Supreme Court of Hawai'i.

STATE of Hawai'i, Plaintiff-Appellee,

v.

Shawn KEKONA, Defendant-Appellant.

No. 16173.

Dec. 5, 1994.

77 Hawai'i 403, 886 P.2d 740

Defendant charged with second-degree assault and first-degree robbery pleaded no contest to lesser included offense of second-degree robbery in the Second Circuit Court, Maui County, and defendant appealed from order denying motion to suppress. The Supreme Court, Ramil, J., held that: (1) defendant's statement was voluntarily made, notwithstanding defendant's learning disability; (2) finding that defendant did not invoke right to remain silent was not clearly erroneous; and (3) failure to electronically record custodial interrogation was not due process violation.

Affirmed.

Levinson, J., filed concurring and dissenting opinion.

Joy Yanagida, on the briefs, Wailuku, for defendant-appellant.

James B. Takayesu, Deputy Pros. Atty., County of Maui, on the briefs, Wailuku, for plaintiff-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

RAMIL, Justice.

Defendant-Appellant Shawn Gregory Kealii Kekona was charged with Assault in the Second Degree in violation of Hawai'i Revised Statutes (HRS) s 707-711(1)(b) (Supp.1991) and Robbery in the First Degree in violation of HRS s 708-840(1)(a) (1985). Kekona pleaded no contest to the lesser included offense of Robbery in the Second Degree, HRS s 708-841 (1985 & Supp.1991), subject to his right to appeal the Second Circuit Court's order denying his motion to suppress his oral statement made to police upon arrest.

Kekona contends: (1) the trial court erred in finding that Kekona's statement was voluntary; (2) the trial court erred in finding that Kekona did not invoke his right to remain silent; and (3) the State failed to meet its burden of proof to establish that Kekona made a valid waiver of his rights since the State failed to tape record the interrogation.

We disagree and affirm.

I. FACTS

A. Background

On October 30, 1991, Fetakoi Pahulu was arrested in connection with a robbery that occurred in Lahaina, Maui on October 29, 1991. Although Pahulu made a written statement to police that implicated himself in the robbery, Pahulu placed primary responsibility for the crime on Kekona.

Kekona was arrested the following day and taken to the Lahaina police station where he was processed by Detective David Blair (Blair). Detective Neil Endo (Endo) was assigned as the primary investigator in the case. After processing, Detective Endo took Kekona to an interrogation room and gave Kekona his Miranda warnings using a copy of the Maui Police Department Warnings and Waiver Form 103 (Form 103).

Once Kekona initialed the warnings and waiver portion of Form 103, the interrogation commenced and Kekona proceeded to give a statement regarding the robbery. At this point, the stories of Kekona and Detectives Blair and Endo conflict.

According to Kekona, after he told the detectives his version of the events leading up to the robbery, they became angry and accused him of lying. Kekona then told the detectives "I no like talk," and both detectives left the room. Upon arriving back in the room, Detective Endo told Kekona: (1) that he knew various members of Kekona's family well; (2) that the robbery victim was in critical condition; (3) that he should tell the truth; and (4) that if he did not talk, he would end up like his brother. (FN1) Kekona testified that he did not reinitiate the conversation and he was not given new Miranda warnings. Kekona then gave a different version *742 [77 Hawai'i 405] of the robbery, which he maintains was a "bullshit" story. (FN2)

In contrast, Detectives Endo and Blair testified that at no time during the interrogation session did Kekona invoke his right to remain silent or request an attorney. During the interrogation, Kekona gave them an initial version of the robbery and then asked for a break so that he could smoke a cigarette, which he was allowed to do. After five to ten minutes, Detective Endo reentered the room to continue the interrogation. Because Kekona's initial version of the robbery was plagued with inconsistencies, the detectives continued to question him. Detective Endo testified that Kekona admitted that he had "lied the first time" and then gave a second version of the robbery.

Kekona did not make a written statement and the session was not tape recorded, even though recording equipment was readily available. In addition, only Detective Endo took notes during the interrogation. Both detectives subsequently reduced Kekona's oral statement to writing in their police reports. Detective Endo drafted his report approximately ten days after the confession was taken. Detective Blair wrote his report within a week of the confession, finishing the report three weeks later.

B. Procedural History

On November 13, 1991, Kekona was charged with Robbery in the First Degree, HRS s 708-840, and Assault in the Second Degree, HRS s 707-711. On December 31, 1991, Kekona filed a motion to suppress his confession on the grounds that: (1) because there was no tape recording of the session, no record existed to indicate a voluntary statement or waiver; (2) the interrogation should have ceased after he invoked his right to remain silent; and (3) the confession was coerced and involuntary.

