Opinion
APPEAL NO. 90-027
August 30, 1990, Argued . January 28, 1991, Filed
For Plaintiff/Appellee: Ronald A. Hammett, Office of the Attorney General, Commonwealth of the Northern Mariana Islands, Saipan, MP.
For Defendant/Appellant: Lecia M. Eason, Saipan, MP.
AMENDED OPINION
BEFORE: DELA CRUZ, Chief Justice, BORJA, Justice, and HILLBLOM, Special Judge.
BORJA, Justice:
FACTS
Galen Mack and Remedios Conley were killed on October 27, 1987, at Obyan Beach, Saipan.
In March 1988, Mario Reyes, while in prison for other crimes, told the police that Mariano F. Mendiola (hereafter Mendiola), the defendant herein, committed the murders of Mack and Conley. Mendiola at the time was also in prison for an unrelated homicide charge.
At the murder trial of Mendiola, Mario Reyes testified that he was present during the kidnapping, robbery, and murders, but that Mendiola committed the offenses.
A psychiatrist and a psychologist performed some evaluation of Mendiola before trial. The psychiatrist, Dr. Ruth Dickson, concluded that Mendiola was borderline retarded. She testified at the trial as a government witness and was cross-examined by defense counsel. The psychologist, Dr. E. Woodyard, concluded that Mendiola was mildly mentally retarded. Although she did not testify at the trial, her written evaluation was introduced into evidence by defense counsel.
The police questioned Mendiola about the murders several times beginning on March 17, 1988. However, no counsel was provided until April 7, 1988. The parties agree that at least five interrogation sessions were had.
Mendiola does not claim that there were any irregularities with the first and third sessions.
He admits that the second, fourth, and fifth sessions were proper in terms of his being read his Miranda rights and his waiver of them. However, interrogation during the second session lasted 5 hours and ended late evening. A result of the session was written questions and answers. Mendiola signed each of the 13 pages, after being told to review each page. Mendiola's request to discontinue the session was granted.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In the fifth session, he again signed the pages of the questions and answers.
All the written questions and answers (the confessions), were introduced at trial, without objection.
After the fifth session, the police took Mendiola to the scene of the crime and asked him to reenact the crime. The police took photographs of him while he was reenacting the crime. These photographs were admitted into evidence after Mendiola specifically stated that he had no objection to their admission.
At trial, the government introduced into evidence the bloody and smelly clothes of the victims. Mendiola did object to the introduction of this evidence, properly stating that it would inflame the jury. The court admitted the evidence over his objection.
Mariano Mendiola was convicted on August 24, 1988, of 4 counts of 1st degree murder, 2 counts of robbery, 2 counts of kidnapping, and 1 count of illegal possession of firearms. He is currently serving a life sentence.
ISSUES PRESENTED
1. Whether the trial court erred in admitting defendant's confessions, when defendant did not object to their admission.
2. Whether the trial court erred in admitting the photographs of the reenactment of the crimes, when defendant did not object to their admission.
3. Whether the trial court abused its discretion in admitting the bloody and foul smelling clothes of the victims.
STANDARD OF REVIEW
There were no pre-trial motions to suppress the confessions and the photographs. Neither were any objections made during trial. As such, the standard of review for the first two issues is the plain error standard. Rule 103(d), Commonwealth Rules of Evidence, and Rule 52(b), Commonwealth Rules of Criminal Procedure.
The third issue is subject to the abuse of discretion standard. Commonwealth of the Northern Mariana Islands v. Delos Santos, 3 CR 661 (D.N.M.I. App.Div. 1989).
ANALYSIS
1. Confessions
Mendiola argues that the trial court erred when it admitted into evidence his confessions without first holding a voluntariness hearing. He contends that his confessions should not have been admitted because 1) Mendiola did not know how to read, 2) he was either borderline retarded, or retarded, 3) 6 CMC § 6105(a)(3) was violated, and 4) he had no legal counsel with him at the time of the confessions. He, therefore, concludes that his confessions were not voluntary. We disagree.
Initially, we find that Mendiola's failure to move to suppress the confessions before trial constituted a waiver. Rule 12(b) & (f), Commonwealth Rules of Criminal Procedure. See also United States v. Santiago Soto, 871 F.2d 200 (1st Cir. 1989).
