People of Guam, Plaintiff-Appellant, v. Ryan Paul Angoco, Defendant-Appellee

r IN THE SUPREME COURT OF GUAM PEOPLE OF GUAM, Plaintiff-Appellant, VS. RYAN PAUL ANGOCO, Defendant-Appellee Supreme Court Case No.: CRA05-010 Superior Court Case No.: CF0337-05 OPINION Cite as: 2007 Guam 1 Appeal from the Superior Court of Guam Argued and submitted on October 6,2006 HagAtiia, Guam For Plaintiff-Appellant: Marianne Woloschuk, Esq. Assistant Attorney General Office of the Attorney General 287 West O'Brien Drive Hagitiia, Guam 96910 For Defendant-Appellee: Michael F. Phillips, Esq. Leslie A. Travis, Esq. Phillips & Bordallo, P.C. 4 10 West O'Brien Drive HagAtiia, Guam 969 10 People v. Angoco, Opinion Page 2 of 27 BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, JR., Associate Justice; and RICHARD H. BENSON, Justice Pro Tempore. CARBULLIDO, C.J.: [I] Defendant-AppelleeRyan Paul Angoco filed a motion to suppresscertain statementshe made to police, including a written statement he gave after he signed a waiver of his rights pursuant to Miranda v. Arizona, ⟂384 U.S. 436Persuasive authoritynon-Guam — not binding under the reception rule (1966). The Superior Court applied the analysis of the United States Supreme Court in Missouri v. Seibert, ⟂542 U.S. 600Persuasive authoritynon-Guam — not binding under the reception rule (2004), in determining the validity of the Miranda waiver and suppressed the post-Miranda written statement. The trial court also found that the police failed to comply with 19 GCA tj 5111 and held that violation of the statute provided partialjustification for suppressingthe post-Mjranda written statement. Plaintiff-AppellantPeople of Guam appealed the trial court's suppression of the post-Miranda statement. We hold that the trial court erred in its application of Seibert and therefore reverse the trial court's suppression of Angoco's post-Miranda written statement. We also remand the case to the trial court to determine whether the interrogating officer deliberately used a "question-first" interrogation technique, according to the rules set forth in this opinion. We further hold that violation of 19 GCA tj 5111 alone does not warrant suppression of the post-Miranda written statement. I.Ask ⌕

[2]On September 30,2005, at 12:40a.m., Officer Allan Guzmanmet Defendant-AppelleeRyan Paul Angoco at the Turnon precinct. Angoco was earlier handcuffed and brought to the precinct after he admitted that he was the driver of a truck allegedly involved in a fatal hit-and-run in Tumon.' 1 The People concede that Angoco was in custody when he was taken by police to the Tumon precinct. People v. Angoco, Opinion Page 3 of 27Ask ⌕⧉ cite

[3]Officer Guzman questionedAngoco without issuingMiranda warnings. During questioning, Angoco stated that he was the driver of the truck and that he did not remember the accident because he blacked out.Ask ⌕⧉ cite

[4]Angoco's parents were later contacted and arrived at the Tumon precinct at 2:20 a.m. Officer Guzman told the parents that he believed Angoco drove the truck that killed a Japanese tourist. Officer Guzman then questioned Angoco with the parents present, in the same room where Angoco was earlier questioned. Officer Guzman subsequently left Angoco and his parents alone in the room.Ask ⌕⧉ cite

[5]At 2:35 a.m., Officer Guzman returned to the room with a "Custodial Interrogation" form, which listed Miranda rights and included a waiver of the rights. Angoco and his parents signed the form.Ask ⌕⧉ cite

[6]Officer Guzman then instructed Angoco to make a written statement. Angoco started writing at 3:31 a.m. and completed his written statement at 4:20 a.m. Angoco stated in writing that he and his friend inhaled an "air duster" while driving the truck to Tumon, that Angoco lost consciousness, that Angoco awoke to his friend saying that Angoco hit a pedestrian with the truck, and that Angoco did not remember hitting anyone.Ask ⌕⧉ cite

[7]On October 7,2005, a grandjury returned an indictmentchargingAngoco with Manslaughter (As a 1st Degree Felony), Vehicular Homicide (As a 2nd Degree Felony),Negligent Homicide (Asa 2nd Degree Felony), Leaving the Scene of an Accident (A Felony), Reckless Conduct (As a Misdemeanor), Reckless Driving with Injuries (As a Misdemeanor), Leaving the Scene of an Accident (As a Petty Misdemeanor), and Reckless Driving (As a Petty Misdemeanor).Ask ⌕⧉ cite

[8]On November 3,2005, Angoco filed a motion to suppress the statementshe made to police, including the written statement he gave after he signed the form waiving his Miranda rights. The People v. Angoco, Opinion Page 4 of 27 Superior Court held hearings on the motion from November 15,2005 to November 18,2005. The trial court granted the motion on November 18,2005. Plaintiff-AppellantPeople of Guam appealed the decision on November 21,2005. The decision was entered onthe docket on November 25,2005. The appeal was timely filed. §8 GCA 8Guam Code Annotatedstatute — binding 130.40 (2005).~ 11.Ask ⌕⧉ cite

