Series: 6ASR3d | Year: 2002 | 6ASR3d10
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VA’A KITIONA, Defendant.
High Court of American Samoa
Trial Division
CR No. 17-02
July 28, 2002

4 Counsel Miller attempted to diffuse his predicament by subsequently
stating on the record that the contact with Roberts that he was referencing
had in actuality taken place in December 1999, a month before he filed his
client’s complaint. Roberts, on the other hand, testified that he could not
recollect having such contact with Miller back in December 1999, as it was
some time ago, but he definitely remembered his being contacted by
counsel Miller “last week.”
Astonishingly, Miller also submitted that witness Roberts was not a client
of counsel Hall’s. Counsel Miller would do well to revisit or appraise
himself of A.B.A. Model Rule of Professional Conduct (1983), Rule 4.4,
Comment (“In the case of an organization, the Rule prohibits
communications by a lawyer for one party concerning the matter in
representation with . . . any person whose act or omission in connection
with that matter may be imputed to the organization for purposes of civil . .
. liability.”). Miller’s whole purpose in asking Roberts about their contact
was to get Roberts to admit knowledge as to the policyholder’s pre-existing
medical condition prior to issuance of the life insurance policy at issue.


[1] The exclusionary rule is not the proper remedy for a failure to warn a
defendant of his rights under the Vienna Convention.
Before KRUSE, Chief Justice, ATIULAGI, Associate Judge, and
MAMEA, Associate Judge.
Counsel: For Plaintiff, Marcellus T. Uiagalelei, Assistant Attorney
For Defendant, Curtis Sherwood, Assistant Public Defender
Defendant moves to suppress a written statement that he had given to the
police on February 6, 2002. Both sides submitted briefs. The Court
heard evidence and oral argument on this motion on July 25, 2002.
A. Involuntary Confession
Defendant argues, even though he was read his Miranda rights in
Samoan (his native language) and signed a form indicating his waiver of
those rights that he was unaware of his rights and the waiver was not
given voluntarily. Two police officers testified that defendant was held
only as long as necessary to take his statement, that defendant was not
prevented from using the bathroom or denied water, and that no
promises or deals were made with defendant.
Defendant, without producing any supporting evidence, requests the
Court to imply that he was held by the police for an inordinate period of
time before giving his statement, that he was not offered water or
bathroom breaks, and that the officers had enticed him to give a
statement on a promise to let him go home if he gave a statement.
Because of these alleged violations of his rights, defendant has moved

the Court to exclude his statement.
After listening to the testimony and considering the submitted briefs, the
Court is satisfied that defendant did in fact waive his rights and that he
did so without any form of coercion on the part of the officers. We find
no reason to doubt the testimony of the officers and no contradictory
evidence was offered. Although defense counsel elicited testimony from
the officers on cross examination that defendant appeared nervous when
he gave his written statement, nervousness per se does not necessarily
translate into coercion on the part of the officers. The sort of unnerving
factors that would have at the time prayed on the defendant’s mind,
includes his being turned in by an eye witness–the defendant’s travelling
companion apparently troubled with pangs of conscience–and his
prospects, therefore, of facing serious criminal consequences on a hit and
run scenario involving the death of another.
In proper perspective, the exclusionary rule developed as a prophylactic
measure against police excessiveness. Am. Samoa Gov’t v. Afamasaga,
17 A.S.R.2d 145, 148 (Trial Div. 1990). Here, we find no evidence of
police excessiveness.
B. Vienna Convention
Defendant also argues that, as he is a citizen of (Independent) Samoa, the
officers were obligated to read him his rights under Article 36 of the
Vienna Convention, including the right to speak with his nation’s consul
before being questioned.
[1] This Court dealt with this issue in Am. Samoa Gov’t v. Fonoti. CR
No. 99-00, ORDER DENYING MOTION TO SUPPRESS, slip op. (April 23,
2001). There, we chose to apply the decided law of the 9th and 7th
Circuits in holding that the exclusionary rule is not the proper remedy for
a failure to warn a defendant of his rights under the Vienna Convention.
See Id.; United States v. Lombera-Camorlina, 206 F.3d 882 (9th Cir.,
2000); United States v. Lawal, No. 001104v2, slip.op. (7th Cir., Nov. 1,
2000). Save for the public defender’s continuing position of
disagreement, we have been provided no reason, nor do we see any, to
reverse that decision today.
Defendant waived his rights after being properly Mirandized and has
failed to show that he was coerced by the police in either waiving his
rights or in giving his written statement. The law is well established that
failure to read a witness his rights under the Vienna Convention is not
properly remedied by the exclusionary rule. Accordingly, defendant’s
motion to suppress is hereby denied.
It is so ordered.