Opposition Brief — Hawaii v. Roman

roc + ei hee es wid 9 is eee

TN AAPe me OCT 1989

os Ay Pee { JOSEPH F. SPANIOL, JR.

or ee CLERK

NO. 89-45

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

STATE OF HAWAII,

Petitioner,

vs.

HAILA DIANE ROMAN,

Respondent.

RESPONSE TO PETITION

FOR A WRIT OF CERTIORARI

HART & WOLFF

Attorneys at Law

A Law Corporation

* PETER C. WOLFF, JR. 2332-0

333 Queen Street, Suite 610

Honolulu, Hawaii 96813

Telephone: (808) 526-0811

Attorney for Respondent

HAILA DIANE ROMAN

7. a

QUESTIONS PRESENTED

Should this Court deny the petition for certiorari because it

was filed late, in violation of Supreme Court Rule 20.17

Was the Hawaii Supreme Court's ruling supported by an

independent and adequate state constitutional ground, thus

precluding any need for review by this Court?

Was Mrs. Roman subjected to custodial questioning prior to

being formally placed under arrest?

Was Mrs. Roman given adequate Miranda warnings for the post-

polygraph test questioning, considering the particular facts

of her case?

(i)

De eS Pe PUL SIEM ete PEN 5 es DE ng OCU Samay ae, Sea eS, Se oS ee ee

TABLE OF CONTENTS

QUESTIONS PRESENTED 2 eo

TABLE OF CONTENTS ee cee ee

TABLE OF AUTHORITIES eye a eae

OPINIONS BELOW Wee ee

JURISDICTION 5 oe at, a

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED “ier ee, ee le

STATEMENT OF THE CASE ay ad ae. Se

ARGUMENT AGAINST GRANTING

A WRIT OF CERTIORARI Pin te ce ie

I. THE PETITION FOR A WRIT OF

CERTIORARI WAS FILED LATE,

IN VIOLATION OF SUPREME COURT

RULE 20.1 2 a

Il. THE HAWAII SUPREME COURT'S

RULING WAS SUPPORTED BY AN

INDEPENDENT AND ADEQUATE STATE

CONSTITUTIONAL GROUND, THUS

PRECLUDING ANY NEED FOR REVIEW

BY THIS COURT ie ee ee ee ee

III. MRS. ROMAN WAS SUBJECTED TO

CUSTODIAL QUESTIONING PRIOR

TO BEING PLACED UNDER

FORMAL ARREST Rie te es te 6

A. The Facts of This Case

Demonstrate That Mrs. Roman

Was Custodially Questioned

Prior to Her Formal Arrest °

B. The Hawaii Supreme Court

Did Not "Rely Exclusively Upon

The Notion That Miranda's

Requirements Are Triggered

Simply By The Fact That A

Suspect Becomes the Central

Focus of a Separate Criminal

Investigation" eee

(ii)

aE Te eS ye ee Se ee kee ee

mie? hy ee

c. Roman's Custodial Questioning

Determination Does Not Conflict

With This Court's Prior Decisions ... 24

IV. MRS. ROMAN WAS NOT GIVEN

ADEQUATE MIRANDA WARNINGS

FOR THE POST-POLYGRAPH

TEST QUESTIONING, CONSIDERING

THE PARTICULAR FACTS OF HER /

CASE . . * . 7 . . . . 29

A. The Hawaii Supreme Court 4

Properly Ruled That The Pre-Test ,

Warnings Were Inadequate For The /

Post-Test Interrogation On the

Particular Facts of

Mrs. Roman's Case acs Ses 6 ee 29

B. The Roman Ruling On The

Inadequacy of The Miranda

Warnings Does Not Conflict With

This Court's Prior Decisions eae 32

CONCLUSION Ppt ae ee aks, ee 37

(iii)

Te ee ee ee ee te POY MRS) UN Pea bot

= TABLE OF AUTHORITIES

“

CASES PAGES

Ayres v. Polsdorfer

187 U.S. 585 (1903) 14

Beckwith v. United States ; 5

425 U.S. 341 (1976) 18, 19, 27

Berkemer v. McCarty Ps oe

468 U.S. 420 (1984) J : 28, 29

Bonin v. Gulf Co.

198 U.S. 115 (1905) 14

California v. Beheler :

463 U.S. 1121 (1983) 21, 26

Colorado v. Spring

= 479 U.S. 564 (1987) 19, 20, 35, 36

Duckworth v. Eagen

492 U.S. --, 106 L.Ed.2d 166 (1989) 37, 38

Edwards v. Arizona .

451 U.S. 477 (1981) 29

Fox Film Corp. v. Muller

296 U.S. 207 (1935) 21

Harris v. New York

401 U.S. 222 (1971) 18

Maryland v. Garrison

480 U.S. 79 (1987) 14, 20

Michigan v. Chesternutt

486 U.S. 567, 108 S.Ct. 1975 (1988) 27, 28

Michigan v. Long

463 U.S. 1032 (1983) 19, 21

Miranda v. Arizona

384 U.S. 436 (1966) - 21, 24, 31,

33, 34

(iv)

TABLE OF AUTHORITIES (continued)

CASES PAGES

Oregon v. Elstad

470 U.S. 298 (1985) 28

Oregor v. Mathiason

429 U.S. 492 (1977) 18, 19, 27

Orozco v. Texas

394 U.S. 324 (1969) 22 ra

Partington v. Gedan

880 F.2d 116 (9th Cir. 1989) 26

Pennsylvania v. Bruder ok

488 U.S. --, 102 L.Ed.2d 172 (1988) 28, 29

Quinn v. Millsap

491 U.S. --, 105 L.Ed.2d 74 (1989) 20

Rhode Island v. Innis

446 U.S. 291 (1980) * 25

Robinson v. Ariyoshi

854 F.2d 1189 (9th Cir. 1988) 26

Rust Land and Lumber Co. v. Jackson

250 U.S. 71 (1919) 14 ~

State v. Amorin

61 Haw. 356, 604 P.2d 45 (1979) 16

State v. Grahovac

52 Haw. 527, 480 P.2d 148 (1971) 20, 21

State v. Ikaika

67 Haw. 563, 698 P.2d 281 (1985) 16

State v. Kaahuanui

69 Haw. --, 747 P.2d 1276 (1987) 17, 18

State v. Kaluna

55 Haw. 361, 520 P.2d 51 (1974) 15

‘(v)

TABLE OF AUTHORITIES (continued)

CASES PAGES

State v. Maluia

56 Haw. 428, 539 P.2d 1200 (1975) 17

State v. Manzo

58 Haw. 440, 573 P.2d 945 (1977) 15

State v. Miyasaki

62 Haw. 269, 614 P.2d 915 (1980) 14, 15

State v. Nelson

69 Haw. --, 748 P.2d 365 (1987) 17

State v. Patterson

57 Haw. 357, 581 P.2d 752 (1978) 18, 19

State v. Ramones

69 Haw. --, 744 P.2d 514 (1987) 17

State v. Russo

67 Haw. 126, 681 P.2d 553 (1984) 15, 16, 18

State v. Santiago

53 Haw. 254, 492 P.2d 657 (1971) 14, 15, 16,

17, 18

State v. Uganiza

68 Haw. 28, 702 P.2d 1352 (1985) 16

United States v. Bayer 7

331 U.S. 532 (1947) 20

Z United States v. Lee 7 ‘

699 F.2d 466 (9th Cir. 1982) 24 ~

United States ex rel. Coy v. United States :

316 U.S. 342 (1942) 14 .

Wyrick v. Fields .