On March 17, 1992, the circuit court denied Kekona's motion to suppress his confession. The court found that: (1) Kekona was properly advised of his rights; (2) Kekona understood his rights, despite his learning disabilities; (3) at no time during the interrogation process did Kekona invoke his right to remain silent; (4) no coercion was used to elicit Kekona's statement; and (5) Kekona voluntarily and intelligently waived his rights prior to making his statement.

Based on its findings, the circuit court concluded as a matter of law that Kekona's statement "was freely and voluntarily given, after proper warnings of his rights and the voluntary and intelligent waiver of said rights[.]" In addition, the court concluded that "the tape recording or verbatim stenographic recording of a defendant's oral statement is not a prerequisite for establishing its voluntariness and admissibility in this jurisdiction[.]"

On March 17, 1992, Kekona entered his no contest plea to the charge of robbery in the second degree, HRS s 708-841 (1985), subject to his right to appeal the Second Circuit Court's order denying his motion to suppress his oral statement. (FN3) The circuit court's judgment was filed on May 21, 1992, sentencing Kekona to ten years in prison and ordering him to make restitution in the amount of $1,390.50. This timely appeal followed.

II. DISCUSSION

A. Voluntariness of Statement

[1] Kekona contends that his oral statements to the police were involuntary and the *743 [77 Hawai'i 406] product of coercion. In reviewing whether a statement was in fact coerced, we apply "the clearly erroneous standard to the findings on which the decision to admit the statement are based." State v. Villeza, 72 Haw. 327, 330, 817 P.2d 1054, 1056 (1991), reconsideration denied,72 Haw. 617, 841 P.2d 1074 (1991) (citations omitted). Moreover, the court is required to examine the entire record and make an independent determination of the ultimate issue of voluntariness based on the totality of circumstances. State v. Kelekolio, 74 Haw. 479, 502, 849 P.2d 58, 69 (1993).

[2] In State v. Kreps, 4 Haw.App. 72, 661 P.2d 711 (1983), the Intermediate Court of Appeals of Hawaii stated that evidence that a defendant has read and signed a police rights and waiver form can be sufficient to establish a valid waiver, provided that the court considers "whether the words used, considering the age, background, and intelligence of the individual being interrogated, impart a clear understandable warning of all of his rights." 4 Haw.App. at 76-77, 661 P.2d at 715.

[3] Although the record indicates that Kekona suffers from a learning disability, the fact that he reads at the fourth grade level does not necessarily mean he lacks the ability to knowingly waive his Miranda rights. See Derrick v. Peterson, 924 F.2d 813, 824 (9th Cir.1990) (sixteen year old with mental age of nine year old and I.Q. of 62 capable of understanding and waiving Miranda rights), cert. denied, 502 U.S. 853, 112 S.Ct. 161, 116 L.Ed.2d 126 (1991). In addition, Detectives Blair and Endo testified at the suppression hearing that prior to the interrogation, Detective Endo read each sentence of Form 103 aloud and Kekona read along. Also, each of the constitutional rights and the waiver provisions were explained to Kekona by Detective Endo prior to Kekona signing the form. Moreover, the circuit court determined that Kekona understood all of his rights. The circuit court stated in its order denying Kekona's motion to suppress statements that:

[the] Defendant acknowledged that he had been similarly warned in past encounters with the police and on at least one prior occasion invoked his rights. The Court's finding that Defendant understood his rights is based upon the content and credibility of [Endo and Blair's] testimony, as well as an appraisal of Defendant's own testimonial responses to direct and cross-examination questioning as to the arrest, warning and waiver process[.]

Record on Appeal at 201.

[4] In addition to the necessary waiver, the court must also find that such a statement was voluntarily made. State v. Kreps, 4 Haw.App. at 77, 661 P.2d at 715. The conditions surrounding Kekona's interrogation do not suggest that any impermissible tactics were employed by the detectives to coerce Kekona into making a statement. Kekona was interrogated for about an hour and a half by two detectives. The interrogation took place at approximately 3:00 p.m. on a weekday. Kekona asked for and was allowed to take a break during the course of the interrogation--to smoke a cigarette--and was offered something to drink. Moreover, Kekona himself admitted that he was not physically threatened during the interrogation and that no promises were made to him by the detectives.

