Commonwealth v. Wang Hong Yan

Commonwealth v. Yan, 4 N.M.I. 334 (1996) Commonwealth of the Northern Mariana Islands, Plaintiff/Appellee, v. Wang Hong Yan, Defendant/Appellant. Appeal No. 95-005 Criminal Case No. 94-0135 March 6, 1996 Argued and Subm itted February 27, 1996 Counsel for appellant: Daniel J. DeRienzo, Public Defender, Saipan. Counsel for appellee: Yvonne O. Lee, Assistant Attorney General, Saipan. BEFORE: VILLAGOM EZ and ATALIG, Justices, and SALAS, Special Judge. ATALIG, Justice: The defendant, W ang Hong Yan (“W ang”), appeals from a January 31, 1995, “Judgment and Probation/Com m itment Order” under which she was found guilty of theft, in violation of 6 CM C § 1601(a). This Court has jurisdiction pursuant to 1 CM C § 3102(a). W e hold that the trial court erred in adm itting the testim ony of Officer Jam es Deleon Guerrero (“Guerrero”), and that the evidence is insufficient to support a conviction for theft. Accordingly, we reverse the conviction. ISSUES PRESENTED AND STANDARDS OF REVIEW The dispositive issues raised on appeal are: 1 1 W ang also raises the following issues: (1) “[w]hether the trial court’s failure to dismiss or suppress evidence based upon the government’s failure to preserve evidence constituted a denial of due process”; (2) “[w]hether the court erred by allowing the government to amend the information after the government had rested”; (3) whether the court “erred by failing to dismiss or suppress evidence based upon the unconstitutionality of 6 CMC § 6103”; (4) whether the court erred by denying the alternative motions to either “dismiss or suppress evidence for lack of probable cause to arrest”; and (5) whether the court impermissibly shifted the burden of proof to W ang. Appellant’s Brief at 1-2. Here, the issue of the preservation of the evidence bears not upon the ability of the government to bring the action but rather the strength of the evidence. Cf. Commonwealth of the N. Mariana Islands v. Mendiola, 976 F.2d 475, 487 (9th Cir. 1993). W e summarily dismiss the second issue, see infra note 15, and, in light of our decision, need not reach the third and fifth constitutional issues listed above. See Wabol v. Villacrusis, 4 N.M.I. 314, 319 (1995) (Court will not “unnecessarily resolve constitutional issues”). The fourth, alternative issues 1. W hether the court erred, in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1996), in admitting Guerrero’s testim ony into evidence. 2. W hether sufficient evidence supports W ang’s conviction for theft. W e review each of these issues de novo. See Commonwealth v. Ramangmau, 4 N.M .I. 227, 235, 237 (1995).2 In conducting our de novo review of the sufficiency of the evidence, we view the evidence in a “light m ost favorable to the government” to determ ine if “any rational trier of fact could have found the essential elements of the crim e in question beyond a reasonable doubt.” Id., 4 N.M .I. at 237. FACTS AND PROCEDURAL BACKGROUND On October 10, 1994, W ang was swim m ing in the Saipan Diamond Hotel Co., Ltd. (“Diamond”), hotel pool. W hile she was swim m ing, a security guard, John Atalig (“John”), approached and told her to get out of the pool. W ang continued to swim for a while and left the pool after John told her to get out several tim es. She then went over to a yellow towel and began to dry herself off. After drying herself, W ang dressed in clothes which she had left poolside. At approxim ately this point, W ang and John were joined by another security guard, M anuel Cisnero (“M anuel”). Diamond leases beach towels from Tropical Laundry (“Tropical”).3 The towel with which W ang dried herself had a tag with lettering bearing the name “Tropical Laundry” sewn on its edge. John pointed to the towel and asked W ang to give it to him several times. Each tim e, she responded in English “no, mine.” John asked the Diamond sports recreation employee on duty at the tim e, Bobby M cFee (“M cFee”), if the towel belonged to Diam ond. M cFee stated that it did.4 W hen she refused to give him the towel, John asked M anuel to watch W ang and left to call the Departm ent of Public Safety (“DPS”) for assistance. W ang left the hotel and began to walk north toward Beach Road. M anuel went to the front lobby and radioed to John that W ang had left the pool area. John and W ang, followed by another guard, Antipas Paling, approached and m et each other near the road. John and W ang spoke to each other and rem ained roadside for approximately two to three minutes before they were joined by Officer Sylvan Rangam ar (“Rangam ar”). Rangam ar arrested W ang and took the towel from her. He gave the towel to John, who in turn gave it to Reynaldo Hernandez (“H ernandez”), the hotel front desk clerk. Hernandez placed the towel in a box designated for used towels. W ang was taken to the Susupe DPS Station and seated in a room at a desk with Rangam ar. After som e tim e, Guerrero entered the room . He testified that as he entered the room , he overheard W ang say “I don’t want you, you no good policem an.” Guerrero testified also that, in response, Rangam ar said “to like keep still and cooperate.” W ang then said “I did not steal only borrow.” 