[9]This court hasjurisdiction over an appeal from a SuperiorCourt decision and order grantinga motion to suppress evidence. §7 GCA 8Guam Code Annotatedstatute — binding 3 107(b) (2005); §8 GCA 8Guam Code Annotatedstatute — binding 130.20(a)(6) (2005). 111. [lo] A motion to suppress is reviewed de novo by this court. People v. Sangalang, 2001 Guam 18 7 10(citing People v. Hualde, 1999Guam 3 7 19). We review de novo the voluntariness of a waiver of Miranda rights, and review for clear error the knowing and intelligent nature of the waiver. Id. [ l l ] The legal question of whether Miranda warnings were adequate is subjectto de novo review. United States v. Connell, ⟂869 F.2d 1349Persuasive authoritynon-Guam — not binding under the reception rule,1351 (9th Cir. 1989);see United States v. Hernandez, ⟂93 F.3d 1493Persuasive authoritynon-Guam — not binding under the reception rule, 1501 (10th Cir. 1996). Jurisdictions applying this standard have stated: L The People appealed the suppression of statements made by Angoco after he signed a "Custodial Interrogation" form waiving his Miranda rights. The trial court's decision, however, only addressed the post-Miranda written statement given by Angoco. Conflicting evidence exists with regard to other oral statements Angoco may have made after he waived his Miranda rights. Officer Allan Guzman reported that he interviewed Angoco at 2:40 a.m., five minutes after Angoco signed the Miranda waiver. Appellee's Supplemental Excerpts of Record ("SER), tab 6R at 3 (Supp. Rep. prep. by Guzman). Officer Guzman's report stated that Angoco told the officer that Angoco was the driver of a truck allegedly involved in a fatal hit-and-run, that Angoco inhaled an "Air Duster Spray" while driving in Turnon, and that Angoco passed out, among other things. SER, tab 6R at 3 (Supp. Rep. prep. by Guzman). On the record, however, Officer Guman testified that Angoco's parents told the officer"as to what Ryan had consulted with them and how the story had occurred." Transcripts ("Tr."), Vol. 111at 24,26 (Cont'd. Mot. to Supp., Nov. 16,2005). Officer Guzman alsotestified that he learned about Angoco's use of the air duster from the parents. Tr., Vol. 111at 53,59,72 (Cont'd. Mot. to Supp., Nov. 16,2005). More importantly, the trial court never addressed the existence or admissibility of post-Miranda oral statements in its decision and order. Appellant's Excerpts of Record ("ER") at 8-14 (Dec. & Ord. re Mot. to Supp.). In light of the reversal and remand ordered by this court, we therefore leave the task of resolving this factual discrepancy to the trial court, as part of its reconsideration of the present case in accordancewith the rules set forth in this opinion. People v. Angoco, Opinion Page 5 of 27 De novo review is appropriate because the adequacy of Miranda warnings involves application of a legal standard to a set of facts, which require[s] the consideration of legal concepts and involves the exercise of judgment about the values underlying the legal principles. . . . In contrast, the factual findings underlying the adequacy challenge, such as what a defendant was told, are subject to clearly erroneous review. Id. (citations and quotation marks omitted); see United States v. Caldwell, ⟂954 F.2d 496Persuasive authoritynon-Guam — not binding under the reception rule, 501 n.8 (8th Cir. 1992). IV.Ask ⌕⧉ cite

[12]The decision of the trial court was anchored by its analysis of Missouri v. Seibert, ⟂542 U.S. 600Persuasive authoritynon-Guam — not binding under the reception rule (2004), decided by the United States Supreme Court. Thus, the primary focus of the present case is the trial court's interpretation and application of Seibert.Ask ⌕⧉ cite

[13]The People argue that the trial court erred in applying Seibert when it applied the multi-factor test laid out in the plurality opinion instead of the test articulated in Justice Kennedy's concurring opinion. The People thus assert that the trial court failed to make the requisite determination of whether the police deliberately used a "question-first" interrogation technique. Alternatively, the People maintain that even if the trial court found deliberate use of the question-first technique, the presence of Angoco's parents during the post-Miranda phase of questioning and the length of time between the pre-Miranda and post-Miranda statements constituted sufficientcurativemeasuresthat justified admission of the post-Miranda statement. The People further assert that Angoco's waiver of Miranda rights and his statements thereafter were voluntary, knowing and intelligent.Ask ⌕⧉ cite

[14]Angoco argues that the trial court properly employed Seibert since the trial court's review considered the factors discussed in both the plurality opinion and concurrence. Angoco asserts that the facts of the instant case are substantially similar to those the plurality noted in justifying suppression. Angoco maintains that the trial court found that the question-first technique was People v. Angoco, Opinion Page 6 of 27 deliberately used and that the record was devoid of evidence indicating curative measures taken by police. In addition, Angoco asserts that the trial court held that the waiver was neither knowing nor intelligent. Angoco further maintains that the failure to advise him of Miranda rights was neither accidental nor inadvertent. A. The Seibert Plurality Opinion 1151 The first issue this court must determine is whether the trial court properly applied the Seibert analysis in suppressing Angoco's post-Miranda statement.Ask ⌕⧉ cite

[16]In Seibert, the defendant was arrested and transported to a police station, where she was questioned by an officer for 30 to 40 minutes without being advised of her Miranda rights. Seibert, 542 U.S. at 604-605. The officer later testified that he made a "conscious decision" to withhold Miranda warnings and used the "question-first" interrogation technique he had been taught. Id. at 605-606. An officer utilizing the question-first technique would "question first, then give the warnings, and then repeat the question 'until [the officer] get[s] the answer that [the suspect]already provided once."' Id. at 606. During the interrogation,the officer squeezed the defendant's arm and repeated statements suggestingthe defendant's involvement in the crime. Id. at 604-605. After the defendant made incriminating statements, she was allowed to take a 20-minute break to smoke and drink coffee. Id. at 605. The officer then issued Miranda warnings to the defendant, obtained a signed waiver from her, and resumed questioning of the defendant, which he now recorded. Id. During this warned second phase of questioning, the officer mentioned that they had been talking about the incident and then confkonted the defendant with her previous unwarned statements. Id. The officer "acknowledged that [the defendant's] ultimate statement was 'largely a repeat of information . . . obtained' prior to the warning." Id. at 606. People v. Angoco, Opinion Page 7 of 27Ask ⌕⧉ cite

[17]The United States Supreme Court in a plurality opinion denounced the question-first technique used by the officer, stating that "[bly any objective measure, applied to circumstances exemplified here, it is likely that if the interrogators employ the technique of withholding warnings until after [the] interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content." Id. at 613. "Thus, when Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and 'depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them."' Id. at 613-614 (quoting Moran v. Burbine, ⟂475 U.S. 412Persuasive authoritynon-Guam — not binding under the reception rule,424 (1986)).Ask ⌕⧉ cite

[18]The Court stated that "[tlhe threshold issue when interrogatorsquestion first and warn later is thus whether it would be reasonable to find that in these circumstancesthe warnings could hnction 'effectively' as Miranda requires." Id. at 611-612. The Court then considered five factors to be used in examining the effectiveness of Miranda warnings administered when suspects are so questioned first. The Court specifically considered: [I] the completeness and detail of the questions and answers in the first round of interrogation,Ask ⌕⧉ cite

