7ASR3d69

Series: 7ASR3d | Year: () | 7ASR3d69
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AMERICAN SAMOA GOVERNMENT, Plaintiff,

 

v.

 

SELINA ROPATI, Defendant.

 

High

Court of American Samoa

Trial

Division

 

CR

No. 27-02

 

February

27, 2003

 

 

[1] A

defendant’s confession will be suppressed if it was obtained after police effectuated

an illegal arrest, unless the causal connection between the arrest and the

confession had become so attenuated that the latter shall not be deemed tainted

by the former.

 

[2] Though

police questioning takes place at a police station, that fact alone does not

convert an otherwise volitional act into an arrest.

 

[3] Independent

evidence that someone committed an alleged crime is the traditional minimal

means of corroboration permitting admission of a defendant’s incriminating

statements.

 

[4] In

reviewing a motion for new trial, the court has broad power to grant

relief.  It is within the court’s

discretion to weigh the evidence and consider the credibility of the witnesses.

 

[5] A new trial

should be granted only if it is in the interest of justice, and when a court

finds there to have been no legal errors, there is no reason to grant such

motion.

 

Before

RICHMOND, Associate Justice, TUPUIVAO, Associate Judge, and MAMEA, Associate

Judge.

 

Counsel:          For Plaintiff, Frederick J. O’Brien, Asst. Attorney

General

             For Defendant, Bentley C. Adams III, Asst.

Public Defender

 

ORDER

DENYING MOTION FOR

RECONSIDERATION

OR NEW TRIAL

 

On

October 10, 2002, a jury found the defendant Selina Ropati (“Ropati”) guilty of

murder in the second degree.  Ropati moved

for reconsideration or new trial, arguing in essence that: (1) in order to

prove Ropati’s guilt, plaintiff American Samoa Government (“ASG”) relied

entirely on her incriminating written statements to the police that should have

been excluded from evidence as illegally obtained; (2) without the

incriminating statements, the evidence was insufficient to prove guilt beyond a

reasonable doubt; and (3) in any event, the court should exercise its

discretion to grant a retrial in a close evidentiary case. 

 

Factual

Background

 

The

following relevant evidence was adduced at trial.  During the evening of May 8, 2002, Ropati’s

neighbor, Savea Pulu (“Savea”) heard noises outside his house.  As he checked, he saw someone walking in a

darkened area and heard a baby cry for perhaps two or three minutes.  He and Sani Ala`ia (“Sani”), another

neighbor, looked in the area behind their houses but did not find a baby.  His wife, Sefulusene Pulu (“Sene”), looked

for a baby the next morning, May 9.  Sene

did not find a baby, but she did see the bloody floor in the outside bathroom

used by Iakopo Gaisoa and Omeka Gaisoa (“the Gaisoas”), with whom Ropati had

been living. 

 

During

the afternoon of May 9, Sene asked Ropati about a baby.  Ropati told her that she gave birth standing

up in the outdoor bathroom, the baby fell to the concrete floor, and she buried

the baby nicely in the plantation area of the neighborhood.  After Savea and Sani returned home from work

on May 9, Savea also asked Ropati about the baby, and Ropati showed him, Sani,

and Sene the location of the baby’s body; it was in a sack, partially hidden

among rocks, in the bush area behind the houses.  Sani removed and cleaned the female baby’s

body, and covered the body in a clean sheet. 

The baby’s umbilical was still attached and partially wrapped around the

baby’s neck.  Sani cut the end of the

umbilical cord to remove it from the baby’s neck. The police were

contacted. 

 

From

the time of the baby’s birth until Sene asked her that day, Ropati did not say

anything to anyone about the baby’s birth or death.  Police Sgt. Kilisitina A. Simanu (“Sgt.

Simanu”) was at the scene of the baby’s death during the evening of May 9.  Not then suspecting any foul play, she did

not put Ropati in any form of custody, but did ask her what happened.  Ropati told her the baby was born dead in the

outdoor bathroom, and pointed to the unlit area where she put the body.  Sgt. Simanu did see the blood on the bathroom

floor. 

 

Sgt.

