PUBLISHED OPINION
Case No.: 94-1200-CR
† Petition
for Review Pending.
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
†
v.
CARLOS SANTIAGO,
Defendant-Appellant.
Submitted on Briefs: January 3, 1995
Oral Argument: ---
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: November 7, 1995
Opinion Filed: November
7, 1995
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If
"Special", JUDGE: LEE E. WELLS
so indicate)
JUDGES: Sullivan, Fine and Schudson, JJ.
Concurred:
Dissented: Fine, J.
Appellant
ATTORNEYSFor the defendant-appellant the cause was submitted on
the briefs of Eduardo M. Borda of Milwaukee.
Respondent
ATTORNEYSFor the plaintiff-respondent the cause was submitted on
the briefs of James E. Doyle, attorney general, and Thomas J.
Balistreri, assistant attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED November
07, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-1200-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
CARLOS
SANTIAGO,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Milwaukee County: LEE E. WELLS, Judge.[1] Reversed and cause remanded with
directions.
Before
Sullivan, Fine, and Schudson, JJ.
SULLIVAN,
J. Carlos Santiago appeals from a judgment, upon a guilty plea,
convicting him of possession of a controlled substance with intent to
deliver—tetrahydrocannabinol (marijuana), contrary to §§ 161.14(1)(t) and
161.41(lm)(h), Stats.
(1991-92). At issue in this case is
whether the trial court erred in concluding that the State met its burden in
showing that Santiago knowingly and intelligently waived his Miranda
rights.[2] We conclude that the trial court's
conclusion that Santiago knowingly and intelligently waived his rights is
unsupported by the current evidentiary record in this case. Further, because the trial court prevented
Santiago from preserving, through either spoken or written testimony, the exact
Spanish wording of the Miranda warnings given to him by the
police, the appellate record is insufficient for this court to review whether
the State met its burden in showing that Santiago knowingly and intelligently waived
his Miranda rights.
Accordingly, we must reverse the judgment of conviction and remand the
matter to the trial court for further evidentiary hearings on this issue.
I.
BACKGROUND
In
January 1993, police obtained a warrant to search Santiago's residence on West
Greenfield Avenue in the City of Milwaukee.
While executing the search warrant, the police forced their way into the
home and found fifteen “baggies” containing marijuana in Santiago's bedroom. Police arrested Santiago, but it became
apparent to the officers that Santiago did not speak English. The officers requested that a
Spanish-speaking officer be sent to the residence to act as an
interpreter. Officer John Garcia
arrived twenty minutes after the arrest and provided Santiago with the Miranda
warnings at issue in this appeal.
Santiago later made a custodial statement to police admitting that the
marijuana found in the bedroom belonged to him. Consequently, the State charged Santiago for the drug offense.
Santiago
filed a motion to suppress his statements to police because of alleged Miranda
deficiencies. He argued that he did
not knowingly and intelligently waive his rights. Officer Garcia testified at the suppression hearing that he had
no formal training in Spanish, and that he could neither read nor write
Spanish. He did testify, however, that
he spoke Spanish for most of his life, and that he considered himself a fluent
Spanish speaker. Further, he testified
that he had been used as a Spanish “interpreter” in more than one hundred
investigations over his seventeen-year career as a Milwaukee police officer.
Officer
Garcia testified that he first read the warnings to Santiago in English, then
he looked at a card providing the Miranda warnings in English and
simultaneously attempted to translate the English words into Spanish. After he read each of the rights, he asked
Santiago if he understood what he had just said. Santiago responded, “Yes,” in English, to each query. Garcia also told Santiago in Spanish that
“[I]f he were cooperative, that would be the best thing for him.”
Santiago's
counsel then requested Officer Garcia to recite the Spanish words he used to
inform Santiago of his Miranda rights. Counsel suggested that the court-appointed interpreter translate
the Spanish words into English for the court reporter.[3] The trial court refused to allow Officer
Garcia to testify in Spanish and have his testimony translated by the
interpreter. The court feared that the
original Spanish words used by Officer Garcia would become lost, and that the
interpreter's translation would become the “official version of what he said.” Further, because Officer Garcia could not write
in Spanish, a written version of his testimony could not be recorded. On facing this dilemma, the trial court and
Santiago's counsel sought an appropriate avenue to preserve for the record the
warnings Officer Garcia provided Santiago.