5 are not pertinent to this appeal. An “illegal arrest or detention does not void a subsequent conviction,” Gerstein v. Pugh, 420 U.S. 103, 119, 95 S. Ct. 854, 865, 43 L. Ed. 2d 54, 68 (1975), unless the conviction rests solely on evidence seized as a result of an unlawful arrest. See, e.g., Henry v. United States, 361 U.S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134 (1959). This is because the issue of probable cause to arrest, alone, does not bear upon whether or not an arrestee is to be charged with an offense. Gerstein, 420 U.S. at 125 n.26, 95 S. Ct. at 869 n.26, 43 L. Ed. 2d at 72 n.26. Instead, it deals with issues such as the constitutionality of the admission of evidence seized subsequent to the arrest, see Henry, 361 U.S. at 103, 80 S. Ct. at 171, 4 L. Ed. 2d at 139, or whether the arrestee should be released from custody, see Gerstein, 420 U.S. at 111-12, 95 S. Ct. at 861-62, 43 L. Ed. 2d at 63-64. Here, no evidence was seized incidental to W ang’s arrest and she was not subject to continued detention. 2 Absent the Miranda objection, we would review the admission of the testimony into evidence for an abuse of the trial court’s discretion. See Commonwealth v. Brel, 4 N.M.I. 200, 202 (1995). 3 See, e.g., Transcript of Proceedings at 247-48 (testimony of Rosalia Cacdac). 4 Id. at 199 (testimony of John Atalig). 5 Id. at 239-40 (testimony of James Deleon Guerrero).  Commonwealth v. Yan, 4 N.M.I. 334 (1996) The Com m onwealth of the Northern M ariana Islands (“C NM I”) charged W ang by information, under 6 CM C § 1601(a), for the theft of a towel owned by Diamond. Several pre-trial motions were made by the defense, including motions to dism iss for failure to preserve the disputed towel as evidence, to dism iss for lack of probable cause to arrest, and to suppress all evidence incidental to the arrest, including Guerrero’s testim ony. 6 These m otions were all denied. A bench trial was conducted on January 24, 1995. At trial, W ang objected to the adm ission of Guerrero’s testimony regarding her statem ents, contending that it was violative of Miranda.7 The court denied the m otion, finding that W ang “was not being interrogated.” The court based this determination on a finding that Guerrero entered the room for detention and not interrogation purposes.8 After the close of the CNM I’s case-in-chief, over W ang’s objection the information was am ended to reflect the owner of the towel as Tropical and not Diam ond. At the conclusion of the trial, the court found W ang guilty of the charge, stating from the bench: I’m convinced there was a taking and carrying away . . . of a towel and I’m convinced that the value of the towel is less than two hundred and fifty dollars, but did she take it with the intent to permanently deprive the ow ner of it’s right to the property and what did she say. . . . . I say its not her towel because the testim ony was that her personal belongings were not together with the towel but they were separated. That the towel in fact, itself was on a separate table. A towel that had been testified to that it looked like any other towel that the hotel had rented from Tropical Laundry. So I find . . . there was no testim ony that on this particular date that she had a yellow towel in her possession, other than by the Government witnesses. And when she was at the police station . . . a defense of do not steal, only borrow, the best defense is a good offense or shift the burden of proving the case to that she borrowed it. Borrowed it from whom ? Even the statem ent that I only borrowed it is [too] light. The tim e she permanently deprived the owner of it’s right to the property is when she vacated the Diam ond Hotel and was stopped the officer the towel before Beach Road. Transcript of Proceedings at 284-86. W ang was sentenced to five days in jail, all of which were suspended, except the thirty-nine hours during which she had already been incarcerated. She was also placed on probation for one year and ordered to perform forty hours of com m unity service and stay away from all hotels on Saipan. Commonwealth v. Wang, Crim . No. 94-0135 (N.M .I. Super. Ct. Jan. 31, 1995) (order). W ang tim ely appealed. ANALYSIS W ang argues that Guerrero’s testim ony was without foundation with respect to the issue of whether she 6 See, e.g., id. at 22-23, 59-61. 