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STATE OF HAWAfI, Plaintiff-Appellant, v. qy -w
MARwAN TIM0THY sAAD JAcKs0N, Defendant~Appe11§§~ §§
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APPEAL FRoM THE cIRcUIT c0URT 0F THE THIRD c:RcUi_ ;;
(cR. No. 06-1-0045> 3 ca

MEMORANDUM OPINION
(By: Foley and Fujise, JJ.; and
Nakamura, C J., dissenting)
Plaintiff-Appellant State of HawaFi (State) appeals

from the "Findings of Fact, Conclusions of Law and Order Granting
in Part and Denying in Part State of HawaFi's Motion to
Determine voluntariness of Defendant's Statements" filed on

May 4, 2009 in the Circuit Court of the Third Circuit1 (circuit
court). On appeal, the State challenges the circuit court's
determination that the police engaged in the functional
equivalent of interrogation, thereby eliciting an incriminating
response from Defendant-Appellee Marwan Timothy Saad Jackson
(Jackson or Defendant). The State specifically contends that
Conclusions of Law (COLs) 9 and 10 were wrong.

On January 26, 2006, the State indicted Jackson for
Count I, Murder in the Second Degree, in violation of Hawaii
Revised Statutes (HRS) § 707-70l.5(l) (l993); Count II, Sexual
Assault in the First Degree, in violation of HRS § 707-730(l)(a)
(Supp. 2005); §ggn;_;;l, Kidnapping, in violation of HRS § 707-
720(l)(d) (l993); and Count IV, Violation of an Order for
Protection, in violation of HRS § 586-ll (2006 Repl.).
On March l9, 2009, the State filed a Motion to

Determine Voluntariness of Defendant’s Statements (Motion to
Determine Voluntariness), in which the State identified four
instances where Jackson made statements to the police: (l) on

November 25, 2005 to Officer Finkey; (2) on November 25, 2005 to

3 The Honorable Greg K. Nakamura presided.

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Officer Silva; (3) on November 25, 2005 to Detective EstebanZ
and (4) on November 26, 2005 to Detectives Esteban and Poy. The
State admitted that on November 26, 2005, prior to the statements
made by Jackson to Detectives Poy and Esteban, Jackson had been
arrested, advised of his constitutional rights, requested an
attorney, and asserted his right to remain silent. The circuit
court determined that all of Jackson's statements referred to in
the Motion to Determine»Voluntariness were not the product of
custodial interrogation except for those Jackson made on
November 26, 2005 to Detectives Esteban and Poy. Only the
November 26, 2005 statements are at issue in this appeal.

On November 26, 2005, Detectives Esteban and Poy and
Officer Souki met with Jackson for the purpose of executing a
warrant authorizing them to take photographs of Jackson and
collect his fingernail clippings. About 45 minutes into the
approximately one~hour-long process, Jackson asked about the

charge against him. Detective Esteban recorded the events in his

police report as follows:

As I was nearing the completion of evidence recovery
for this search warrant, JACKSON asked out loud to no one in
particular, "What am I being charged for?" I informed him
that "you're not being charged for anything right now but
what we're investigating is serious enough that you may
spend the rest of your life in prison."

I noted that JACKSON became upset and stated something
to the effect of, "The rest of my life? I'm only 24. I'm a
young man. How can 1 spend the rest of my life in prison
just for fighting with my wife?" He continued by stating in
an agitated voice something to the effect of, "We were just
fighting. She hit me two times. The second time that she
hit me in the head, I just lost it."

After a hearing on the Motion to Determine
Voluntariness, the circuit court made the following Findings of
Fact (FoFs)= `

l9. [Jackson] repeatedly asked "what am I being
charged for?“.

20. At one point, Det. Esteban answered that
[Jackson] was not being charged with anything right now but
what they're investigating "is serious enough that you may
spend the rest of your life in prison."

2 At the time of the hearing on the Motion to Determine Voluntariness,
Detective Esteban had been promoted to Lieutenant. We refer to Lieutenant
Esteban as Detective Esteban to avoid confusion.

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21. [Jackson] responded by stating "the rest of my
life. I'm only 245 I'm a young man! How can 1 spend the
rest of my life in jail just for fighting with my wife?".

22. [Jackson] continued by stating "we were just
fighting. She hit me two times. The second time that she
hit me in the head, 1 just lost it."

The circuit court's FOFs were consistent with the account of
events contained in Detective Esteban's police report. 1n

COL 9,3 the circuit court stated: "[Detective] Esteban's
statement to [Jackson] as noted in FOF No. 20 was custodial
interrogation in that it was reasonably likely to evoke an
incriminating response." In COL 10, the circuit court stated:
"[Jackson's] statements to Det. Esteban and Det. Poy as noted in
FOF Nos. 21 and 22 were the product of improper custodial
interrogation."