Simanu took Ropati to the LBJ Tropical Medical Center for examination.  They talked at the medical center while

waiting for the examining doctor.  Sgt.

Simanu believed that she and Ropati were getting along with each other, and

though Ropati seemed reluctant to talk, she did answer questions.  Ropati told Sgt. Simanu that she was unhappy

with her live-in companion in Samoa because he had gone to New Zealand leaving

her while she was pregnant.  She came to

American Samoa to live with the Gaisoas, but was too embarrassed to tell them

her condition.  Ropati also said that on

May 8, she felt birth pain during an afternoon Bible study session and returned

to the Gaisoas’ home where the pain increased until she gave birth.  The doctor then came and examined Ropati in

Sgt. Simanu’s presence.  After the

examination, Sgt. Simanu thought that Ropati appeared weak and arranged for

Ropati to stay overnight at the medical center.

 

The

following day, May 10, Sgt. Simanu again saw Ropati at the medical center.  She asked Ropati to write a statement about

the circumstances of giving birth. 

Ropati agreed and Sgt. Simanu gave her two or three police statement

forms for this purpose.  She told Ropati

that she would be back later that day, but if Ropati was then released from the

medical center, she would come to Ropati’s home at a later time to pick up the

statement.

 

This

led to the situation on May 13, 2002, when Sgt. Simanu obtained Ropati’s

written statement at the main police station in Fagatogo.  Ropati admitted in the statement that when

the baby was born, she choked the baby to death.  Sgt. Simanu was totally unaware that

asphyxiation may have been the cause of the baby’s death.  Indeed, the autopsy establishing asphyxiation

as the cause of death was not performed until May 16, 2002, three days

later.  Sgt. Simanu did not have any

information indicating that Ropati may have strangled the baby or any reason to

suggest to Ropati that she had killed her baby by any particular means. 

 

At

trial, Roel B. Cayari, M.D. (“Dr. Cayari”), testified.  He is a pathologist and performed the autopsy

of the baby’s body on May 16, 2002. 

According to him, the female baby was born alive, full-term.  He did not find any significant

abnormalities, except bleeding from small ruptures in the lungs and hemorrhage

on the left scalp side of the forehead. 

He testified that the scalp injury may have been caused, for


example,

by contact with Ropati’s pelvic area during birth or a fall after birth, but it

was in no event the cause of death or a contributing factor.

 

Dr.

Cayari established asphyxiation as the cause of death, but he could not

determine whether this was due to a natural or unnatural cause.  He also added that if the baby had been

strangled, visible evidence of injury to the child’s neck would be

expected.  However, this was not always

the case.  He confirmed that no visible

injury was present here.  In all, Dr.

Cayari’s testimony showed that death by unnatural asphyxiation was a possibility.

 

Discussion

 

A.  Illegally Obtained

Statements

 

[1] Ropati

asserts that her confession to the police was illegal because it was fruit of a

poisonous tree, to wit, an illegal arrest. 

We will suppress a defendant’s confession if it was obtained after

police effectuated an illegal arrest “unless the causal connection between the

arrest and the confession had become so attenuated that the latter should not

be deemed ‘tainted’ by the former.”  Am.

Samoa Gov’t v. Sefo, 21 A.S.R.2d 32, 34 n.1 (Trial Div. 1992) (citing Wong

Sun v. United States, 371 U.S. 471 (1963)). 

In this case, however, suppression is not necessary as our factual

findings, which we do not deem to be clearly erroneous, show that Ropati was

not in fact under arrest.

 

[2]

The evidence at trial adduced during ASG’s case-in-chief and at the pretrial

suppression hearing showed that, contrary to Ropati’s contentions, she was

asked to go to the police station and make a statement and she voluntarily

acquiesced.  She was further advised that

she was not under arrest and she was free to leave whenever she chose to do so.

 While at the station, she was once again

advised that she was not in custody and was free to leave at any time.  Though the police questioning took place at

the police station, that factor alone does not convert an otherwise volitional

act into an arrest.  See Am. Samoa

Gov’t v. Afamasaga, 17 A.S.R.2d 145, 148-49 (Trial Div. 1990) (defendant

who voluntarily accompanied officer to station was not under arrest).