459 U.S. 42 (1982) 19, 20, 33, 34, :

35 L

(vi)

BMS «Wintel ats a CORE eee IME ne, Ce ue on eRe ee ee ae Lemeet

TABLE OF AUTHORITIES (continued)

CONSTITUTIONAL PROVISIONS PAGES

U.S. Const., Amend. V 12, 32, 33, 34

Hawaii Const., Art. I, Section 10 9, 12, 13, 14

RULES

Supreme Court Rule 20.1 9, 10, 37

Supreme Court Rule 20.3 10

Supreme Court Rule 20.4 10

STATUTES

28 U.S.C. Section 2101 10

Hawaii Revised Statutes, Section 710-1015 9

TREATISES

W. La Fave & J. Israel, Criminal Procedure

(1984) 20

(vii)

Sa eee eae ay ee ree Oe

OPINIONS BELOW

Respondent concurs with Petitioner's statement of the

opinions below.

JURISDICTION

Respondent concurs that the judgment of the Hawaii

Supreme Court is final and that the petition for a writ of

certiorari was filed on July 10, 1989. However, Respondent argues

that the petition was filed late in violation of Supreme Court Rule

20.1 (Section I of "Argument," infra), and that the Hawaii Supreme

Court's decision rested on an independent and adequate state

ground, precluding any need for review by this Court (Section II

of "Argument," infra). Thus, this Court should decline to exercise

jurisdiction in the instant case.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Respondent concurs with the constitutional and statutory

provisions set forth by Petitioner, but contends that Article I,

Section 10 of the lHiawaii Constitution presented an independent and

adequate state ground for the Hawaii Supreme Court's decision.

Article I, Section 10 states in pertinent part: "[NJor shall any

person be compelled in any criminal case to be a witness against

oneself."

STATEMENT OF THE CASE

On January 5, 1987, Mrs. Haila Roman reported ’o the

Honolulu Police Department that she had been repeatedly raped by

two male prison guards while serving a prison sentence. [Petition,

Appendix B at 16) Mrs. Roman's sentence required her to serve

weekends at the prison over a six-month period, beginning in

@l-

2 eee ee eee ee et

October, 1986. {Id.j An immediate police investigation was

commenced by Detective Leighton Fujinaka following Mrs. Roman's

report. [Id.]

During the course of this investigation, Detective

Fujinaka discovered discrepancies in Mrs. Roman's’ various

descriptions of the separate rape incidents she had reported. [lId.

at 17) Thinking that perhaps Mrs. Roman was lying about having

been raped, Detective Fujinaka decided to give Mrs. Roman a

polygraph test to confirm the truthfulness of her allegations.

{Id.] Detective Fujinaka testified that he only gave polygraph

examinations to rape complainants when he found discrepancies in

a complainant's statement or in the evidence he gathered.

[Petition, Appendix I at 128]

Pursuant to Detective Fujinaka's decision, the police

requested that Mrs. Roman take a polygraph test at the main station

of the Honolulu Police Department. [Petition, Appendix B at 17]

She agreed to do so. [Id.] The polygraph test was administered

on January 15, 1987, by Detective John Paekukui. [Id.] Detective

Paekukui was a qualified and experienced police polygrapher, whose

police duties had consisted solely of polygraph examinations for

the preceding four years. [Id.] Detective Paekukui had assisted

Detective Fujinaka in his investigation of Mrs. Roman's complaint,

and he was aware of Detective Fujinaka's suspicions that Mrs. Roman

was not telling the truth about being repeatedly raped. {Id.)

Detective Fujinaka had told Detective Paekukui about

"discrepancies" ard "inconsistencies" in Mrs. Roman's statements.

o3e

(Petition, Appendix H at 101-02, Appendix I at 133) Additionally,

Detective Paekukui concluded that Mrs. Roman's pre-test interview

contained at least one inconsistency and that a drawing made for

him by Mrs. Roman was possibly inconsistent. [Petition, Appendix

H at 102)

Before conducting the polygraph examination, Detective

Paekukui discussed the test with Mrs. Roman, talking with her about

the questions which he intended to use, and the manner in which the

test would be given, {Petition, Appendix B at 17) Detective

Paeekukui gave Mrs. Roman a warning about her constitutional rights,

and presented her with a printed form entitled “WARNING PERSONS

TAKING A POLYGRAPH EXAMINATION OF THEIR CONSTITUTIONAL RIGHTS."

{Id.] Near the top of the form was a sentence reading "I am going

to ask you questions about [SEXUAL ASSAULT] which occurred on or

about [JANUARY 2, 1987] at [WOMENS FACILITY]," with the sections

in brackets filled in by hand in ink on the pre-printed form. [Id.

at 18] Below that language was a recitation of constitutional

rights, including a warning that "Any statement you make may be

used in court." [Id.] The form did not inform Mrs. Roman that

such statements could be used against her in court. [Petition,

Appendix F at 65] The form also did not inform Mrs. Roman that she

would be questioned after the polygraph examination; by its own

language, the form only covered "consent to be examined on the

polygraph" and consent to release the results "to the person or

persons concerned." [Id. at 65-66] Mrs. Roman signed the form.

[Petition, Appendix B at 18]

-3-

Detective Paekukui also presented Mrs. Roman with a pre-

printed form entitled "PERSONAL DATA OF SUBJECT." [Id.] The upper

portion of the form was filled in with biographical information

about Mrs. Roman; the lower portion of the form was uneunand by a

section entitled "WAIVER," which stated, inter alia, that the

person taking the polygraph examination understood that "the

results will be given to me at the end of the examination." ([Id.]

Mrs. Roman signed this form. [Id.] However, this form did not

inform Mrs. Roman that her statements could be used against her or

that she would be questioned after the polygraph examination; by

its own language, it was limited strictly to the polygraph

examination. [Petition, Appendix G at 82]

Detective Paekukui emphasized to Mrs. Roman that she

should tell the truth during the polygraph test. [Petition,

Appendix B at 18] However, he did not inform her that she would

be questioned after the polygraph examination, that she herself

could be charged with a crime, or that statements she made could

be used against her. {Petition, Appendix H at 104-105, 115,

Appendix I at 139, 152] Yet, Detective Paekukui testified that if

Mrs. Roman failed the polygraph test he intended to follow-up on

the polygraph test and question Mrs. Roman. [Petition, Appendix

H at 105] Detective Paekukui agreed that “the polygrapher gets the

confession after the exam." [Id. at 103] He told his subjects

that if they lied the test would certainly detect it. [Id. at 106]

He knew it was important that his subjects feit that the test would

work and that they had a stake in the outcome. [Id. at 107] If

aie

a polygraph test indicated deception, he employed the psychological

technique of telling the subject that she clearly and certainly had

failed the test, in order to get the subject to open up and tell

him what he desired to know. [Id.]

The polygraph examination took about one hour and fifteen

minutes. {Id. at 95) Mrs. Roman's responses during the

examination indicated to Detective Paekukui that she was not being

truthful about the alleged rapes. [Petition, Appendix B at 18]

Following the test, Detective Paekukui reviewed the polygraph

examination charts for a couple of minutes in Mrs. Roman's

presence. [Petition, Appendix B at 18, Appendix H at 105] He then

informed her of his conclusion that she had not been telling the

truth during the test. [Petition, Appendix B at 18] Detective

Paekukui testified that by telling Mrs. Roman that she was not

being truthful, he was in effect telling her that she had "lied on

some of the questions." [Petition, Appendix H at 116] As “part

of the technique” of interrogating Mrs. Roman, Detective Paekukui

conveyed to her “in no uncertain terms" that she failed the test.

[Id. at 117] However, he still did not inform her that she was a

suspect for a false reporting offense or that her responses could

be used as evidence against her in such a case, even though in at

least one previous case the police “had to arrest a person for

false reporting" after the person “admitted lying on a test like

this." [Id. at 107, 109]

When Detective Paekukui informed Mrs. Roman of his

conclusion, she initially insisted that she had told the truth

=§-

about the sexual assaults. [Petition, Appendix B at 18] Detective

Paekukui then questioned Mrs. Roman about the discrepancies between

the polygraph test and her statements for about five minutes. [Id.

at 18-19] Mrs. Roman testified that Detective Paekukui

specifically stated to her that "you are not being truthful."

