Cite as Criminal Case No. 1996-017
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Criminal Case No. 1996-017


     The court has received and considered the Defendant's Motion to Suppress Evidence dated June 13th, 1996, and the State's Response to Defendant's Motion to Dismiss [sic] dated july,16, 1996. In addition, the court held an evidentiary hearing on August 5th, 1996. For the reasons set forth below, the court denies the Defendant's motion.

     Defendant was arrested in the early morning hours of February 11, 1996. During police questioning while in detention at approximately 7:00 p.m. on that same day, Defendant made a statement. Defendant contends that the statement should be suppressed because he had not been advised properly of his Miranda rights. Defendant also urges that the statement was obtained by coercion. The State says in response that the Defendant was properly advised of his rights prior to giving his statement to police and so knowingly and intelligently waived his right to remain silent. The State likewise denies that the statement was the result of any coercion.

     A waiver of the right to remain silent or the right to counsel must be knowing and intelligent; there is a presumption against such waivers. Moses v. FSM, 5 FSM Intrm. 156, 159 (App. 1991); Edwards v. FSM, 3 FSM Intrm. 224 (Pon. 1987). Det. Rawel who took the statement of the Defendant. Prior to taking his statement, as adduced both through his affidavit attached to the State's Response and his testimony at the hearing, Det. Rawel read to the Defendant his rights as contained on the advice of rights form used by the police. That form is attached to the State's Response as Exhibit "B". No witness was present at the time the rights were read.

     At the hearing on the Defendants motion, Defendant argued points of fact that are the crux of the Defendants position. He contends that because his rights were read to him in English instead of Yapese, he did not understand the rights, even though he responded, in English, to the reading of his rights that he did understand them. Defendant says he did not ask for an English translation because he thought that the interviewing officer, Detective Rawel, did not speak Yapese. Defendant aIso testified at the suppression hearing that he thought, based on his experience of previous arrests, that if he said that he understood his rights and signed the advice of rights form, he would be released right away. The court is called upon to evaluate the Defendant's subjective understanding of his rights, and to determine whether or not he had knowingly and intelligently waived those rights when he made the statement that he now seeks to suppress. In making that determination, the court looks to the the reality of the circumstances surrounding the giving of rights. See Edwards, supra.

     Relevant facts are as follows. Detective Rawal testified that he read the Defendant's rights to him in English from the standard advice of rights form used by the police, and that he placed the form between the Defendant and himself so that the Defendant could read along as he read the rights to him. The court notes that these rights are framed in straightforward English, and are as follows:

     1.  You have the right to remain silent.

     2.  If you decide to answer questions, anything that you say may be used against you in a court of law.

     3.  You have the right to talk to a lawyer and to have him present at any time.

     4.  If you ask for a lawyer to be present, all questioning must stop until your lawyer is present.

     5.  If you cannot afford to hire a lawyer, the government will appoint a lawyer to      represent you, if you wish one.

Defendant responded in English that he understood each right at it was read, and Det. checked the line marked "yes" next to the question "Do you understand what this means?" which is printed next to each right on the form. Defendant testified that he had completed his education through the ninth grade here on Yap. Defendant also specifically testified at the suppression hearing that he did in fact understand at least two of his rights when they were read to him, that questioning would stop if he said he wanted a lawyer, and that the government would provide him with an attorney. This information is contained in paragraphs four and five of the advice of rights form. However, Defendant also offered contradictory testimony on this point when questioned by his own counsel at the suppression hearing. He claimed that he really didn't understand these two paragraphs. In his affidavit, Detective Rawal says that he asked the Defendant whether he understood English prior to questioning; Defendant responded that he both understood English and could read English as well. Detective Rawal also says in his affidavit that the Defendant was able to converse easily in English. Looking to the foregoing facts, along with the record in its entirety, the court concludes that the Defendant knowingly and intelligently waived his rights before giving the statement that he now seeks to suppress.

     The Defendant also contends that the statement was obtained by coercion. Although he does not cite specific facts or actions as having coerced him into making the statement, he implies coercive police conduct when he says at pages 1-2 of his motion that he

was sleeping peacefully after having had a rough night when suddenly -possible four police officers removed him from a bed, and carried him outside totally naked to police truck where he was handcuffed. Still without any clothes on took him to police station and threw him in isolation.

The State alleges that the Defendant was sleeping in the bed of the sexual assault victim, with a knife next to him, when the police took him into custody.

     After his arrest, the police took the Defendant to the jail, where he slept until the next morning. At some point he was given his clothing, which the police had taken from the bedroom where he was arrested. At approximately 9:00 a.m., he ate breakfast. At approximately 10:30 a.m., Defendant was taken to the investigation office for questioning, but according to Det. Rawel's affidavit, the Defendant was still intoxicated, and he was returned to his cell, where he slept. From 4:35 until sometime after 6:00 p.m., Defendant met with a relative and ate. At 7:00 p.m., he was taken again to the investigation room, where he told Officer Rawel that he had eaten and showered. It was at that point that Officer Rawel then read the Defendant his rights.

     The record discloses no reason to take the Defendant from the home of the alleged victim without giving him his clothes. There appears to be no justification for this other than to embarrass the Defendant. However, by the time the interrogation had taken place at 7:00p.m., the Defendant had had sufficient time to sleep off the effects of any intoxication, he had eaten three times, and showered. These facts, even including the unjustifiable action of the police  to embarrass the Defendant by taking him naked from the alleged victim's house, do not show an effort by the police to coerce the Defendant into making the statement at 7:00 p.m.

     The court finds that the Defendant knowingly and intelligently waived his rights prior to make the statement. Further, the police did not coerce the Defendant into making the statement at issue. The court denies the Defendant's motion. Therefore,

IT IS HEREBY ORDERED denying Defendant's Motion to Suppress Evidence.

DONE THIS 12th DAY OF August 1996.

Andrew Ruepong, Associate Justice

Received and filed:
By: /s/
Clerk of Yap State Court
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