 

Additionally,

we do not find clear error with our factual findings that Ropati voluntarily

waived her Miranda rights and knowingly and intelligently gave a statement.[1]  Even after hearing the evidence at trial,

there is no merit to Ropati’s claims that she was coerced by physical and verbal

threats.  Furthermore, as will be

discussed, we find that the statement itself is trustworthy.  In light of this, we affirm our earlier

ruling that the statement need not have been suppressed.

 

B.  Sufficiency of the Evidence 

 

Ropati

argues that even if the written incriminating statements are not suppressed,

ASG failed to carry its burden of proving guilt beyond a reasonable doubt.  On this point, she apparently seeks a

complete acquittal and discharge, rather than merely a new trial.[2]  Enmeshed in this argument is an additional

challenge that it was impermissible to use the incriminating statements as

substantive evidence of the crime without any corroboration.[3]  Unquestionably, ASG’s most crucial piece of

evidence was Ropati’s incriminating statements to the police.  She essentially confessed to killing, by

strangulation, her newborn child. 

Without Ropati’s statements, the evidence was clearly insufficient to

find Ropati guilty beyond a reasonable doubt. 

On the other hand, with her statements, the evidence was sufficient to

find her guilty under this standard.

 

Courts,

for various reasons, have long been wary of a criminal justice system that

relies on confessions as the sole evidence of guilt.  See generally Escobedo v. Illinois,

387 U.S. 478, 488-90 (1964); Dickerson, 163 F.3d at 641; U nited

States v. Singleterry, 29 F.3d 733, 736-37 (1st. Cir. 1994); United

States v. Lopez-Alvarez, 970 F.2d 583, 589 (9th Cir. 1992). Accordingly,

courts have adopted protective measures. 

Incriminating statements of this nature are not admissible evidence “in

the absence of ‘substantial independent evidence which would tend to establish

the trustworthiness of [the] statement.’” 

Singleterry, 29 F.2d at 737 (quoting Opper v. United States,

348 U.S. 84, 93 (1954)); see also Smith v. United States, 348 U.S. 147

(1954); United States v. Calderon, 348 U.S. 160 (1954); United States

v. Dickerson, 163 F.3d 639 (D.C.Cir. 1999). Corroborating evidence can come

in the form of either “independent proof of the commission of the charged

offense [or] ‘independent evidence to bolster the confession itself and thereby

prove the offense ‘through’ the statements of the accused.’” Singleterry,

29 F.2d at 737 (quoting Smith, 348 U.S. at 156).[4]        

 

[3] Independent

evidence that someone committed an alleged crime is the traditional minimal

means of corroboration permitting admission of a defendant’s incriminating

statements.  Shunk, 881 F.2d at

919.  In this respect, ASG’s evidence,

other than Ropati’s incriminating statements, is equivocal.  The circumstances in evidence are subject to

reasonable interpretations.  In the

absence of congenital defects or signs of illness, the baby’s death appears to

have been either accidental or homicidal. 

Nonetheless, the latter interpretation is plausible if coupled with

other significant indications of the trustworthiness of Ropati’s incriminating

statements, which would provide sufficient corroborative evidence for admission

of those statements to the jury.

 

Sgt.

Simanu obtained Ropati’s incriminating statements on May 13, 2002, three days

before Dr. Cayari performed the autopsy establishing asphyxiation as the cause

of the baby’s death.  On May 13, Sgt.

Simanu did not have any information or reason to suggest to Ropati that she had

killed her baby by strangulation or any other particular means.  The result of the autopsy—death caused by

asphyxiation, possibly by unnatural means—lends credence to Ropati’s

acknowledgement three days earlier of choking the baby to death.  These facts tend to confirm the trustworthiness

of Ropati’s incriminating statements.

 

In

conclusion, we were, and still are, satisfied that the evidence presented by

ASG, outside of Ropati’s incriminating statements, sufficiently corroborated those

statements for purposes of introducing the statements into evidence for the

jury’s consideration.  The jury, as the

trier of fact, had before it proper and substantial evidence to determine

whether or not Ropati was guilty of the homicidal death of her baby.   The jury’s determination of Ropati’s guilt

beyond a reasonable doubt was supported by sufficient evidence.