[Petition, Appendix I at 140] She testified that she told

Detective Paekukui that she wanted to go home, but_that he replied,

"Not till we get to the bottom of this." [Id.] Mrs. Roman felt

that she had to stay at the police station "until he heard what he

wanted to hear." {Id. at 141] She testified that Detective

Paekukui stood by the door for about five minutes, insisted that

she was "lying," and was "quite arrogant," "very authoritative,"

“intimidating” and "almost mean in his tone." [Id.at 141-42]

At one point Detective Paekukui observed that Mrs. Roman

appeared to be carrying a "heavy burden"; he urged her to unburden

herself to him. [Petition, Appendix B at 19] Detective Paekukui

told Mrs. Roman that if she did so it would “probably make her feel

better instead of feeling this burden." [Petition, Appendix H at

96] Mrs. Roman then said: "Sit down, there's something I want to

tell you." {Petition, Appendix B at 19] Mrs. Roman stated to

Detective Paekukui that she had fabricated her reports of being

sexually assaulted while a prisoner. [Id.] Mrs. Roman testified

that she made this statement just so the questioning would be over

and she could go home. [Petition, Appendix I at 142] She thought

that Detective Paekukui was not going to believe her no matter how

long she told him she was not lying, so she said anything that he

oie

eS EE OL i RT HE CEOS Ad Ee RT ee ae Meet tee Ee SS eee es ee ae ae

wanted to hear. [Id.] She believed that if she retracted the rape

charges the prison guards would not harass her and she would not

have to remain in protective custody. [Id. at 142-43)

Detective Paekukui brought Detective Fujinaka to the

polygraph room. [Petition, Appendix B at 19] Detective Paekukui

told Detective Fujinaka that Mrs. Roman had failed the polygraph

test and that Mrs. Roman had admitted that she made up the rape

charges. [Petition, Appendix I at 144] Detective Paekukui told

Mrs. Roman to tell Detective Fujinaka what she had told him.

{[Petition, Appendix B at 19] Mrs. Roman then repeated to Detective

Fujinaka her earlier statement to Detective Paekukui. {Id.]

Before she was instructed to tell Detective Fujinaka what she had

earlier told Detective Paekukui, Mrs. Roman was not informed of her

right to remain silent. [Id.]

Detective Paekukui "relinquished custody" of Mrs. Roman

to Detective Fujinaka. [Petition, Appendix H at 99] Detective

Fujinaka then took mrs. Roman to a different interrogation room

about fifty yards away from the first room. [Petition, Appendix

B at 19, Appendix H at 99] He instructed Mrs. Roman to write down

what she had told him and Detective Paekukui. [Petition, Appendix

B at 19] He provided Mrs. Roman with blank HPD-252 forms and she

1 Petitioner claims to this Court that Detective Fujinaka

asked Mrs. Roman if she would be willing to write out a statement.

[Petition at 7] However, the trial court explicitly found that

Mrs. Roman was instructed by Detective Fujinaka to write the

statement. [Petition, Appendix B at 19] This finding of fact was

quoted and accepted by Petitioner in its brief before the Hawaii

Supreme Court. [Petition, Appendix C at 33]

=

began to write out her statement. [Id.] Mrs. Roman testified that

she was told to "fill out the form exactly the way I had told

Detective Paekukui and Detective Fujinaka in the polygraph room,"

and she thought that she "had no choice" in the matter. [Petition,

Appendix I at 145]

While Mrs. Roman was writing her stetement, Detective

Fujinaka informed his superior officer, Lt. James Neely, about her

admission. [Petition, Appendix B at 19) After receiving Detective

Fujinaka's report, Lt. Neely instructed Detective Fujinaka to

arrest Mrs. Roman and charge her with the crime of False Reporting

to Law Enforcement Authorities. [Id.] Lt. Neely also instructed

Detective Fujinaka to make a tape recording of Mrs. Roman's

statement. [Id.] Detective Fujinaka testified that "at that point

I should have warned her of her constitutional rights. But I did

not." [Petition, Appendix I at 133]

Detective Fujinaka returned to the room where Mrs. Roman

was writing her statement. [Petition, Appendix B at 20] He

testified that at that point she was under arrest. (Petition,

Appendix I at 131] He produced a tape recorder and instructed Mrs.

Roman to read her statement aloud so that it could be tape

recorded. {[Petition, Appendix B at 20] After the statement was

read into the tape recorder, it was signed both by Mrs. Roman and

Detective Fujinaka. [Id.] At no time was Mrs. Roman informed of

her right to remain silent by Detective Fujinaka. [Id.] Fifteen

minutes after signing the written statement, Mrs. Roman was placed

under formal arrest by Detective Fujinaka for False Reporting to

= <i P aren a" va ge aie ‘

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Law Enforcement Authorities, a violation of Hawaii Revised

Statutes, Section 710-1015. z

ARGUMENT AGAINST GRANTING THE WRIT OF CERTIORARI

I. THE PETITION FOR A WRIT OF CERTIORARI WAS FILED LATE, IN

VIOLATION OF SUPREME COURT RULE 20.1.

Subsection (d) of 28 U.S.C. Section 2101 states: "The

time of appeal or application for a writ of certiorari to review

the judgment of a State court in a criminal case shall be as

prescribed by rules of the Supreme Court." Rule 20.1 of the Rules

of the Supreme Court states: "A petition for writ of certiorari

to review the judgment in a criminal case of a state court of last

resort . . . shall be deemed in time when it is filed with the

Clerk within 60 days after the entry of such judgment." [Emphasis

added. }?

The opinion of the Hawaii Supreme Court in the instant

case was filed on April 11, 1989 [Petition, Appendix A], and the

Judgment on Appeal was entered on April 25, 1989. [Petition,

Appendix C]? Yet the Petition for a Writ of Certiorari was not

filed until July 10, 1989, well after the 60-day period for filing

the _petition had expired. Supreme Court Rule 20.3 mandates that

2? Rule 20.1 provides that a "Justice of this Court, for good

cause shown, may extend the time for applying for a writ of

certiorari in such cases for a period not exceeding 30 days."

However, no such extension of time was sought or granted in this

case. Rule 20.4 extends the time for filing a petition for a writ

of certiorari if a petition for rehearing was filed with the state

supreme court. However, no petition for rehearing was filed with

the Hawaii Supreme Court in this case.

3 Petitioner has mistakenly labeled two of the appendices to

its Petition as "Appendix C." The Judgment on Appeal is the first

of these appendices.

-10-

-

the "Clerk will refuse to receive any petition for a writ of

certiorari which is jurisdictionally out of time." This Court

refuses to entertain untimely filed petitions. E.g., United States

ex rel. Coy v. United States, 316 U.S. 342, 346 (1942); Rust Land

and Lumber Co. v. Jackson, 250 U.S. 71, 76 (1919); Bonin v. Gulf

Co., 198 U.S. 115, 118 (1905); Ayres v. Polsdorfer, 187 U.S. 585,

595-96 (1903). Thus, the instant petition should be summarily

-denied.

= Te

ESE EL PEE! ORT Oe ELON EMS 5: ARES SME Pam fe ae

Sue

II. THE HAWAII SUPREME COURT'S RULING WAS SUPPORTED BY AN

INDEPENDENT AND ADEQUATE STATE CONSTITUTIONAL GROUND, THUS

PRECLUDING ANY NEED FOR REVIEW BY THIS COURT.

Article I, Section 10 of the Hawaii Constitutinn, the

state version of the federal constitutional guaranty against self-

incrimination, has not been "'construed in pari materia with the

(Fifth) Amendment.'" {Petition at 20 (brackets in original)

(quoting Maryland v. Garrison, 480 U.S. 79, 83-84 (1987))).

