4 FSM Intrm. 161 (App. 1989)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION

FSM APPEAL CASE NO. P2‑1988

IN RE JUVENILE APPEAL

BEFORE:
The Honorable Richard H. Benson, Associate Justice, FSM Supreme Court
The Honorable Judah Johnny, Temporary Associate Justice, FSM Supreme Court*
The Honorable Guy C. Powles, Temporary Associate Justice, FSM Supreme Court**

*Associate Justice, Pohnpei Supreme Court.
**Former Judge, Western Samoa, on this court by special designation for this case.

APPEARANCES: For the Minor Appellant: Michael A. Powell, Chief Public Defender; For the Appellee: Daniel J. Berman, State Prosecutor

OPINION: October 24, 1989

HEADNOTES

Criminal Law and Procedure ‑ Interrogation and Confessions
Where no motion to suppress a confession has been made before trial and no cause has been offered as to the failure to raise the objection, the trial court was justified in finding that the defendant had waived any objection to the admission of the confession. In re Juvenile, 4 FSM Intrm. 161, 163 (App. 1989).

Appeal and Certiorari
The appellate court may notice error, even though not properly raised or preserved in the trial court, where the error affects the substantial rights of a minor under the particular circumstances of a case. In re Juvenile, 4 FSM Intrm. 161, 124 (App. 1989).

Criminal Law and Procedure‑Interrogation and Confessions
Where the trial record shows no waiver of a minor's rights against self‑incrimination, where a remarkable discrepancy exists between police procedure for taking a statement and the written evidence offered at trial, where the only evidence supporting the conviction other than the confession is an accomplice's testimony, where the minor is 16 years of age and had been on detention some 2 weeks prior to his confession, and where the parents of the minor were absent at the time the confession was made, the trial court erred in admitting the defendant's confession. In re Juvenile 4 FSM Intrm. 161, 164 (App. 1989).

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

This is an appeal by the minor of the finding by the trial division that he is a delinquent child. The finding was based on that court's determination that the minor had committed burglary and had aided and abetted in the same burglary.

The defendant raises several issues in his appeal. Because of our holding only one issue needs to be addressed.

ISSUE AND HOLDING

May the court notice error, not properly raised or preserved in the trial court, because the trial court justifiably found that the accused had waived any objection since no pretrial motion to suppress had been made by his lawyer, in a case of a 16 year old confined for two weeks on another charge and questioned by police without parents being present, in which a discrepancy exists between what procedure the police testified was followed and what the written evidence shows, where, if the confession were excluded the only remaining evidence would be that of an accomplice, and in which the record shows no waiver of rights by the minor?

We hold that the court may notice error under these particular circumstances.

FACTS

At the fact finding hearing the government sought and obtained the admission of the minor's confession in evidence. No pretrial motion for suppression was made by the lawyer representing the minor pursuant to Rule 12(b)(3) of the Rules of Criminal Procedure for the Trial Division of the Supreme Court of the Federated States of Micronesia. The confession led the police to stolen items which were admitted in evidence at the hearing.

The foundation for the admission of the confession was provided, if at all, by the police officer who received the statement. The witness said that he advised the minor of his constitutional rights. He described the procedure used in advising those under arrest of their rights, stating that each of the five rights is covered and that each arrestee initials each right if he understands it.

The police officer ‑ witness stated that this procedure was followed when advising the minor of his rights, that the minor understood each and initialed the form to show this.

The "rights form" was admitted into evidence. It is in the Pohnpeian language. The form fails to correspond with the testimony of the police officer. It does contain five statements of rights concerning the right to remain silent and the right to a lawyer, but there are no initials of the minor, nor any blank place to signify by initials an understanding of each right. Following the rights appears the question, "Do you want us to contact your attorney now to come meet with you?" There is a place to answer "yes" or "no", "Ehi" or "soh" in Pohnpeian. The minor, it appears, wrote "sho".

REASONING

The trial judge relied, we believe, on FSM Crim. R. 12 in admitting the confession of the minor. Rule 12(b)(3) requires motions to suppress evidence to be made before trial. Rule 12(f) provides that failure to raise the matter constitutes a waiver of the objection. The section provides that the court may grant relief from the waiver "for cause." In this case the minor's lawyer offered no cause as to his failure to raise the objection to the admission of the confession.

We conclude that the trial court was justified in finding that the minor had waived any objection to the admission of the confession.

On appeal the minor for the first time asserts that the record does not show that the minor was informed of the rights which are accorded him by law or that he made a knowing and intelligent waiver of those rights. He is precluded from this argument of waiver because of the Rule 12(f) sanction already referred to.

At the time he was questioned the minor was in police custody for an unrelated matter. The testimony of the police officer shows that suspicion had focused on the minor as committing the burglary. Neither of the parties before us takes the position that prior to questioning the police did not have the responsibility of advising the minor of his rights before questioning. We agree. The minor was entitled to an advice of rights. FSM v. Edward, 3 FSM Intrm. 224, 229‑232 (Pon. 1987). Before the confession can be admitted over objection of the minor the government must establish not only that the minor was advised of his rights but that the minor gave a knowing and intelligent waiver of those protections. Id. at 234‑36. There is a presumption against such a waiver. Id. at n.7.

Without diminishing the general power of a trial court to decide under Rule 12 that a defendant has waived his right to object to the admission of evidence, we conclude that error occurred which affects the substantial rights of the minor under all the circumstances of this particular case. Though not properly raised and preserved below, we notice the error. FSM Crim. R. 52(b).

Several aspects of the case, in combination, cause us to reach this conclusion. They are listed in order of importance. No one aspect would have been determinative.

1. The record does not reflect a waiver of rights by the minor.

2. A remarkable discrepancy exists between the police officer's testimony on the one hand as to the procedure for taking an arrestee's statement and that the procedure had been followed in this case, and on the other hand what the rights form signed by the minor actually shows.

3. Were it not for the confession, the conviction would rest solely on the testimony of the accomplice. As mentioned earlier, the officers were led to the stolen property by the minor's confession. This evidence corroborating the testimony of the accomplice would have been inadmissible if the confession were not admitted.

We notice an unusual absence of evidence in this case. For instance the victim did not testify as to the break‑in, the loss of property, or the ownership of the recovered property.

4. We note the youthfulness of the minor, age 16 years, who had been in detention for some 2 weeks prior to the interview which led to his confession.

5. The parents of the minor were absent at the time the confession was made.

For the reasons stated we notice the error in the trial in the admission of the confession which substantially affected the rights of the minor. We reverse the conviction, and remand the case to the trial division for further proceedings consistent with this opinion, namely for the trial division to determine whether the minor knowingly and intelligently waived the rights the law accords him and whether the confession is admissible. Whether the minor is entitled to a new fact finding hearing is dependent upon the outcome of the first question and is for the trial division to decide.

So ordered this 24th day of October, 1989.