[5] Kekona contends, however, that he was coerced into making the second statement when confronted by the Detective Endo's admonition that "[i]f you don't talk, you'll end up like your brother." However, Detective Endo denied making such a statement. As the trier of fact, it is for the trial court to assess the credibility of witnesses, including defendant, and it may accept or reject such testimony in whole or in part. State v. Aplaca, 74 Haw. 54, 65-66, 837 P.2d 1298, 1305-1306 (1992) (citation omitted). Thus the trial court, as trier of fact, "may draw all reasonable and legitimate inferences and deductions from the evidence adduced, and findings of the trial court will not be disturbed unless clearly erroneous." State v. Batson, 73 Haw. 236, 245-246, 831 P.2d 924, 930, reconsideration denied, 73 Haw. 625, 834 P.2d 1315 (1992) (citation omitted). Apparently, the circuit court chose to believe the testimony of Detective Endo over the contrary assertions of Kekona. There is nothing in the record to suggest this determination was clearly erroneous.

*744 [77 Hawai'i 407] [6] Kekona also maintains that at the time he was questioned, Pahulu's statement had already implicated him in the robbery. Thus, Kekona contends that the police tactics used were not employed to solve a crime, but to extract trial testimony, a factor which Kekona argues prompted the United States Supreme Court in Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), to deem a confession involuntary. However, a careful reading of Spano indicates that where it is shown that police officers intended to extract a confession, rather than solve a crime, "the confession obtained must be examined with the most careful scrutiny." Id. at 324, 79 S.Ct. at 1207.

In addition, Spano is factually distinguishable. The defendant in Spano repeatedly invoked his right to counsel. Id. at 318-19, 79 S.Ct. at 1204-05. Furthermore, the defendant was subjected to continuous interrogation by an assistant prosecutor and several police officers for over eight hours. The interrogation lasted until the early morning hours when the defendant finally confessed. Kekona's version of the facts, even if accepted as true, does not rise to the same level of egregiousness that confronted the Supreme Court in Spano.

Considering the totality of circumstances surrounding Kekona's statement and the testimony presented at the suppression hearing, the circuit court did not err in concluding that Kekona's statement was freely and voluntarily given.

B. Whether Kekona Invoked His Right to Remain Silent

[7][8] Kekona also contends that the trial court erred in finding that he did not invoke his right to remain silent. (FN4) A trial court's determination of whether a defendant invoked his right to remain silent is a question of fact. Cf. State v. Nelson, 69 Haw. 461, 469, 748 P.2d 365, 370 (1987) (whether defendant invoked his right to counsel is a question of fact). A trial court's findings of fact will not be disturbed unless clearly erroneous. State v. Batson, 73 Haw. at 246, 831 P.2d at 930. A finding of fact is not clearly erroneous unless after reviewing the entire record, the supreme court is left with the definite and firm conviction that a mistake has been made. Id. (citation omitted).

[9] The only evidence of whether Kekona invoked his right to remain silent is testimony elicited during the suppression hearing, when Kekona claimed that he told the detectives, "I no like talk no more." In contrast, Detectives Endo and Blair both testified that while Kekona requested a break to smoke a cigarette, at no time did Kekona invoke either his right to remain silent or his right to counsel. The trial court, after assessing "the content and credibility" of the detectives' testimony, "as well as an appraisal of Defendant's own testimonial responses to direct and cross-examination," obviously believed the Detectives.

[10] The trial court, as the finder of fact, may draw reasonable and legitimate inferences and deductions from the evidence. State v. Batson, 73 Haw. at 245-46, 831 P.2d at 930. Moreover, it is for the trial court to assess the credibility of witnesses, including defendant, and it may accept or reject such testimony in whole or in part. State v. Aplaca, 74 Haw. 54, 65-66, 837 P.2d 1298, 1305-1306 (1992) (citation omitted). Thus, because the circuit court is empowered to assess the credibility of witnesses in making its findings of fact, weigh conflicting evidence, and draw reasonable inferences, the circuit court's finding that Kekona did not invoke his right to remain silent is not clearly erroneous.

C. Tape Recording Requirement

[11] Finally, Kekona argues that in order for the State to meet its burden of proving that he validly waived his constitutional rights, the police were required to tape record all of his oral statements. Because we have not previously addressed this issue, (FN5) *745 [77 Hawai'i 408] Kekona relies for support on the Alaska Supreme Court's decision in Stephan v. State of Alaska, 711 P.2d 1156 (Alaska 1985).

In Stephan, defendants appealed the trial court's refusal to grant their motion to suppress confessions made during their interrogations by police. At the suppression hearing, there was conflicting testimony about what occurred during the unrecorded portions of the interviews. Defendants claimed, inter alia, that they were not informed of their Miranda rights and that questioning continued after they had asserted their right to remain silent and had requested an attorney. The police officers testified to the contrary.