Rather, the Hawaii Supreme Court has exhibited a “willingness to

extend protections that ‘have an independent source in the Hawaii

Constitution's privilege against self-incrimination' beyond the

minimum prescribed by the United States Supreme Court." State v.

Miyasaki, 62 Haw. 269, 280, 614 P.2d 915 (1980) (quoting in part

State v. Santiago, 53 Haw. 254, 265-66, 492 P.2d 657 (1971)).

The Hawaii Supreme Court has "not hesitated to ‘extend

the protections of the Hawaii Bill of Rights beyond those of the

textually parallel provisions in the Federal Bill of Rights when

logic and sound regard for the purposes of those protections have

so warranted.'" Id. (quoting in part State v. Kaluna, 55 Haw. 361,

369, 520 P.2d 51 (1974)). The Hawaii Supreme Court views federal

interpretations of the federal constitution "with reference to the

wisdom of adapting these interpretations for our state." id.

(quoting State v. Manzo, 58 Haw. 440, 452, 573 P.2d 945 (1977)).

See State v. Miyasaki, 62 Haw. at 280-85 (Hawaii Constitution's

privilege against self-incrimination demands transactional

immunity, not just use and derivative use immunity); State v.

-12-

Santiago, 53 Haw. 254, 265-67, 492 P.2d 657 (1971) (Hawaii

Constitution's privilege against self-incrimination demands that

statement elicited in violation of Miranda cannot be used by State

even for impeachment purposes on cross-examination or in rebuttal).

The Hawaii Supreme Court's rulings on Miranda issues have

not "been entirely consistent with subsequent decisions of the

[United States] Supreme Court expounding Miranda." State v. Russo,

67 Haw. 126, 133, 681 P.2d 553 (1984). "Consequently, when claims

of Miranda violations are advanced, we [the Hawaii Supreme Court]

are constrained to seek primary guidance from precepts enumerated

in the seminal decision, which have been incorporated into Article

I, [section 10] of our [Hawaii] constitution, and our own [Hawaii]

cases... ." Id. Both the Respondent's trial court suppression

motion and appellate brief to the Hawaii Supreme Court urged

suppression of Mrs. Roman's statements because, inter alia,

Petitioner violated Article I, Section 10 of the Hawaii

Constitution. Although the Hawaii Supreme Court's opinion in Roman

does not explicitly base its ruling upon the Hawaii Constitution,

the cases it cites in discussing its ruling demonstrate that its

decision was adequately and independently grounded upon the Hawaii

Constitution.

The Hawaii Supreme Court's discussion of the custodial

interrogation issue cited, inter alia, its decisions in State v.

Russo, 67 Haw. 126, 681 P.2d 553 (1984) (quoted supra); State v.

Ikaika, 67 Haw. 563, 698 P.2d 281 (1985); State v. Amorin, 61 Haw.

356, 604 P.2d 45 (1979); and State v. Uganiza, 68 Haw. 28, 702 P.2d

-13-

1352 (1985). In all of these cases, the Hawaii Supreme Court

specifically cited the self-incrimination provision of the Hawaii

Constitution. State v. Amorin is especially importr.at, because the

Hawaii Supreme Court in Roman cited Amorin as the sole authority

in support of the key conclusion that: "What had originally been

a relatively innocuous interview [of Mrs. Roman] had turned into

a custodial interrogation requiring Miranda warnings." [Petition,

Appendix A at 11] In Amorin, the Hawaii Supreme Court twice stated

that Petitioner had violated Article I, Section 10 of the Hawaii

Constitution, see 61 Haw. at 357, 363, and stressed that "the

‘protections enumerated in Miranda have an independent source in

the Hawaii Constitution's privilege against self-incrimination.'"

61 Haw. at 359 n.3 (quoting State v. Santiago, 53 Haw. 254, 266,

492 P.2d 657 (1971)).

Similarly, the Hawaii Supreme Court's discussion of the

inadequacy of the Miranda warnings in Roman cited, inter alia, its

decisions in State v. Maluia, 56 Haw. 428, 539 P.2d 1200 (1975);

State v. Ramones, 69 Haw. --, 744 P.2d 514 (1987); State v. Nelson,

69 Haw. --, 748 P.2d 365 (1987); and State v. Kaahanui, 69 Haw. -

-, 747 P.2d 1276 (1987). In all of these cases the Hawaii Supreme

Court cited the self-incrimination provision of the Hawaii

Constitution.

State v. Nelson and State v. Kaahanui are especially

important. The Hawaii Supreme Court cited Nelson in its Roman

opinion as the sole authority in support of the key point that:

"Because Roman was not informed about the totally separate false

»34~

charges problem. . . the earlier Miranda warnings (relating solely

to the polygraph examination) were inadequate, so rewarnings

specifically pertaining to the subsequent interrogation were

mandated." [Petition, Appendix A at 13] In Nelson, the Hawaii

Supreme Court stressed that "'the protections which the United

States Supreme Court enumerated in Miranda have an independent

source in the Hawaii Constitution's privilege against self-

incrimination,'" 748 P.2d at 369 (quoting State v. Santiago, 53

Haw. at 266), and emphasized that the "Hawaii rule is broader in

scope than the federal rule." Id.

The Hawaii Supreme Court cited Kaahanui in its Roman

opinion as the sole authority in support of the point that: "Where

the prosecution has not proven that the accused [Mrs. Roman] was

properly admonished about her constitutional rights, there could

be no valid waiver." [Petition, Appendix A at 13] In Kaahanui,

the Hawaii Supreme Court again emphasized that "'the protections

which the United States Supreme Court enumerated in Miranda have

an independent source in the Hawaii Constitution's privilege

against self-incrimination.'" 747 P.2d at 1279 (quoting State v.

Santiago, 53 Haw. at 266). The Hawaii Supreme Court further

pointed out in Kaahanui that it follows "the same high standards

in enforcing the 'Miranda' rights that ‘have an independent source

in the Hawaii Constitution's privilege against self-

incrimination.'" Id. (quoting in part Santiago, 53 Haw. at 266).

Petitioner notes that the Hawaii Supreme Court cited

Miranda in the Roman opinion [Petition at_20], but this fails to

-15-

demonstrate that the decision was not independently and adequately

predicated on the Hawaii Constitution. As the Hawaii Supreme Court

specifically explained in State v. Russo, the “seminal decision,"

Miranda, has been incorporated into the Hawaii Constitution, but

the court has chosen to chart its own course in determining whether

to apply to the Hawaii Constitution subsequent federal case law

interpreting Miranda. State v. Russo, 67 Haw. 126, 133, 681 P.2d

553 (1984). See State v. Santiago, 53 Haw. at 261-67 (Hawaii

Supreme Court follows Miranda but refuses to apply subsequent case

of Harris v. New York, 401 U.S. 222 (1971), to Hawaii

Constitution).

Petitioner claims that the Roman decision's determination

on the issue of custodial interrogation rested upon the discussion

of federal case law in State v. Patterson, 57 Haw. 357, 361, 581

P.2d 752 (1978), and particularly this Court's decisions in

Beckwith v. United States, 425 U.S. 341 (1976), and Oregon v.

Mathiason, 429 U.S. 492 (1977). [Petition at 11, 19] Yet,

curiously enough, the Patterson, Beckwith and Mathiason cases were

never cited in the Roman opinion; were never cited in Petitioner's

opening and reply briefs and in Respondent's answering brief in the

Hawaii Supreme Court; were never cited in the trial court's

suppression order; and were never cited in Petitioner's and

Respondent's memoranda in the trial court. Thus, Petitioner's

contention is completely unfounded.