A circuit court's decision on a motion to determine
voluntariness is the functional equivalent of a determination on
a motion to suppress statements. See State v. Naititi, 104
HaWaiU.224, 234, 87 P.3d 893, 903 (2004). The standard of
review for a determination on a motion to suppress statements
should therefore be applicable to a determination of
voluntariness. The circuit court's ultimate determination to
suppress a statement is reviewed under the right/wrong standard.
State v. Spillner, 116 Hawafi 351, 357, 173 P.3d 498, 504
(2007); State v. Rippe, ll9 Hawafi l5, 2l, 193 P.3d l2l5, 1221
(App. 2008). The FOFs underlying the ultimate determination are
reviewed under the clearly erroneous standard, and the COLs are
reviewed de novo. ;d;

A determination that a comment by the police is likely

to elicit an incriminating response is a factual component of the

ultimate determination of whether or not a custodial
interrogation occurred and therefore is an FOF subject to the
clearly erroneous standard of review. State v. Mitchell, 948
A.2d 335 (Conn. App. Ct. 2008); People v. Wood, 135 P.3d 744, 751

3 The circuit court's denomination of an FOF as a COL does not control

the standard of review applied on appeal. Schiller v. Schiller, 120 Hawafi
283, 30l, 205 P.3d 548, 566 (App. 2009).

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(Colo. 2006); Dixon v. Commonwealth, 149 S.W.3d 426, 433 (Ky.
2004).

lt is well-established that interrogation for purposes
of a determination of custodial interrogation is not limited to

questioning, but also includes its functional equivalent.

We conclude that the Miranda safeguards come into play
whenever a person in custody is subjected to either express ‘
questioning or its functional equivalent. That is to say,
the term "interrogation" under Miranda refers not only to
express questioning, but also to any words or actions on the
part of the police (other than those normally attendant to
arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from -
the suspect.

Rhode Island v. Innis, 446 U.S. 291, 300-01 (l980) (footnote
omitted); see also State v. Ketchum, 97 HawaFi 107, 119, 34 P.3d

1006, 1018 (2001); State v. Ah Loo, 94 HawaiU_207, 210, 10 P.3d
728, 731 (2000); State V. Melemai, 64 HaW. 479, 481 n.3, 643 P.2d
541, 544 n.3 (1982). A statement constitutes the functional

equivalent of interrogation if "the police officer should have

¢known that his for her] words or actions were reasonably likely

to elicit an incriminating response." Ketchum, 97 Hawafi at
119, 34 P.3d at 1018 (quoting State v. 1kaika, 67 Haw. 563, 567,
698 P.2d 28l, 284 (l985)).

By confronting Jackson with information that the police
were investigating an offense that might put Jackson in prison
for the rest of his life, Detective Esteban effectively accused
Jackson of a serious criminal offense. Confronting a suspect
with evidence of guilt was the primary example used in Innis to
justify the expansion of "interrogation" beyond literal
questioning. Innis, 446 U.S. at 299.

The Hawafi Supreme Court followed Innis in State v.
UganiZa, 68 Haw. 28, 30, 702 P.2d l352, l354~55 (l985). UganiZa
was in custody at the cellblock when he told Sergeant Naauao that
he did not know why he was there. lQ¢ at 29, 702 P.2d at 1353.
Sergeant Naauao told Uganiza that he would be back in an hour and
would talk to Uganiza then. ;dL Upon Sergeant Naauao's return,
he was informed by the cellblock turnkey that Uganiza did not

want to speak with him. Id. The following then occurred:

Naauao went to the Defendant‘s cell with a waiver of rights
form to get written verification that Defendant was

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exercising his right to remain silent. The Defendant
continued to ask why he was being held. Naauao showed him
the written statements of several witnesses explaining how
these incriminated him. The Defendant stated that he wished
to explain what happened and Naauao said that he would
return in a half hour if Defendant wanted to make a
statement. Upon Naauao's return, the Defendant agreed. He
was then taken to the detective division where he made a
formal confession after being warned of and waiving his
constitutional rights,

Id. The Hawafi Supreme Court held that confronting Uganiza with
incriminating evidence was the functional equivalent of

interrogation.

Here, the police officer should have known that the
presentation of apparently overwhelming inculpatory evidence

' in the form of written witnesses' statements and oral
explanations of them was reasonably likely to elicit such a
response from the Defendant. This conduct constituted
interrogation, thus violating Defendant's asserted
constitutional rights.

lQ; at 30, 702 P.2d at l354-55.

The circuit court did not clearly err when it found
that Detective Esteban's statement to Jackson that the police
were investigating an offense that might cause Jackson to spend
the rest of his life in prison was reasonably likely to elicit an
incriminating response. Therefore, the "Findings of Fact,
Conclusions of Law and Order Granting in Part and Denying in Part
State of Hawafi's Motion to Determine Voluntariness of
Defendant's Statements" filed on May 4, 2009 in the Circuit Court
of the Third Circuit is affirmed, and the case is remanded for
further proceedings.

DATED; H@noiuiu, Hawai‘i, Aprii 21, 2010.

On the briefs:

M. Kanani Laubach,

Deputy Prosecuting Attorney, AEé£b&H§?n?
County of Hawafi, -
for Plaintiff-Appellant. Associate Judge

Stanton C. Oshiro

for Defendant-Appellee. 4
.e/

Associate Judge