[2]the overlapping content of the two statements,Ask ⌕⧉ cite

[3]the timing and setting of the first and the second [rounds of interrogation],Ask ⌕⧉ cite

[4]the continuity of police personnel, and [S] the degree to which the interrogator's questions treated the second round as continuous with the first. Id. at 615. Viewing the facts in light of these five factors, the Court noted that "[tlhe warned phase of questioning proceeded after a pause of only 15 to 20 minutes, in the same place as the unwarned segment" and "the police did not advise [the defendant] that her prior statement could not be used." Id. at 616. The Court found that "[wlhen the police were finished there was little, if anything, of incriminating potential left unsaid." Id. The Court also found that "[tlhe impression that the further People v. Angoco, Opinion Page 8 of 27 questioning was a mere continuation of the earlier questions and responses was fostered by references back to the confession already given," and concluded that "[ilt would have been reasonable to regard the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before." Id. at 616-617. The Court then held that the defendant's post-warning statements were inadmissible after concluding that "[tlhese circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect's shoes would not have understood them to convey a message that she retained a choice about continuing to talk." Id. at 617. 1191 The trial court in the present case stated: "When faced with a Miranda challenge, the court is required to engage in a totality of the circumstances inquiry in order to determine if the waiver is made voluntarily, knowingly and intelligently." Appellant's Excerpts of Record ("ER) at 9 (Dec. & Ord. re Mot. to Supp.) (citing Wyrick v. Fields, ⟂459 U.S. 42Persuasive authoritynon-Guam — not binding under the reception rule, 48-49 (1982)). The trial court then stated that the analysis in Seibert was applicable to a totality of the circumstances inquiry into the validity of a Miranda waiver. The trial court did not find the Seibert case to be independent grounds for suppression, separate from the Miranda inquiry. The trial court also did not assessthe validity of the Miranda waiver according to the well-established principles previously recognized by this court. The trial court instead held that the Seibert analysis was controlling in determining the legitimacy of Angoco's waiver of Miranda rights. In doing so, the trial court found the Seibert facts to be substantially similar to those in the present case. The trial court also listed the same five factors above and analyzed the facts of the present case in accordance with the factors, ultimately determining that Angoco's post-Miranda written statement was inadmissible and must be suppressed. People v. Angoco, Opinion Page 9 of 27 B. The Seibert Concurring Opinion by Justice KennedyAsk ⌕⧉ cite

[20]Because Seibert was decided by a plurality of the United States Supreme Court, the People argue that the trial court in the present case erred in applying the Seibert holding enunciated by the four Justices to the present case.Ask ⌕⧉ cite

[21]"When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as the position taken by those Members who concurred in the judgments on the narrowest grounds. . . .'" Marks v. United States, ⟂430 U.S. 188Persuasive authoritynon-Guam — not binding under the reception rule, 193 (1977) (quoting Gregg v. Georgia, ⟂428 U.S. 153Persuasive authoritynon-Guam — not binding under the reception rule, 169 n.15 (1976)). Citing this decree from the Court, a majority of circuits have held that Justice Kennedy's concurrence represents the Seibert holding. United States v. Williams, ⟂435 F.3d 1148Persuasive authoritynon-Guam — not binding under the reception rule, 1157-1158 (9th Cir. 2006); United States v. Ollie, ⟂442 F.3d 1135Persuasive authoritynon-Guam — not binding under the reception rule, 1142 (8th Cir. 2006); United States v. Courtney, ⟂463 F.3d 333Persuasive authoritynon-Guam — not binding under the reception rule,338 (5th Cir. 2006); United States v. Mashburn, ⟂406 F.3d 303Persuasive authoritynon-Guam — not binding under the reception rule,308-309 (4th Cir. 2005); see Unitedstates v. Stewart, ⟂388 F.3d 1079Persuasive authoritynon-Guam — not binding under the reception rule, 1086-1087, 1090 (7th Cir. 2004) and United States v. Kiam, ⟂432 F.3d 524Persuasive authoritynon-Guam — not binding under the reception rule, 532 (3d Cir. 2006). We agree with these circuits, and conclude that the trial court erred by analyzing the present case according to the holding of the Seibert plurality. We therefore hold that the concurrence of Justice Kennedy is the holding of Seibert, and the rules therein should have been applied by the trial court in determining whether Angoco's post-Miranda statement was admissible.Ask ⌕⧉ cite

[22]Justice Kennedy's concurrence in Seibert stated that the question-first technique was "designed to circumvent Miranda," and "further[ed] no legitimate countervailing interest." Seibert, 542 U.S. at 618,621. Again, the question-first technique involves unwarned questioning, followed by the advisement of Miranda rights after a confession has been made. Id. at 6 13. Departing from the plurality, Justice Kennedy's concurrence held that the question-first technique should be People v. Angoco, Opinion Page 10 of 27 scrutinized only when it has been deliberately used, stating that "a multifactor test that applies to every two-stage interrogation may serve to undermine [Miranda's] clarity." Id. at 622. Under this narrower test, if the question-firsttechnique was "used in a calculated way to undermine the Miranda warning," then post-Miranda statements"that are related to the substanceofprewarningstatements" must be suppressed, unless "specific, curative steps" were taken before the post-Miranda statements were made. Id. at 62 1-622. The concurrence stated that such curative steps included: a substantial break in time and circumstancesbetween the unwarned statementsand the Miranda warning;or, an additional warning regarding the inadmissibilityof unwarned statements. Id.at 622. These curative steps must "ensure that a reasonable person in the suspect's situation would understand the import and effect" of the warning and the waiver. Id. If the interrogatordoes not use "this deliberate,twostep strategy, predicated upon violating Miranda during an extended interview," the concurrence held that Oregon v. Elstad, ⟂470 U.S. 298Persuasive authoritynon-Guam — not binding under the reception rule (1985), governed the admissibility of post-Miranda statements. Id. at 621-622.Ask ⌕⧉ cite

