State v. Balai, Sr.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-FEB-2022
07:55 AM
Dkt. 71 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellant, v.
GILBERT BALAI, SR., Defendant-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CPC-XX-XXXXXXX)
MEMORANDUM OPINION
(By: Ginoza, C.J., and Wadsworth, J.,
and McCullen, J., dissenting)
On February 13, 2018, Defendant-Appellee Gilbert Balai,
Sr. (Balai) was charged by Felony Information with Assault in the
Second Degree, in violation of Hawaii Revised Statutes (HRS)
§ 707-711(1)(d) (2014 & Supp. 2016).1/ Prior to his arrest, Balai
made incriminating statements in the presence of Kaua#i Police
Department (KPD) police officers, who were investigating a
1/
HRS § 707-711 provides, in relevant part:
Assault in the second degree. (1) A person commits
the offense of assault in the second degree if:
. . . .
(d) The person intentionally or knowingly causes
bodily injury to another with a dangerous
instrument[.]
HRS § 707-700 (2014) defines "[d]angerous instrument" for purposes
of Chapter 707 to mean "any firearm . . . or other weapon, device, instrument,
material, or substance, whether animate or inanimate, which in the manner it
is used or is intended to be used is known to be capable of producing death or
serious bodily injury."
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reported assault. The Circuit Court of the Fifth Circuit2/
suppressed all of the statements made by Balai.
Plaintiff-Appellant State of Hawai#i (State) appeals
from the "Order Determining That All Statements [Balai] Made to
the [KPD] Were Not Voluntarily Made and Are Excluded from Use at
Trial" (Voluntariness Order), entered on April 4, 2019, in the
Circuit Court. On appeal, the State contends that the Circuit
Court erred in suppressing some of the statements Balai made
while in the presence of KPD police officers, because those
statements were not the product of custodial interrogation.3/
For the reasons explained below, we affirm the
Voluntariness Order and remand the case to the Circuit Court for
further proceedings.
I. Background
On May 30, 2018, the State filed a motion to determine
the voluntariness of the statements Balai made to the police
(Voluntariness Motion) in the course of the KPD's investigation.
The Deputy Prosecuting Attorney (DPA) asserted in an attached
declaration (DPA Declaration) that statements made by Balai to
KPD Officer Kristopher Breyer (Officer Breyer) on or about
February 11, 2018, "were made voluntarily and spontaneously, and
not as a result of custodial interrogation." The Voluntariness
Motion was based on the DPA Declaration, a supporting memorandum,
"and the records and files of this case."
The Voluntariness Motion was heard on March 18, 2019
(Voluntariness Hearing). At that time, Officer Breyer testified
as follows: At approximately 12:40 a.m. on February 11, 2018,
2/
The Honorable Kathleen N.A. Watanabe presided.
3/
In the notice of appeal, the State also appealed from the Circuit
Court's April 4, 2019 "Order Denying State's Motion for Findings of Fact,
Conclusions of Law and Order Concerning Denial of State's Motion to Determine
Voluntariness of the Statements Defendant Made to the Police Heard on
March 18, 2019." However, the State's opening brief includes no point of
error or argument regarding this April 4, 2019 order, and the State's reply
brief confirms that "[t]he State has not asserted a point of error concerning
the trial court failure to enter findings of fact and conclusions of law to
correspond to its suppression order." (Underscoring omitted.) Any such issue
is thus deemed waived. See Hawai#i Rules of Appellate Procedure Rule
28(b)(4).
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Officer Breyer was assigned to patrol in the Kapa#a district and
responded to a dispatch call involving an alleged assault at 310
Apana Road in Wailua (310 Apana Road). The dispatch call
indicated an assault involving a knife, and Officer Breyer "knew
the two names . . . of the involved parties[,]" including that
"[Balai's] name was provided on the way to the call" as an
involved party.
Officer Breyer was wearing a body-worn camera as he
responded to the dispatch call. The resulting audio-visual
recording (Body Cam Video) was entered into evidence and played
during Officer Breyer's testimony at the Voluntariness Hearing.
Officer Breyer testified that on his way to the scene,
he came across Dominic Barretto (Barretto), who "looked injured
in his stomach area" and had "blood on him[.]" The Body Cam
Video showed Officer Breyer and another KPD officer, in a
separate KPD vehicle, briefly interact with Barretto before
continuing to 310 Apana Road. Officer Breyer asked Barretto,
"You . . . Gilbert?" to which a voice replies, "Dominic,
Dominic," before Officer Breyer then tells Barretto to "Hang
tight Dominic." The State also asserts in its opening brief that
"[Officer] Breyer heard Dominic say that Gilbert was at the
residence with a knife."
The Body Cam Video then showed Officer Breyer and the
other KPD officer briefly exit their vehicles along the road near
where they encountered Barretto, and quickly look around.