Reversing the court below, the Alaska Supreme Court held that in order to be admissible under the due process clause of the Alaska State Constitution, all custodial confessions must be recorded when the interrogation occurs in a place of detention and recording is feasible. (FN6) Id. at 1159-60. The supreme court reasoned that a recording in such circumstances is "a reasonable and necessary safeguard, essential to the adequate protection of the accused's right to counsel, his right against self incrimination and, ultimately, his right to a fair trial." Id. The supreme court also noted that a recording would "aid law enforcement efforts, by confirming the content and the voluntariness of a confession, when a defendant changes his testimony or claims falsely that his constitutional rights were violated." Id. at 1161. In addition, the court held that exclusion is the appropriate remedy for an unexcused failure to electronically record an interrogation, when such recording is feasible. Id. at 1163.

While other jurisdictions have also recognized the importance of recording custodial interrogations, (FN7) a majority of jurisdictions have specifically declined to adopt the Stephan rule that mandates the electronic recording of a suspect's statements as a requirement of due process. See People v. Raibon, 843 P.2d 46, 48 (Colo.App.1992), cert. denied, (January 11, 1993); State v. Rhoades, 121 Idaho 63, 73, 822 P.2d 960, 970 (1991),cert. denied, 506 U.S. 1047, 113 S.Ct. 962, 122 L.Ed.2d 119 (1993); Jimenez v. State, 105 Nev. 337, 775 P.2d 694, 696 (1989); State v. Spurgeon, 63 Wash.App. 503, 504, 820 P.2d 960, 961 (1991), review denied, 118 Wash.2d 1024, 827 P.2d 1393 (1992); Coleman v. State, 189 Ga.App. 366, 366, 375 S.E.2d 663, 664 (1988); People v. Everette, 187 Ill.App.3d 1063, 1075, 135 Ill.Dec. 472, 479, 543 N.E.2d 1040, 1047 (1989); State v. Buzzell, 617 A.2d 1016, 1018 (Me.1992); Commonwealth v. Fryar, 414 Mass. 732, 740 n. 8, 610 N.E.2d 903, 909 n. 8 (1993); Williams v. State, 522 So.2d 201, 208 (Miss.1988); State v. Gorton, 149 Vt. 602, 606, 548 A.2d 419, 421 (1988). See generally People v. Wimberly, 5 Cal.App.4th 773, 791 n. 13, 7 Cal.Rptr.2d 152, 162 n. 13 (1992).

Although having an electronic recording of all custodial interrogations would undoubtedly *746 [77 Hawai'i 409] assist the trier of fact in ascertaining the truth, we do not agree that the due process clause of our State Constitution requires such a practice. Article I, section 5 of the Hawai'i Constitution provides that "[n]o person shall be deprived of life, liberty, or property without due process of law[.]" The due process clause "serves to protect the right of an accused in a criminal case to a fundamentally fair trial." State v. Matafeo, 71 Haw. 183, 185, 787 P.2d 671, 672 (1990) (citing State v. Keliiholokai, 58 Haw. 356, 569 P.2d 891 (1977)). We cannot say that the failure of the police to manufacture a tape recording of Kekona's station house interrogation was so detrimental to his defense that it necessarily resulted in a unfair trial.

[12] At the suppression hearing, the defense had an opportunity to thoroughly cross-examine Detectives Endo and Blair. In addition, Kekona himself provided testimony of his version of the events that transpired during the interrogation. The circuit court, after hearing the evidence, found the testimony of the detectives to be more reliable. Indeed, the concern in this case centers on the credibility of the accused and the police officers who testified, not some unconstitutional action. See Jimenez, 775 P.2d at 696. "When a motion to suppress evidence is heard, [i]t is for the trial [court] as factfinder to assess credibility of witnesses, including defendants, and to resolve all questions of fact[.]" State v. Nelson, 69 Haw. 461, at 468, 748 P.2d 365.

While the trial judge determines the admissibility of a confession, the "defendant [still] retains the right to put before the jury, as the trier of fact, all evidence, including the facts and circumstances surrounding the making of his confession, 'relevant to weight or credibility.' " State v. Kelekolio, 74 Haw. 479, 516, 849 P.2d 58, 75 (1993). Therefore, whether the failure of the police to create a record of the defendant's confession undermines its accuracy and detracts from the credibility of later testimony is an issue uniquely left to the sound discretion of the trier of fact.

Undeniably, recording a custodial interrogation is important in many contexts. A recording would be helpful to both the suspect and the police by obviating the "swearing contest" which too often arises when an accused maintains that she asserted her constitutional right to remain silent or requested an attorney and the police testify to the contrary. A recording would also "help to demonstrate the voluntariness of the confession, the context in which a particular statement was made and of course, the actual content of the statement." Williams, 522 So.2d at 208. Consequently, although we decline to interpret the due process clause of the Hawai'i Constitution as requiring that all custodial interrogations be recorded, we nevertheless stress the importance of utilizing tape recordings during custodial interrogations when feasible.

