ALFREDO RIVERA-REYES V. COMMONWEALTH OF KENTUCKYAnnotate this Case
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RENDERED : OCTOBER 19, 2006
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HON. JUDITH MCDONALD-BURKMAN, JUDGE
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
Appellant, Jose Alfredo Rivera-Reyes, entered a conditional plea of guilty
to one count of first degree rape .' As a condition to his plea, Appellant reserved
the right to appeal the Jefferson Circuit Court's denial of his motion to suppress
statements made to officers subsequent to his arrest and issuance of Miranda
warnings . Appellant was given a sentence of twenty years imprisonment.
Appellant now appeals to this Court as a matter of right pursuant to Ky. Const. §
110(2)(b), alleging the trial court committed reversible error in denying his motion
to suppress statements made to police after he signed a Spanish version of the
Miranda rights waiver form, arguing that (1) the Spanish version of the Miranda
' Appellant was indicted on two counts of first degree rape ; however, in return for
his conditional guilty plea, the Commonwealth agreed to dismiss the remaining
rights waiver form was constitutionally defective and Officer Simpson was not
shown to be a competent Spanish translator, warranting suppression of his
statements and (2) the failure of the police to contact the Mexican Consulate
pursuant to Article 36 of the Vienna Convention requires suppression of his
statements. Having reviewed the record and for the reasons set forth herein, we
affirm the ruling of the trial court.
On October 7, 2003, Appellant was arrested and charged with two counts
of rape in the first degree of his 10 year old step-daughter. Following Appellant's
arrest, Officer Keith Simpson of the Louisville Police Department responded to a
radio request for a police officer that could speak Spanish "somewhat" to assist in
questioning Appellant . Officer Simpson arrived shortly thereafter at the Crimes
Against Children Unit (CACU) at the police department, and, with three other
officers, he questioned Appellant Reyes concerning the charges. Appellant
made incriminating statements to the police during questioning, but only after he
had signed a Spanish version of the Miranda rights waiver form and after
indicating to the Officer Simpson in Spanish that he understood his rights.
On September 2, 2004, Appellant filed a motion to suppress his
statements to police, arguing that his waiver of Miranda rights was not knowing,
voluntary and intelligent because the Spanish version of the Miranda warnings
did not contain a statement informing him that he could cease questioning at any
time by refusing to answer questions or by requesting an attorney. On March 7,
2005, pursuant to Appellant's request, the Jefferson Circuit Court conducted a
suppression hearing .
Testimony elicited at the suppression hearing revealed that Officer
Simpson had limited experience in reading constitutional rights to suspects in
Spanish . Officer Simpson testified that Appellant Reyes was cooperative during
the questioning and seemed to understand Officer Simpson's Spanish . The
three officers that accompanied Officer Simpson during the questioning of
Appellant also testified that Appellant appeared to understand his rights and that
he was responsive when Officer Simpson spoke to him in Spanish . Appellant
signed the Spanish version of the Miranda rights waiver form and placed his
initials beside each of the four Miranda warnings, indicating that he understood
each of the four enumerated rights contained in the form .
In denying Appellant's motion to suppress, the trial court found that:
[t]he only difference between the [English and Spanish] rights forms
at issue is with respect to paragraph 5 of the English version, which
is absent from the Spanish version . This paragraph on the English
form states, "You may stop the questioning or making of any
statements at any time by refusing to answer further or by
requesting to consult with an attorney prior to continuing with
questioning or the making of any statements ."
The trial court ultimately concluded that the Spanish version satisfies
Miranda, finding that the absence of paragraph 5 from the Spanish version did
not render Appellant's statements involuntary . Further, the trial court found that
the omitted language did not contain any additional rights, and thus, the court
found Appellant's waiver was made voluntarily, knowingly and intelligently.
During the suppression hearing, Appellant also argued that a violation of
Article 36 of the Vienna Convention, as is alleged to have occurred here,
requires, as a remedy, that any statements made to the police must be
suppressed . The trial court was not persuaded and ruled as follows:
The court is very familiar with the Gomez2 case . . . . And that is
pretty factually direct, as far as the facts here and the facts there. . .
