COURT OF APPEALS
DECISION
DATED AND FILED
November 18, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Adan Martinez,
Defendant-Appellant.
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APPEAL
from a judgment of the circuit court for Milwaukee County: david
a. hansher, Judge. Affirmed.
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Adan Martinez appeals from a judgment of
conviction entered after a jury found him guilty of one count of second-degree
sexual assault of a child and one count of repeated acts of sexual assault of a
child. See Wis. Stat. §§ 948.02(2),
948.025(1)(b) (2003-04). Martinez
challenges only the circuit court’s decision to admit his custodial statement
into evidence. We affirm.
BACKGROUND
¶2 In 2004, Martinez
was arrested following an accusation that he sexually assaulted a
thirteen-year-old girl. While in
custody, Martinez
gave an inculpatory statement to Detective Justin Carloni. The State charged Martinez with: (1) one count of second-degree sexual
assault of a child by use of force; (2) one count of second-degree sexual
assault of a child; and (3) one count of repeated acts of sexual assault of a
child.
¶3 Martinez
moved to suppress his custodial statement on the ground that it was obtained in
violation of Miranda v. Arizona, 384 U.S. 436 (1966). Martinez
did not deny that Carloni administered the warnings required by Miranda. Rather, Martinez
contended that he is proficient only in Spanish and thus he did not understand
what he was told when Carloni provided Miranda warnings in English.
¶4 At the suppression hearing, Carloni testified that he and Martinez spoke in English
prior to the start of the custodial interview. Carloni observed that Martinez “spoke English fluently.” According to Carloni, Martinez explained that he could neither read
nor write in English. Carloni then
orally advised Martinez of the Miranda
rights, and Martinez
stated that he understood.
¶5 Carloni testified that he and Martinez spoke only in English throughout the
subsequent custodial interview. Martinez provided
appropriate responses to questions about his family and background, his prior
criminal record, and his probationary status.
Martinez
gave a lucid statement pertaining to the accusation of sexual assault, he spoke
in full sentences, and “the conversation flowed.” Carloni testified that he wrote down Martinez’s statement and then read it aloud to Martinez, who signed
it. According to Carloni, he had no
difficulty understanding Martinez, and Martinez never indicated
that he did not understand Carloni.
¶6 Martinez
testified through a translator. He
acknowledged that he came to the United States
in 1991 and that he had worked as a cook in Milwaukee since 1999. He explained that he had a limited ability to
speak English, sufficient to respond when asked about his name or his family.
¶7 Regarding the custodial interrogation, Martinez explained that he did not understand
most of what Carloni said, including the Miranda advisements, because Carloni
spoke only in English. Martinez testified that he could not make
himself understood in English and, therefore, he said very little to Carloni. Martinez acknowledged that Carloni took notes
during the interrogation, but Martinez explained that he did not know what the
notes said, and he did not understand what he signed after Carloni read the
notes back in English.
¶8 Martinez
admitted that he was arrested once before and that he was advised of the Miranda
rights in Spanish incident to that arrest.
He testified that he had understood the Spanish-language Miranda
advisements on that occasion.
¶9 Christina Green, a freelance interpreter and translator,
testified that Martinez’s trial counsel retained
her to assess Martinez’s
proficiency in English. Green described
her experience in performing such assessments, explaining that she had
conducted three prior English-proficiency evaluations.
¶10 Green testified that she met with Martinez for approximately one hour while he
was in custody. According to Green, Martinez’s English was
ungrammatical, he spoke only in the present tense, he omitted pronouns, and he
did not understand many basic vocabulary words, such as “went.” Green explained that Martinez’s ability to communicate in English
was limited to simple responses on familiar subjects. She concluded that Martinez did not understand Carloni during
the custodial interview.
¶11 In rebuttal, the State called Martinez’s workplace supervisor, Anthony
Anderle. Anderle testified that he and Martinez worked together for two years prior to Martinez’s arrest. According to Anderle, he spoke only English
with Martinez, and Martinez “spoke English perfectly fine.” Anderle testified that he used Martinez as an interpreter
to communicate with employees who did not speak English.
¶12 At the conclusion of the hearing, the circuit court rejected Martinez’s claims and
denied the motion to suppress. The
matter proceeded to trial, and the State introduced into evidence Martinez’s inculpatory
admission that he had sexual intercourse with the thirteen-year-old victim on
multiple occasions. The jury acquitted Martinez of sexually
assaulting a child by use of force, but convicted him of second-degree sexual
assault of a child and of repeated acts of sexual assault of a child. Martinez
appeals.