7 Id. at 233-34. 8 In ruling on the motion to suppress Guerrero’s testimony, the court stated: I have nothing to indicate she was being interrogated. I’m satisfied. If you can show she’s being interrogated, then you can strike it. . . . Through this witness [Guerrero] the Government has indicated that she was not being interrogated. This witness said he was patrol and this witness was for detention and he went there for detention purposes. He wasn’t interrogating so, he can testify. Id. at 238. was being interrogated for purposes of Miranda. As such, she contends that the trial court erred, under Miranda, in admitting Guerrero’s testim ony. W e agree. Further, W ang contends that the evidence is insufficient to support her conviction for theft. Viewing the evidence in a light most favorable to the CNM I, we conclude that it is insufficient to show that a reasonable fact finder could determine, beyond a reasonable doubt, that W ang com m itted theft of a towel owned by Tropical. I. Admission of Guerrero’s Testimony The trial court found that Guerrero did not enter the room for the purpose of interrogating W ang. Based on this finding, it concluded that Miranda was inapplicable to this m atter and that Guerrero’s testimony, going to the statements of W ang and Rangamar, was adm issible.9 W e conclude that Guerrero was incom petent to testify as to whether or not W ang was being interrogated by Rangam ar, and, as a result, the adm ission of his testim ony violated the prophylactic safeguards of Miranda, intended to protect a crim inal defendant’s Fifth Am endm ent rights. See Commonwealth v. Cabrera, 4 N.M .I. 240, 244 (1995).10 Miranda warnings are required when a suspect is both in custody and subject to interrogation. Rhode Island v. Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 307 (1980).11 W here Miranda safeguards apply, the prosecution may not introduce evidence procured without the protection afforded by both proper warnings and a valid waiver of those warnings. Cabrera, 4 N.M .I. at 253 (Atalig, J., dissenting) (quoting Miranda, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07). “‘[I]nterrogation’ . . . refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incrim inating response from the suspect.” Innis, 446 U.S. at 301, 100 S. Ct. at 1689-90, 64 L. Ed. 2d at 308 (footnotes omitted). Absent express questioning, the court must objectively exam ine the knowledge of the police or any circum stances of which they were aware to determ ine whether they were either speaking or acting in a way “that they should have known” would extract such a response. Id., 446 U.S. at 302, 100 S. Ct. at 1690, 64 L. Ed. 2d at 308. This includes whether the “police knew that the respondent was unusually disoriented or upset at the tim e of [the] arrest.” Id., 446 U.S. at 303, 100 S. Ct. at 1690, 64 L. Ed. 2d at 309; see also id., 446 U.S. at 302 n.8, 100 S. Ct. at 1690 n.8, 64 L. Ed. 2d at 308 n.8 and accom panying text.12 Hence, the court had to examine the circumstances objectively to determ ine whether either W ang was subject to express questioning by Rangam ar or if Rangam ar had been speaking to her or acting in such a way, or was aware of circum stances, that he should have known would lead her to utter an incrim inating response. Instead, the circum stances at which the trial court looked to determine whether W ang was being interrogated were all gleaned from Guerrero’s testim ony. For testim ony to be adm itted into evidence, a foundation must first be laid for the com petency of the witness testifying in court. “A witness m ay not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the m atter.” Com . R. Evid. 602. Guerrero testified that he had no personal knowledge about the circum stances surrounding, or giving rise 9 Id. There appears to be no dispute in this matter that Yan was in custody. The dispute centers, rather, around whether or not she was being interrogated at the time she uttered the statement overheard by Guerrero. 10 To rule otherwise would mean, for example, that any incriminating statement of a suspect in custody made while under interrogation would be admissible, so long as the person testifying in court is not the interrogating officer and unaware of the circumstances surrounding the utterance. 11 Cf. Commonwealth v. Ramangmau, 4 N.M.I. 227, 235 n.26 (1995) (statement derived from non-custodial interrogation admissible). 12 Otherwise, in the absence of express questioning, the court “focuses primarily upon the perceptions of the suspect, rather than the intent of the police,” to determine if an arrestee “was subjected to the ‘functional equivalent’ of questioning.” Rhode Island v. Innis, 446 U.S. 291, 302, 100 S. Ct. 1682, 1690, 64 L. Ed. 2d 297, 309 (1980).  