. That treaty, if you will, does not confer more specific individual
rights or additional individual rights on anyone . . . . [S]uppression of
the statements is not appropriate in a situation like this. What the
remedy would be - I don't know - but it's not suppression . What
prejudice [Appellant] suffered, the court can't figure either at this
point. . . .3
On March 22, 2005, Appellant appeared before the Jefferson Circuit Court
and pled guilty to one count of rape in the first degree . 1n return, the
Commonwealth agreed to dismiss the remaining count of rape in the first degree
and recommended a twenty year prison sentence, the statutory minimum.
Appellant's guilty plea was conditioned on the right to appeal the pre-trial order
denying his motion to suppress his statements . Judgment was entered against
Appellant on May 4, 2005, sentencing him to twenty years in prison . He now
appeals the trial court's denial of his motion to suppress .
A. Standard of Review
The provisions of RCr 9.78 establish the standard for appellate review of
the trial court's decision on a motion to suppress statements. Fletcher v.
Commonwealth , 182 S.W.3d 556, 558 (Ky.App. 2005). "If supported by
substantial evidence the factual findings of the trial court shall be conclusive ."
RCr 9.78 . See also Davis v . Commonwealth , 795 S.W.2d 942 (Ky. 1990) .
2 Gomez v. Commonwealth, 152 S.W.2d 238 (Ky.App. 2004).
3 The trial court also noted that the United States Supreme Court would be
considering this issue in an upcoming case . That case, Medellin v. Dretke, 544
U.S . 660,125 S.Ct. 2088, 161 L.Ed .2d 982 (2005), was decided on May 23,
2005. In Medellin , the United States Supreme Court held that the state prisoner
was required to demonstrate, inter alia, that alleged treaty violation could
establish a denial of a constitutional right. The Court dismissed petitioner's writ
of habeas corpus as being improvidently granted .
"When the findings of fact are supported by substantial evidence . . . the question
necessarily becomes, 'whether the rule of law as applied to the established facts
is or is not violated ."' Adcock v. Commonwealth , 967 S .W.2d 6, 8 (Ky. 1998)
(quoting Ornelas v. United States , 517 U .S. 690, 697, 116 S.Ct. 1657, 1662, 134
L.Ed .2d 911(1996)) . "The second prong involves a de novo review to determine
whether the court's decision is correct as a matter of law." Stewart v.
Commonwealth , 44 S .W.3d 376, 380 (Ky.App. 2000) (citing Adcock v.
Commonwealth , 967 S.W.2d 6, 8 (Ky. 1998) ; Commonwealth v. Opell , 3 S.W.3d
747, 751 (Ky.App. 1999)) . However, it should be noted that "a reviewing court
should take care both to review findings of historical fact only for clear error and
to give due weight to inferences drawn from those facts by resident judges and
local law enforcement officers ." Ornelas v. United States , 517 U.S . at 699, 116
S .Ct. at 1663.
B. Trial Court properly denied Appellant's motion to suppress.
1 . Denial of motion to suppress was based on substantial evidence.
Appellant makes two arguments on appeal. First, Appellant argues that
the trial court's denial of his motion to suppress was erroneous because he did
not understand his rights and thus, could not knowingly, voluntarily and
intelligently waive his rights . In support of this argument, Appellant contends that
the Spanish version of the Miranda rights waiver form is constitutionally deficient
because it contains only four enumerated rights, as opposed to the English
version of the same form, which includes a fifth enumerated provision informing
the individual that they can cease questioning at any time by saying so or by
requesting the assistance of an attorney . Appellant also contends that Officer
Simpson's lack of proficiency in speaking and translating Spanish further
implicates an invalid waiver of Appellant's rights under Miranda.
Initially, this Court must decide if the Jefferson Circuit Court's denial of
Appellant's motion to suppress was based on substantial evidence. We believe it
In this case, Appellant, a Spanish-speaking Mexican national, was given a
Spanish version of the Miranda rights waiver form. Appellant clearly indicated to
the officers that he did not speak English, which is supported by testimony from
the officers that Officer Simpson responded to a call for an officer that spoke
Spanish. Appellant's contention that he did not validly waive his rights under
Miranda is without merit, as the record clearly shows that Appellant placed his
initials beside each of the four enumerated provisions on the waiver form and
signed his name at the bottom .