After
further questions, Officer Garcia testified that in 1978 he worked with the
Spanish Center in Milwaukee to produce a Spanish version of the Miranda
warnings. He testified that although he
could not read Spanish, he would give the Spanish language cards to defendants
to allow them to better understand his verbal Spanish-language Miranda
warnings. He did not have the card with
the Spanish version when he gave the warnings to Santiago. Officer Garcia testified that the Spanish
warnings on the card would have been substantially similar to those he
generally gave in January of 1993, but were not the actual Spanish words he
spoke to Santiago. He testified
that the actual spoken version was more “street language” than the language of
the card. He also confirmed that the
Spanish-language card was “in no way close to being verbatim of what [he] said
to Mr. Santiago on January 27th.” Based
on this testimony, defense counsel contended that the Spanish card should not
be substituted for the actual warnings spoken by Officer Garcia. Defense counsel then suggested that Officer
Garcia testify in Spanish and then have the interpreter write the testimony in
Spanish. The trial court originally
granted counsel's motion, but before Officer Garcia could testify, the trial
court reversed itself and denied this motion, stating that the written card
would accomplish the same thing. The
State objected to the relevance of the card because Officer Garcia testified
that he did not use it with Santiago.
Santiago
offered the card into evidence and the trial court received it, but neither the
card nor Officer Garcia's spoken version is part of the appellate record; we
only have minute portions of the alleged Spanish warnings provided in the
testimony of Officer Garcia. He
testified that he told Santiago “apuntar un abogado” to express the
phrase “appoint you a lawyer.” Further,
he testified that he never said anything in Spanish which was the equivalent to
“You can have a lawyer without any cost to you.” Another Spanish-speaking officer testified later that abogado
means “lawyer,” and that apuntar means “to point.” Further, the officer testified that the
correct Spanish word for the English phrase “to appoint” is “otorgar.” Finally, Santiago testified at the hearing
and stated that he did not remember Officer Garcia reading him any
constitutional rights.
Before
making its ruling, the trial court provided lengthy factual findings. The trial court found that “with some
exceptions, Officer Garcia talked to the defendant in substantially the words
and terms that [we]re set forth in” the Spanish Miranda
card. Further, the court found that “he
made every effort to use [S]panish words that he believed would best
communicate these rights to the defendant.”
Accordingly, the trial court found that Santiago knowingly,
intelligently, and voluntarily waived his Miranda rights when he
gave the incriminating statements to police.
The trial court concluded that the State had met its burden by “the
greater weight of the credible evidence.”
II.
APPLICATION
Santiago
argues that the State failed to make a prima facie showing that he
knowingly, intelligently, and voluntarily waived his Miranda
rights. Accordingly, he argues that his
custodial statements should have been suppressed because their admission would
violate his constitutional rights under the federal and state due process
clauses. Resolving this issue requires
us to apply the trial court's factual findings to federal and state
constitutional principles. State
v. Lee, 175 Wis.2d 348, 354, 499 N.W.2d 250, 252 (Ct. App. 1993). While we review the trial court's factual
findings under the “clearly erroneous” standard, see State v.
Esser, 166 Wis.2d 897, 903, 480 N.W.2d 541, 543 (Ct. App. 1992), the
application of those facts to the constitutional principles presents a question
of law that we review de novo. Lee,
175 Wis.2d at 354, 499 N.W.2d at 252.
When
the state seeks to admit a defendant's custodial statement, constitutional due
process requires that it make two discrete showings: “First, ... that the
defendant was informed of his Miranda rights, understood them[,]
and [knowingly and] intelligently waived them.
Second, ... that the defendant's statement was voluntary.” Id. at 359, 499 N.W.2d at 255
(citation omitted). Once the state has
established both the prima facia case of a defendant's waiver of his Miranda
rights, and the voluntariness of the defendant's custodial statement, the trial
court should admit the statement into evidence. Id.