The dissent suggests that, as the song goes, there's going to be a "hush all over the [state] tonight" when audio and video cassette recorders are being turned off in interrogation rooms across the state in response to the majority opinion. Yet, according to the cynical nature of the dissent's argument, even if we were to hold that the due process clause mandates the recording ofstation house interrogations, there would still be a "hush all over the [state] tonight." This time, however, the silence in the station houses would come from the new police policy of conducting all interrogations out in the field where, the minority apparently concedes, the due process clause does not require that interrogations be recorded. We refuse to adopt such a pessimistic outlook towards the potential consequences of our opinion.

III. CONCLUSION

We decline to hold that the State must tape record a custodial interrogation in order to establish a valid waiver of a criminal defendant's constitutional rights. We further hold that the circuit court did not err in ruling that Kekona's statement was freely and voluntarily given and that Kekona did not invoke his right to remain silent.

The circuit court's order denying Kekona's motion to suppress his statement made to police is affirmed.

*747 [77 Hawai'i 410] LEVINSON, Justice, concurring and dissenting.

On March 17, 1992, when the circuit court entered its findings of fact, conclusions of law, and order denying the defendant Kekona's motion to suppress, the proposition "[t]hat the tape recording or verbatim stenographic recording of a defendant's oral statement [was] not a prerequisite for establishing its voluntariness and admissibility in this jurisdiction," see the circuit court's Conclusion of Law (COL) No. 1, was not an incorrect statement of Hawai'i law. Moreover, the circuit court's COL No. 2--"[t]hat the statement of [the] [d]efendant ... Kekona ... was freely and voluntarily given, after proper warnings of his rights and the voluntary and intelligent waiver of said rights"--is supported by its findings of fact (FOFs). It is for these reasons alone that I concur in the judgment of the court. See Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 119, 839 P.2d 10, 29,reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992).

But therein lies the rub. Despite the fact that "recording equipment was readily available" at the Lahaina police station on October 31, 1991, majority opinion at 4, Detectives Endo and Blair inexplicably failed to preserve Kekona's statement to them verbatim. Thus, our ability to determine on review whether the circuit court's FOFs that "[Kekona] ... never invoked his right to silence" (FOF No. 6), "[n]o coercion, threats ..., or improper inducements were utilized to elicit [Kekona's] statement" (FOF No. 8), and "[Kekona] at no time during the interrogation process ... invoke[d] his right to terminate questioning" (FOF No. 10) are clearly erroneous has been severely hampered. Or stated more aptly, the informational vacuum created by the lack of a verbatim rendition of Kekona's interrogation substantially diminishes the reliability of an examination of " 'the entire record and ... an independent determination of the ultimate issue of voluntariness' based upon ... 'the totality of the circumstances surrounding [the defendant's] statement.' " State v. Kelekolio, 74 Haw. 479, 502, 849 P.2d 58, 69 (1993) (citations omitted).

And yet, had the investigating detectives merely pressed the "record" button of the "readily available" recording equipment, the record before us would reflect--to an objective certainty--whether, in the course of questioning, Kekona in fact declared that "I no like talk" and whether Detective Endo thereafter represented to Kekona "that he knew various members of Kekona's family well," majority opinion at 404, 886 P.2d at 741, and that "if [Kekona] did not talk, [Kekona] would end up like his brother." Id. at 404, 886 P.2d at 741. As the song lyric goes, if "there's a kind of hush all over the [state] tonight," it comes, in response to the majority opinion, from the sound of audio and video cassette recorders being turned off in the interrogation rooms of police station houses. (FN1)

Because I believe that (1) the majority is ostensibly making a mistake in not learning the lesson of this appeal by applying the rule of Stephan v. State, 711 P.2d 1156 (Alaska 1985) prospectively to article I, section 5 of the Hawai'i Constitution (1978), (FN2) and (2) the majority opinion (a) virtually invites a deluge of time-consuming and avoidable appeals in the future and (b) significantly misapplies Kelekolio and State v. Batson, 73 Haw. 236, 831 P.2d 924, reconsideration denied, 73 Haw. 625, 834 P.2d 1315 (1992), I am compelled to part company with the majority opinion.

I. THE "STEPHAN RULE"

I would hold all custodial police interrogations of criminal suspects, conducted after *748 [77 Hawai'i 411] the date of this opinion, (FN3) to the following standard:

... Electronic recording of suspect interrogations ... is a requirement of state due process when the interrogation occurs in a place of detention and recording is feasible. We reach this conclusion because we are convinced that recording, in such circumstances, is now a reasonable and necessary safeguard, essential to the adequate protection of the accused's right to counsel, his [or her] right against self-incrimination and, ultimately, his [or her] right to a fair trial.