Furthermore, despite Officer Simpson's lackluster ability as a Spanish
translator, the other officers that were present during the questioning testified that
Appellant responded appropriately to Officer Simpson's questions . Moreover,
the officers also testified that Appellant appeared to understand his rights .
Appellant's contention that the absence of a fifth element on the Spanish
version of the Miranda rights waiver form requires suppression of his statements
is equally without merit . The trial court determined that the fifth element, a
statement found on the English version only and informs the individual that they
may cease questioning at any time by indicating his intentions to the officers or
by requesting an attorney, did not contain any additional rights. The trial court
also found the Spanish version of the form conformed to the requirements of
Miranda. Further, no evidence was offered to suggest that Appellant's
statements were given involuntarily as several officers testified that no threats or
promises were made to get Appellant to speak to the police .
Appellant's second argument is that a violation of Article 36 of the Vienna
Convention requires suppression of his statements as a remedy. It is undisputed
that the police never contacted anyone from the Mexican Consulate and never
informed Appellant of his rights under Article 36 of the Vienna Convention . The
trial court, however, correctly found that the multinational treaty does not confer
individual rights such that suppression of statements is required when a violation
of its provisions has occurred . Furthermore, the trial court correctly determined
that Appellant suffered no prejudice, at least none for which suppression of his
statements to the police is necessary or required .
Thus, we find that the trial court's denial of the motion to suppress was
supported by substantial evidence.
2. Trial Court properly denied Appellant's motion to suppress as a
matter of law.
Finding the trial court's denial of Appellant's motion to suppress was
based on substantial evidence, we must now determine de novo whether the
denial of the motion to suppress was correct as a matter of law. We find no error
in the trial court's application of the law and thus affirm Appellant's conviction and
a. Spanish version of Miranda rights waiver form.
Appellant's primary contention is that the Spanish version of the Miranda
rights waiver form is constitutionally defective as it contains only four enumerated
rights compared to the English version of the form, which contains five
enumerated rights. The trial court resolved any apparent discrepancies and
possible violations of Miranda's requirements in finding that the information
described in the fifth paragraph on the English version of the rights waiver form
did not set forth any additional rights not already disclosed on the Spanish
version of the form. The trial court also determined that the absence of the fifth
paragraph on the Spanish version of the rights waiver form had no effect on the
validity of Appellant's waiver, and thus ruled against Appellant's motion to
Although this case presents an issue that is a matter of first impression for
this Court, this is not a novel argument, as this issue has been addressed in a
number of cases in other jurisdictions. Most notably, in State v. Foust, 823
N .E.2d 836 (Ohio 2004), the appellant argued that the Miranda warnings given to
him were inadequate because of the failure of the police to inform him that he
could ask for an attorney at any time, including after questioning began, and that
if he asked for an attorney once the questioning began, all questioning would
stop. The Ohio Supreme Court disagreed and held that "[p]olice do not have to
provide additional warnings to a suspect beyond what Miranda requires ." Id. at
854. The court also found that "[t]he Supreme Court has never insisted that
Miranda warnings be given in the exact form described in that decision ." Id. at
The Sixth Circuit Court of Appeals also addressed this issue in United
States v. Davis , 459 F.2d 167 (6th Cir. 1972). In that case, the appellant argued
that he was not clearly apprised of his right to terminate questioning at any time
and request counsel at any time and thus there was no intelligent waiver of his
Miranda rights . The court disagreed and found that the recitation of rights
wherein the officers stated that appellant had the right to remain silent and that
he could invoke this right or request an attorney at any time were sufficient. Id. at
169. The court opined that "[w]hile we could devise a more explicit statement
declaring a suspect's right to rescind a waiver of rights and end questioning at
any time, we conclude that the challenged statement provides an adequate and
understanding apprisal of rights ." Id.