Further, if this prima facia burden is met, a defendant may
provide “countervailing evidence that his [or her] waiver was not knowing and
intelligent.” Id. at 361,
499 N.W.2d at 255-56. The trial court
must then determine by the “totality of the circumstances” whether the
defendant's waiver was knowingly and intelligently made. Id. at 361, 499 N.W.2d at
256. Under this “objective” standard,
the validity of the Miranda waiver must be determined by the
trial “court's inspection of the particular circumstances involved, including
the education, experience and conduct of the accused as well as the credibility
of the police officer's testimony.” Id.
at 364, 499 N.W.2d at 257.
Santiago
first argues that the trial court applied the incorrect burden of proof for the
State's prima facia showing that he waived his Miranda
rights by “the greater weight of the credible evidence.” He argues that the trial court should have
applied the “beyond a reasonable doubt” standard annunciated in State v.
Mitchell, 167 Wis.2d 672, 696, 482 N.W.2d 364, 374 (1992). This issue was recently resolved by the
Wisconsin Supreme Court.
In
State v. Jones, 192 Wis.2d 78, ___, 532 N.W.2d 79, 94 (1995), amended
upon denial of motion for reconsideration by, No. 92‑1316‑CR
(per curiam order) (Wis. June 29, 1995), the supreme court held that the state
must show only “`by a preponderance of the evidence'” that a defendant's waiver
of his or her Miranda rights was knowing and intelligent. Id. (quoting Colorado v.
Connelly, 479 U.S. 157, 168, 107 S. Ct. 515, 522, 93 L.Ed.2d 473,
485 (1986)); see also State v. Beaver, 181 Wis.2d 959,
966-67, 512 N.W.2d 254, 256 (Ct. App. 1994); Lee, 175 Wis.2d at
362-64, 499 N.W.2d at 256; Esser, 166 Wis.2d at 904-06, 480
N.W.2d at 544-45. Accordingly, the
trial court applied the correct burden of proof in this case. See Esser, 166 Wis.2d
at 905-06, 480 N.W.2d at 545 (discussing equivalence of “preponderance of the
evidence” and “greater weight of the credible evidence” standards).
Santiago also intimates in his appellate
brief that the Wisconsin Constitution may require a “higher” burden of proof
for the State. While we acknowledge
that based upon state law we may adopt a more stringent standard than that
required by the federal Constitution, see id., at 905, 480
N.W.2d at 544 (citing Lego v. Twomey, 404 U.S. 477, 489, 92
S. Ct. 619, 627, 30 L.Ed.2d 618, 627 (1972)), “[w]hether such a burden should
be adopted is properly left to our supreme court,” id. (emphasis
added), and accordingly, we as an intermediate appellate court will not address
that question here.
Santiago
next argues that the record fails to support the trial court's conclusion that
he knowingly and intelligently waived his Miranda rights. He challenges whether Officer Garcia's
recitation of the Miranda warnings in Spanish provided an
adequate basis from which he could knowingly and intelligently waive his
rights. The trial court found that the Miranda
warnings given to Santiago in Spanish were substantially the same as those on
the Spanish language card and that, based upon the card and Officer Garcia's
testimony, Santiago knowingly and intelligently waived his rights. We conclude that this factual finding is
“clearly erroneous” and not supported by Officer Garcia's testimony. Id. at 903, 480 N.W.2d at 543.
First,
we note that while the English language is the dominant form of official and
interpersonal communication used in the United States, a non-English speaking
defendant is still protected by the same constitutional rights accorded to
English speakers. See Yniguez
v. Arizonans for Official English, 69 F.3d 920, 923 (9th Cir. 1995) (en
banc) (citation omitted). However,
“language difficulties may impair the ability of a person in custody to waive
these rights in a free and aware manner.”[4] United States v. Heredia-Fernandez,
756 F.2d 1412, 1415 (9th Cir.), cert. denied, 474 U.S. 836, 106
S. Ct. 110, 88 L.Ed.2d 90 (1985).
Thus, in some cases, a trial court must consider a defendant's language
skills when determining if under the “totality of the circumstances” the
defendant knowingly and intelligently waived his or her rights. In such cases, a court may conclude that,
because of a defendant's lack of English-language skills, the questioning
officers should provide the Miranda warnings in the defendant's
native language to ensure full understanding of those warnings. See, e.g., United States v.