Commonwealth v. Yan, 4 N.M.I. 334 (1996) to, the statem ents made by W ang and Rangam ar. See Transcript of Proceedings at 232-45.13 Therefore, he was incom petent to testify about the pertinent circum stances going to whether or not W ang was being interrogated by Rangam ar.14 From the record, it appears that the only CNM I witness who would have been com petent to so testify was Rangam ar, who was not called to testify at trial. II. Sufficiency of the Evidence Under our crim inal code, “[a] person com m its the offense of theft if he or she unlawfully takes, uses or consum es the property or services of another with intent to permanently deprive the ow ner of his or her rights to the property or services.” 6 CM C § 1601(a). The “‘[p]roperty of another’ means any property in which any person other than the defendant has a possessory or propriety interest.” 6 CM C § 103(i).15 Thus, the CNM I bore the burden, beyond a reasonable doubt, of show ing that: (1) Tropical had an interest in the towel; (2) W ang took, used or consumed the towel; and (3) W ang intended to perm anently deprive Tropical of its interest in the towel. Here, there is no dispute that W ang was using the towel; rather, the dispute revolves around the issues of ownership and criminal intent. The evidentiary bases of the court’s conclusion of ownership 16 in Tropical appear to have been John’s testim ony that the towel and clothes were placed on separate tables pool side, see Transcript of Proceedings at 201,17 and that the towel “looked like any other towel that the hotel had rented from Tropical.” It based its finding 13 Q: Could you see whether [Rangamar] had been talking to her prior to your going in the room? A: No your Honor. .... Q: Okay and is that the first time that you’d seen the defendant when you walked into the room? A: Yes your honor. Transcript of Proceedings at 235-36 (voir dire of Guerrero by court). 14 Furthermore, evidence is relevant only where it has “any tendency to make the existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence.” Com. R. Evid. 401. Irrelevant evidence is inadmissible. Com. R. Evid. 402. As noted, the focus of the inquiry should be on whether Rangamar was subjecting W ang to either express questioning or its functional equivalent. Guerrero’s testimony is irrelevant for purposes of this inquiry. 15 In light of this definition, we see no fatal error in Diamond having initially been named as property owner in the information. 16 The court, in its bench ruling, never made a specific conclusion as to who owned the towel; it did note, however, that it concluded that W ang did not own the towel. From this we may reason, by the conviction, that it concluded that Diamond and/or Tropical had an interest in the towel. 17 But see Transcript of Proceedings at 154 (testimony of Manuel Cisnero that clothes and towel were placed together on a chair). of crim inal intent on a finding that W ang had vacated the hotel prem ises.18 See facts and procedural background, supra. The CNM I contends that the testim ony of the guards and Tropical em ployees was sufficient to show ownership of the towel in Tropical, and that the requisite crim inal intent was indicated both by W ang having been arrested off the hotel prem ises and her having been “uncooperative.” 19 For the following reasons, we conclude that the evidence, viewed in the light most favorable to the CNM I, was sim ply insufficient to show that Tropical owned the towel in W ang’s possession at the tim e of her arrest. In light of this decision, we need not reach the issue of whether W ang possessed the requisite crim inal intent.20 First, that the towel was not on the same table as W ang’s clothes is not probative of the issue of ownership.21 Second, the record is devoid of any testimony from Tropical or Diam ond that the towel in W ang’s possession belonged to Tropical at the time of Wang’s arrest. M cFee, upon whose statem ent of ownership John initially relied, never testified. Rosalia Cacdac (“Cacdac”) and Yoshiro Katsunoi (“Yoshiro”), respectively Tropical’s accountant and general m anager, each testified that once the towels leased by Diam ond were deem ed “used,” they were sold, still bearing the “Tropical Laundry” tag. Cacdac also testified that anyone could purchase these towels from the retail counter at Tropical.22 Hence, their testim ony indicates that any number of persons not associated with either Diam ond or Tropical could lawfully be in possession of towels which bore a “Tropical Laundry” tag and otherwise “looked like any other towel that the hotel had rented from Tropical.” Finally, the testim ony of the guards did not support Tropical’s ownership of the towel at the tim e of W ang’s arrest. None of the guards closely exam ined the towel. 