[23]Considering the Seibert facts, the concurrence found that "[tlhe police used a two-step questioning technique based on a deliberate violation of Miranda." Id. at 620. The concurrence stated: The officer confronted the defendant with her inadmissible prewarning statements and pushed her to acknowledge them. ... Referenceto the prewaming statementwas an implicit suggestion that the mere repetition of the earlier statement was not independently incriminating. The implicit suggestion was false. Id. at 621. The concurrence then held that the defendant's post-Miranda statements were inadmissible because "[nlo curative steps were taken." Id. at 622. People v. Angoco, Opinion Page 11 of 27 1. Deliberate Use of Question-FirstTechniqueAsk ⌕⧉ cite

[24]The Seibert concurrence3did not establish a test for determining whether the question-first technique was deliberately used. Seibert, 542 U.S. at 618-622. One circuit has offered guidance on the deliberateness inquiry. Williams, 435 F.3d at 1158; compare Ollie, 442 F.3d at 1141-1143; Stewart, 388 F.3d at 1089-1090;Kiam, 432 F.3d at 532. The Ninth Circuit, recognizing that such a test was lacking, held that "in determining whether the interrogator deliberately withheld the Miranda warning, courts should consider whether objective evidence and any available subjective evidence, such as an officer's testimony, support an inference that the two-step interrogation procedure was used to undermine the Miranda warning." Williams, 435 F.3d at 1158. The Ninth Circuit stated that "[s]uch objective evidence would include the timing, setting and completeness of the prewarning interrogation, the continuity of police personnel and the overlapping content of the pre- and postwarning statements." Id. at 1159.Ask ⌕⧉ cite

[25]The objective evidence listed by the Ninth Circuit is similar to four of the factors listed in the Seibert plurality opinion: "the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, and the continuity of police personnel." Seibert, 542 U.S. at 615. The Seibert plurality, however, used the factors to determine whether mid-interrogationMiranda warningswere effective in informing the defendant of his rights and the consequences of waiving them. Id. at 6 146 17. The factors were not used to determine whether the question-first technique was deliberately used. Though the Ninth Circuit did not reconcile this difference in laying out its test, it stated that the objective inquiry into deliberateness "function[s] practically as an analysis of whether the facts of All references to the "Seibertconcurrence" herein refer to the concurring opinion by Justice Kennedy. People v. Angoco, Opinion Page 12 of 27 a particular case more closely resemble those in Seibert or Elstad." Williams, 435 F.3d at 1162n.16. Again, the officer in Seibert testified that he intentionally withheld warnings and used a technique he had been taught. Seibert, 542 U.S. at 604-606. In Elstad, the United States Supreme Court characterized the officer's failure to warn as an "oversight." Elstad, 470 U.S. at 315-316. In short, under the Ninth Circuit test, the objective evidence is relevant to the extent it demonstrates the facts of a case to be comparable to those in either Seibert or Elstad.Ask ⌕⧉ cite

[26]The Ninth Circuit also stated that in determining whether the question-first technique was deliberately used, a court should also consider "available expressions of subjective intent suggesting that the officer acted deliberately to undermine and obscure the warning's meaning and effect." Williams, 435 F.3d at 1160. The Ninth Circuit reasoned that: By focusing on both "facts apart from intent that show the question-first tactic at work," . . .and any available subjectiveevidence of deliberateness,courts will better ensure that law enforcement officers do not circumvent the Fifth Amendment right against self-incriminationthrough the use of "interrogation practices . . .likely ...to disable [an individual] from making a free and rational choice" about speaking. Id. at 1159 (citations omitted).Ask ⌕⧉ cite

[27]Because the Seibert concurrence is silent on a method for determining whether the questionfirst technique was deliberatelyused to undermineMiranda, we therefore adopt the Ninth Circuit test in Williams discussed above. In addition, to provide clarity, we hold that a trial court must evaluate "the timing and setting of the first and the second [rounds of interrogation]" as part of the objective evidence considered under the Williams test. Seibert, 542 U.S. at 615. Pursuant to the Williams test, this additional objective evidence, originallydiscussed in the Seibert plurality opinion,is relevant to the extent it demonstrates the facts of a case to be comparable to those in either Seibert or Elstad. Williams, 435 F.3d at 1162n. 16. Consequently,two things must be considered in determining such People v. Angoco, Opinion Page 13 of 27 deliberateness: objective evidence, including the timing, setting and completeness of the unwarned phase of questioning, the timing and setting of the first and the second rounds of interrogation, the continuity of police personnel and the overlapping content of the warned and unwarned statements; and, available subjective evidence, such as an officer's testimony.Ask ⌕⧉ cite

[28]The Seibert concurrence also did not establish the burden of proof for establishing the deliberate use of the question-first technique, and thus which party bore such a burden. Seibert, 542 U.S. at 618-622; Williams, 435 F.3d at 1159n. 11; Ollie, 442 F.3d at 1142. Noticing this omission, the Eighth Circuit held that "when a defendant moves to suppress a post-warning statement that he contends was given as part of a question-first interrogation, the prosecution must prove, by a preponderance of the evidence, that the officer's failure to provide warnings at the outset of questioning was not part of a deliberate attempt to circumvent Miranda." Ollie, 442 F.3d at 11421143. The Eighth Circuit noted that its holding comported with SupremeCourt precedent and other practical considerations. Id. at 1143.Ask ⌕⧉ cite

[29]We therefore hold that the prosecution bears the burden of proof for establishing deliberateness, and thus must prove by a preponderance of the evidence that the failure to issue Miranda warnings was not pursuant to the deliberate use of the question-first technique. 2. Curative MeasuresAsk ⌕⧉ cite

[30]If the objective evidence and available subjective evidence discussed above demonstrate that the question-first technique was deliberately used to undermine Miranda, then the Seibert concurrence requires suppression of post-Miranda statements related in substance to unwarned statements, unless curative measures were taken prior to procurement of the warned statements. Seibert, 542 U.S. at 621-622. Again, the curative measures discussed in the Seibert concurrence People v. Angoco, Opinion Page 14 of 27 were: a substantial break in time and circumstances between the unwarned statements and the Miranda warning; or, an additional warning regarding the inadmissibility of the unwarned statements. Id. at 622.Ask ⌕⧉ cite

