FSM SUPREME COURT
APPELLATE DIVISION
Cite as Moses v. FSM,
5 FSM Intrm.156 (App. 1991)

[5 FSM Intrm. 156]

ROBINSON MOSES
Appellant,

v.

FEDERATED STATES OF MICRONESIA
Appellee.

FSM APP. P4-1989

OPINION
 
Argued:  February 15, 1990
Decided: September 4, 1991

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

[5 FSM Intrm. 157]

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

APPEARANCES:
For the Appellant:          Michael Powell
                                        Chief Public Defender
                                        Federated States of Micronesia
                                        Palikir, Pohnpei  FM 96941

For the Appellee:           Daniel J. Berman
                                        Office of the Attorney General
                                        Pohnpei State
                                        Kolonia, Pohnpei  FM 96941

HEADNOTES
Criminal Law and Procedure - Standard Proof; Evidence
     Failure to raise objections which must be made pretrial constitutes a waiver of objections, FSM Crim. R. 12(f).  Moses v. FSM, 5 FSM Intrm. 156, 159 (App. 1991)

Criminal Law and Procedure - Interrogation and Confessions; Criminal Law and Procedure -Right to Counsel
     For a defendant to waive his right to silence or to counsel he must do so knowingly and intelligently.  There exists a presumption against such waivers.  Moses v. FSM, 5 FSM Intrm. 156, 159 (App. 1991).

Criminal Law and Procedure - Interrogation and Confessions, - Right to Counsel
     Although implied waivers of a defendant's rights might be valid there is a presumption against a finding of a waiver of rights.  Moses v. FSM, 5 FSM Intrm. 156, 159-60 (App. 1991)

Criminal Law and Procedure - Interrogations and Confessions
     A form which advises a suspect of his right to lawyer, and of his right to remain silent but only asks if the suspect wants a lawyer now, is confusing and lacks a specific waiver as to the right to remain silent.  Moses v. FSM, 5 FSM Intrm. 156, 161 (App. 1991).

Constitutional Law - Due Process
     When a defendant has waived his right to object to the admission of evidence, but a plain error that affects the constitutional rights of the defendant has occurred the Court may notice the error.  Moses v. FSM, 5 FSM Intrm. 156, 161 (App. 1991).

[5 FSM Intrm. 158]

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     The defendant appeals from his conviction of theft of a briefcase from an arriving passenger at the Pohnpei Airport.  It was found by the court that the briefcase with its contents had a value of $1,000 or more - the jurisdictional requirement for this court.  The defendant contends on appeal that he did not waive his rights before confessing, and that his statement of value was not corroborated.

     The issue of waiver was not raised below: we remand the case to the trial court requesting its finding on this issue.  We do not reach the second issue: until the admissibility of the confession is settled, it would be premature to do so.

I.
     At a time the defendant was serving a sentence in jail on an unrelated case, he was transported to the police station for questioning on an unrelated case and on this case.  In the unrelated case he was advised of his rights and gave a statement which was then written by the detective and signed by the defendant.

     Next a different detective interviewed the defendant in this matter of the stolen briefcase.  The detective advised the defendant of his rights to remain silent and to have a lawyer present.  After this advice, the defendant gave a statement which was written by the detective and signed by the defendant.  This case was subsequently commenced by information.

     The defendant moved pretrial for an order suppressing his statement.  The motion alleged as grounds that by beating and force he was compelled to confess and that his rights to silence and counsel was not explained to him.

     During the evidentiary hearing on the motion the defendant and the four detectives involved in the two interviews testified.  The defendant stated that he had been advised of his rights when questioned on prior cases, that he understood his rights to silence and to a lawyer, and that he had understood his rights when questioned in this case.  The detectives taking the defendant's statement in this case testified as to the procedure in which the advice had been given and that after advising him of his rights, one detective had questioned the defendant.  The form used was introduced.  It had defendant's initials by each right and his signature under the word "no."  The defendant answered "no"  on the form to question, "Do you want us to send for a lawyer now?"

     Waiver was not mentioned in oral argument on the motion.  Instead the defendant asserted (abandoning the grounds set out in his motion) that since he was already a client of the public defender's office in the unrelated case for which he was in jail, no questioning on the present case should have occurred without the presence of the lawyer, and that the confession was involuntary because of prolonged interrogation and other factors.

[5 FSM Intrm. 159]

     The court denied the motion stating that the defendant gave the statement knowing his rights and saying he did not want a lawyer.  The court also found that the will of the defendant was not worn down by long interrogation or other pressures.

     At trial the police officer who received the confession again testified, and the confession was offered in evidence.  The defendant objected to the admission saying, "[W]e believe that the testimony of the witness does not show that the statements were that the defendant understood his rights and waived his rights..." The court overruled the objection, relying in particular on the earlier hearing for suppression.

II.
     In his pretrial motion to suppress the defendant failed to raise the issue of waiver. It was first mentioned by the defendant, as related above, at trial, when the statement was offered in evidence.

     The trial court overruled the objections to the admission of the statement because the defendant had the opportunity to raise these issues pretrial.  FSM Crim. R. 12(f) provides that the failure to raise objections which must be made pretrial constitutes a waiver of the objections.  Relying upon this rule, the trial court was entitled to admit the statements over the objection first raised during trial.

     In this posture we are thus presented with the question of whether the issue of waiver affects the substantial rights of the defendant.  In re Juvenile, 4 FSM Intrm. 161, 163 (App. 1989).