Boon San Chong, 829 F.2d 1572, 1573, 1574-75 (11th Cir. 1987)
(Chinese-speaking defendant provided Chinese “advice of rights” form).
The
investigating police officers in this case followed such a procedure. When it became apparent that Santiago did
not understand English, they requested a Spanish-speaking officer to provide
Santiago with his Miranda warnings. Hence, what is at issue in this case is whether Officer Garcia's
Spanish Miranda warnings were sufficient so that Santiago could
knowingly and intelligently waive his rights.
It
is apparent from the record that Officer Garcia did not read Santiago an
officially prepared Spanish language version of the Miranda
warnings.[5] He read the warnings from an English language
card, first in English, and then attempted to translate the English version
into Spanish. Santiago contends that
this translation failed to provide the Miranda warnings
accurately and completely.
We
note that the police need not provide a “talismanic incantation” of the exact
language of the warnings as provided by the United States Supreme Court in Miranda. California v. Prysock, 453
U.S. 355, 355, 359-60, 101 S. Ct. 2806, 2807, 2809, 69 L.Ed.2d 696, 699,
701 (1981). The essential question is
whether the police convey the equivalent essence of the Miranda
warnings. Id. at 360, 101
S. Ct. at 2809, 69 L.Ed.2d at 701.
The substance, not the form of the warnings is the focus of our
inquiry. Bohachef v. State,
50 Wis.2d 694, 700, 185 N.W.2d 339, 342 (1971).
Unfortunately,
we are at an impasse in this case because we do not have the warnings given by
Officer Santiago from which we can determine whether their substance satisfies
constitutional requirements. The trial
court recognized the obvious problem of having Officer Garcia testify in
Spanish the exact wording of the Miranda warnings he spoke to
Santiago—the non‑Spanish-speaking court reporter was unable to record
this testimony. Likewise, because
Officer Garcia could not write in Spanish, he could not provide the court with
a written version of the Miranda warnings he gave to
Santiago. Inexplicably, however, the
trial court denied defense counsel's request to have Officer Garcia testify in
Spanish, and then have the court-appointed interpreter write down this
testimony in Spanish and translate it into English.
We
do not know what Officer Garcia told Santiago in Spanish because the trial
court prevented Santiago from making a record of the actual statement. Additionally, there were questions raised
over whether some of the Spanish phrases used by Officer Santiago, e.g., “apuntar
un abogado,” were adequate translations of the Miranda
warnings.
Thus,
at this point on appeal the focus of this case is more about the lack of a
clear and accurate record of what transpired between Officer Garcia and
Santiago than it is about a constitutional error on the part of the
police. It is clear that the trial
court attempted several times to provide an accurate record of what Garcia told
Santiago; however, these attempts fell short and we are left without an
accurate record. Without a record of
what Officer Garcia told Santiago, this court is bereft of sufficient evidence
from which we can review whether the police complied with Miranda
and its progeny.
More
problematic is the fact that instead of having the interpreter transcribe
Officer Garcia's testimony in Spanish and then translate it into English, the
trial court found that a Spanish-language card created by Garcia was the
substantial equivalent of the actual spoken words used by Officer Garcia. The court made this finding despite Officer
Garcia's testimony that he did not have the card with him when he “Mirandized”
Santiago and that the actual language he used was different from that on the
card.
Based
upon Officer Garcia's testimony, we conclude that the trial court's factual
finding that “Officer Garcia talked to the defendant in substantially the words
and terms that [we]re set forth in” the Spanish Miranda card is
unsupported by the current appellate record.