His failure to object to the admission of the confessions during trial is also a waiver by him. Evidence Rule 103(d), and Criminal Rule 52(b). See also United States v. Santiago Soto, supra; United States v. Espinoza-Seanez, 862 F.2d 526 (5th Cir. 1988); United States v. Gonzales, 749 F.2d 1329, 1336 (9th Cir. 1984).
Relief from these waivers may be granted only if necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process. United States v. Greger, 716 F.2d 1275 (9th Cir. 1983).
We, therefore, analyze Mendiola's four reasons to see if there has been a miscarriage of justice, or if the integrity of the judicial process is at stake.
During cross-examination on the accuracy of the transcript of Mendiola's confessions, defense counsel extensively examined the circumstances surrounding the taking of the confessions. The record indicates what language was used during the interrogation (English and/or Chamorro), the process and circumstances surrounding the signature of Mendiola on each page, and his ability to read and understand. The record is adequate to conclude that no miscarriage of justice occurred.
None of the four reasons stated by Mendiola are grounds to exclude the confessions on the basis of involuntariness. To be sure, the first two reasons, i.e., the inability to read and one's reduced mental capacity, are factors which may have a bearing on whether a person is susceptible to coercion, psychological or otherwise, by the police. In the absence of any coercive police activity, however, as the record in this case reveals, those two factors do not affect the voluntariness of one's confession and there is no violation of the due process provision. Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986).
In this case, the record does not show any coercive police activity in obtaining the confessions. The police gave Mendiola coffee when he asked for it, there were breaks in the interrogation sessions whenever he asked, and an interrogation would be stopped as soon as he requested it.
Mendiola's third reason, the violation of the statute, is without merit. Because Mendiola was already in custody on an unrelated matter at the time of the interrogations, he could not be released. The statute does not apply in this situation.
6 CMC § 6105(a) (3) states that it is unlawful
To fail either to release or charge the arrested person with a criminal offense within a reasonable time, which under no circumstances shall exceed 24 hours. . . .
There is also no merit to Mendiola's fourth reason. The absence of legal counsel during the interrogation sessions does not violate any constitutional provision when a defendant has not been formally charged. Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986). The record in this case shows that Mendiola was not yet charged with the murders of Mack and Conley when the confessions were elicited.
Because the confessions were voluntary, there has been no miscarriage of justice. Neither is the integrity of the judicial process threatened. We hold that a confession is voluntary if there is no coercive police activity.
However, a confession may still be involuntary, and therefore should be suppressed, if the Miranda waivers were not knowingly and intelligently given. Moran v. Burbine, supra. This issue does not arise in this case since Mendiola acknowledges in his brief that the Miranda warnings and waivers were proper.
Mendiola argues that the written questions and answers are not, and cannot be, transcripts of his confessions. He maintains that they are only the recollections of a police officer as to what he thinks were the questions and answers.
We disagree. As stated in 4 Wharton's Criminal Evidence § 620 (14th ed. 1987)
A written confession is not objectionable because: . . . it is in question and answer form; . . . it was prepared by another and adopted by the confessor by signature or by an admission as to its correctness. . . .
A written confession need not constitute a literal transcription of what the defendant said; the substance of what he said is sufficient. Nor is it necessary that the written confession contain all that the confessor said. It is also not necessary that the written confession be in a language understood by the defendant, if it has been translated for him into a language which he does understand.
(Citations omitted.)
Defense counsel may attack the accuracy of the confessions. The transcript shows that this was done by defense counsel. He cross-examined the interrogating officers, and he made such an argument before the jury. We cannot say that confessions should be excluded from evidence merely because they are in question and answer form.
Mendiola reviewed the questions and answers. He then signed each page of the documents. Mendiola argues that the admission of the confessions with these facts is reversible error. He argues that he does not know how to read. Furthermore, he argues that his ability to understand what he reads is seriously in doubt. He cites to the testimony of the psychiatrist and psychologist in support of his argument.
We are not persuaded by Mendiola's arguments. His arguments should be made, as was done, to the jury to discredit, or to reduce the value of, the confessions.