23 They based their belief of ownership on the 18 There is no trial testimony going to whether W ang was arrested on or off the hotel premises. From the record, we know only that she left the hotel pool area, began to walk north, and met up with John somewhere near the road. It appears as though the court may have made this finding based upon pre-trial testimony, see, e.g., id. at 34 (testimony of Sylvan M. Rangamar), which was not duplicated at trial. 19 See Appellee’s Brief at 24. 20 However, neither the flight nor belligerency of a defendant will necessarily suffice to show that the defendant possessed the requisite criminal intent. See Wong Sun v. United States, 371 U.S. 471, 483 n.10, 83 S. Ct. 407, 515, 515 n.10, 9 L. Ed. 2d 441, 452 n.10 (1963) (noting that it has “consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime” to indicate criminal intent) and Peterson v. City of Plymouth, 60 F.3d 469, 476-77 (8th Cir. 1995) (lack of criminal intent and, hence, probable cause to arrest, despite the suspect’s admitted “refus[al] to identify himself or otherwise cooperate with the [arresting] officers”). This is particularly true in this matter, as W ang’s actions appear to derive from her insistence that she owned the towel. 21 For example, an individual always brings her own towel with her when she goes swimming, leaving the towel closer to the pool for easy access and her clothes further away, so as not to get them wet from inadvertent splashing. That the clothes and towel were not placed together has no bearing on the issue of her ownership of the towel. 22 Cacdac and Yoshiro each testified that used towels bearing a “Tropical Laundry” tag were sold to a variety of business entities, Transcript of Proceedings at 224, 226 (testimony of Yoshiro Katsunoi), 247-48, 250 (testimony of Cacdac), and barracks, id. at 250 (testimony of Cacdac), and that some towels were also thrown away at the dump. Id. at 227-28 (testimony of Yoshiro), 249 (testimony of Cacdac). Cacdac also testified that anyone may purchase used towels, for two dollars per pound, at Tropical’s retail counter. Id. at 248. 23 See id. at 180, 195, 200 (testimony of John), 162-63 (testimony of Manuel), 215-16 (testimony of Antipas Paling) (stating first that he looked at the towel but then noting that he did not see a tag on the towel).  Commonwealth v. Yan, 4 N.M.I. 334 (1996) “Tropical Laundry” tag on, and/or the yellow color of, the towel.24 Yet, as noted above, these characteristics alone are insufficient to show continued ow nership in Tropical. Also, between towels used for dem onstrative purposes by the CNM I and W ang to show the specific condition and coloring of the towel,25 each guard ultim ately testified that the towel in W ang’s possession, or hotel towels, looked more like the defense exhibit, which had been purchased from the retail counter as a “used” towel. See supra note 25.26 CONCLUSION Based on the foregoing, we hereby REVERSE the conviction of the defendant W ang Hong Yan for theft under 6 CM C § 1601(a). 24 See id. at 179 (testimony of John), 164 (testimony of Manuel), 211-13 (testimony of Paling). 25 Because the towel in W ang’s possession had been given to Hernandez, each party produced towels to elicit testimony from the guards showing the condition of the towel W ang was using. The defense towel was a used towel purchased from Tropical. See, e.g., id. at 248 (test. of Cacdac). The source of the CNMI’s exhibit is not clear from the record, see id. at 192 (objection of defense to admission of CNMI exhibit into evidence). However, from the testimony, the CNMI exhibit appears to have been less faded than the defense exhibit, but bore several stains, was frayed and bore tag lettering which was green and not blue. See, e.g., id. at 190-91. It is also not clear from the record whether the defense exhibit was entered into evidence. The court did not enter the CNMI exhibit into evidence, instead choosing to “look at it.” Id. at 192. 26 See id. at 191, 196 (testimony of John) (between CNMI and defense exhibits, the latter looked more like the towel W ang had that day), 162-165 (testimony of Manuel) (testifying CNMI exhibit “substantially” like the towel W ang had but identifying defense exhibit as a hotel towel), 213-15 (testimony of Paling) (noting similarities between CNMI exhibit and hotel towels and stating that, as compared to CNMI exhibit, towel W ang had was “like already old one sir and th[e CNMI exhibit] is just little bit new one sir”).