Officer Breyer is heard to say, "gotta find the knife." The KPD
officers are then shown driving a short distance to 310 Apana
Road. Upon entering the 310 Apana Road property, Officer Breyer
is heard asking various individuals where "Gilbert" is, and
eventually finds Balai in the backyard working on a fence.
During his testimony, Officer Breyer explained:
[DEFENSE COUNSEL:] You're directed to the back of the
-- you ask, "Where's -- where's Mr. Balai?" and you're
directed to the back, correct? Gilbert. Where's Gilbert?
You go to the back, right?
[OFFICER BREYER:] That's correct.
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Officer Breyer testified that he approached and made contact with
Balai in the backyard near a fence line. When Officer Breyer
first encountered Balai, he was "already named as a person of
interest in this[.]"
The Body Cam Video showed that as Officer Breyer first
approached Balai in the backyard, the officer called out, "Hey,
Gilbert, . . . Kaua#i Police." As Officer Breyer came closer to
Balai, a knife was visible, sticking upright in the ground a few
feet from Balai. Officer Breyer then said, "Gilbert, you can
turn and face me." Balai responded, but continued to work on the
fence.
Officer Breyer then said, "OK, so, we just got called
here. We gotta figure out what's going on, OK?" Balai
responded, "Nothing is going on," followed by other statements,
while pausing from his work on the fence. Officer Breyer then
asked Balai, "can you come sit down at the [nearby] table for me
and we can talk story a little bit about this," but Balai
responded with something about continuing to work on the fence.
Officer Breyer replied, "Okay, you tie 'em [the fencing] down.
You tie 'em down." Balai then resumed his efforts on the fence,
while Officer Breyer remained at a distance watching. During the
time that Balai continued working on the fence, he also continued
talking.
Upon finishing his work on the fence, Balai immediately
said to Officer Breyer, "Grab my knife, come over there," as
Balai pointed first toward the knife sticking upright in the
ground and then to a nearby table. Balai then walked toward the
table. When Balai repeated, "Grab my knife," Officer Breyer
responded in part, "come grab a seat, we'll grab 'em," and fell
in behind Balai walking to the table. As they approached the
table and Balai took a step away, Officer Breyer again said,
"come grab a seat," and placed his right hand across Balai's back
to Balai's right shoulder to keep Balai moving forward toward the
table. During the time that Officer Breyer escorted Balai to the
table, at least one other KPD officer was visible near the table.
Balai then sat at the table.
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Regarding the encounter, Officer Breyer testified:
[DEFENSE COUNSEL:] Okay. So you let him work on the
fence a little bit more, and then -- and then you bring him
over to the table and you have him sit down, correct?
[OFFICER BREYER:] That's correct.
Q. And at that point, he's not free to go, correct?
A. At that time, he's in investigative detainment.
Q. My question is extremely specific. Was he free to
go, yes or no?
A. He was not free to leave the area at that point.
Q. Okay. Good. So -- and the reason why we know he
was not free to go is you -- not only do you have him sit
down, you place him in handcuffs, correct?
A. That's correct.
Q. Okay. And -- and we can see -- and I'm not going
to belabor the point, but we can see you do attempt to call
-- first initially Mirandize him, right?
A. That's correct.
Q. And the reason why you Mirandize him is because he
is a suspect in this case, correct?
A. That's correct.
Q. And he's not free to go, correct?
A. That's correct.
Q. He's in custody for all intents and purposes? You
may call it a detainment, but he's being detained, he's in
custody?
A. He's in investigative detainment.
The Body Cam Video showed that Balai, once seated at
the table, began talking. Officer Breyer repeatedly attempted,
without success, to advise Balai of his rights, Balai continued
to talk, and Officer Breyer allowed him to do so. Balai's
statements appear to include an account of what happened between
him and Barretto. At one point during a pause, Officer Breyer
asked Balai if he was "calm," to which Balai responded, "Yeah, I
tell you what happened." Balai then continued talking. After
Balai stopped talking, Officer Breyer said to Balai, "Gilbert, so
what I'm gonna do right now is, cause I don't know what's going
on, I'm gonna put some handcuffs on you, okay? This is just
until I can figure out what's happening, alright?" Officer
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Breyer then handcuffed Balai.
At the conclusion of the Voluntariness Hearing, the
Circuit Court ruled as follows:
THE COURT: . . . . Based on the Court's review of
the body cam video, based on your respective arguments, the
Court is in agreement with the defense. The statements were
certainly tainted.
I want to state on the record that the officer had
ample opportunity to Mirandize the defendant. Granted, the
defendant made it difficult at the first get-go, but on the
second review of the video, what became very apparent was
from the time that the handcuffs were placed on Mr. Balai up
until the time the Miranda warnings were actually given, as
[defense counsel] pointed out, we're talking about four
minutes passed. And Mr. Balai was speaking. He was not
speaking in an agitated voice. He was -- there was many
opportunities for the officer to give the Miranda warnings
even at that point. There's even a second officer on the
video who was asking something at one point.