The contents of an interrogation are obviously material to the voluntariness of a confession. The state usually attempts to show voluntariness through the interrogating officer's testimony that the defendant's constitutional rights were protected. The defendant, on the other hand, often testifies to the contrary. The result, then, is a swearing match between the law enforcement official and the defendant, which the courts must resolve.

The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado.

....

... Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.

Miranda [v. Arizona], 384 U.S. [436,] 445, 448, 86 S.Ct. [1602,] 1612, 1614, 16 L.Ed.2d [694] [ (1966) ]. Thus, we believe a recording requirement is justified, because "a tape recording provides an objective means for evaluating what occurred during interrogation." [Citation omitted.]

Although there are undoubtedly cases where the testimony on one side or the other is intentionally false, dishonesty is not our main concern. Human memory is *749 [77 Hawai'i 412] often faulty--people forget specific facts, or reconstruct and interpret past events differently.

It is not because a police officer is more dishonest than the rest of us that we ... demand an objective recordation of the critical events. Rather, it is because we are entitled to assume that he is no less human--no less inclined to reconstruct and interpret past events in a light most favorable to himself--that we should not permit him to be a "judge of his own cause."

Kamisar[, Forward: Brewer v. Williams--A Hard Look as a Discomfitting [sic] Record, 66 Geo.L.J. 209,] 242-43 [ (1977-78) ] (citation omitted). Defendants, undoubtedly, are equally fallible.

In the absence of an accurate record, the accused may suffer an infringement upon his [or her] right to remain silent and to have counsel present during the interrogation. Also, his [or her] right to a fair trial may be violated, if an illegally obtained, and possibly false, confession is subsequently admitted. An electronic recording, thus, protects the defendant's constitutional rights, by providing an objective means for him [or her] to corroborate his [or her] testimony concerning the circumstances of the confession.

The recording of custodial interrogations is not, however, a measure intended to protect only the accused; a recording also protects the public's interest in honest and effective law enforcement, and the individual interests of those police officers wrongfully accused of improper tactics. A recording, in many cases, will aid law enforcement efforts, by confirming the content and the voluntariness of a confession, when a defendant changes his [or her] testimony or claims falsely that his [or her] constitutional rights were violated. In any case, a recording will help trial and appellate courts to ascertain the truth.

....

In summary, the rule that we adopt today requires that custodial interrogations in a place of detention, including the giving of the accused's Miranda rights, must be electronically recorded. To satisfy this due process requirement, the recording must clearly indicate that it recounts the entire interview. Thus, explanations should be given at the beginning, the end and before and after any interrogations in the recording, so that courts are not left to speculate about what took place.

Stephan, 711 P.2d at 1159-62 (emphasis added and citation omitted). (FN4)

Unless I am missing something, the majority opinion seems to acknowledge the merits of the Stephan analysis. See majority opinion at 408-409, 886 P.2d at 745-746. The majority concedes that "having an electronic recording of all custodial interrogations would undoubtedly assist the trier of fact in ascertaining the truth[.]" Id. at 409, 886 P.2d at 746. The majority further concedes that

recording a custodial interrogation ... would be helpful to both the suspect and the police by obviating the "swearing contest" which too often arises when an accused maintains that [he or] she asserted [his or] her constitutional right to remain silent or requested an attorney and the police testify to the contrary. A recording would also help to demonstrate the voluntariness of the confession, the context in which a particular statement was made and of course, the actual content of the statement.

Id. at 409, 886 P.2d at 746 (citation and quotation marks omitted). Thus, for precisely the reasons enumerated in Stephan, the majority "stress [es] the importance of utilizing tape recordings during custodial interrogations when feasible." Id.

What action, I wonder, will this court take in the future if the police fail to "utiliz[e] tape recordings during custodial interrogations when feasible"? Will it be content merely to *750 [77 Hawai'i 413] express righteous indignation or moral distaste? And what consequence, I wonder will this court impose as a result of such a failure by the police? Will it refuse to mention the failed interrogators in its prayers? Will it wring its hands over the blind frailties of humankind? Will it engage in toothless expressions of disapproval in opinions yet to be written? Or is it possible that this court will reveal that, after all, the failure electronically to record all station house interrogations from beginning to end, where it is feasible to do so, does indeed contravene a criminal defendant's rights under article I, section 5 of the Hawai'i Constitution? And is it possible that this court will elect to foreclose the admissibility of such unrecorded interrogations? I suspect that it is.