Petitioner also claims that because the Hawaii Supreme

Court distinguished the facts of the Roman case from Colorado v.

o2G~

Spring, 479 U.S. 564 (1987), and Wyrick v. Fields, 459 U.S. 42

(1982), the decision did not rest upon an independent and adequate

state ground. [Petition at 20] Yet merely distinguishing two

federal cases on their fecte does not translate into exclusive

reliance upon federal constitutional law. The Hawaii Supreme Court

can indicate how its decision does not clash with federal law while

still relying on an adequate and independent state ground.

The case authority cited by Petitioner on this issue is

clearly distinguishable. In Michigan v. Long, 463 U.S. 1032

(1983), relied upon by Petitioner [Petition at 19-20], this Court

emphasized that: "Not a single state case was cited to support the

state court's holding that the search of the passenger compartment

was unconstitutional. Indeed, the [state supreme] court decided

that the search in this case was unconstitutional because ‘the

{state] court of appeals erroneously applied the principles of

Terry v. Ohio . . . to the search of the interior of the vehicle

in this case.'" Id. at 1043-44 (emphasis added; ellipsis in

original). In the Roman opinion, by contrast, the Hawaii Supreme

Court cited no less than eighteen Hawaii cases. The only federal

authority cited was 1) Miranda, which, as discussed supra, has been

expressly incorporated into the Hawaii Constitution by the Hawaii

Supreme Court, 2) Colorado v. Spring and Wyrick v. Fields, which,

as discussed supra, were cited only to distinguish them on their

facts, and 3) United States v. Bayer, 331 U.S. 532 (1947), which

was cited (in tandem with a Hawaii case) in support of applying the

"cat out of the bag" doctrine, an issue not raised in the petition

aif~

for certiorari.

In Quinn v. Millsap, 491 U.S. --, 105 L.Ed.2d 74 (1989),

relied upon by Petitioner [Petition at 19], the state supreme court

"relied exclusively on its interpretation of the Equal Protection

Clause" of the Fourteenth Amendment. 105 L.Ed.2d at 84 (emphasis

added). As this Court held, "the judgment of the Missouri Supreme

Court rests solely on its belief that 'the Equal Protection Clause

has no relevancy’ to this case." Id. at 85 (emphasis added).

In Maryland v. Garrison, 480 U.S. 79 (1987), relied upon

by Petitioner [Petition at 20], this Court found that "the [state

court] opinion indicates that the Maryland constitutional provision

is construed in pari materia with the Fourth Amendment.” Id. at

83-84. By contrast, as thoroughly discussed supra, the Hawaii

Supreme Court has always felt "free to go beyond these requisites

[United States Supreme Court decisions] in protecting one's right

of silence under the State Constitution." State v. Grahovac, 52

Haw. 527, 533, 480 P.2d 148 (1971).

In sum, "[rJespect for the independence of state courts,

as well as avoidance of rendering advisory opinions, have been the

cornerstones of this Court's refusal to decide cases where there

is an adequate and independent state ground." Michigan v. Long,

463 U.S. 1032, 1040 (1983). This Court has “long recognized that

‘where the judgment of a state court rests upon two grounds, one

of which is federal and the other non-federal in character, our

' jurisdiction fails if the non-federal ground is independent of the

federal ground and adequate to support the judgment.'" Id. at 1038

-18-

MD Ts eRe he AUC MCLE ptt ea

n.4 (quoting Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935)).

The Roman case presents an independent and adequate non-federal

ground and thus is not appropriate for this Court's review.

-19-

III. MRS. ROMAN WAS SUBJECTED TO CUSTODIAL QUESTIONING PRIOR TO

BEING PLACED UNDER FORMAL ARREST.

A. The Facts of This Case Demonstrate That Mrs. Roman Was

Custodially Questioned Prior to Her Formal Arrest.

Custodial questioning is "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." Miranda v. Arizona, 384 U.S. 436, 444 (1966) (emphasis

added); accord California v. Beheler, 463 U.S. 1121, 1123 (1983).

This determination is to be made by objectively appraising the

totality of the circumstances. 1 W. La Fave & J. Israel, Criminal

Procedure Section 6.6, at 493 (1984). Some of these circumstances

are the place of the interrogation, the length of the

interrogation, the nature of the questions asked, the conduct of

the police, and whether the defendant was being questioned as a

suspect or as a witness. Id.

Petitioner argues that Mrs. Roman was not in custody or

otherwise deprived of her freedom of action in any significant way

prior to the point at which she was explicitly told that she would

be placed under arrest. {Petition at 14)‘ As discussed below,

Petitioner's argument is patently incorrect.

Mrs. Roman was placed inside the inherently intimidating

setting of a polygraph examination room at the main police station.

* Respondent notes that in Petitioner's brief to the Hawaii

Supreme Court, however, Petitioner conceded that Mrs. Roman was in

custody for Miranda purposes “after [she] retracted her story with

Detective Paekukui ... ." [Petition, Appendix C at 32 n.5]

~20-

| |

These were “unfamiliar surroundings" and an “unfamiliar

atmosphere." Miranda, 384 U.S. at 450, 457. Cf. Orozco v. Texes,

394 U.S. 324 (1969) (custodial interrogation can occur even at

defendant's own home). Mrs. Roman was alone in this room at the

police station, except for the presence of the police detective

questioning her. Miranda, 384 U.S. at 449 ("the principal

psychological factor contributing to a successful interrogation is

privacy -- being alone with the person under interrogation")

(emphasis in original).

Mrs. Roman had already been through a police-conducted

polygraph examination lasting one hour and fifteen minutes by the

time Detective Paekukui began the post-examination questioning.

[Petition, Appendix H at 95] It was obvious from the questions

asked and the fact that she had been requested to take a lie

detector test that the police suspected that she was lying. It was

not Detective Fujinaka's standard practice to give lie detector

examinations to rape complainants; he testified that he only did

so when discrepancies appeared in their statements and/or other

evidence. [Petition, Appendix I at 128]

Detective Paekukui testified that after he reviewed the

test results and found that Mrs. Roman had failed the lie detector

test, he told her that she was not telling the truth, that she was

"carrying a heavy burden” and "that if she would tell the truth it

would probably make her feel better instead of feeling this

burden." [Petition, Appendix H at 96, 108] He testified that he

had to question her for several minutes prior to her initial

-21-

. MOTE FSR Te OE ee

ERP TR OI Ee EN ee ES ie aur ie

incriminating statement. [Id. at 109]

Detective Paekukui had concluded that Mrs. Roman's pre-

test interview contained at least one inconsistency and that a

drawing she made for him was possibly inconsistent. [Id. at 102)

Additionally, "a prompt medical examination [of Mrs. Roman] failed

to disclose any evidence of physical assault consistent with rape

or any medical evidence of rape" and "Detective Fujinaka discovered

discrepancies in [Mrs. Roman's] various descriptions of the

separate rape incidents she had reported." [Petition, Appendix B

at 16-17] In view of the foregoing, no reasonable person in Mrs.

Roman's position would have felt free to just stand up and walk out

of the police station. Although Mrs. Roman was not yet under

formal arrest, formal arrest is not a condition precedent to

custodial interrogation. United States v. Lee, 699 F.2d 466, 468

(9th Cir. 1982). By the time Mrs. Roman began to make her initial

incriminating statement, she was definitely "deprived of [her]

freedom of action in [a] significant way." Miranda v. Arizona, 384

U.S. at 444. Thus, Mrs. Roman's initial incriminating statement

occurred during custodial interrogation.

Petitioner itself conceded in the Hawaii Supreme Court

that Miranda warnings were necessary after Mrs. Roman stated to

Detective Paekukui that she had falsely reported the rapes.

[Petition, Appendix C at 32 n.5] After Mrs. Roman's admission had

been first repeated to Detective Fujinaka, Detective Paekukui

“relinquished custody" of Mrs. Roman to Detective Fujinaka.

[Petition, Appendix H at 99] Thus, it is obvious that Mrs. Roman

«22a

was in custody at the time of her subsequent written and taped

statements.