III.
     A.  Before us, in written and in oral argument, the defendant presented his assignment of error that there was no finding that the defendant had  waived his rights.  The government made no objection to this being raised on appeal and gave no case authority in support of the admission of the statement.

     The defendant relies upon the language of FSM v. Edward, 3 FSM Intrm. 224 (Pon. 1987) to support his contention that the lack of waiver warrants a reversal. Edward set out the requirement of a knowing and intelligent waiver of one's rights, Id. at 234-36, and that there exists a presumption against such a waiver.  Id. at n.7.

     However, the facts of Edward differ from those of this case.  In Edward the defendant said, when advised of his rights, that he did wish counsel.  Shortly after that the said that he did not need a lawyer immediately.  Id. at 228-29.  The police assumed this was a waiver, and continued the interrogation.  The trial court held that his words were ambiguous at the least, and the burden of showing a waiver had not been met.  Id. at 234-36.  There is a presumption against such a waiver.  Id. at n.7.  In the present

[5 FSM Intrm. 160]

case we do not know the extent to which the court below limits the holding of Edward to the particular facts of that case.

     Placed in a context of United States cases the defendant's argument would rely on Miranda v. Arizona, 384, U.S. 436, 475, 86 S. Ct. 1602, 1628, 16 L. Ed. 2d 694, 724 (1966) which says, "If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.

     Subsequent to Miranda, the U.S. Supreme Court permitted the admission of a confession in a case in which a waiver was implied from the surrounding circumstances.  North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979).  The reports of the lower courts of the United States are filled with cases of implied waiver.  Ahmad v. Redman, 782 F.2d 409, 413 (3d Cir. 1986) ("Hooks voluntarily responded to questioning.  Because the state courts found that Hooks was informed of and understood his Miranda rights and that he was subjected to no pressure to respond to questioning, it follows that Hooks knowingly and intelligently waived his rights.").  United States v. Valesquez, 626 F.2d 314, 320 (3d Cir. 1980) ("Pauline's subsequent willingness to answer questions after acknowledging that she understood her Miranda rights is sufficient to constitute an implied waiver under Butler.").

     In United States v. Daniel, 441 F.2d 374 (5th Cir. 1971) the sole issue on appeal was whether a reading of the rights, a statement by the defendant that he understood, followed by a statement met the requirement of waiver.  The court held the statement was admissible, citing particularly United States v. Montos, 421 F.2d 215, 224 (5th Cir. 1970), cert. denied, 397 U.S. 1022.  Other courts have agreed. People v. Johnson, 70 Cal. 2d 541, 450 P.2d 865, 876 (1969) ("Once the defendant has been informed of his rights and indicates that he understands those rights it would seem that his choosing to speak and not requesting a lawyer is sufficient evidence that he knows his rights and chooses not to exercise them.").  This case reviews many cases, and quotes at length United States v. Hayes, 385 F.2d 375, 377-78 (4th Cir. 1967).

     Although we express no opinion at this time on the validity of the implied waivers found in these United States lower court cases, we do have present authority in this jurisdiction sufficient to guide us in this case.  This court has previously held that there is a presumption against a finding of a waiver of rights.  In re Juvenile, 4 FSM Intrm. 161, 164 (App. 1989).  In this context we have carefully examined the lower court's findings and conclusions of law at the close of the suppression hearing, among which included the statement, "Generally, of course, the rule is that if a defendant knowing his rights makes a voluntary statement concerning a case then that statement can be used as evidence because it is reliable evidence."  We find that this statement of the standard to be applied in determining admissibility is incomplete in that it does not include the requirement of a knowing and intelligent waiver.

[5 FSM Intrm. 161]

     B.  As described above the defendant was advised of his right to remain silent. He was also advised that if a statement were made it might be used against him. He was further advised of his right to the presence of a lawyer.  On the statement of rights form the defendants placed his initials by each of the rights.  The form then has the question, "Do you want us to send for a lawyer now?"  The defendant answered, "No."

     We are concerned that the form, after advising of both the rights to remain silent (and its consequences if a statement is made) and to have counsel (including appointed counsel), only inquires as to whether the defendant wishes to assert his right to counsel.  This limited inquiry on the form is misleading since it fails to inquire as to whether the defendant wishes to remain silent.  It would be acceptable if the form inquired as to both rights, or if it inquired as to neither.  If neither question were asked the form would be strictly an advice of rights form.  In its present state, by providing for a written waiver of counsel by the defendant and in lacking a specific waiver as to the right to remain silent a defendant is presented with a narrow and confusing option as to what right is being waived.

     C.  Finally, we adhere to this court's previous pronouncement regarding the admission of a confession, to wit:

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.

In re Juvenile, 4 FSM at 164 (citing FSM Crim. R. 52(b)).  Fully cognizant of our power to notice plain error as one that the court should exercise cautiously,1 we are nonetheless presented with this error of constitutional dimension and accordingly, invoke the plain error rule in this instance.

IV.
     We accordingly remand the case to the trial division to enter its finding as to whether the defendant waived his right to remain silent.

     If the finding is that the defendant did not waive his right to remain silent, the defendant is granted a new trial at which his confession to the police is not admissible.

     If the finding is that there was a waiver, the defendant may again appeal on that issue, and if such appeal occurs, we would, if timely, reach the issue

[5 FSM Intrm. 162]

of the need for corroboration of value.  This latter issue has been briefed and argued already, and no further submissions are needed.
 
 
Footnote:
 
1.  See generally, 3A Charles A. Wright, Federal Practice and Procedure 856 (1982).