Nevertheless, the majority opinion purports to be unwilling to adopt the "Stephan rule" by "declin[ing] to interpret the due process clause of the Hawai'i Constitution as requiring that all custodial interrogations be recorded." Id. All of this is a puzzlement to me.

The majority notes that "the [Alaska Supreme C]ourt expressly based its ruling upon its interpretation of the due process clause of the Alaska State Constitution," majority opinion at 408 n. 6, 886 P.2d at 745 n. 6, having "agreed that the due process clause of the United States Constitution does not require the recording of custodial interrogations under the constitutional materiality test enunciated ... in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)." Id. There is nothing outlandish about the Alaska Supreme Court's reliance upon its state's constitution in order to expand the parameters of due process beyond those perceived in the United States Constitution. Professor Friesen, who authored what may be the first exhaustive treatise on the subject, has noted as an introductory matter that:

Since 1970, state supreme courts have handed down hundreds of opinions that grant protection for civil rights and liberties, based on provisions in their state constitutions, that is greater than or equivalent to the protection given these rights under parallel provisions of the United States Constitution as interpreted by the [United States] Supreme Court. Independently reasoned opinions sometimes express a desire to grant "more" than an unwelcome Supreme Court decision, but independent state courts are not merely reactive. Some use an independent approach as a matter of course, without regard to what happens to be the current trend in the Supreme Court. Some state decisions have upheld or denied a right asserted under state law that federal law has not clearly addressed, and some have even found that the state provision did not protect a right that federal law would grant. In addition to these holdings that uncouple state Bills of Rights from their federal counterparts, state courts enforcing state charters have been steadily developing protections for rights that are uniquely or primarily guaranteed by state rather than federal law.

....

The state constitutional revival sometimes goes under the name of "new federalism" or "judicial federalism" to signify the growing importance of "states' rights" for individuals. Like other state laws, these rights co-exist with, and often exceed, national constitutional rights. Renewed interest in state law is in part a response to the perception that national rights are no longer interpreted as generously as in previous decades. It is a mischaracterization, however, to view state constitutional law merely as serving particular ideological ends. Many independent state rights decisions do serve "liberal" goals, if liberal is defined as "more expansive than the current Supreme Court." But others would be equally welcomed by political "conservatives."

J. Friesen, State Constitutional Law p 1.01 (1993) (footnotes omitted).

The majority's unwillingness to adopt the Stephan rule expressly, when it seems to have done so impliedly, is particularly bizarre because this court has historically been in the forefront of extending the rights and liberties of persons subject to local law on independent state constitutional grounds, and we *751 [77 Hawai'i 414] should be proud of that fact. (FN5) See, e.g., State v. Texeira, 50 Haw. 138, 142 n. 2, 433 P.2d 593, 597 n. 2 (1967) (enunciating general principle); State v. Grahovac, 52 Haw. 527, 531, 533, 480 P.2d 148, 151-52 (1971) (portions of vagrancy statute violate state constitutional right against self-incrimination); State v. Santiago, 53 Haw. 254, 265-66, 492 P.2d 657, 664 (1971) (use of illegally obtained confession inadmissible under state constitution for impeachment purposes); State v. Kaluna, 55 Haw. 361, 367-69, 372-75, 520 P.2d 51, 57-58, 60-62 (1974) (limiting, on state constitutional grounds, scope of (1) warrantless searches incident to valid custodial arrest and (2) pre-incarceration "inventory" searches); State v. Miyasaki, 62 Haw. 269, 280-82, 614 P.2d 915, 921-23 (1980) (use, as opposed to transactional, immunity violates state constitutional right against self-incrimination); Huihui v. Shimoda, 64 Haw. 527, 531, 644 P.2d 968, 971 (1982) (restricting, on state constitutional grounds, basis for denial of criminal defendant's access to bail); State v. Fields, 67 Haw. 268, 282, 686 P.2d 1379, 1390 (1984) (circumscribing, on state constitutional grounds, warrantless searches of probationers); State v. Tanaka, 67 Haw. 658, 661-62, 701 P.2d 1274, 1276 (1985) (reasonable expectation of privacy in trash bags precludes, on state constitutional grounds, warrantless seizure of them in absence of exigent circumstances); State v. Kim, 68 Haw. 286, 289-90, 711 P.2d 1291, 1293-94 (1985) (state constitutional privacy rights limit prerogative of police to order persons out of cars after traffic stops); State v. Kam, 69 Haw. 483, 491, 748 P.2d 372, 377 (1988) (statute prohibiting promotion of pornographic adult magazines violated purchasers' right under state constitution to use those items in privacy of their homes); State v. Quino, 74 Haw. 161, 171-73, 175-76, 840 P.2d 358, 363-65 (1992) (defendant "seized" under state constitution when approached by police officers in airport and officers' questions turned from general to inquisitive; police officers cannot randomly encounter individuals without any objective basis for suspecting them of misconduct and then place them in coercive environment in order to develop reasonable suspicion to justify detention); Baehr v. Lewin, 74 Haw. 530, 562-64, 580, 852 P.2d 44, 59-60, 67, reconsideration granted in part, 74 Haw. 650, 875 P.2d 225 (1993) (state constitution prohibits state-sanctioned discrimination against any person in exercise of civil rights on basis of sex; sex being suspect category for purposes of state constitution, statute restricting marital relation to male and female is (1) subject to "strict scrutiny" test on state equal protection challenge and (2) presumptively unconstitutional unless both justified by compelling state interests and narrowly drawn to avoid unnecessary abridgments of constitutional rights); State v. Lessary, 75 Haw. 446, 457-59, 865 P.2d 150, 155-56 (1994) (double jeopardy clause of state constitution requires application of "same conduct" test); State v. Kearns, 75 Haw. 558, 567, 571, 867 P.2d 903, 907, 909 (1994) (under state constitution, (1) person "seized" when police officer approaches for express or implied purpose of investigating him or her for possible criminal violations and begins to ask for information, and (2) investigative encounter only "consensual" if (a) prior to start of questioning, person is informed of right to decline participation and to leave at any time, and (b) person thereafter voluntarily participates in encounter); State v. Hoey, 77 Hawai'i 17, 35-36, 881 P.2d 504, 522-23 (1994) (rejecting Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), court held that, under state constitution, (1) when suspect makes ambiguous or equivocal request for counsel during custodial interrogation, police must either cease all questioning or seek non-substantive clarification of suspect's request, and (2) if, upon clarification, defendant unambiguously and unequivocally invokes right to counsel, all substantive questioning must cease until counsel present); State v. Bowe, 77 Hawai'i 51, 57, 881 P.2d 538, 544 (1994) (rejecting Colorado v. Connelly,, *752 [77 Hawai'i 415] , 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), court held that, under state constitution, coercive conduct of private person may be sufficient to render defendant's confession involuntary).