 

C.  Close Case Discretion

 

[4-5]

Finally, characterizing the evidence as creating a close case, Ropati asks that

we use our discretion to grant a new trial in a close case.  In reviewing a motion for new trial, we have

broad power to grant relief.  3 Charles Alan Wright, Federal Practice and

Procedure: Criminal 2d § 553 (2d ed. 1982).  It is within our discretion and we “may weigh

the evidence and consider the credibility of the witnesses.”  Id. 

This case may be classified as closer than many criminal prosecutions,

at least but for Ropati’s incriminating written statements.  However, because we have found there to have been

no legal errors, we see no reason to grant the motion.  See Am. Samoa Gov’t v. Snow, 26

A.S.R.2d 78, 80 (Trial Div. 1994) (New trial granted only if it is in the

interest of justice).

 

Conclusion

 

For

the reasons stated above, Ropati’s motion for reconsideration or new trial is

denied.

 

It

is so ordered.

 

**********

 



[1] The fact that

Ropati received Miranda warnings does not change our determination that

Ropati was not under arrest.  Miranda

warnings are necessary when someone is in police custody.  See Am. Samoa Gov’t v. Fealofa`i, 24

A.S.R.2d 10, 11 (Trial Div. 1993). 

Nevertheless, it is possible to be in custody, for purposes of Miranda,

yet not under arrest, for purposes of Am.

Samoa. Rev. Const. art. I §

5 and U.S. Const. amend. IV.  See United States v. Henley, 984 F.2d

1040, 1042 (9th Cir. 1993); United States v. Corral-Franco, 848 F.2d 536

(5th Cir. 1988) (discussing the different tests for determining whether a

suspect is in custody or under arrest).  Cf. United States v. Perdue, 8

F.2d 1455 (10th Cir. 1993) (discussing necessity of Miranda warnings in

context of a Terry stop).

[2] Ropati’s motion

as one for an acquittal based on insufficiency of the evidence is, in essence,

a motion for a judgment of acquittal pursuant to T.C.R.Cr.P. 29(c).  Rule 29(c) Motions requires a judgment of

acquittal to be made, at the latest, “within 7 days after the jury is

discharged.”    Ropati’s motion in this

context is therefore untimely.  Id.  But see infra, note 3 (discussing why

we are still addressing her argument).

[3] Further

complicating the matter is the confusion as to whether the corroboration

requirement is a rule of admissibility/evidence or “a rule governing the

sufficiency of the evidence.”  United

States v. Dickerson, 163 F.3d 639, 642 (D.C. Cir. 1999).  We think it is more meaningful to frame the

issue as one of evidence, and will treat it as such.  Thus, this claim is properly before us.  But, because we find that the confession was

properly corroborated, the result would be the same regardless of how we

classify her claim (and even had her motion for acquittal been timely).

[4] The test for

corroboration we are adopting is what seems to be the test used by the majority

of federal courts.  As noted, this test

allows corroboration to be shown in either of two ways: through some evidence

that the crime occurred, often referred to as the corpus delicti rule,

or through evidence which bolsters the confession itself.  See Singleterry, 29 F.3d at 737; United

States v. Jacobs, 97 F.3d 275, 283 (8th Cir. 1996) (independent proof of

injury caused by criminal act enough standing alone); United States v. Shunk,

881 F.2d 917 (10th Cir. 1989); United States v. Micieli, 594 F.2d 102,

108-09 (5th Cir. 1979) (bolstering admission with independent evidence is

sufficient corroboration); United States v. Bukowski, 435 F.2d 1094,

1106-07 (7th cir. 1970); United States v. Marcus, 401 F.2d 563, 565

(1968).  But see United States

v. Lopez-Alvarez, 970 F.2d 583, 589-93 (9th Cir. 1992); see also

Singleterry, 29 F.3d at 737 n.2 (noting that many states “adhere to a more

traditional formulation.”).