You know, frankly, it's a situation from the get-go --
when Mr. Balai was first approached, he was pretty much
allowed to do whatever he wanted to do. First he's allowed
to finish working on the fence that he's -- I guess the hog
wire that he's trying to tie, and then he's allowed to sit
down. He's allowed to just ramble on and on and on.
As I said, I understand the difficulties the officer
had in trying to Mirandize the first time, but basically the
officer gave up and allowed Mr. Balai to ramble and then
later on, you know, missed many opportunities or let a lot
of opportunities pass when he could have properly Mirandized
Mr. Balai.
I know that the State wants to break it down into like
parts and wants to basically justify how each part would
work independently or separate. The Court finds that it's
all tainted, so the statements are out.
. . . .
THE COURT: . . . . You know, what I'm saying
basically is that before Mr. Balai continued to say anything
more, he should have been Mirandized . . . at the outset.
[DPA]: At the outset.
Now, but regarding when the officer first arrived on
scene, he talked to Mr. Balai and they said, "Oh, let's go
sit down." He let Mr. Balai finish what he's doing. Mr.
Balai says, "Oh, that's my -- forget my knife." That's
considered tainted as well, your Honor?
THE COURT: All of it. You know, as I said, the
officer had ample opportunity to Mirandize Mr. Balai from
the very outset, when he first approached Mr. -- Mr. Balai.
Mr. Balai even answered on the -- on the video that he knew
he was being detained.
You know, basically you have the officer, you have
other officers who are milling around. You know, you have
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an officer telling Mr. Balai to have a seat, putting his
hand on Mr. Balai. Clearly Mr. Balai was being detained --
. . . .
THE COURT: -- for questioning, and clearly, based on
the officer's testimony, Mr. Balai was not free to get up
and leave and refuse to answer the officer.
[DPA]: And then -- sorry, your Honor. And then just
to clarify, and then the initial interactions with the
defendant, when the officer just said, "I'm just here to
figure out what's going on," and that -- so the Court
considers that detainment and interrogation as well?
THE COURT: When the officer says, "I'm just here to
figure out what's going on," I mean, to me that's a clear
message to the defendant that's why I'm here; I'm here to
talk to you. So clearly warnings should have been given at
the outset.
. . . .
THE COURT: And clearly Mr. Balai should not have been
allowed to just say what he wants, and, you know, the
officer should not have just given up. . . . So it's -- all
of the statements are out.
The Voluntariness Order was filed on April 4, 2019, and
this appeal followed.
II. Points of Error
In its opening brief, the State raised four points of
error, contending that the Circuit Court erred: (1) in
concluding that Officer Breyer should have Mirandized Balai when
the officer first encountered Balai in the backyard; (2) in
concluding that Balai's statements made before he said to Officer
Breyer, "Grab my knife," as well as Balai's statement, "Grab my
knife," were illegally obtained; (3) in concluding that Balai's
statements made to Officer Breyer while Balai was seated at the
table, before Miranda warnings were given, were illegally
obtained; and (4) in suppressing Balai's statements made before
he was placed in handcuffs. In essence, the State contended that
all of Balai's statements, made from the time that Officer Breyer
first encountered him in the backyard until Balai was placed in
handcuffs, were not the product of custodial interrogation and
thus should not have been suppressed.
However, in its reply brief, the State clarified that
"The State is not seeking to overturn the [Voluntariness Order]
as to the suppression of [Balai's] statements made after he told
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[Officer] Breyer to grab his knife." Thus, the State appears to
have abandoned its third point of error, as well as its fourth
point of error to the extent the State originally challenged the
suppression of Balai's statements made after he told Officer
Breyer to grab the knife. Additionally, the State's first point
of error is substantially related to, if not subsumed within, its
second point of error.
Accordingly, we consider whether the Circuit Court
erred in suppressing the statements Balai made before he told
Officer Breyer, "Grab my knife," as well as Balai's statement,
"Grab my knife," based on the court's conclusions that these
statements were the product of custodial interrogation and that
Balai should have been Mirandized when Officer Breyer first
approached Balai in the backyard.4/
III. Discussion
In State v. Uchima, 147 Hawai#i 64, 464 P.3d 852(2020), the Hawai#i Supreme Court reiterated:
Under the Fifth Amendment to the United States
Constitution and article I, section 10 of the Hawai #i
Constitution, a person in a criminal case cannot be
compelled to be a witness against oneself. This court has
long held that article I, section 10 of the Hawai #i
Constitution provides an independent source for the
protections which the United States Supreme Court enumerated
in Miranda. State v. Kazanas, 138 Hawai#i 23, 34, 375 P.3d
1261, 1272 (2016); see State v. Santiago, 53 Haw. 254,
265-66, 492 P.2d 657, 664 (1971). Thus, as a matter of
state constitutional law, statements stemming from custodial
interrogation may not be used by the State unless it "first
demonstrate[s] the use of procedural safeguards effective to
secure the privilege against self-incrimination." Kazanas,
138 Hawai#i at 34, 375 P.3d at 1272 (quoting State v.
Ikaika, 67 Haw. 563, 566, 698 P.2d 281, 283-84 (1985)).