Moreover, the United States Supreme Court has adequately addressed
the issue. In California v. Prvsock, 453 U .S. 355, 359, 101 S.Ct. 2806, 2809, 69
L.Ed .2d 696 (1981), quoted in Duckworth v. Eagan , 492 U.S . 195, 202-03, 109
S .Ct. 2875, 106 L.Ed.2d 166 (1989), the United States Supreme Court opined
that it "has never indicated that the `rigidity' of Miranda extends to the precise
formulation of the warnings given a criminal defendant." See e.g., United States
v. Lamia, 429 F.2d 373, 375-76 (2d Cir. 1970), cent. denied, 400 U.S . 907, 91
S.Ct. 150, 27 L.Ed .2d 146 (1970). "Miranda itself indicated that no talismanic
incantation was required to satisfy its strictures." Id. Further, the Court noted :
Other courts considering the precise question presented by this
case . . . have not required a verbatim recital of the words of the
Miranda opinion but rather have examined the warnings given to
determine if the reference to the right to appointed counsel was
linked with some future point in time afterthe police interrogation .
P sock, 453 U .S. at 360, 101 S .Ct. at 2810 (emphasis added) . Where the
reference to the right to an attorney was linked to some point in time after police
interrogation, rather than before such interrogation, the Court would find the
defendant was not adequately advised of his rights under Miranda . Id.
The seminal case of Miranda v. Arizona , 384 U .S . 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966), provides the warnings required and the waiver necessary for
statements made by criminal defendants to be admissible at his trial . There, the
Supreme Court held that "[p]rior to any questioning, the person must be warned
that he has a right to remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to the presence of an
attorney, either retained or appointed." 384 U .S . at 444, 86 S .Ct . at 1612 . "The
defendant may waive effectuation of these rights, provided the waiver is made
voluntarily, knowingly and intelligently. If, however, he indicates in any manner
and at any stage of the process that he wishes to consult with an attorney before
speaking there can be no questioning ." Id. at 444-45, 86 S.Ct. at 1612
Thus, it is clear from the language of Miranda that the court meant to
provide procedural safeguards. To effectuate that end, they set forth the four
basic tenets comprising the Fifth Amendment right against self-incrimination, with
instructions for law enforcement that questioning must cease when the suspect
exercises his rights .
Reyes' "right" to stop questioning, on the other hand, merely describes a
manner in which he could have exercised the Fifth Amendment privilege that he
had been adequately informed was his . It need not be included in the warnings
explicitly, as has been held in a number of cases. See e .g., United States v.
Lares-Valdez, 939 F.2d 688 (9th Cir. 1991) (holding that suspect need not be
advised of the right to have questioning stopped at any time, of the option to
answer some questions but not others, or that some questions may call for
incriminating responses) ; United States v. Caldwell , 954 F.2d 496, 501-504 (8th
Cir. 1992) (holding that suspect need not be explicitly advised of his right to
counsel before and during questioning) ; United States v. DiGiacomo , 579 F .2d
1211, 1214 (10th Cir. 1978) (holding there is no express requirement under
Miranda to advise suspects of the right to terminate questioning) .
So we agree with the trial court that the Spanish version of the
Miranda form did not contain the fifth element found on the English form.
Although regrettable, this omission did not deprive Appellant of the full
benefit of his Constitutional rights.
b. Effect of Officer Simpson's lack ofproficiency in Spanish.
Appellant further argues that his statements must be suppressed because
Officer Simpson's lack of proficiency as a Spanish translator rendered
Appellant's confession involuntary . While it is true that any statement made,
elicited, or offered to law enforcement personnel in the absence of a qualified
interpreter must be suppressed, the suspect still has the right to make a
voluntary confession . KRS 30A.400(2). This voluntary confession can be made
after the suspect is apprised of his rights and waives them by signing the
Spanish version of the Miranda rights waiver form, as occurred here.
Appellant cites several cases for the proposition that a non-English
speaking defendant can only validly waive his rights when a "qualified" interpreter
is available to explain the Miranda rights to the individual . Appellant cites United
States v. Castorena-Jaime, 117 F.Supp.2d 1161 (D. Kansas 2000), in support of
his argument that an interpreter must be available when a non-English speaking
suspect is interrogated . In that case, the federal district court opined that
"[I]anguage barriers are a factor to consider, because they may impair a
suspect's ability to act knowingly and intelligently ." Id . at 1171 (citing United
States v. Heredia-Fernandez , 756 F.2d 1412, 1415 (9th Cir. 1984)) . While
language barriers are certainly factors to be considered, we note that in that
case, the officer merely read, in English, the Miranda warnings, without ever
apprising the suspect of his rights in Spanish . Further, that case did not involve a
written Spanish version of the Miranda warnings .
