested" when one's freedom of movement is substantially restricted or controlled by a police officer exercising official authority based.upon the officer's suspicion that the detaindd.person may be, or may have been, involved in commission of a crime. FSM v. Edward, 3 FSM Intrm. 224, 232 (Pon. 1987).
Based on the Edward test, it is reasonable to conclude that Gootman was under arrest from the time he was taken from the village for questioning about the beating of Kayo. The Court does not rule on that basis, however, nor on the question of the cause and authority of the arrest. No evidence was obtained from Gootman until he made a statement at 5:30 p.m. on July 15, 1995. By that time, Gootman was informed that he was under arrest for the murder of Kayo. Since there was no evidence obtained from Gootman between the time he may have been arrested, in the morning, and the time he certainly was arrested, and told the cause and authority for the arrest, at 3:00 p.m., there would be nothing for the Court to suppress. Thus, it is not necessary to determine whether the officers complied with 12 T.T.C. 64 in Waned. Fugue did comply with the statute when he formed Gootman at 3:00 that he was under arrest for the murder of Kayo.To the extent Gootman's motion is based on violations-'of 12
T.T.C. 64, the motion is denied.
[page 14]
III. WAIVER OF KNOWN CONSTITUTIONAL RIGHTS
Giltammad and Gootman argued that they were not informed of the rights required by 12 F.S.M.C. 218. Both dispute that they knowingly and intelligently waived their constitutional rights before making a statement. Giltammad asserted that he was not informed of his right to counsel. Gootman asserted that any waiver was motivated by a promise to return him to his village.
By its terms, 12 F.S.M.C. 218 does not apply here. It is a national statute that applies in prosecutions of national crimes. As the State Court has noted, however, 1T F.S.M.C. 218 is an example of procedures that may satisfy constitutional requirements in Yap State. State v. Alexander Maw, Case No. CR 1994-116 (Nov. 7, 1994). The State Court has ruled that the Advice of Rights form read in English and translated to Yapese is sufficient to inform a person of his constitutional rights. Id.
The evidence that Giltammad was informed of all his rights before interrogation is not clear. The testimony of the police officers who interrogated and acted as witness to the reading of Giltammad's rights is contradicted by the documentary evidence filled in at the time of the interrogation. Because there is no checkmark on Item No. 3, it is not clear to the Court that Giltammad was adequately informed of the following:
You have the right to talk to a lawyer and have him present at any time.
Before a person in custody suspected of committing a crime may be interrogated by the police, the suspect must be informed of his constitutional rights. In re Juvenile Appeal No P2-1988,
[page 15]
4 FSM Intrm. 161, 164 (App. 1989). Before a confession may be admitted over a defendant's objection the State must establish first, the defendant was informed of his rights, and second, the defendant made a knowing and intelligent waiver of the constitutional protections. Id. Waiver of a fundemental right, such as the right to counsel, may not be presumed in ambiguous circumstances. FSM v. Edward, 3 FSM Intrm. 224,- 234 (Pon. 1987). For a waiver to be effective, there must be a clear and unmistakable reference to the right waived. Id. at 234-35.
On the record, the Court cannot find that Giltammad was adequately informed of his right to counsel. Although the officers testified that they did inform Giltammad of Item No. 3 on the Advice of Rights form, the form itself indicates that Item No. 3 was not read to Giltammad. The testimony of the officers taken ten months after the interrogation, is contradicted by a document made that very day. At the very least, the evidence that Giltammad was informed of all his rights is ambiguous.
The State offered two other arguments. First, it said that Giltammad was adequately informed of his right to counsel because he was informed of Item Nos. 4 and 5 on the Advice of Rights .form, which deal with other aspects of the right to counsel. But the Yap State Court has ruled that suspects in custody must be informed of all five rights on the Advice :of Rights form before they may be interrogated. E.g., State v. Alexander Maw, CR Case No. 1994-116 (Nov. 7, 1994). "Maw requires [that] the right to counsel element be carefully explained to the suspect in order
[page 16]
that the waiver be knowing and voluntary." State v. Leo Lames, CR Case No. 1994-270 (Dec. 8, 1994).
The State's second argument was, given the totality of circumstances surrounding the interrogation, Giltammad knowingly and intelligently waived his rights. But that argument puts the cart before the horse. Before the Court examines the circumstances surrounding an alleged waiver of a constitutional right, the State must first show that the defendant was in fact informed of the right. In re Juvenile Appeal, 4 FSM Intrm. at 164. There can be no informed waiver in ignorance of a constitutional right. On the evidence at the hearing, the Court cannot conclude that Giltammad was informed of his right to counsel.
In contrast to Giltammad's, Gootman's form was completed. But a completed Advice of Rights form itself is not sufficient to show that those rights were waived. The State has the burden of proving a defendant was advised of his rights and that then he made a knowing and intelligent waiver of those rights before making a statement. In re Juvenile Appeal, 4 FSM Intrm. 161, 164 (App. 1991). To determine whether a confession was voluntary,the Court should look to the overall circumstances existing at the time the statement was made. FSM v. Jonathan, 2 FSM Intrm. 189 , 196.-97(Kos1986) .
The Court finds that Gootman was adequately advised of his rights and based on the totality of circumstances finds that he waived his constitutional rights before making his statement.
[page 17]
Gootman was questioned around 5:30 p.m. on July 15. By that time, Gootman had been informed that he was under. arrest for the murder of Kayo. Before questioning, Gootman did not complain of being hungry, thirsty, or tired. He was sober. The evidence adduced at the hearing indicates that Gootman was .informed of his rights, read in English and translated to Yapese, before he made his statement. The testimony of both officers present at the time Gootman was advised of his rights is consistent with each other and with the Advice of Rights form itself. Gootman offered no evidence to contradict this. The evidence at the suppression hearing supports a finding that Gootman was informed of his constitutional rights and knowingly and voluntarily waived them before making his statement. The only argument remaining to Gootman was that a promise was made to return him to the village. The argument lacks merit in two ways. First, the Court is not convinced that such an explicit promise was made at all, much less made to Gootman. There was no evidence that Gootman was promised hg would be returned to the village. There was some testimony that people in Waned asked Fugue if the boys would be returned. Fugue testified, as confirmed by Niggle, that Fugue said the decision on whether to return the boys would be made after questioning at Public Safety. Based on his cross-examination answers, the Court does not find the testimony of Doucher to be inconsistent. Second, a promise to return Gootman to the village is only one factor to consider in the totality of circumstances surrounding
[page 18]
his interrogation. Jonathan,
2 FSM Intrm. at 197. Without some evidence of a promise, the total circumstances indicate a knowing and intelligent waiver of Gootman's constitutional rights.
CONCLUSION
1. Laman's second statement is suppressed.' It cannot be used as evidence against him in the State's case-in-chief.
2. Giltammad's statement is suppressed. It cannot be used as evidence against him in the State's case-in-chief.
3. Gootman's motion to suppress is denied.
FURTHER PROCEEDINGS
It appears that some out-of-court statements may be admitted. Counsel are directed to confer regarding the use of out-of-court statements at trial, in light of FSM v. Hartman, 6 FSM Intrm. 293 (App. 1993).So Ordered this 13th day of June, 1996.
/s/
Associate Justice
Entered this 13th day of June, 1996.
/s/
Clerk of Court
Footnotes:
1.Although the defendants are charged as adults, counsel and the witnesses referred to them as "boys." (Back to Opinion)
2. Due to the ruling to suppress
their statements, the Court does not address the arguments of Giltammad and
Laman on Arrest (Back to
Opinion)