State v. Ikaika

*564OPINION OF THE COURT BY

LUM, C.J.

This is an appeal from a jury conviction of murder in violation of Hawaii Revised Statutes (HRS) § 707-701. Defendant-Appellant Eldred Ikaika contests the denial of his pretrial motion to suppress inculpatory statements made by him while he was in police custody. For the reasons set out below, we affirm the ruling of the trial court.

I.

Numerous issues are raised on appeal. We choose to discuss only the issue of whether Defendant’s inculpatory statements made after assertion of his right to counsel were coerced and involuntary. All other issues are dismissed as being without merit.

II.

For a recitation of the essential facts we rely upon the trial court’s findings which we do not find to be clearly erroneous. State v. Pestana, 59 Haw. 375, 581 P.2d 758 (1978).

On May 18, 1979, Melvin Sims was shot and killed while walking along Panaewa Highway in South Hilo, County and State of Hawaii. One year later police received information leading them to believe that James Aki Smith had committed the offense and that Defendant Ikaika had witnessed the murder. The police contacted Defendant.

On May 21, 1981, the Defendant voluntarily came to the Hilo Police Station for an interview which commenced at 11:25 a.m. He denied any knowledge of the crime and voluntarily agreed to take a polygraph. Before taking the examination, the law of hindering prosecution was explained to him. At 12:25 p.m. the Defendant executed a waiver after being advised of his Miranda rights by Sergeant Gilbert Flores. Shortly thereafter, he also executed a permission and waiver form reciting that his agreement to take the test was uncoerced and that he understood his constitutional right to silence. The Defendant then took the examination which was found to be deceptive. He was told the polygraph results and that he was going to be held for further questioning.

*565At 1:55 p.m., the Defendant was again given his Miranda warnings by Sergeant Gilbert Tomas; however, defendant executed an advice of rights form in which he indicated that he wanted an attorney present during any interrogation. All questioning then ceased. Sergeant Tomas specifically told the Defendant that he would not be interviewed any further. The Defendant was then taken to the processing area for booking. No immediate efforts were made to secure defense counsel.

Lieutenant Richard Bartolomé was the desk officer at the processing room, assisting in fingerprinting suspects. Although Bartolomé was acquainted with the Defendant, neither the facts of the case nor the charge against the Defendant were discussed with him by the other detectives.

At approximately 2:15 p.m., Lieutenant Bartolomé entered the processing room. He was alone with the Defendant for about three minutes. While Bartolomé was preparing the fingerprinting materials, the Defendant stepped to Bartolome’s side. Lieutenant Bartolomé then told the Defendant something to the effect of, “What’s happening? Must be heavy stuff for two detectives to bring you down here?” Bartolomé described this comment as a pleasantry or greeting intended to make the Defendant comfortable. The Defendant responded that he had been picked up for questioning about the murder. Without further comment by Bartolomé, the Defendant stated, “Bartolomé, I cannot lie to you, you’ve done a lot for me and you have been too nice to me. I shot the haole.” The Defendant told Bartolomé that he did not want a lawyer and that he would tell the whole story to the police. No promises or threats were made by Bartolomé. Bartolomé then informed Sergeants Tomas and John Kalawe of Defendant’s confession.

Sergeant Tomas informed the Defendant that he could have his attorney present but the Defendant said he did not need one and that he wanted to make a statement.

At 2:35 p.m., the Defendant was readvised of his rights and waived them. He made an oral confession at 3:55 p.m. During the course of his statement, he was again advised of his rights and declined any further explanation of them. He then signed his transcribed statement in which he stated that he had voluntarily changed his mind about having an attorney present.

*566III.