Id. at 84, 464 P.3d at 872.
4/
Although the Circuit Court did not use the words "custodial
interrogation" in suppressing Balai's statements, in substance, that was the
basis for the court's ruling, as reflected in the following excerpts: "[T]he
officer had ample opportunity to Mirandize Mr. Balai from the very outset,
when he first approached . . . Mr. Balai. . . . Clearly Mr. Balai was being
detained . . . for questioning, and clearly, based on the officer's testimony,
Mr. Balai was not free to get up and leave and refuse to answer the
officer. . . . When the officer says, "I'm just here to figure out what's
going on," I mean, to me that's a clear message to the defendant that's why
I'm here; I'm here to talk to you. So clearly warnings should have been given
at the outset. . . . So it's – all of the statements are out." (Formatting
altered.)
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"A critical safeguard is the Miranda warning: an
accused must be warned that he or she had a right to remain
silent, that anything said could be used against him or her, that
he or she had a right to the presence of an attorney, and that if
he or she could not afford an attorney one would be appointed for
him or her." Kazanas, 138 Hawai#i at 34, 375 P.3d at 1272
(internal quotation marks omitted) (quoting State v. Ketchum, 97
Hawai#i 107, 116, 34 P.3d 1006, 1015 (2001)); see State v.
Patterson, 59 Haw. 357, 358-59, 581 P.2d 752, 753 (1978) ("An
individual in police custody may not be subjected to
interrogation without first being advised of his Miranda rights."
(underscoring added) (citing State v. Kalai, 56 Haw. 366, 537
P.2d 8 (1975))). If Miranda's safeguards are not satisfied, then
the accused's statements stemming from custodial interrogation
may not be used either as direct evidence or to impeach the
defendant's credibility. See State v. Hoey, 77 Hawai#i 17, 33,
881 P.2d 504, 520 (1994).
Miranda warnings must be given when a defendant is (1)
in custody, and (2) under interrogation. State v. Ah Loo, 94
Hawai#i 207, 210, 10 P.3d 728, 731 (2000); see Uchima, 147 Hawai#i
at 84, 464 P.3d at 872. "Custodial interrogation for Miranda
purposes means questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived
of his freedom of action in any significant way." Patterson, 59
Haw. at 357, 581 P.2d at 752-753.
To determine whether an interrogation was custodial,
the court looks "to the totality of the circumstances, focusing
on the place and time of the interrogation, the length of the
interrogation, the nature of the questions asked, the conduct of
the police, and any other relevant circumstances." Ah Loo, 94
Hawai#i at 210, 10 P.3d at 731 (internal quotation marks and
brackets omitted) (quoting State v. Melemai, 64 Haw. 479, 481,
643 P.2d 541, 544 (1982)); see State v. Wyatt, 67 Haw. 293, 299,
687 P.2d 544, 549 (1984) ("Whether interrogation was carried on
in a custodial context is dependent on the totality of
circumstances surrounding the questioning. The relevant
circumstances, we have said, include 'the time, place and length
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of the interrogation, the nature of the questions asked, [and]
the conduct of the police at the time of the interrogation.'"
(first citing State v. Paahana, 66 Haw. 499, 503, 666 P.2d 592,
595 (1983), and Melemai, 64 Haw. at 481, 643 P.2d at 544, then
quoting Paahana, 66 Haw. at 503, 666 P.2d at 595)). In this
regard, the supreme court has acknowledged that "'no precise line
can be drawn' between 'custodial interrogation,' on the one hand,
and 'permissible general on-the-scene questioning,' on the
other." Ah Loo, 94 Hawai#i at 210, 10 P.3d at 731 (brackets
omitted) (quoting Patterson, 59 Haw. at 362, 581 P.2d at 755-56).
The totality of the circumstances test applies to custodial
interrogation, "in the sense that the defendant is deprived of
his or her freedom of action in any significant way." Kazanas,
138 Hawai#i at,35, 375 P.3d at 1273. Relevant circumstances can
include "whether the investigation has focused on the suspect and
whether the police have probable cause to arrest [the suspect]
prior to questioning[.]" Ah Loo, 94 Hawai#i at 210, 10 P.3d at
731 (quoting Melemai, 64 Haw. at 481, 643 P.2d at 544).