[31]Other circuits that have analyzed the Seibert concurrence agree that the presence of curative measures must be considered upon establishing that the question-first technique had been deliberately used. Williams, 435 F.3d at 1160-1161; Ollie, 442 F.3d at 1142;Stewart, 388 F.3d at 1089-1090; Courtney, 463 F.3d at 338; Mashburn, 406 F.3d at 309; Kiam, 432 F.3d at 532. The Ninth Circuit, however, stated that where deliberateness has been shown, the five factors discussed by the Seibert plurality must also be applied in determining the effectiveness of the later Miranda warnings. Williams, 435 F.3d at 1160-1161. This test for the effectiveness of the warning departs from other circuits' interpretation of the concurrence. Ollie, 442 F.3d at 1142;Stewart, 388 F.3d at 1089-1090;Courtney, 463 F.3d at 338; Mashburn, 406 F.3d at 309; Kiam, 432 F.3d at 532. Though the Seibert concurrence was silent on the method for determining deliberate use of the question-first technique, it explicitly discussed certain curative measures to be considered. Seibert, 542 U.S. at 621-622. We decline to adopt the Ninth Circuit's test for the effectiveness of mid-interrogation Miranda warnings, and conclude that upon a finding of deliberateness,only curative measures need be considered in determining whether post-Miranda statements should be suppressed. 3. Non-Deliberate Use of Question-First Technique (Elstad Test) 1321 If consideration of objective evidence and available subjective evidence pursuant to the test for deliberateness indicates that the question-first technique was not deliberately used to undermine Miranda, the Seibert concurrence states that Elstad governs the admissibility of post-Miranda statements. Id. at 622. People v. Angoco, Opinion Page 15 of 27Ask ⌕⧉ cite

[33]In Elstad, police arrived at the defendant's home with a warrant for his arrest in connection with a criminal investigation. Elstad, 470 U.S. at 300-301. An officer questioned the defendant without issuing Miranda warnings in the living room, where the defendant confessed to being present at the crime scene. Id. at 301. "The arresting officers' testimony indicate[d] that the brief stop in the living room before proceeding to the station house was not to interrogate the suspect but to noti@his mother of the reason for his arrest." Id. at 315. The defendant was then transported to a sheriffs headquarters about an hour later, where he was advised of and subsequently waived his Miranda rights. Id. at 301. The defendant explained his involvement in the crime by giving a full statement, which he reviewed, and which was read back to him for correction. Id. The defendant and the two arresting officers signed the statement. Id.Ask ⌕⧉ cite

[34]The United States Supreme Court stated that the failure to issue Miranda warnings "may have been the result of confusion as to whether the brief exchange qualified as 'custodial interrogation' or it may simply have reflected [the officer's] reluctance to initiate an alarming police procedure" before speaking with the defendant's mother. Id. at 315-316. The Court then characterized the failure to warn as an "oversight," and found that "the incident had none of the earmarks of coercion." Id. at 316. It held that "a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." Id. at 318.Ask ⌕⧉ cite

[35]The Seibert concurrence noted that the suspect in Elstad "had not received a Miranda warning before making the statement, apparently because it was not clear whether the suspect was in custody at the time." Seibert, 542 U.S. at 619. The concurrence then distinguished Elstad, stating People v. Angoco, Opinion Page 16 of 27 that in Seibert the "Miranda warning was withheld to obscure both the practical and legal significance of the admonition when finally given." Id. at 620.Ask ⌕⧉ cite

[36]The United States Supreme Court in Elstad recognized that a "simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will" did not alone render a later warned statement inadmissible. Elstad, 470 U.S. at 309. "In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights." Id. at 314. The Court stated that "[tlhough Miranda requires that the unwarned admission must be suppressed,the admissibilityof any subsequentstatement should turn in these circumstances solely on whether it is knowingly and voluntarily made." Id. at 309. "As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements." Id. at 3 18.Ask ⌕⧉ cite

[37]"The voluntariness of a statement is an issue of fact that must be proven by the Government by a preponderance of the evidence." Borja v. People, Crim. No. 81-00049A, 1983WL 29949 at *3 (D. Guam App. Div. May 26, 1983). "Whether a statement is voluntary or not depends on whether the [suspect]knowingly and intelligently waived his constitutionalrights pursuant to Miranda ...." Id. This court has stated that the voluntary, knowing and intelligent nature of a Miranda waiver is to be gleaned from the totality of the circumstances,which includes "the background, experience and conduct of the defendant." Sangalang, 2001 Guam 18 7 13 (quoting United States v. Garibay, ⟂143 F.3d 534Persuasive authoritynon-Guam — not binding under the reception rule, 536 (9th Cir. 1998)). "Two distinct dimensions" must be considered in determining the validity of a waiver: People v. Angoco, Opinion Page 17 of 27 First, the relinquishmentof the right must have been voluntary in the sensethat it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the 'totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Hualde, 1999 Guam 3 7 30 (quoting Moran v. Burbine, ⟂475 U.S. 412Persuasive authoritynon-Guam — not binding under the reception rule,421).Ask ⌕⧉ cite

[38]In short, if deliberateuse of the question-firsttechnique is not found,then the admissibilityof post-Miranda statements hinges on: whether the warned statements were given knowingly and voluntarily; and, whether the warned statementswere made subsequent to unwarned statementsthat were neither coerced nor the product of "other circumstancescalculated to undermine the suspect's ability to exercise his free will." Elstad, 470 U.S. at 309.Ask ⌕⧉ cite

[39]Thus, pursuant to the Seibert concurrence, the first issue is whether the question-first technique was deliberatelyused to undermine Miranda. If it was so used, the next issue is whether certain curative measures were employed. If such deliberateuse of the question-firsttechnique is not found, then Elstad governs, and the inquiry shifts to an examination of the knowing and voluntary nature of the warned and unwarned statements, based on the totality of the circumstances.Ask ⌕⧉ cite

[40]In the present case, the trial court essentially found that the question-first technique was utilized by Officer Guzman. The trial court did not, however, make a specific factual finding as to whether the technique was deliberately used.Ask ⌕⧉ cite

