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«SYLLABUS BY THE COURT 1. To assess the voluntariness of a defendant's statements to government agents, the district court considers all of the facts ...»

-- [ Page 1 ] --

MODIFIED

No. 110,645

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellant,

v.

JOSE FERNANDEZ-TORRES,

Appellee.

SYLLABUS 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.

1 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.

Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Original opinion filed September 26, 2014; modified opinion filed October 24, 2014. Affirmed.

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.

2 Before LEBEN, P.J., ATCHESON and SCHROEDER, JJ.

ATCHESON, J.: 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 3 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.

4 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.

5 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 failed to translate fully or entirely accurately questions and answers, inhibiting precise communication between Brixius and Fernandez.

Brixius continued to say he knew Fernandez had inappropriately touched A.L.G.

and simply wanted to know why it happened. Fernandez responded he didn't know why.

That sort of refrain recurred during the later stages of the interrogation. Several times during the interrogation, Brixius assured Fernandez that because he touched A.L.G.'s vagina only once he was a good person who had a momentary lapse in judgment rather than a child molester. At one point, Brixius suggested that Fernandez had too much to drink as a reason. Fernandez replied: "I am confused, because that had never happened and I don't know." Still later in the questioning, Brixius told Fernandez that "to touch her vagina, you had to have moved your hand there on purpose." But he quickly added, "And 6 it's ok because you didn't keep on touching her." Fernandez answered: "No, and with that, how I continued to touch her, that is why I am confused, because that had never happened." Brixius, however, continued to disregard those denials. Brixius then asked Fernandez when he realized what he had done was wrong. Fernandez said he realized it when he brushed his teeth a little while later. Asked again if that was when he realized he had done something wrong, Fernandez told Brixius, "Yes, kind of." But still later in the interview, Fernandez specifically denied touching A.L.G.'s vagina.

Brixius persisted in assuming Fernandez had touched A.L.G.'s pubic area and continued to press for an explanation. Toward the end of the interrogation, Brixius asked Fernandez, "Why [do] you think... you had a lapse in judgment and put your hand on her crotch?" Marino translated this question as, "Why do you think you had... that problem?" Fernandez replied, "I don't know why, because like I told you, maybe it was because I had been drinking...." Brixius later asked why, at the start of the questioning, Fernandez hadn't admitted to touching A.L.G. Fernandez said he thought "it was an accident." Finally, Brixius asked, "But you knew that it had been done on purpose for [a] second because you felt bad about it afterwards?" Marino translated the question as: "So you think, you know that you did it on purpose[?]" Fernandez answered, "For a second[,] yes."

At the end of the interrogation, Brixius arrested Fernandez.[1]

[1]The interrogation lasted about 2 hours and contains considerably more detail than we have recounted here. We have relied, in part, on a translation and transcription of the interrogation that Ferrandis-Edwards reviewed and edited. The district court admitted the document as an exhibit at the suppression hearing. The 64-page document includes the translations Marino made during the interrogation and what Ferrandis-Edwards considered to be appropriate translations of what was actually said. Unless we have indicated otherwise, we have quoted the English translations of what Marino said to Fernandez in Spanish and the English translations Marino attributed to Fernandez.

7 At the suppression hearing, Brixius, Marino, and the expert translators testified.

Fernandez did not. The district court also considered the testimony and report of Dr.

Robert Barnett, a clinical psychologist, originally admitted during an earlier hearing in the case on a different issue. Based on a clinical examination, Dr. Barnett testified at the earlier hearing that Fernandez had "mild cognitive difficulty" that impaired his ability to fully understand and respond to questions during the psychological testing. Dr. Barnett also suspected Fernandez had a learning disability. In his report, Dr. Barnett characterized Fernandez as "functioning [intellectually] in the low average range." The parties do not challenge the district court's consideration of Dr. Barnett's evidence.

After the hearing, the district court issued a detailed memorandum decision granting Fernandez' motion and suppressing the statements he made to Brixius during the interrogation. The district court found that the full circumstances of the interrogation demonstrated that Fernandez' inculpatory statements were not the product of his free and independent will. The State has exercised its prerogative under K.S.A. 2013 Supp. 22to take an interlocutory appeal from a district court ruling suppressing a defendant's statements.

–  –  –



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