Modified Opinion Filed October 24, 2014.
Appeal from Douglas District Court; PEGGY C. KITTEL, judge.
BY THE COURT
1. To assess the voluntariness of a defendant's statements to government agents, the district court considers all of the facts bearing on the interaction leading up to and resulting in those communications. The ultimate issue is whether the statements reflect the product of a free and independent will, i.e., did the individual act voluntarily? The district court must examine the totality of the circumstances surrounding the making of the statements.
2. A government agent may induce an involuntary statement through improper threats of harm, promises of benefit, a combination of the two, or other undue influence over the suspect.
3. The State must prove the voluntariness of a defendant's statements by a preponderance of the evidence.
4. A court must determine the voluntariness of a defendant's statement without regard to its truth or falsity because the determination implicates due process rights and the protection against self-incrimination.
5. Under K.S.A. 2013 Supp. 60-460(f), an out-of-court statement of the accused offered by the government in a criminal prosecution will be treated as inadmissible hearsay unless: (1) the statement was knowingly and understandingly made in the absence of threats or coercion rendering it involuntary and (2) the statement was made in the absence of threats or promises by a public official that would likely induce a false admission.
6. Under the facts of this case, the district court correctly suppressed the defendant's statements to law enforcement officers as involuntary when the record showed the principal questioner lied about biological evidence implicating the defendant and misled the defendant about the legal consequences of admitting to certain inculpatory conduct, especially in combination with defendant's low to average intellectual capacity and the subpar English-Spanish translation made during the interrogation.
Mark A. Simpson, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellant.
Branden A. Bell and Sarah G. Hess, of Brown & Ruprecht, PC, of Kansas City, Missouri, for appellee.
Before LEBEN, P.J., ATCHESON and SCHROEDER, JJ.
The State has sought interlocutory review of an order of the Douglas County District Court suppressing inculpatory statements Defendant Jose Fernandez-Torres made to a police officer questioning him about improper physical contact he may have had with his girlfriend's young daughter. The district court found the circumstances of the interrogation rendered the statements involuntary, including problems with the Spanish-language translation, the officer's false representations about evidence supposedly implicating Fernandez, and the officer's poorly translated suggestion that some sort of momentary though improper touching of the girl could be dealt with. The record evidence supports the district court's factual findings, and we see no error in the legal determination to suppress the statements. We, therefore, affirm the district court's order.
I. Factual Background and Procedural History
In September 2010, the Douglas County District Attorney charged Fernandez with aggravated indecent liberties with a child for the lewd touching of A.L.G., who was 7 years old at the time. The offense was then codified in K.S.A. 2010 Supp. 21-3504 and carried a life sentence with no parole eligibility for 25 years, as provided in K.S.A. 2010 Supp. 21-4643(a)(1)(C).
During the investigation of the offense, Fernandez accompanied Lawrence police officer Anthony Brixius to the law enforcement center to be questioned about his interaction with A.L.G. Brixius had been a police officer for about 7 years and then worked as a plainclothes investigator primarily assigned to juvenile sex crimes. Fernandez was 23 years old and had moved with his family from Mexico to the United States about 8 years earlier. Fernandez attended school in Mexico until he was 14 years old. He speaks Spanish and apparently reads with some limitations. He cannot read English but speaks the language conversationally. In 2010, Fernandez
worked as a waiter at a Mexican restaurant.
At the suppression hearing, Brixius testified that he and Fernandez talked in English on the ride to the law enforcement center. Brixius speaks very little Spanish. Another police officer accompanied them. No one spoke in Spanish during the brief trip. Once at the law enforcement center, Fernandez was placed in an interrogation room. Brixius testified that he had concerns about Fernandez' fluency in English and sought out a Spanish-speaking translator to participate in the interrogation. Brixius pressed Oscar Marino, a bilingual probation officer, into service. Marino was born in Venezuela and grew up speaking Spanish; he came to the United States in his teens about 30 years ago and has become fluent in English. Marino has no training in real-time translation and has never been certified as a Spanish-English translator. At the suppression hearing, Marino testified that he has translated for police officers conducting interviews or interrogations " [a] handful" of times. The interrogation was videotaped.