DISCUSSION
¶13 Martinez
contends that he did not understand the English-language recitation of the Miranda
rights that preceded his custodial statement.
Therefore, he did not waive those rights voluntarily, knowingly, and
intelligently.
A Miranda waiver is voluntary if it is
“the product of a free and deliberate choice rather than intimidation,
coercion, or deception.” For a Miranda
waiver to be knowing and intelligent, it “must have been made with a full
awareness of both the nature of the right being abandoned and the consequences
of the decision to abandon it.” Resolving the waiver question requires a
case-by-case examination of all the facts and circumstances, including the
suspect’s background, experience, and conduct.
State v. Hambly, 2008 WI
10, ¶91, 307 Wis. 2d
98, 745 N.W.2d 48 (citations and footnotes omitted).
¶14 In reviewing a Miranda challenge, we are bound by
the circuit court’s factual and historical findings unless they are clearly
erroneous. State v. Ross, 203 Wis. 2d 66, 79, 552
N.W.2d 428 (Ct. App. 1996). We determine
independently whether the facts resulted in a constitutional violation. Id.
¶15 Here, the circuit court found Carloni credible, and it
described Anderle’s testimony as “key.”
The court rejected Martinez’s
claim to have signed an admission without knowing what it said. The court observed that, if it accepted Martinez’s testimony,
then Carloni “made [up] the confession out of whole cloth, which I don’t
buy.” This court defers to the circuit
court’s assessment of credibility. See State v. Plank, 2005 WI App 109,
¶11, 282 Wis. 2d
522, 699 N.W.2d 235.
¶16 The circuit court stated that it disagreed with Green’s
analysis. Much of Martinez’s brief is built around an
assumption that the circuit court may not reject an expert’s testimony by
expressing disagreement with the expert’s conclusions. Thus, Martinez
suggests that the circuit court was required either to state that Green was
“not credible” or to accept her testimony.
Martinez
is wrong. A circuit court is not
required to use magic words when conducting its analysis. See
State
v. Gary M.B., 2004 WI 33, ¶26, 270 Wis. 2d 62, 676 N.W.2d 475. Further, the court of appeals defers to both
express and implicit credibility findings of the circuit court unless those
findings are “‘based upon caprice, an [erroneous exercise] of discretion, or an
error of law.’” Jacobson v. American Tool Cos.,
222 Wis. 2d
384, 390, 588 N.W.2d 67 (Ct. App. 1998) (citation omitted).
¶17 In this case, the circuit court’s remarks reflect that it did
not find Green’s testimony persuasive.
The circuit court’s finding has ample justification in the record. First, Green had only limited experience in
evaluating English proficiency. Second,
her assessment did not comport with the credible evidence offered by Carloni
and Anderle. Third, she based her
conclusions on a single and relatively brief interview with Martinez.
Accordingly, we defer to the circuit court’s assessment of Green’s
testimony.
¶18 Martinez
also argues that the circuit court was required to accept Green’s conclusions
because it “did not point to evidence that contradicted the expert’s
testimony.” This contention is incorrect
as a matter of both law and fact. As a
matter of law, a circuit court is at liberty when resolving a disputed issue “‘to
accept or reject the testimony of any expert, including accepting only parts of
an expert’s testimony [] and to consider all of the non-expert testimony….’” See
State
v. Kienitz, 227 Wis.
2d 423, 441, 597 N.W.2d 712 (1999) (citation omitted). The fact finder is never bound to the opinion
of an expert. Id. at 440. As to the facts, Anderle and Carloni flatly
contradicted Green’s testimony that Martinez
had only nominal English-language skills.
¶19 The circuit court’s conclusion that Anderle and Carloni were
credible includes the implicit finding that Martinez was sufficiently proficient in
English to understand the Miranda warnings. See
State
v. Yang, 201 Wis. 2d
725, 735-36, 549 N.W.2d 769 (Ct. App. 1996) (circuit court’s finding of
defendant’s language proficiency may be implicit from its ruling). We must accept a circuit court’s factual
findings when they are supported by credible evidence. See State v.
Owens, 148 Wis. 2d
922, 929-30, 436 N.W.2d 869 (1989).
¶20 Martinez
offered no alternative basis for suppressing his confession beyond his claim to
have limited English-language skills. The circuit court did not believe that claim. On this record, we are satisfied that Martinez
understood the Miranda warnings and that he voluntarily, knowingly, and
intelligently waived his
rights. The circuit court properly
refused to suppress Martinez’s
custodial statement.
By the Court.—Judgment affirmed.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
(2005-06).