In contrast, "the touchstone in analyzing whether
'interrogation' has taken place is whether the police officer
'should have known that his or her words and actions were
reasonably likely to elicit an incriminating response from the
defendant.'" Kazanas, 138 Hawai#i at 38, 375 P.3d at 1276
(brackets omitted) (quoting Paahana, 66 Haw. at 503, 666 P.2d at
595-596). "[I]nterrogation encompasses not only express
questioning, but also 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." Uchima, 147
Hawai#i at 84, 464 P.3d at 872 (quoting State v. Trinque, 140
Hawai#i 269, 277, 400 P.3d 470, 478 (2017)). A police officer's
subjective intent "is not determinative in analyzing whether his
[or her] words and conduct amounted to interrogation." Trinque,
140 Hawai#i at 278, 400 P.3d at 479 (citing State v. Joseph, 109
Hawai#i 482, 495, 128 P.3d 795, 808 (2006)).
Here, Officer Breyer sought out Balai in his backyard
after midnight in connection with a reported assault. Before
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approaching Balai, Officer Breyer already knew there was a report
of an assault with a knife, knew the names of the two individuals
(Dominic and Gilbert) involved in the incident, and knew that
Dominic had been injured and was bleeding in his stomach area.
The State also asserts that Officer Breyer heard Dominic say that
Gilbert was at the residence with a knife. Officer Breyer then
stated, "gotta find the knife," and continued to the residence
with another officer. Upon arrival, Officer Breyer asked various
individuals where "Gilbert" was, and was directed to the
backyard. When Officer Breyer walked into the backyard looking
for Gilbert, he approached a man working on a fence, and saw a
knife sticking upright in the ground a few feet from the man.
Officer Breyer addressed the man as "Gilbert," and Balai appeared
to respond as such. Officer Breyer then said, "Ok, so we just
got called here. We gotta figure out what's going on, Okay?"
Based on all of the relevant circumstances, we conclude that the
police, upon discovering Balai and the knife in the backyard, at
a minimum had focused their investigation on Balai. See Ah Loo,
94 Hawai#i at 210, 10 P.3d at 731; Patterson, 59 Haw. at 361, 581
P.2d at 755 (focus of the investigation upon the defendant is "an
important factor in the determination of whether the defendant
was subjected to custodial interrogation" (citing Kalai, 56 Haw.
at 369, 537 P.2d at 11)).
We further conclude that under all of the relevant
circumstances, when the police discovered Balai and the knife in
the backyard, Balai was "deprived of his . . . freedom of action
in [a] significant way." Kazanas, 138 Hawai#i at 35, 375 P.3d at
1273. At that point, the hour was late and Balai was in the
presence of at least two KPD police officers. Officer Breyer
already knew the above-described information and had observed a
knife just a few feet away from Balai. Thus, the police were
aware of solid evidence linking Balai to the reported assault.
See State v. Russo, 67 Haw. 126, 136, 681 P.2d 553, 561 (1984).
It would have been unreasonable for Balai to think he could have
ushered the police out of the backyard; nor were they about to
leave, given that they had just located Balai and the possible
weapon used in the reported assault. See id. Since Balai could
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not have had a reasonable belief that he was "free to go," we
conclude he was "deprived of his freedom of action in a
significant way."5/ Id. (ellipsis and brackets omitted) (quoting
Miranda v. Arizona, 384 U.S. 436, 444 (1966)); Kazanas, 138
Hawai#i at 35, 375 P.3d at 1273.
Under the totality of the circumstances in this case,
Balai was in custody from the time that Officer Breyer discovered
Balai and the knife in the backyard. Moreover, in this context,
we conclude that Officer Breyer's statement to Balai -- "Ok, so
we just got called here. We gotta figure out what's going on,
Okay?" -- was reasonably likely to elicit an incriminating
response and, therefore, constituted interrogation. See Kazanas,
138 Hawai#i at 38, 375 P.3d at 1276. Based on Officer Breyer's
words and conduct, it appears he was attempting to gain Balai's
trust so that Balai would talk about the stabbing incident.
Accordingly, the statements at issue in this appeal,
all of which were made by Balai after Officer Breyer's above-
quoted statement,6/ were the product of pre-Miranda custodial
interrogation, and the Circuit Court did not err in suppressing
Balai's statements.
5/
Indeed, the State argues in its opening brief that "this court
should conclude that when [Officer] Breyer encountered [Balai] in the
backyard, he possessed a reasonable suspicion that he was the 'Gilbert' who
recently stabbed Dominic." The State further argues, however, that "although
a knife was partially buried in the ground a few feet from where [Balai] was
standing, . . . [Balai] did not appear bloody or injured. So, [Officer]
Breyer did not have probable cause to conclude that [Balai] had recently
stabbed Dominic." The State fails to adequately explain its reasoning.
Moreover, in these circumstances, where Balai was the focus of investigation
and deprived of his freedom of action in a significant way, we need not decide
whether Officer Breyer also had probable cause to arrest Balai when the
officer first observed the knife. See Melemai, 64 Haw. at 481, 643 P.2d at
544 (probable cause to arrest may play a significant role in the application
of the Miranda rule, but it is "not determinative").