B. The Hawaii Supreme Court Did Not "Rely Exclusively Upon

The Notion That Miranda's Requirements Are Triggered

Simply By The Fact That a Suspect Becomes The Central

Focus Of A Separate Criminal Investigation.”

Petitioner incorrectly argues that "the Supreme Court of

Hawaii relied exclusively upon the notion . . . that Miranda's

requirements are triggered simply by the fact that a suspect

becomes 'the central focus of a separate criminal investigation. '"

[Petition at 12-13] Actually, however, the Hawaii Supreme Court

recognized the validity of Mrs. Roman's much more comprehensive

argument "that the inherently coercive, intimidating situation

forced her to admit to the fabrication and amounted to custodial

interrogation." (Petition, Appendix A (Hawaii Supreme Court's

opinion) at 10] The Hawaii Supreme Court painstakingly reviewed

the underlying facts of the Roman case that supported this

argument. [Id. at 5-9] The Hawaii Supreme Court correctly applied

the well-established standard that "Miranda warnings must precede

any police questioning which subjugates an individual to the will

of the examiner and thereby undermines the privilege against self-

incrimination." [Id. at 10] See Rhode Island v. Innis, 446 U.S.

291, 299 (1980); Miranda, 384 U.S. at 457-58.

The Roman opinion does mention the fact that after the

polygraph examination the investigation focused on Mrs. Roman.

[Id. at 11] However, Petitioner takes this point out of context

and emphasizes it to the exclusion of the entire remainder of the

-23-

court's discussion. Read in the context of the entire opinion, it

is clear that the Hawaii Supreme Court merely used the fact that

the "investigation focused on [Mrs.] Roman" as one of many factors

demonstrating that the police questioning had "subjugate[d] [Mrs.

Roman] to the will of the examiner and thereby undermine[d] the

privilege against self-incrimination." The Hawaii Supreme Court

also relied upon specific additional facts to support this

determination: "Detective Paekukui informed [Mrs. Roman] of his

conclusion [that she was lying]"; “Detective Paekukui then

questioned [Mrs. Roman] about the discrepancies between the

polygraph test and her statements for about five minutes"; "At one

point Detective Paekukui observed that [Mrs. Roman] appeared to be

carrying a@ ‘heavy burden' [and] he urged her to unburden herself

to him"; "the questioning by Detective Paekukui (and later

Detective Fujinaka) became specific as to her misconduct"; and

“they were essentially asking [Mrs.] Roman to confess to the false

reporting offense." [Id. at 11 (emphasis in original)]

c. Roman's Custodial Questioning Determination Does Not

Conflict With This Court's Prior Decisions.

Petitioner contends that the custodial questioning

Getermination in Roman conflicts with this Court's prior decisions.

[Petition at 12-15] As discussed below, this assertion is

unfounded.°®

5 Steven Michaels, the Deputy Attorney General representing

the State of Hawaii in this case, has recently had difficulty

interpreting the scope and applicability of case authority. In

Robinson v. Ariyoshi, 854 F.2d 1189 (9th Cir. 1988), the Ninth

Circuit reprimanded counsel for the State of Hawaii, which included

-24-

In California v. Beheler, 463 U.S. 1121 (1983) [Petition

at 13-14], the “interview lasted less than 30 minutes” and

afterwards "Beheler was permitted to return to his home." Id. at

1122 (emphasis added). As this Court found: "Indeed, Beheler's

freedom was not restricted in any way whatsoever.” Id. at 1123.

In Oregon v. Mathiason, 429 U.S. 492 (1977) [Petition at

13], the interview was conducted only “about two blocks from

defendant's apartment." Id. at 493. The defendant confessed

“within five minutes after [he] had come to the office." Id.

(emphasis added). Rather than being arrested after the confession,

“he was released to go about his job and return to his family” and

"did in fact leave the police station without hindrance." Id. at

494-95.

In Beckwith v. United States, 425 U.S. 341 (1976)

[Petition at 13], the agents questioned the defendant “at the

dining room table" of “a private home where [he] occasionally

stayed," id. at 342-43, instead of in a polygraph examination room

Mr. Michaels, for “abuse of precedent that can, with charity, be

excused only by assuming that counsel do not know when they have

crossed the line separating zealous representation from

misstatement of the law." id. at 1190. The court cited

Disciplinary Rule 7-102(A)(5) of the Model Code of Professional

Responsibility, "prohibiting a lawyer from knowingly making a false

statement of law,” and mentioned the possibility of a hearing

concerning sanctions. Id. In Partington v. Gedan, 880 F.2d 116

(9th Cir. 1989), the Ninth Circuit criticized the parties

represented by the State of Hawaii, whose counsel included Mr.

Michaels, for filing a meritless motion for costs and attorneys’

fees. Id. at 130-31. The Ninth Circuit denied this motion and

ordered the parties represented by Mr. Michaels to pay the costs

and attorneys' fees incurred by the opposition in responding to the

meritless motion. Id. at 131.

-25-

at a police station as in Mrs. Roman's case. In Beckwith, there

was at least one other person present at the home. Id. at 342.

The defendant conceded "that the agents did not 'press' him on any

question he could not or chose not to answer," id. at 343, in

contrast to Mrs. Roman's experience of being accused of not telling

the truth, being told that she was carrying a heavy burden, and

being urged to unburden herself. After making his statements to

the agents, instead of being arrested like Mrs. Roman, the

defendant in Beckwith drove by himself to his place of employment,

where he later met the agents and voluntarily provided books and

records to them. Id. at 344.

Michigan v. Chesternutt, 486 U.S. 567, 108 S.Ct. 1975

(1988) [Petition at 13], involved not the issue of custodial

interrogation under Miranda, but rather the issue of whether the

defendant was “seized” under the Fourth Amendment. This Court held

that when a police car "drove alongside [the defendant] for a short

distance," 108 S.Ct. at 1977, and when there was no evidence that

the police communicated to the defendant in any way that they

wished to “block [defendant's] course or otherwise control the

direction or speed of [defendant's] movement," id. at 1980, the

defendant had not been seized under the Fourth Amendment. Michigan

v. Chesternutt obviously has no application to the completely

distinct facts of Mrs. Roman's case.

Oregon v. Elstad, 470 U.S. 298 (1985) [Petition at 13],

did not concern any issue of whether the defendant was custodially

interrogated. The State of Oregon conceded that Elstad was in

-26-

custody at the time of his statements. Oregon v. Elstad concerned

the issue of whether an incriminating response made at a time when

the defendant had not been given his Miranda warnings should result

in suppression of the defendant's subsequent confession, given

after he had received and waived his rights. That issue is not

germane to the issues raised in the instant petition for

certiorari.

In Berkemer v. McCarty, 468 U.S. 420 (1984) [Petition at

13], and Pennsylvania v. Bruder, 488 U.S. --, 102 L.Ed.2d 172

(1988) [Petition at 14], this Court held Miranda inapplicable to

routine roadside questioning of motorists during brief traffic

stops. This Court emphasized that such stops are "temporary and

brief," with "the vast majority" lasting "only a few minutes.”

Berkemer v. McCarty, 468 U.S. at 437; see Pennsylvania v. Bruder,

102 L.Ed.2d at 176. This Court stressed that brief traffic stops

are thus "quite different from stationhouse interrogation, which

{as in Mrs. Roman's case] frequently is prolonged, and in which the

detainee often is aware that questioning will continue until he

provides his interrogators the answers they seek." Berkemer, 468

U.S. at 438 (emphasis added); see Bruder, 102 L.Ed.2d at 176. This

Court also emphasized that traffic stops are usually open to the

public view of pedestrians and other motorists, further reducing

police intimidation and distinguishing such stops from stationhouse

interrogation. Berkemer, 468 U.S. at 438-39; see Bruder, 102

L.Ed.2d at 176. Thus, the prolonged, incommunicado stationhouse

interrogation of Mrs. Roman can hardly be compared to a brief,

-27-

routine roadside traffic stop.

ad In sum, there was no error in the Hawaii Supreme Court's

determination that Mrs. Roman was custodially interrogated prior

to the point at which she was placed under formal arrest. The

Hawaii Supreme Court did not rely exclusively on a "focus of the

investigation” test, and its holding did not conflict with the

decisions of this Court cited by Petitioner.