[41]"This court undertakes de novo review of the trial court's legal conclusion[s] . . . . " Guam Imaging Consultants, Inc. v. Guam Mem 'I Hosp. Auth., 2004 Guam 15 7 15 (quoting People v. Johnson, 1997 Guam 9 7 3.) "We review a trial court's findings of fact for clear error." Pac. Rock Corp. v. Dep 't of Educ., 2001 Guam 217 13. "The facts are . . .construed in a light most favorable People v. Angoco, Opinion Page 18 of 27 to the party prevailing at the trial level." People v. Johnson, 1997 Guam 9 7 3. "A finding is clearly erroneous when, even though some evidence supports it, the entire record produces the definite and firm conviction that the court below committed a mistake." Yang v. Hong, 1998 Guam 9 7 7 (quoting People v. Chargualaf, Civ. No. 88-00068A, 1989WL 265040 at *2 (D. Guam App. Div. Sept. 26, 1989)).Ask ⌕⧉ cite

[42]Again, the trial court failed to make a factual finding on deliberate use of the question-first technique. Thus, this court cannot conduct a review for clear error since there is no factual finding by the trial court which can be subjected to such review.Ask ⌕⧉ cite

[43]The record also contains testimony with regard to the use of the question-firsttechnique that may or may not support a finding of deliberateness. Officer Guzman described the officers' questioning of Angoco, including the questions Officer Guzman asked before Miranda warnings were issued, as an "interview." Transcripts ("Tr."), Vol. I11 at 81-82 (Cont'd. Mot. to Supp., Nov. 16,2005). Officer Guzman stated that an unwarned interview was permissible as part of the "crash investigation process." Tr., Vol. I11at 129(Cont'd. Mot. to Supp., Nov. 16,2005). Officer Guzman said that unwarned interviews were "not a specific technique" he was taught, and that "[ilt's more or less common sense too that you first have to ask what's going on before you get in detail as to the investigation itself." Tr., Vol. I11 at 163 (Cont'd. Mot. to Supp., Nov. 16,2005). Officer Guzman replied that an interview differed from an interrogation. Tr., Vol. I11 at 169 (Cont'd. Mot. to Supp., Nov. 16,2005). Officer Guzman responded that he believed the unwarned interviews complied with Miranda. Tr., Vol. I11 at 170 (Cont'd. Mot. to Supp., Nov. 16,2005). Officer Guzman also replied that the unwarned interviewswere part of the training he received. Tr., Vol. I11at 171 (Cont'd. Mot. to Supp., Nov. 16,2005). People v. Angoco, Opinion Page 19 of 27Ask ⌕⧉ cite

[44]Without a factual finding by the trial court of deliberate use, this court cannot determine the appropriate analysis pursuant to the Seibert concurrence. This is so because an inquiry into the use of curative measures or application of the Elstad test hinges on a finding of deliberateness. Under these circumstances, we decline to make a determination of whether the question-first technique was deliberately used. We therefore reverse the trial court's decisionto suppress Angoco's post-Miranda written statement and remand this case to determine whether Officer Guzman deliberately used the question-first technique to undermine Miranda.Ask ⌕⧉ cite

[45]The trial court, pursuant to this remand, must weigh the objective evidence and available subjective evidence previously discussed to determine whether the question-first technique was deliberately used by Officer Guzman to undermine Miranda. If the trial court finds that Officer Guzman so deliberately used the technique, it must suppress Angoco's post-Miranda statement, unless the curative steps discussed in the Seibert concurrence were employed. Otherwise, if such deliberate use is not found, the admissibility of the post-Miranda statement hinges on whether the totality of the circumstances indicates the warned and unwarned statements were made knowingly and voluntarily. C. Parental Notification Pursuant to §19 GCA 5Guam Code Annotatedstatute — binding 5111Ask ⌕⧉ cite

[46]The People argue that the trial court erred by suppressing Angoco's statements based on 19 GCA tj 5111 (2005). The People assert that the police did not know Angoco was a minor for some time and therefore the statute supplied no basis for suppression. The People maintain that the police complied with the statute's mandate to contact the parents as soon as possible. Furthermore, the People assert that the statute did not mandate automatic suppression upon violation of the law. People v. Angoco, Opinion Page 20 of 27Ask ⌕⧉ cite

[47]Angoco argues that section 5111 was a proper basis for suppression because the trial court found that Angoco was a minor and that the police did not contact the parents as soon as possible pursuant to the statute. Angoco asserts that the violation of the statute was prejudicial to him and caused him to make his post-Miranda statements. Angoco maintains that the behavior of the police undermined the purpose of the statute.Ask ⌕⧉ cite

[48]The notification provision of section 5111, described by the trial court as the "Parental Notification Act," states: (a) Whenany child violating any law or any rule or regulation with theforce and effectof law, or whose surroundingsare such as to endanger his welfare, is taken into custody, such taking into custody shall not be termed an arrest. Thejurisdiction of the court shall attachfiom the time ofsuch taking into custody. Whena child is so taken into custody, such oflcer shall cause theparent, guardian or custodian of the child to be notiJiedas soon aspossible. Whenever possible, unless otherwise ordered by the court, such child shall be released to the custody of his parent or other responsible adult upon the written promise, signed by such person, to bring the child to the court at a stated time or at such time as the court may direct. Such written promise, accompanied by a written report by the officer, shall be submitted to the court as soon as possible. If such person shall fail to produce the child as agreed or upon notice from the court, a summons or warrant may be issued for the apprehension of such person or of the child. §19 GCA 8Guam Code Annotatedstatute — binding 511 1(a) (2005) (emphases added).Ask ⌕⧉ cite

[49]This court conducts de novo review of statutory interpretationissues. People v. Flores, 2004 Guam 18 T/ 8 (citations omitted). "[Olur duty is to interpret statutes in light of their terms and legislative intent." Id. The plain meaning of the statute "prevails," where there is no "clear legislative intent to the contrary." Id. "[Qluestions of statutory interpretation may be aided by reference to the prevailing interpretation of other statutes that share the same language and either have the same general purpose or deal with the same general subject as the statute under People v. Angoco, Opinion Page 2 1 of 27 consideration." Aguon v. Gutierrez, 2002 Guam 14 7 11 (quoting Santos v. Immigration & Naturalization Serv., ⟂525 F.Supp. 655Persuasive authoritynon-Guam — not binding under the reception rule,666 (S.D.N.Y. 1981)).Ask ⌕⧉ cite