I can think of no possible justification as to why, given the dangers and potential abuses so thoroughly explored in Stephan, the police should be permitted to engage in unrecorded custodial interrogations when recording is otherwise feasible. I submit that the majority has been unable to think of any justification either. If I am correct, then there is everything to gain and nothing to lose by adopting the Stephan rule prospectively. That is precisely what makes the majority opinion so baffling to me, especially in the face of the majority's acknowledgment of "the importance of utilizing tape recordings during custodial interrogations when feasible." Majority opinion at 409, 886 P.2d at 746.

II. The Majority Opinion Compounds And Aggravates The

Uganiza/Edwards/Mailo/Hoey Problem.

At this juncture, a central element of the Stephan analysis needs to be repeated: "In the absence of an accurate record [of custodial police interrogations], the accused may suffer an infringement upon his right to remain silent and to have counsel present during the interrogation." Stephan, 711 P.2d at 1161. I fear that the failure of the majority opinion adequately to address this concern may seriously undermine existing Hawai'i case law.

The majority opinion acknowledges that "Kekona ... contends that the trial court erred in finding that he did not invoke his right to remain silent," majority opinion at 407, 886 P.2d at 744, in light of Kekona's claim that he sought to terminate his interrogation by announcing to no avail that "I no like talk." Id. at 404, 886 P.2d at 741.

It is the law of this state that:

Basic to the privilege against self-incrimination is the right of an individual accused or suspected of a crime not to speak. This is because without the right to cut off police questioning, the inherently compelling pressures of in-custody interrogation operate to overbear free choice, the foundation of the privilege, and statements elicited after its invocation cannot be other than the product of compulsion. Miranda v. Arizona, [384 U.S.] at 474, 86 S.Ct. at 1627. Accordingly, if an individual indicates in any manner, at any time prior to or during interrogation that he [or she] wishes to remain silent, the interrogation must cease. Id. at 473, 474, 86 S.Ct. at 1627.... At this point he [or she] has shown that he [or she] intends to exercise the privilege. Id.

State v. Uganiza, 68 Haw. 28, 30-31, 702 P.2d 1352, 1354 (1985) (additional citations omitted). Statements obtained in violation of the Uganiza rule are inadmissible for any purpose as a per se matter. State v. Valera, 74 Haw. 424, 433-34, 848 P.2d 376, 380 (1993) (citing Miranda and Uganiza ).