~28-

IV. MRS. ROMAN WAS NOT GIVEN ADEQUATE MIRANDA WARNINGS FOR THE

POST-POLYGRAPH TEST QUESTIONING, CONSIDERING THE PARTICULAR

FACTS OF HER CASE.

A. The Hawaii Supreme Court Properly Ruled That The Pre-

Test Warnings Were Inadequate For The Post-Test

Interrogation On the Particular Facts of Mrs. Roman's

Case.

To be valid, a Miranda rights waiver must be a "knowing

and intelligent relinquishment or abandonment of a known right or

privilege." Edwards v. Arizona, 451 U.S. 477, 482 (1981) (emphasis

added). The facts of Mrs. Roman's case well demonstrate that the

Miranda warnings given to Mrs. Roman prior to the polygraph

examination could not support a valid waiver for the post-

examination interrogation.

At the time that Mrs. Roman was given her pre-polygraph

examination Miranda warnings, the police believed that the test

would very likely show deception and that Detective Paekukui would

thus be questioning Mrs. Roman after the test. A prompt medical

examination had failed to disclose any evidence of rape or physical

assault [Petition, Appendix B at 16], and Detective Fujinaka had

found discrepancies in Mrs. Roman's statements. {Id. at 17]

Detective Fujinaka had told Detective Paekukui about’ the

"discrepancies" and "inconsistencies" in Mrs. Roman's statements.

[Petition, Appendix H at 101-02, Appendix I at 133] Detective

Paekukui concluded that Mrs. Roman's pre-test interview contained

at least one inconsistency and that a drawing she made for him was

possibly inconsistent. [Petition, Appendix H at 102]

Detective Paekukui testified that if Mrs. Roman's

-29-

polygraph test showed deception he intended to follow-up on the

test and question Mrs. Roman. [Id. at 105] Detective Paekukui was

an experienced police polygraph examiner, who knew that "the

polygrapher gets the confession after the exam." [Id. at 103]

Prior to giving a polygraph test he would convince the subject that

the test would certainly detect deception. [Id. at 106-07] Then,

when a polygraph test indicated deception, he employed the

psychological technique of telling the subject that she clearly and

certainly had failed the test, in order to get the subject to open

up and tell him what he desired to know. [Id. at 107]

Even though Detective Paekukui knew that he very likely

would be questioning Mrs. Roman after the polygraph test, he

withheld this information from her. Rather, he gave her Miranda

rights waiver forms that related solely and exclusively to the

polygraph examination and the announcement of the test results

[Petition, Appendix G at 80-82], thus affirmatively creating the

false impression that he was not going to question Mrs. Roman after

the polygraph examination.

In addition to relating only to the polygraph examination

and the announcement of the results, the Miranda rights waiver

forms did not inform Mrs. Roman that her statements could be used

against her. One of the forms stated that her statements could be

used in court [id. at 80]; but because Mrs. Roman was a complainant

in a rape case, not a suspect in a false reporting case, at the

time she signed the form, this vague provision did not notify her

that her statements could be used against her in court. Yet this

«30s

Court's Miranda decision explicitly holds:

The warning of the right to remain silent must

be accompanied by the explanation that anything

said can and will be used against the

individual in court. This warning is needed

‘in order to make him aware not only of the

privilege but also of the consequences of

foregoing it. It is only through an awareness

of these consequences that there can be any

assurance of real understanding and intelligent

exercise of the privilege.

Miranda v. Arizona, 384 U.S. at 469 (emphasis added).

After the polygraph examination, Detective Paekukui

confronted Mrs. Roman with the test results. He told her that the

results showed deception [Petition, Appendix B at 18, Appendix H

at 116-17], stated that she seemed to be carrying a heavy burden

[Petition, Appendix B at 19], and urged her to unburden herself to

him with the inducement that this would make her feel better.

[Id.; Appendix H at 96]. Detective Paekukui began to question Mrs.

Roman without properly informing her of her Miranda rights, even

though Mrs. Roman was now obviously the suspect in a false

reporting case instead of the complainant in a rape case. Mrs.

Roman still had not been informed that any statements she made

could be used against her, as explicitly required by this Court's

Miranda decision. Yet, Detective Paekukui testified thax. in at

least one prior case, his police department had arrested a person

who had failed the polygraph test for false reporting. [Petition,

Appendix H at 107, 109)

After Mrs. Roman made incriminating statements, Detective

Paekukui contacted Detective Fujinaka and told Mrs. Roman to repeat

-31-

the statements to Detective Fujinaka (Petition, Appendix B at 19],

still not properly informing her of her Miranda rights. [Id.]

Detective Fujinaka obtained written and taped statements from Mrs.

Roman. Even though Detective Fujinaka's supervisor instructed

Detective Fujinaka to formally arrest Mrs. Roman while she was

writing her written statement [id.], Detective Fujinaka still did

not properly inform Mrs. Roman of her Miranda rights. [Id. at 20]

Rather, he instructed Mrs. Roman to make a tape recording of her

statement. [Id.]

In view of the foregoing, it is clear that Mrs. Roman

was not adequately informed of her Miranda rights. One cannot

waive rights that she has not been properly informed that she

holds. "“[A]ny evidence that the accused was .. . tricked...

into a waiver will, of course, show that the defendant did not

voluntarily waive his privilege. The requirement of warnings and

waiver of rights is a fundamental with respect to the Fifth

Amendment privilege and not simply a preliminary ritual to existing

methods of interrogation." Miranda v. Arizona, 384 U.S. at 476.

B. The Roman Ruling On the Inadequacy of The Miranda

Warnings Does Not Conflict With This Court's Prior

Decisions.

The cases decided by this Court that are cited by the

Petitioner do not conflict with the instant decision on the

inadequacy of the warnings given to Mrs. Roman. All of

Petitioner's cited cases are readily distinguishable.

In Wyrick v. Fields, 459 U.S. 42 (1982) [Petition at 17],

this Court held that Fields' responses to post-polygraph test

-32-

questioning were not inadmissible on the argument that his Fifth

Amendment right to the presence of counsel was violated because he

was not re-informed of his right to counsel prior to post-test

questioning. Id. at 45-49. However, Wyrick v. Fields is distinct

from Mrs. Roman's case on several significant grounds.

First, as this Court stressed, Fields himself requested

the polygraph examination after consultation with his civilian and

military counsel. Id. at 44. Thus, unlike the instant case,

Fields and his counsel "initiated [the] interrogation." Id. at 47

(emphasis added).

Second, Fields was a suspect ab initio, who had already

been arrested at the time of the polygraph test. Id. at 43.

Unlike Mrs. Roman, Fields did not completely change status from a

complainant at the time of the Miranda warnings to a suspect at the

time of the post-test questioning.

Third, the Miranda warnings given to Fields, unlike the

defective warnings given to Mrs. Roman, stated that “anything you

say or do can be used against you in a criminal trial.” Id. at 44

(emphasis added). Thus, Fields, unlike Mre. Roman, knew that his

responses to questions could be used against him as a defendant.

Fourth, Fields was correctly informed prior to the

polygraph test that he "could request at any time that his lawyer

join him.” Id. at 47-48 (emphasis added). In sharp contrast, Mrs.

Roman was informed: "You have a right to have an attorney present

while I talk to you, however, the attorney will not be in the room

while the polygraph examination is being conducted . . . Do you

-33-

want an attorney now?" ([Petition, Appendix G at 80] Cf. Miranda

v. Arizona, 384 U.S. at 469 ("the right to have counsel present at

the interrogation is indispensable to the protection of the Fifth

Amendment privilege") (emphasis added).