Accordingly, this factual finding is “clearly erroneous.” Esser, 166 Wis.2d at 903, 480
N.W.2d at 543. At issue is what Officer
Garcia actually said, and because he testified that he did not use the
same words as the Spanish language card, but rather a “street language”
version, the Spanish language card could not provide the trial court with a
substantial equivalent of Officer Garcia's actual Miranda
statement to Santiago.[6] Without further evidence in the record of
what Officer Garcia actually told Santiago, the trial court's conclusion that
Santiago's waiver was knowingly and intelligently made is unsupported by “the
totality of the circumstances.” Lee,
175 Wis.2d at 361, 499 N.W.2d at 256.
Accordingly, we must reverse and vacate the judgment of conviction and
remand the matter for a continued evidentiary hearing on this issue.
We
order the trial court to hold further hearings and make specific factual
findings on what Officer Garcia actually told Santiago and whether these
Spanish Miranda warnings properly conveyed the substance of Miranda's
mandate. The trial court should permit
Officer Garcia to state, in Spanish, what he believes he told Santiago. The court-appointed interpreter should then
transcribe Officer Garcia's testimony in Spanish and then translate it into
English so that the trial court has the best-available English-language record
of the warnings Officer Garcia says he gave to Santiago. If, based upon these facts, the trial court
finds that Santiago knowingly and intelligently waived his Miranda
rights, the trial court shall reinstate the judgment of conviction. If the trial court does not reach this
conclusion, Santiago shall be allowed to withdraw his guilty plea and the State
may reinstitute its prosecution of the case if it so chooses.
By
the Court.—Judgment reversed
and cause remanded with directions.
No.
94-1200-CR(D)
FINE,
J. (dissenting). The Majority
concludes that the trial court's finding that “the Miranda
warnings given to Santiago in Spanish were substantially the same as those on
the Spanish language card and that, based upon the card and Officer Garcia's
testimony, Santiago knowingly and intelligently waived his rights” is “clearly
erroneous,” Majority op. at 9, because the officer who gave to the defendant
the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966),
did not have the Spanish Miranda-warning card with him at the
time, Majority op. at 11. The Majority,
however, ignores the officer's testimony that he fully advised the defendant of
the rights protected by the Miranda decision, that the defendant
understood those rights, and that the defendant waived those rights
voluntarily. This testimony amply
supports the trial court's findings. It
is not our function to review that finding de novo. Moreover, the Majority's decision imposes a
burden on the State that is contrary to established precedent:
Reviewing courts ... need not examine Miranda warnings
as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings
reasonably “conve[y] to [a suspect] his rights as required by Miranda.”
Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (citation omitted; brackets
by Duckworth). Contrary
to the Majority's view, the law does not require that the officer have used the
exact words on the Spanish Miranda-warning card; all that is
required is that the warning be given in substance. The trial court's finding that that was done here is supported by
the officer's testimony.
I
respectfully dissent.
[1] The Hon. John A. Franke presided over the
suppression hearing at issue in this appeal.
The Hon. Lee E. Wells later presided over the sentencing and entered the
judgment of conviction.
[3] The court-appointed interpreter was sworn in
at the beginning of the hearing. See
generally § 885.37, Stats.
(discussing court appointment of interpreters); see also State v.
Neave, 117 Wis.2d 359, 344 N.W.2d 181 (1984) (discussing obligation to
provide criminal defendant with interpreter), holding limited by, State
v. Le, 184 Wis.2d 860, 517 N.W.2d 144 (1994).
[4] Indeed, while we recognize that “[i]n our
diverse and pluralistic society, the importance of establishing common bonds
and a common language between citizens is clear,” Yniguez v. Arizonans
for Official English, 69 F.3d 920, 923 (9th Cir. 1995) (en banc), we
also recognize that “[t]his diversity makes it increasingly difficult for the
criminal justice system to meet constitutional requirements of fundamental
fairness.” William E. Hewitt, National Center for State Courts, Court
Interpretation: Model Guides for Police
and Practice in the State Courts 11 (1995).
For
instance, we note that one recent study estimated that nationally in 1990 the
number of home speakers of non‑English languages was nearly 32 million or
approximately 12.6% of the total population.
Id. at 11. This
same study found that the estimated number of home speakers of selected non‑English
languages in Wisconsin in 1990 equalled 5.3% of the state's population. Id. at 24.