It is well recognized that before the State may use statements stemming from custodial interrogation, it must first demonstrate the use of procedural safeguards effective to secure the privilege against self-incrimination.1 Miranda v. Arizona, 384 U.S. 436, 467 (1966); in accord: State v. Paahana, 66 Haw. 500, 502, 666 P.2d 592, 595 (1983); State v. Melemai, 64 Haw. 479, 643 P.2d 541 (1982); State v. Amorin, 61 Haw. 356, 604 P.2d 45 (1979); State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971). However, volunteered confessions or admissions, obtained independent of express police questioning or its functional equivalent, are admissible. State v. Paahana, supra at 502; State v. Amorin, supra at 360, State v. Patterson, 59 Haw. 357, 581 P.2d 752 (1978); State v. Pahio, 58 Haw. 323, 568 P.2d 1200 (1977).

Here, the Defendant, after receiving Miranda warnings, expressed a desire to deal with the authorities only through counsel but later voluntarily confessed to a police officer. The exception to the rule of Miranda for statements made outside the custodial interrogation context patently applies even in this highly protected situation. In Edwards v. Arizona, 451 U.S. 477 (1981), the United States Supreme Court was asked to decide whether a suspect who requested the presence of an attorney during interrogation waived that right when he later submitted to interrogation at the request of police and implicated himself in a crime. The court held that an accused asserting his right to counsel is not subject to further police interrogation until counsel has been provided, “unless the accused himself initiates further communication, exchanges, or conversations with the authorities.” Id. at 484, 485. The court stated:

The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that Edwards invoked and there would be no occasion to determine whether there had been a valid waiver.

*567451 U.S. at 485, 486.

As it is undisputed that the Defendant in the instant case was in-custody at the time his incriminating statements were made, our inquiry will focus on whether he was subject to interrogation.2 The test is whether the police officer should have known that his words or actions were reasonably likely to elicit an incriminating response from the Defendant. Rhode Island v. Innis, 446 U.S. 291, 301 (1980), State v. Paahana, supra at 503. From our review of the entire record including the trial court’s written findings and conclusions, we cannot conclude that the defendant’s inculpatory statements were the product of interrogation.

Lieutenant Bartolomé was unaware of the circumstances of the Defendant’s detention and did not initiate any questioning until Defendant approached him. His resulting remarks were intended merely as a greeting. Bartolomé asked no further questions and made no other remarks. Moreover, the Defendant had had previous encounters with law enforcement. He had been arrested, booked and processed for prior offenses and had been advised of his constitutional rights at least twice before. The Defendant had been jailed on an unrelated misdemeanor in April 1981. At that time, he was advised of his Miranda rights by his attorney who specifically informed him that “loose lips sink ships” referring to the inadvisability of speaking to police without an attorney present.

Under these facts, we are unable to conclude that Lieutenant Bartolomé could have or should have reasonably foreseen that his words or actions would elicit an incriminating response from the Defendant. At most, Bartolomé could have expected that the Defendant respond to his pleasantry by informing him of the reasons for the Defendant’s being booked and the case he was involved in. The Defendant’s confession was of the nature of an unsolicited, spontaneous statement made in the absence of any police questioning.

Neither are we persuaded that the combined conduct of the *568police officers reveals a pattern of coercion sufficient to constitute interrogation.

Joseph P. Fhrendo, Jr. (Gerald D. Lee Loy on the opening brief), Deputy Public Defenders, for defendant-appellant. Charlene Y. Iboshi, Deputy Prosecuting Attorney, for plaintiffappellee.

Accordingly, the Defendant’s constitutional rights under both the United States and Hawaii State Constitutions as articulated by Miranda and Edwards were not violated and his confession properly admitted by the trial court.

Affirmed.

A defendant must be advised “of his right to remain silent, that anything he says can and will be used against him, that he has the right to have an attorney present, and that if he cannot afford counsel, one will be appointed for him prior to any interrogation.” State v. Kalai, 56 Haw. 366, 368, 537 P.2d 8, 11 (1975).

In determining whether Defendant’s statements were made in a custodial context, the totality of the circumstance must be considered, including the time, place and length of interrogation, the nature of the questions asked, the conduct of the police at the time of the interrogation, and any other pertinent factors. State v. Melemai, 64 Haw. 479, 481, 643 P.2d 541, 544 (1982).