6/
The State clarifies in its reply brief:
[Officer] Breyer's Body Worn Camera footage clearly
indicates that [Balai], while standing about 10-15 feet from
[Officer] Breyer, was actively working on the fencing
material when [Officer] Breyer asked him, " So, we just got
called here. We gotta figure out what's going on, OK? "
After that, Balai made incriminating statements and directed
[Officer] Breyer to grab his ([Balai's]) knife, and
[Officer] Breyer escorted [Balai] over to a nearby outdoor
table.
(Italics and underscoring in original.)
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IV. Conclusion
For the reasons discussed above, we affirm the April 4,
2019 "Order Determining That All Statements Defendant Made to the
Kauai Police Department Were Not Voluntarily Made and Are
Excluded from Use at Trial," entered in the Circuit Court of the
Fifth Circuit. The case is remanded to the Circuit Court for
further proceedings.
DATED: Honolulu, Hawai#i, February 18, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Tracy Murakami,
Deputy Prosecuting Attorney,
County of Kaua#i, /s/ Clyde J. Wadsworth
for Plaintiff-Appellant. Associate Judge
Daniel G. Hempey
(De Costa Hempey LLC)
for Defendant-Appellee.
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DISSENTING OPINION BY MCCULLEN, J.
I respectfully dissent. Defendant-Appellee Gilbert
Balai (Gilbert) was not in custody and was not interrogated
during the first minute and twenty-five seconds of his encounter
with the officer, which is the subject of this appeal.
Custodial interrogation generally requires the suspect
to be (1) in custody and (2) interrogated. State v. Kazanas, 138
Hawai#i 23, 35, 375 P.3d 1261, 1273 (2016). The Hawai#i Supreme
Court recognized the distinction between custodial interrogation
subject to Miranda warnings and "permissible general on-the-scene
questioning." State v. Ah Loo, 94 Hawai#i 207, 210, 10 P.3d 728,
731 (2000). Although the court observed that the line between
the two is imprecise, if "neither probable cause to arrest nor
sustained and coercive interrogation are present, then questions
posed by the police do not rise to the level of 'custodial
interrogation' requiring Miranda warnings." Id. at 94 Hawai#i at
210, 10 P.3d at 731.
As the court explained, a person may be seized, yet not
in custody:
[A]n individual may very well be "seized," within the
meaning of article I, section 7 of the Hawai #i Constitution
(inasmuch as, "given the totality of the circumstances, a
reasonable person would have believed that he or she was not
free to leave," [State v. Trainor, 83 Hawai #i 250, 256, 925
P.2d 818, 824 (1996)]), and yet not be "in custody," such
that Miranda warnings are required as a precondition to any
questioning.
Id. at 211, 10 P.3d at 732. The court further observed that the
purpose of an investigatory stop is to confirm or deny an
officer's suspicions with reasonable questioning:
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[a]n officer making an investigatory stop will often have
some suspicion of the identity of the person apprehended and
of his prior unobserved activity. It is the very purpose of
the investigatory stop to allow the officer to confirm or
deny these suspicions by reasonable questioning, rather than
forcing in each instance the 'all or nothing' choice between
arrest and inaction.
State v. Patterson, 59 Haw. 357, 363–64, 581 P.2d 752, 756 (1978)
(citing United States v. Hickman, 523 F.2d 323, 327 (9th Cir.
1975)) (emphasis added).
Therefore, our courts have contemplated instances where
a person's freedom of movement may be restricted and that person
may be questioned to confirm or deny a police officer's
reasonable suspicion. Id. That is what occurred during the
first minute and twenty-five seconds of Gilbert's encounter with
Kaua#i Police Department Officer Kristopher Breyer (Officer
Breyer).
Custody
To determine whether a suspect is in custody, courts
look to the totality of the circumstances and focus on "the place
and time of the interrogation, the length of the interrogation,
the nature of the questions asked, the conduct of the police, and
any other relevant circumstances." Ah Loo, 94 Hawai#i at 210, 10
P.3d at 731 (brackets removed). While the focus of an
investigation on a suspect and probable cause are important
factors, they are not dispositive in determining whether a
custodial interrogation occurred. State v. Melemai, 64 Haw. 479,
481–82, 643 P.2d 541, 544 (1982). Instead, the inquiry focuses
on the totality of the circumstances. See, e.g., Ah Loo, 94
Hawai#i at 210, 10 P.3d at 731).
First, Officer Breyer approached Gilbert in his
backyard, and stood a fair distance away. Although Officer
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Breyer testified that Gilbert was not free to leave because he
was under "investigative detainment", Gilbert was given ample
room to move around and latitude to continue fixing his fence.
Second, the length of time between Officer Breyer's initial
contact with Gilbert and Gilbert identifying the knife as his was
approximately one minute and twenty-five seconds. Third, Officer
Breyer did not ask Gilbert any questions but informed Gilbert of
the reason he was on Gilbert's property. Fourth, Officer Breyer
maintained a calm, respectful, and professional demeanor and did
not display any coercive behavior. Finally, although the
circumstances occurred late at night, the police had no choice
but to respond at that time because that was when the assault
call was made.