[50]The trial court stated that section 5111required officersto contact Angoco's parents as soon as possible after taking Angoco into custody since it was undisputed that Angoco was a minor. The trial court also adopted the Guam Superior Court's reasoning and holding in People v. Mendiola, CFO118-01(Super. Ct. Guam Aug. 17,2001),"[tlo provide meaningfulprotection to the notification requirements" in section 5111. ER at 12 (Dec. & Ord. re Mot. to Supp.). The trial court then found that the police failed to contact Angoco's parents as soon as possible and allowed him to make incriminating statements in the absence of his parents. The trial court held that "with respect to the written statement[,] . . . the Parental Notification Act and the dangers set out in Seibert[,] combined[,] provided a set of circumstances such that the minor, once the confessions or statements were made, even despite the presence of his parents[,] could not effectivelyavail himself of his rights to Miranda." ER at 11 (Dec. & Ord. re Mot. to Supp.).Ask ⌕⧉ cite

[51]The next issue this court must decide is whether the trial court properly held that section 5111 provided a basis for suppressing Angoco's post-Miranda statements. We thus look to the statute's legislative intent, plain language as well as relevant case law interpreting similar statutes to determine the propriety of the trial court's holding. 11 I1 /I 11 /I People v. Angoco, Opinion Page 22 of 27 1. Legislative IntentAsk ⌕⧉ cite

[52]Section 5111 was based on section 260 of the Guam Code of Civil Procedure, which was enacted in 1953 and supposedly adapted from the California code of the same name.4 §19 GCA 5Guam Code Annotatedstatute — binding 5111;Guam Code Civ. Proc. 5 260 (1970) (codified at 19GCA 5 5111 (2005)) ("Foreword (1953)" at iv-v); see also Torres v. Torres,2005 Guam 22 7 33, n.6. Section 260 of the California Code of Civil Procedure was added by statute in 1951,but later repealed by statute in 1953. Cal. Civ. Proc. Code 5 260 (West, Westlaw through Ch. 1 of 2007 Reg. Sess. urgency legislation). Section 260 of the California Civil Procedure code was "related to grades and compensation of court commissioners." Cal. Civ. Proc. Code 5 260 (West 1954). It did not address parental n~tification.~ The "Foreword (1953)" of the Code of Civil Procedure of the Territory of Guam states: "This book and its accompanying volume contain the revised and amended Civil, Civil Procedure, Penal and Probate Codes of Guam. . . . The original codes published under the Naval Government were adapted from the California codes of the same name. Although subsequent changes in the California statutes have resulted in many major differencesbetween the two sets of codes today, they are still identical or comparable as to many of their sections. Consequently,there is a large body of court decisions and other legal literature available to aid in the interpretation of the various sections. . . . The result is that these present volumes constituterevised and amended editions of the previously printed codes rather than entirely new compilations[.]" Guam Code Civ. Proc. 6 260 (1970) (codified at §19 GCA 5Guam Code Annotatedstatute — binding 5 1 11 (2005)) ("Foreword (1953)" at iv-v). Section 260 of the California Code of Civil Procedure stated: In any county or city and county where court commissionersmay be appointed pursuant to Section 258, except where provision is made elsewhere in the law for their salaries, such commissionerswhen appointed shall receive a salary as provided in this section. Such commissionersare of two grades, grade 1 and grade 2. Commissioners,grade 1, shall receive an annual salary of six thousand dollars ($6,000) a year. Commissioners,grade 2, shall receive an annual salary of five thousand one hundred dollars ($5,100). The superior court at the time of appointment shall designate the grade of the commissioner. Commissioners,grade 1, are those commissionerswho have performed the dutiesof a court commissioner or of a clerk of superior court judges or have had equivalent experience for a period of at least five years, and who have been approved by the court for appointment to grade 1. All other commissionersare grade 2. The salary of a commissionershall be paid in monthly installments out of the salary fund of the county, or city and county, or if there is no salary fund, then out of such fund as other salary demands against the county or city and county are paid, and shall be allowed and audited in the same manner as other salary demands against the county or city and county are required by law to be allowed and audited. 1951 Cal. Stat. 2862-2863. People v. Angoco, Opinion Page 23 of 27 - ~ The Guam and California Civil Procedure codes thus offered no guidance on assessing whether section 5111 justified suppression of Angoco's post-Miranda statement, because the relevant sections were silent on the repercussions of a statutory violation. 2. Plain LanguageAsk ⌕⧉ cite

[53]The plain language of section 5111 does not specifically address the admissibility of a minor's confession given when parents are not notified as soon as possible.6 §19 GCA 5Guam Code Annotatedstatute — binding 5111. Consequently, the statute's plain language is also silent on the consequences of an officer's failure to cause parents to be so notified. The statute's plain language thus does not support the trial court's The remaining subsectionsof section 511 I state: (b) If the child is not released hereinabove provided, such child shall be taken without unnecessary delay to the court or to the place of detention designated by the court, and as soon as possible thereafter the fact of such detention shall be reported to the court, accompanied by a written report by the officer taking the child into custody stating: (1) The facts of the offense; and (2) The reason why the child is not released to the parent. Pending further disposition ofthe case, the court may release such child to the custody ofthe parent or other person or may detain the child in such place as the court shall designate; subject to further order, but no child shall be held in a detention longer than two (2) days, excluding Sundays and holidays, unless an order for such detention is signed by the judge. (c) No child shall be transported in any police vehicle which also contains adults under arrest, unless the child is alleged to have been involved with the adult also being transported in the same illegal activity or course of conduct; provided, also, that a child may be transported in the same police vehicle if, under the circumstances, other transportation is not available. No child shall at any time be detained in any police station, lockup,jail or prison; except, that by order of thejudge in which reason therefore shall be specified, a child sixteen (16 ) years of age, but under eighteen (18) years of age whose conduct or condition is such as to endanger his safety or welfare or that of others in the detention facility for children, may be placed in a jail or other place of detention for adults, but in a room or ward entirely separate fi-om adults confined thereon; provided that this section shall not prohibit the interrogation of a child with respect to any felonious activity. (d) provisions regarding bail shall not be applicable to children detained in accordance with the provisions of this Chapter. People v. Angoco, Opinion Page 24 of 27 - - - - suppression of Angoco's post-Miranda statement because the plain language does not explicitly require suppression of the warned statement based on a failure to contact Angoco's parents as mandated. 3. Similar Statutes and Related Case LawAsk ⌕⧉ cite