Fifth, in Mrs. Roman's case, the Miranda warnings were

affirmatively misleading. The warnings, by their own language,

related solely and exclusively to the polygraph examination and the

announcement of the results. One of the forms was even entitled:

"WARNING PERSONS TAKING A POLYGRAPH EXAMINATION OF THEIR

CONSTITUTIONAL RIGHTS." [Petition, Appendix G at 80] In Wyrick

v. Fields, by contrast, this Court's opinion gave no indication

that Fields' Miranda warnings had been limited to the polygraph

examination itself instead of given as warnings. of general

applicability. The verbatim recitation of Fields' Miranda warnings

in the dissent to the lower court opinion shows that they were not

limited, like Mrs. Roman's warnings, to the polygraph examination

itself. See Wyrick v. Fields, 682 F.2d 154, 162 (8th Cir. 1982)

(Ross, J., dissenting).

In Colorado v. Spring, 479 U.S. 564 (1987) [Petition at

16-17), Spring was arrested on a firearms charge and given his

Miranda warnings. Id. at 566-67. He was questioned on the

firearms offense and then questioned about a murder. Id. at 567.

He admitted that he had shot a man, but denied committing the

shooting in question. Id. Spring was later given new Miranda

warnings and questioned by different officers, after being

specifically informed that he would be questioned about the murder.

-34-

Id. He then confessed that he committed the murder. Id. This

Court held that Spring's first statement was admissible even though

he was not informed that he would be questioned about the murder,

since to validly waive his Miranda rights a suspect does not have

to have an “awareness of all the possible subjects of questioning

in advance of interrogation.” Id. at 577.

Colorado v. Spring is thoroughly distinguishable from

Mrs. Roman's case. First, although in the initial interview Spring

was not specifically told that he would be questioned about the

murder, he was not affirmatively misled about the nature of the

questioning. This Court made clear that in “this case, we are not

confronted with an affirmative misrepresentation by law enforcement

officials as to the scope of the interrogation... ." Id. at 576

n.8. In Mrs. Roman's case, as reviewed supra, Detective Paekukui

fully intended to question Mrs. Roman about false reporting in the

likely event that the test showed deception, yet the Miranda waiver

forms he gave Mrs. Roman affirmatively misled her into believing

that he only intended to conduct the polygraph test and announce

the results.

Second, Spring was already arrested at the time of his

initial quest'oning, id. at 566, and thus was fully alerted to the

fact that he was being questioned for purposes of prosecution.

Mrs. Roman signed her Miranda rights waiver while she was still a

complainant, but she had become a suspect when she was questioned

after the polygraph test.

Third, Spring was given “the critical advice that

»$5-

Sy eR a aaa

eS,

whatever he chooses to say may be used as evidence against him.”

Id. at 574 (emphasis added). This Court emphasized that its

"holding in Miranda specifically required that the police inform

a criminal suspect that . . . anything he says may be used against

him,” id. at 577, and found "no doubt” that "Spring understood .

. . that anything he said could be used as evidence against him.”

Id. at 574. In Mrs. Roman's case, the defective Miranda warnings

did not inform her of this "critical advice.”

Thus, in Colorado v. Spring, “the additional information

could affect only the wisdom of a Miranda waiver, not its

essentially voluntary and knowing nature." Id. at 577. In Mrs.

Roman's case, by contrast, Petitioner's misconduct prevented the

knowing and intelligent waiver itself.

In Duckworth v. Eagen, 492 U.S. -- , 106 L.Ed.2d 166

(1989) [Petition at 16, 18], the sole issue was whether a Miranda

warning was defective because it stated that Eagen could obtain an

appointed lawyer "if and when you go to court." 106 L.Ed.2d at

175. This Court found 1) that such language accurately described

the procedure for appointment of counsel and 2) simply anticipated

the commonplace question asked by suspects, about when they could

obtain counsel. Id. at 177-78.

Mrs. Roman's case is completely distinguishable from

Duckworth v. Eagen. First, at the time of the initial Miranda

warning, Eagen knew that he had already been identified by the

victim as the person who stabbed her. Id. at 173. Thus, unlike

Mrs. Roman, he knew from the beginning that he was being questioned

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as a criminal suspect.

Second, the Miranda warning given to Eagen specifically

informed him that anything he said "can be used against you in

court.” Id. at 174 (emphasis added). Thus Eagen, unlike Mrs.

Roman, clearly knew that his responses to questions could be used

against him as a defendant.

Third, Eagen was informed that he had the right to have

@ lawyer with him during questioning. Id. Mrs. Roman was informed

that an attorney could not be with her during the polygraph

examination. (Petition, Appendix G at 80] In sum, Eagen's warnings

"touched all of the bases required by Miranda,” id. at 177, while

those in Mrs. Roman's case did not.®

CONCLUSION

For the foregoing reasons and authorities, the petition

for a writ of certiorari should be denied. The petition was filed

late in clear violation of Supreme Court Rule 20.1; the Hawaii

Supreme Court's ruling was supported by an independent and adequate

state constitutional ground; Mrs. Roman was subjected to custodial

questioning prior to her formal arrest; and Mrs. Roman was not

® Petitioner argues that because "the Supreme Court of Hawaii

did not have the benefit of Duckworth v. Eagen at the time that it

ruled and because Duckworth was handed down long after the time in

which to petition for rehearing expired," this Court may wish to

remand Mrs. Roman's case to the Hawaii Supreme Court “for further

consideration in light of the precepts stated recently in Duckworth

v. Eagen." [Petition at 21] In view of the fact that Duckworth

v. Eagen has no practical relevance to Mrs. Roman's case,

Respondent urges that such a remand would be a waste of the time

and resources of this Court, the Hawaii Supreme Court, and the

litigants.

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=

given adequate Miranda warnings for the post-polygraph test

questioning.

DATED: Honolulu, Hawaii, October 2, 1989.

Counsel for he

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CERTIFICATE OF SERVICE AND

AFFIDAVIT OF PETER C. WOLFF, JR.

STATE OF HAWAII )

CITY AND COUNTY OF HONOLULU ) pas

PETER C. WOLFF, JR., being first duly sworn on oath,

deposes and says that:

1. I am counsel for Respondent HAILA DIANE ROMAN in

the above-entitled case, and a member in good standing of the bar

of this Court. I entered my appearance in the above-entitled case

in this Court on July 27, 1989.

ri On October 2, 1989, I caused to be hand-delivered

a copy of the accompanying Response to Petition for a Writ of

Certiorari, a Motion for Leave to Proceed In Forma Pauperis and an

Affidavit in Support of Motion for Leave to Proceed In Forma

Pauperis to the followiag parties:

KEITH M. KANESHIRO

Prosecuting Attorney

City and County of Honolulu

WALLACE W. WEATHERWAX

Deputy Prosecuting Attorney

1164 Bishop Street

Honolulu, Hawaii 96813

WARREN PRICE, III

Attorney General

STEVEN S. MICHAELS

Deputy Attorney General

State Capitol

Honolulu, Hawaii 96813

3. On October 2, 1989, I caused to be deposited in a

United States Post Office, with first-class postage prepaid, an

original and 3 copies of the accompanying Response to Petition for

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a

ys

R

a Writ of Certiorari, a Motion for Leave to Proceed In Forma

Pauperis and an Affidavit in Support of Motion for Leave to Proceed

In Forma Pauperis properly addressed to the Clerk of this Court.

~ FURTHER AFFIANT SAYETH NAUGHT.

Dated: Honolulu, Hawaii, October 2, 1989.

Chee ES

PETER C. WOLFF, JR.

Subscribed and sworn to before me

this 2nd day of October, 1989.

My commission expires: 9/17/93

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