Based on these circumstances, Officer Breyer's
interaction with Gilbert was not conducted under any coercive
circumstance to warrant a finding that Gilbert was in custody for
the first minute and twenty-five seconds. See State v. Hoffman,
73 Haw. 41, 53, 828 P.2d 805, 812 (1992) (stating that the
setting where the police officer questioned the defendant was not
custodial or of a nature likely to subjugate a defendant to the
will of the officer); Patterson, 59 Haw. at 363–64, 581 P.2d at
756 (finding no custodial interrogation because the police
interview of the burglary suspect was brief, comprised of fact-
finding inquires designed to clarify the situation, lacked an
overbearing show of force, and not conducted under coercive
circumstances).
Also, there was no probable cause to arrest Gilbert
during the first minute and twenty-five seconds. Probable cause
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"exists when the facts and circumstances within one's knowledge
and of which one has reasonably trustworthy information are
sufficient in themselves to warrant a person of reasonable
caution to believe that an offense has been committed. This
requires more than a mere suspicion but less than a certainty."
State v. Maganis, 109 Hawai#i 84, 86, 123 P.3d 679, 681 (2005)
(citations, internal quotation marks, and emphasis omitted).
Here, Officer Breyer testified that he responded to a
dispatch call involving an assault with a knife, and that
"Gilbert" and "Dominic" were the parties involved. Officer
Breyer's Body Cam Video showed him drive up to three males, one
injured with blood, walking on the side of the road. Officer
Breyer asked through the window, "[y]ou ah Gilbert?" to which the
male responded, "Dominic, Dominic." Officer Breyer said, "hang
tight Dominic," and drove further along the road. When Officer
Breyer stopped again, he exited his car and pointed to some
shrubbery and said, "we gotta find the knife, it's in here, it
was in here?"
Officer Breyer returned to his car and drove to the
property involved where four women and several children were in
the front yard. Officer Breyer exited his car and asked for
Gilbert. Although most of the conversation was unintelligible,
he was eventually directed to the backyard with one woman clearly
saying, "Gilbert is in the back I think . . . yeah I don't know .
. . no I just saying I don't know if Uncle Gilbert is in the back
or not."
Officer Breyer walked along some structures toward the
backyard and, upon seeing a male fixing a fence, Officer Breyer
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called out, "hey Gilbert, hey Kaua#i Police, hey brah, Gilbert
you can turn and face me." The male whose attention was focused
on the fence said, "I'm just strapping down, what I doing?"
At that point, there was no positive identification
that the male fixing the fence was, in fact, Gilbert. Although a
positive identification of a suspect may be sufficient to
establish probable cause, there was no express denial or
acknowledgment by the male that he was in fact Gilbert, and there
was no positive identification by Dominic or any other witness.
See State v. Pulse, 83 Hawai#i 229, 245, 925 P.2d 797, 813
(1996), amended by 83 Hawai#i 545, 928 P.2d 39 (1996) (holding
that a positive identification by the victim that the defendant
terrorized him with a gun was sufficient to establish probable
cause).
Furthermore, Gilbert was in the process of fixing a
fence using some sort of tool, and there was no indication he was
holding a knife. Although the Body Cam Video shows a black
object protruding from the ground near the roll of fencing, there
was no testimony that Officer Breyer understood it to be a knife
prior to Gilbert saying so. And even if Officer Breyer
understood the object to be a knife, mere proximity was
insufficient to establish probable cause. See Hoffman, 73 Haw.
at 43, 54, 828 P.2d at 807, 813 (stating that a beer bottle that
was in close proximity to the defendant combined with a witness'
statement that the bottle belonged to the defendant was not
sufficient to establish probable cause to arrest the defendant
for unlawful display of intoxicating liquor).
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Although the State asserts in its opening brief that
"[Officer] Breyer heard Dominic say that Gilbert was at the
residence with a knife," the State provided no citation for this
assertion and this assertion was not evidence. See Alghussein v.
Kaan, 149 Hawai#i 174, 184, 485 P.3d 68, 78 (App. 2021) (noting
that an argument made by counsel in a memorandum of law is not
evidence).
More importantly, the Body Cam Video shown and the
testimony adduced at the voluntariness hearing did not support
the assertion that Dominic told Officer Breyer that Gilbert was
at home and possessed a knife. The Body Cam Video showed the
male on the road say, "Dominic, Dominic" and Officer Breyer
responded, "hang tight Dominic." When asked during cross-
examination, "although you report--you say he--he told you
certain things, the truth of the matter is all he said was
Dominic and you tell him something to the effect of hang on
. . . ," Officer Breyer responded, "That's correct."