If the record showed no contradiction to Mendiola's ability to read or comprehend, then we would be persuaded that it was reversible error to have admitted the confessions into evidence. However, what we have here are several contradictory facts on Mendiola's ability to read and comprehend. This is surely within the province of the jury. They have the duty and responsibility to decide whom to believe. They chose not to believe the experts. In reviewing the transcript of the trial, we noted several contradictory facts that the jury could have found to be more persuasive.
First, in one of the question and answer document, Mendiola crossed out the response of "yes" and wrote in its place the word "no." The question read, "Mr. Mendiola, aren't you at work on October 27, 1987, from 7:30 a.m. to 5:00 p.m.?" Plaintiff's Exhibit 74. The interrogating officer, during cross-examination, testified that he did not scratch the word "yes." It was Mendiola who did it. Tr. 606.
Second, the interrogating officer testified that Mendiola could read. Tr. 620.
Third, at the end of Plaintiff's Exhibit 73 and toward the end of Exhibit 74 are sketches of the area the murders took place. Exhibit 74 is in such detail that the drawings of persons, table, and the path taken are included. In addition, the words "table," "American car," and "As David" are on the sketches. Exhibit 73 is a drawing of where Mendiola parked his car. This map has the words "bunker," "Obyan sign," and "park my car." Mendiola made this map. No other person put any markings on the map. Tr. 666.
Fourth, all the interrogation sessions were conducted in English. Tr. 566. When he was given the questions and answers to review, he would ask for a translation if he was in doubt as to the meaning. Tr. 567-568.
Lastly, an employer of Mendiola testified that Mendiola was a good worker capable of doing errands by himself. Tr. 719.
All the above facts contradict the testimonies of the two experts on Mendiola's ability to read and understand. It is certainly the province of the jury to decide which facts to believe.
There was no error in the admission of the confessions.
2. Photographs
We find that Mendiola's specific statement that he did not object to the introduction of the photographs constituted a valid waiver by him. Evidence Rule 103(d), and Criminal Rule 52(b). See also United States v. Gonzales, supra. There is nothing in the record to indicate that Mendiola was coerced by the police to participate in the reenactment. In fact, during the cross-examination of Captain Castro, he testified that just before reenacting the crime, Mendiola refused to have one police officer accompany them. Captain Castro advised the police officer to leave the place. Tr. 628. Furthermore, they do not unfairly prejudice Mendiola. Their probative aspect is greater than the non-probative aspect of prejudice. United States v. Layton, 855 F.2d 1388, 1402 (9th Cir. 1988). They were highly probative on the charges of first degree murder. His actions before the actual firing of the weapon, how he held the weapon, to what part of the bodies of the victims did he hold the weapon, his actions after he fired the shots, were all relevant to establish the elements of first degree murder.
Even had a timely objection been made, the trial court would not have abused its discretion to admit them into evidence. They fairly depict the act of the murders. 3 Jones on Evidence, § 15:14 (6th ed. 1972); 3 Wharton's Criminal Evidence, § 603 (14th ed. 1987).
We hold that the statement of no objection to the admission of the photographs constituted a valid waiver by Mendiola. He does not have a right to now object. The admission was not a miscarriage of justice, nor did it damage the integrity of the judicial process.
3. Clothes
The admission of the bloody and smelly clothes should not have been allowed. It was an abuse of discretion for the trial court to admit them since, although relevant, they would have inflamed the passion of the jury. Their non-probative aspect far outweighed their probative aspect. United States v. Layton, supra.
However, to say that the trial court erred in allowing the introduction of the bloody and smelly clothes does not end the inquiry. We also need to determine if the error was harmless. See Rule 52(a), Commonwealth Rules of Criminal Procedure. Rule 52(a) states that an error is to be disregarded if it does not affect substantial rights. To determine if substantial rights have been affected, "the entire record must be considered and the probable effect of the error determined in the light of all the evidence." C. Wright, Federal Practice and Procedure: Criminal 2d § 854 (1982).
In reviewing the whole record, we conclude that the introduction of the bloody and smelly clothes was harmless. The confessions and the photographs of the reenactment are overwhelming in showing Mendiola's guilt. We are convinced that the error had a very slight effect on the jury. The outcome would have been the same despite the error.
CONCLUSION
The judgment of conviction is AFFIRMED.
Jose S. Dela Cruz
Chief Justice
Jesus C. Borja
Associate Justice
Larry L. Hillblom
Special Judge