Fernandez does not contend he was actually or functionally under arrest or physically restrained during the 2-hour interrogation. By all accounts, he voluntarily accompanied Brixius to the law enforcement center. Fernandez was not handcuffed during the car ride or at the law enforcement center. During the interrogation, Fernandez placed and completed a couple of calls on his cell phone.
After getting general background information from Fernandez in English, Brixius relied on Marino to translate as he informed Fernandez of his Miranda rights and secured a waiver of them. Although the exchange is hardly a model of clarity or sound police procedure based on the translation, the district court found a valid Miranda waiver, a point Fernandez does not dispute on appeal. The evidence fairly suggests the interrogation was not custodial, so an imperfectly rendered waiver would have no material legal consequences. See J.D.B. v. North Carolina, 564 U.S., 131 S.Ct. 2394, 2401-02, 180 L.Ed.2d 310 (2011); State v. Warrior, 294 Kan. 484, 496, 277 P.3d 1111 (2012); State v. Morton, 286 Kan. 632, 646-47, 649, 186 P.3d 785 (2008). But see State v. Bridges, 297 Kan. 989, 1010-11, 306 P.3d 244 (2013) (noting a split of case authority on whether reading of Miranda warnings amounts to a circumstance leading a reasonable person to consider police questioning custodial).
The remainder of the interrogation was conducted with Marino translating except for a few, limited exchanges.
At the suppression hearing, the State called Isabel Ferrandis-Edwards, a court certified translator, as an expert witness on the quality of Marino's translation during Brixius' questioning of Fernandez. Fernandez called Sara Gardner, also a court certified translator, for the same purpose. Both experts agreed that Marino sometimes translated incompletely or inaccurately the questions Brixius posed and the answers Fernandez gave. In a few instances, he asked his own questions of Fernandez.
At the start of the interrogation, Brixius questioned Fernandez generally about his relationship with A.L.G., A.L.G.'s mother, and A.L.G.'s younger half-brothers and the sort of things he did around the house and with the children. Fernandez is the natural father of the boys but not of A.L.G. Brixius then began more pointedly asking Fernandez about touching A.L.G.'s pubic area or vagina with his hand. During the bulk of the interrogation, Fernandez denied touching A.L.G. inappropriately. Fernandez told Brixius that he occasionally checked on the children while they were sleeping. He recalled recently pulling the covers back over his son. He then noticed A.L.G. was very close to the edge of her bed and seemed on the verge of falling. Fernandez said he grabbed A.L.G. and slid her back into bed. He said he could have inadvertently brushed his hand against A.L.G.'s pubic area, but he didn't think that happened.
Later in the interrogation, Brixius falsely told Fernandez that a doctor had found Fernandez' skin cells on A.L.G.'s vagina. Brixius then informed Fernandez the medical examination of A.L.G. meant he had touched her for a minute or two. Brixius began insisting that he knew Fernandez had inappropriately
touched A.L.G. But he said he also knew Fernandez was not a bad person and " what happened, in part, was a mistake." Brixius then told Fernandez that if he had the intention of touching A.L.G. " just for a second . . . that's okay and we can deal with that because you didn't do more." In translating that statement, Marino used the Spanish word " negociar" for " deal with."
At the suppression hearing, both experts on translation questioned Marino's choice in phrasing the Spanish because " negociar" conveys a sense of negotiating or doing business. Ferrandis-Edwards, the State's expert, testified that in context, negociar " [d]efinitely is not the best choice." Gardner, Fernandez' expert, agreed that " negociar" commonly referred to business transactions and suggested a negotiated exchange. She, too, thought it inappropriately used and could convey the idea that Brixius would negotiate some arrangement with Fernandez if he admitted touching A.L.G. As we have said, the experts also agreed that Marino frequently ...