Based on the evidence adduced at the voluntariness
hearing, Officer Breyer knew there was an assault with a knife,
Gilbert and Dominic were the parties involved, and an injured
Dominic was walking along the road. And although he approached a
male fixing a fence, Officer Breyer did not positively identify
that male as Gilbert. It was not until Gilbert claimed ownership
of the knife in the ground at approximately one minute and
twenty-five seconds after Officer Breyer approached that the
facts and circumstances within Officer Breyer's knowledge would
warrant a person of reasonable caution to believe the male fixing
the fence committed a crime, i.e., probable cause. Thus, based
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on the totality of circumstances as shown by the evidence
adduced, Gilbert was not in custody for the first minute and
twenty-five seconds of his encounter with Officer Breyer.
Interrogation
Gilbert was also not interrogated during that time.
Interrogation "under Miranda refers to (1) any words, actions, or
practice on the part of the police, not only express questioning,
(2) other than those normally attendant to arrest and custody,
and (3) that the police should know is reasonably likely to
invoke an incriminating response." State v. Trinque, 140 Hawai#i
269, 277, 400 P.3d 470, 478 (2017). But, "[g]enerally, informing
a defendant of the reason for being stopped or arrested does not
constitute custodial interrogation likely to elicit an
incriminating response." State v. Sagapolutele-Silva, 147
Hawai#i 92, 103, 464 P.3d 880, 891 (App. 2020), cert. granted,
No. SCWC-XX-XXXXXXX, 2020 WL 5544432 and 5544434 (Haw. Sept. 16,
2020).
Officer Breyer said, "hey Gilbert, hey Kaua#i Police,
hey brah, Gilbert you can turn and face me." He then said, "Ok,
so we just got called here. We gotta figure out what's going on.
Okay?" These statements were properly made to inform Gilbert as
to why Officer Breyer was standing in the middle of his backyard
during the middle of the night. See Sagapolutele-Silva, 147
Hawai#i at 103, 464 P.3d at 891 (stating that simply informing a
person of the reasons for their stop or arrest does not
constitute interrogation); United States v. Crisco, 725 F.2d
1228, 1232 (9th Cir. 1984) ("[W]hen an officer informs a
[suspect] of [the] circumstances [of their arrest or explains
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evidence against them] this information may be considered
normally attendant to arrest and custody.").
Although the Kazanas court held that even "small talk"
could amount to an interrogation, Kazanas is distinguishable. In
Kazanas, the defendant was charged with criminal property damage
and unauthorized entry into a motor vehicle. Kazanas, 138
Hawai#i at 27, 375 P.3d at 1265. After placing the defendant
under arrest, the officer transported the defendant to the
hospital and took him alone to the Honolulu Police Department's
private hospital room. Id. at 28, 40-41, 375 P.3d at 1266, 1278-
79. There, the officer asked the defendant how his Halloween
went. Id. at 40-41, 375 P.3d at 1278-79. The defendant
responded that if people did not upset him, he would not have had
to punch them. Id. at 28, 375 P.3d at 1266.
The Hawai#i Supreme Court held that the officer's
question about Halloween was an interrogation. Id. at 40-41, 375
P.3d at 1278-79. The court observed that the officer knew how
the defendant's Halloween went because she encountered him at the
end of his night and was aware of the circumstances of his
arrest. Id. The court reasoned that finding there was no
interrogation would "encourage police officers to engage suspects
in custody in non-Mirandized and seemingly harmless conversations
about 'how their night was going' in the hope that the suspects
may make incriminating statements about the events leading up to
their arrest." Id.
Unlike the officer in Kazanas, Officer Breyer did not
encounter Gilbert at the end of the investigation with full
knowledge of the events that transpired. Instead, Officer Breyer
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was the first to contact Gilbert with general knowledge of an
assault with a knife, the names "Gilbert" and "Dominic," and that
an injured Dominic was walking along the road. Officer Breyer
did not know the circumstances of the assault and had not
positively identified Gilbert.
Nothing in that first minute and twenty-five seconds
indicated that Officer Breyer attempted to elicit an
incriminating response. Instead, Officer Breyer informed Gilbert
that he was on his property as part of an investigatory stop.
Concluding otherwise would force officers in similar
circumstances to take the impractical and disfavored "all or
nothing" approach between arrest or inaction. See Patterson, 59
Haw. at 363–64, 581 P.2d at 756.
Conclusion
Based on the evidence adduced during the voluntariness
hearing, Gilbert was not subjected to custodial interrogation
during the first minute and twenty-five seconds of his contact
with Officer Breyer under the totality of the circumstances;
"neither probable cause to arrest nor sustained and coercive
interrogation" were present. Ah Loo, 94 Hawai#i at 210-211, 10
P.3d at 731-32. I would, thus, hold that the Circuit Court
erroneously suppressed Gilbert's statements made up to and
including "[g]rab my knife."
/s/ Sonja M.P. McCullen
Associate Judge
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