[54]Section 211.131 of Title XI1 of the Missouri Statutes states: 1. When any child found violating any law or ordinance or whose behavior, environment or associations are injurious to his welfare or to the welfare of others or who is without proper care, custody or support is taken into custody,the taking into custody is not considered an arrest. 2. When a child is taken into custody, the parent, legal custodian or guardian of the child shall be notified as soon as possible. 3. Thejurisdiction of the court attaches from the time the child is taken into custody. Mo. Ann. Stat. 8 211.131 (West, Westlaw through 2006 2nd Reg. Sess. of 93rd Gen. Assembly). Section 211.131 thus contains language that is substantially similar to the notification provision of section 5111.Ask ⌕⧉ cite

[55]The Eighth Circuit consideredthe effect of violating this Missouri statute on the validity of a juvenile's Miranda waiver. Rone v. Wyrick, ⟂764 F.2d 532Persuasive authoritynon-Guam — not binding under the reception rule (8th Cir. 1985). The Eighth Circuit held that violation of the notification provision of section 211.131"alone does not render the confession involuntary . .. . [and.]also does not render [the defendant's] confession a product of ignorance." Id. at 535 (citation omitted). The Eighth Circuit instead examined the totality of the circumstancesand found that the minor's waiver of Miranda rights was made knowingly and voluntarily. Id.Ask ⌕⧉ cite

[56]We agree with the Eighth Circuit's assessment. Section 5111 does not provide an independent basis for suppressing Angoco's post-Miranda statement. The validity of Angoco's People v. Angoco, Opinion Page 25 of 27 Miranda waiver would still be subject to a totality of the circumstances inquiry into whether the waiver was made voluntarily, knowingly and intelligently.Ask ⌕⧉ cite

[57]The trial court did not hold the notification provision of section 5111 to be a sole basis for suppressing Angoco's warned statement. Instead, the trial court held that the notification provision, together with the concerns expressed in Seibert, deprived Angoco of the effective exercise of his Miranda rights. We therefore hold that the trial court properly consideredviolation of section 5111 as part of the totality of circumstances in determining whether to suppress Angoco's post-Miranda statement. The plain language of the statute's notification provision does not require suppressionof a statement made after an officer fails to cause a minor's parents to be contacted as soon as possible. The Eighth Circuit's interpretation of a substantially similar statute also does not support suppression of the post-Miranda statement based solely on a violation of section 5111. Rone, ⟂764 F.2d 532Persuasive authoritynon-Guam — not binding under the reception rule. We also note that the Guam Superior Court case referenced by the trial court is irrelevant to the issue of the admissibility of the "post"-Miranda ~tatement.~We thus further hold that violation of section 5111 is only one circumstance among the totality of circumstances to be considered in assessing the admissibility of the warned statement. However, because the trial court's ruling with regard to section 5111 merely supplemented its application of Seibert, which we have already held to be erroneous, we therefore reverse the trial court's decision to suppress Angoco's post-Miranda statement and remand this case to the trial court to determine whether Officer Guzman deliberately used the question-first technique to undermine Miranda. People v. Mendiola, CF01 18-01 (Super. Ct. Guam Aug. 17,2001). People v. Angoco, Opinion Page 26 of 27 v.Ask ⌕⧉ cite

[58]We hold that the trial court erroneouslyapplied the Seibert plurality opinion in determining the admissibility of Angoco's post-Miranda statement. We further hold that the concurring opinion of Justice Kennedy is the holding of Seibert, and pursuant to the test therein, the trial court should have first determined whether Officer Guzman deliberately used a question-first interrogation technique in purposeful contravention of Miranda. We also adopt the Ninth Circuit's test, as articulated in UnitedStates v. Williams, ⟂435 F.3d 1148Persuasive authoritynon-Guam — not binding under the reception rule(2006), for determiningwhether the questionfirst technique was so deliberatelyused, because the concurrencehas no such test for deliberateness. In addition, we adopt one of the Seibert plurality factors as additional objective evidence to be considered under the Ninth Circuit test. If the trial court finds that the question-first technique was so deliberately used based on the objective evidence and available subjective evidence, the concurrence dictates suppression of the post-Miranda statement, unless curative measures are found to be employed. If the trial court finds that the question-first technique was not deliberately used in violation of Miranda, then under the Elstad test, the trial court must consider two issues in deciding whether to suppress the post-Miranda statement: whether the warned statement was given knowingly and voluntarily; and, whether the warned statement was made subsequent to unwarned statements that were neither coerced nor the product of circumstances intended to undermine a suspect's free will.Ask ⌕⧉ cite

[59]We also hold that violating the notification provision of 19GCA § 5111,by failing to cause parents to be notified as soon as possible that their child has been taken into custody, does not alone warrant suppression of the statements made by the child subsequent to the failure to so notify. The plain language of the statute and the Eighth Circuit's interpretation of a substantially similar statute People v. Angoco, Opinion Page 27 of 27 do not support suppression based solely on a violation of §19 GCA 5Guam Code Annotatedstatute — binding 5111. We further hold that violation of §19 GCA 5Guam Code Annotatedstatute — binding 5 111 is one circumstance among the totality of circumstances to be considered in assessing the admissibility of the post-Miranda statement.Ask ⌕⧉ cite

[60]Accordingly, we REVERSE the trial court's decision to suppress the written statement Angoco gave after Miranda warnings were issued, and REMAND this case to the trial court to determine whether the question-first technique was deliberately used to undermine Miranda, consistent with the rules set forth in this opinion. Richard H. Benson RICHARD H. BENSON Justice Pro Tempore Robert J. Torres ROBERT J. TORRES, JR. Associate Justice F. Philip Carbullido F. PHILIP CARBULLIDO Chief JusticeAsk ⌕⧉ cite