Unpublished Disposition, 844 F.2d 791 (9th Cir. 1984)

MEMORANDUM^* 

Doe appeals from the District Court Appellate Division affirmance of his murder conviction in the Commonwealth of the Northern Mariana Islands (CNMI). He argues that he should have been tried not as an adult, but as a juvenile; and that two of his pre-trial statements should have been suppressed. We affirm in part and remand for supplemental findings.

FACTS AND PROCEEDINGS BELOW

Herman Fitial was murdered in Saipan, CNMI, on November 11, 1984. Five days later the police arrested Doe and took him to the police station for questioning. Because Doe was 17 years old, the police called a juvenile officer to conduct the interview. Before beginning it, the juvenile officer called for Doe's father who accompanied the officer to the jail and spoke to Doe. With the father present the juvenile officer advised Doe of his rights in both English and Chamorro, Doe's second language. Doe signed a "waiver of constitutional rights" and then answered questions. He confessed orally and in writing to his role in the murder. The following day, he was again advised of his rights. He signed another "waiver" form, and again confessed, orally and in writing, this time in greater detail.

A complaint of delinquency was filed against him on November 21, 1984. This complaint was dismissed on the ground that the Commonwealth Code of the Northern Mariana Islands (CMC) required that he be certified as an adult. By a First Amended Information dated December 18, Doe was charged with first degree murder, as an adult, in accordance with 6 CMC Sec. 5103(a).¹ 

Before trial, Doe moved to suppress his confessions. He alleged that he did not waive his rights to remain silent and to have assistance of counsel and, alternatively, if he did waive those rights, the waiver was not knowing, intelligent and voluntary. After an evidentiary hearing, the trial court denied the motion and issued written findings.

Doe was convicted of second degree murder. He appealed to the United States District Court for the Northern Mariana Islands, Appellate Division. He challenged the admissibility of his confessions and advanced arguments why 6 CMC Sec. 5103(a) should not have been given legal effect. He raises those issues again on this appeal.

Doe contends that 6 CMC Sec. 5103(a) is without legal effect because it is an erroneous codification of Commonwealth Public Law. We disagree.

While it is true that the Code generally provides only prima facie evidence of CNMI law, see CNMI Pub. L. No. 3-90 Sec. 4(a) and (c), individual divisions and titles of the Code have been enacted into "positive law." See, e.g., id., Sec. 2(c). Division five of Title six (in which 6 CMC Sec. 5103 appears) has been so enacted. Id. Doe's arguments concerning Trust Territory Code provisions and public laws prior to section 5103 are beside the point. Doe was prosecuted in accordance with express CNMI positive law. His codification challenge fails.

Doe argues next that section 5103(a) is rendered ambiguous by section 5102. Whereas section 5103 mandates adult treatment of offenders sixteen years or older who are charged with specified crimes (see note 1, above), section 5102 allows, but does not require, adult treatment of any offender 16 years of age or older "if, in the opinion of the Court, his or her physical and mental maturity so justifies." 6 CMC Sec. 5102.

We find no ambiguity. Section 5102 is permissive, a grant of discretion: persons over the age of sixteen "may ... be treated in all respects as an adult." Section 5103(a) is mandatory: persons over the age of sixteen charged with particular offenses "shall be treated in the same manner as an adult." The sections do not conflict. They are not ambiguous. Rather, section 5103(a) is a specific derogation from the general rule set forth in section 5102. We reject Doe's argument concerning ambiguity in the statute.

Doe argues next that section 5103(a) violates CNMI Constitution, art. 1, Sec. 4(j): "Persons who are under eighteen years of age shall be protected in criminal judicial proceedings and in conditions of imprisonment." To establish the scope of that constitutional protection, Doe cites to the official legislative history, An Analysis of the Constitution of the Commonwealth of the Northern Mariana Islands, 20 (1976):

This section [art. 1, Sec. 4(j) ] does not prevent the legislature from directing that certain offenders who are under the age of 18 may be tried as adults in specified circumstances.

Section 4(j) did not preclude legislative discretion in treatment of juvenile offenders. And by enacting into positive law Section 5103(a), the Commonwealth legislature provided that persons over the age of 16 shall be treated as adults if charged with traffic offenses, murder or rape. We find no constitutional infirmity with that enactment. Cf. United States v. Bland, 472 F.2d 1329 (D.C. Cir. 1972), cert. denied, 412 U.S. 909 (1973); Woodard v. Wainwright, 556 F.2d 781 (5th Cir. 1977). We reject Doe's art. 1, Sec. 4(j) challenge to the constitutionality of section 5103(a).

Doe argues finally that the trial court improperly admitted into evidence his custodial statements to law enforcement officials. According to Doe, those statements were inadmissible because he did not effectively waive his constitutional rights.

In reviewing whether a juvenile has validly waived his Miranda rights, we consider the "totality of the circumstances." Fare v. Michael C., 442 U.S. 707, 725 (1979):

The totality approach permits--indeed, it mandates--inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given to him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.

(Citation omitted). We affirm a district court determination unless it is clearly erroneous. United States v. Doe, 819 F.2d 206, 209 (9th Cir. 1985).

Doe moved before trial to suppress use of his custodial statements. Having heard testimony at a hearing on that motion the trial judge found:

1. The defendant, although 17 years of age, demonstrates maturity and an ability to comprehend and articulate that is above average for juveniles of his age in this community.

2. On November 16, 1984 the juvenile was informed of the constitutional rights commonly called "Miranda" rights.

4. The defendant did understand his constitutional rights at the time that police officers so advised him.

6. The advising of rights was done in the presence of the defendant's father who was able to understand the substance of those rights.

7. At the conclusion of the advice of rights the defendant understood his options and refused to answer questions.

8. The defendant's father did not agree with his son's decision and instructed him to respond to the interrogation.

9. The statement that was taken was voluntary and free of any improper pressures although it was given in obedience to parental direction.

10. The statement of November 17, 1984, undertaken out of the presence of the parents, was a follow up to the earlier statement which was made in the presence of the defendant's father.

Doe bases his challenges to his confessions on CNMI Const., art. 1, and U.S. Const., amends. V, VI and XIV. First, citing CNMI Const., art. 1, Sec. 4(j) and 6 CMC Sec. 5102(d) (providing for interrogation of juvenile offenders' parents or guardians) he argues that CNMI law requires that an attorney representing the juvenile be present at the time he waives his constitutional rights, and that " [a]t the very least, this Constitutional mandate requires that the parent or parents of a juvenile be separately and specifically advised of the juvenile's rights and that any waiver of said rights be effected by both the juvenile and the parent or parents." He contends that In re Gault, 387 U.S. 1 (1966), provides a corresponding federal right.

We are not persuaded. Lovell v. State, 525 S.W.2d 511 (Tex.1975), the state law case cited by Doe, turns on a Texas statute governing admissibility of statements from minors. As Doe admits: "In the CNMI no such legislation has been passed...." The citation to Gault is equally inapposite. There the Court explicitly noted that it was not addressing "the procedures or constitutional rights applicable to the pre-judicial stages of the juvenile process...." 387 U.S. at 13 (emphasis added).

Neither the CNMI nor the federal constitution requires that a juvenile's parents separately and independently waive the juvenile's rights. No CNMI statute imposes such a requirement. Doe's actions were not nullified by any inaction of his parents.

Doe argues next that he had a constitutional right to be informed that his statements might be used against him in adult criminal proceedings, and that he should have been informed of the charges involved and the maximum sentence he faced, prior to making the statements. He cites no precedent on point and our research fails to support his claim. The law is against his position. See, e.g., United States v. Campbell, 431 F.2d 97, 99 n. 1 (9th Cir. 1970) (Miranda does not require warning of specific charges).

Doe argues that he invoked his Miranda rights when he responded "no" to question No. 9 on the waiver form.²  He concedes that he shortly changed that answer to "yes", but he insists that his father compelled him to make that change. He argues that his responses to police questions were parentally "coerced", and therefore should not have been admitted into evidence.

To the extent Doe bases this claim on the Fourteenth Amendment and Miranda, Colorado v. Connelly, --- U.S. ----, 107 S. Ct. 515, 522, 523 (1986) controls:

We hold that coercive police activity is a necessary predicate to the finding that a confession is not "voluntary" within the Due Process Clause of the Fourteenth Amendment.

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There is obviously no reason to require more in the way of a "voluntariness" inquiry in the Miranda waiver context than in the Fourteenth Amendment context. The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion. Indeed, the Fifth Amendment privilege is not concerned "with moral and psychological pressures to confess emanating from sources other than official coercion."

(Citations omitted).

We have carefully reviewed the record. The trial court findings concerning coercion of Doe's confession are not clearly erroneous. Federal law does not require suppression of Doe's custodial statements as involuntary. Connelly. We are not persuaded that the law of the CNMI differs.

Finally, Doe alleges that when he first wrote "no" beside question No. 9, Officer Camacho said, " [i]f I don't put yes, he might, the case might get worse." Reporter's Transcript at 33. It was then, Doe contends, that his father instructed him to change his answer to question No. 9, and to respond to police interrogation. Id.³  The trial court made no finding whether Officer Camacho in fact made that alleged statement. Testimony conflicts.⁴ 

Doe's allegations raise a difficult question: Did Officer Camacho violate Doe's Miranda rights by subjecting him, after he wrote "no" beside question No. 9, to continued custodial interrogation? See Miranda v. Arizona, 384 U.S. 436, 473-74 (1966) ("If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease."), Rhode Island v. Innis, 446 U.S. 291, 301 (1980) ("interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.")

Doe contends that by responding "no" to question No. 9 he invoked his right to counsel. That question specifically referred to talking "without having a lawyer present." See note 2, above. The rule in Smith v. Illinois, 469 U.S. 91, 95 (1984) may be implicated: "if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked."

Doe did not raise these issues before the trial court. The record reveals that counsel focused not on improper interrogation, but on parental coercion. On the other hand, Doe's allegations of improper interrogation amount to claims of "plain error" which we may review. Fed. R. Crim. P. 52(b). See generally United States v. Lopez, 575 F.2d 681, 685 (9th Cir. 1978) (plain error standard goes only to reviewability, not to whether reversal is warranted). Cf. United States v. Wilson, 690 F.2d 1267, 1274 (9th Cir. 1982) (admission of custodial statements taken in absence of Miranda warnings constituted reversible plain error).

The record both suggests that the trial court did not consider these issues, and reveals a possible Miranda violation. We REMAND for supplemental findings of whether Officer Camacho made the alleged statement; and whether that statement, in context, constituted interrogation. See United States v. Brady, 819 F.2d 884, 886 (9th Cir. 1987) (whether police statements constitute interrogation is a factual determination). If the court finds that the statement was made and constituted interrogation, it should determine what rights Doe had invoked and whether either confession, or both, should have been suppressed.

CONCLUSION

We AFFIRM the challenged rulings of the trial court, but REMAND for the supplemental findings of fact regarding admissibility of Doe's confessions.