Appellant also cites People v. Meiia-Mendoza , 965 P.2d 777 (Colo. 1998),
in arguing that his statements were not the product of a knowing, intelligent, and
voluntary waiver of his Miranda rights due to the inability of the translator to
properly convey the warnings of Miranda.
In that case, however, the translator
merely read, in Spanish, a Miranda warning card, which was printed in English,
to which the defendant never responded . This case is clearly distinguishable
from the one at bar, as here, again, we find that Appellant was adequately
apprised of his rights in Spanish and voluntarily, knowingly, and intelligently
waived them . Appellant never indicated to the attendant officers that his waiver
was anything but valid.
. Aguilar-Ramos , 86 P.3d 397 (Colo.
Finally, Appellant cites People
2004), wherein the Supreme Court of Colorado held, in affirming the trial court,
that the appellant was not adequately advised of his Miranda rights by police
before his custodial interrogation . In that case, the trial court suppressed
statements given by the defendant, a Spanish-speaking Mexican national,
because it found he did not validly waive his Miranda rights, despite the fact that
he was given a Spanish version of the Miranda rights waiver form, which he
subsequently signed .
What distinguishes Aguilar-Ramos from the case at bar, however, is the
fact that the defendant in Aguilar-Ramos was confused by the officer's reading of
the Spanish form as was evident when he attempted to ask the officer how he
could write on the form that he wanted an attorney . Id . at 398-99 . The Colorado
Supreme Court looked at the totality of the circumstances and determined from
the evidence that Aguilar-Ramos clearly indicated he wanted an attorney but
never got one, and thus his waiver was invalid . Id. at 401-02 . Here, on the other
hand, it is undisputed that Appellant never requested an attorney and indicated to
the officers present that he understood his rights.
Although Appellant presents compelling arguments for finding his waiver
invalid due to Officer Simpson's lack of proficiency in Spanish, as a matter of law,
Appellant voluntarily, knowingly and intelligently waived his rights clearly set forth
on the Spanish version of the Miranda rights waiver form . The record surely
supports this conclusion .
c. Effect of alleged violation of Vienna Convention .
In Appellant's final assignment of error, he alleges that the failure of the
Louisville police to inform him of his right to contact the Mexican Consulate
requires the suppression of his statements pursuant to Article 36 of the Vienna
Convention . The Commonwealth disagrees, arguing that the Vienna Convention
does not, by its own terms, provide for the suppression of statements as a
remedy for a violation of the treaty and that Appellant did not argue before the
trial court that he was prejudiced in any way by the violation . Despite Appellant's
persuasive arguments, we find the trial court's denial of Appellant's motion to
suppress was correct and affirm Appellant's conviction and sentence on this
Article 36(1)(b) of the Vienna Convention on Consular Relations requires
signatory countries, such as the United States, to advise "without delay" a foreign
national who is arrested of his right to contact his consulate . Vienna Convention
on Consular Relations art. 36(1), Apr. 24, 1963, 21 U .S.T. 77, 596 U.N .T.S. 261
("Vienna Convention") . The treaty also provides that:
The rights referred to in paragraph 1 of this Article shall be
exercised in conformity with the laws and regulations of the
receiving State, subject to the proviso, however, that the said laws
and regulations must enable full effect to be given to the purposes
for which the rights accorded under this Article are intended .
Vienna Convention art. 36(2) .
In Gomez v . Commonwealth, 152 S.W .3d 238, 242 (Ky.App. 2004), the
Kentucky Court of Appeals, adopting the holding of the Court of Appeals of
"While we acknowledge this split in opinion [among the federal
court's], in light of the well-established principles of international law
that guide judicial construction of a treaty, we are convinced that
the Vienna Convention does not confer standing on an individual
foreign national to assert a violation of the treaty in a domestic
(Quoting State v. Navarro , 659 N.W.2d 487, 491 (Wisc. Ct. App. 2003).
Appellant acknowledges the Kentucky Court of Appeals' decision in
Gomez , su ra, but urges this Court to reconsider the holding in that case due to
developments in the law since Gomez was decided. We find the argument
inapposite, as the United States Supreme Court has recently ruled that "even
assuming the Convention creates judicially enforceable rights . . . suppression is
not an appropriate remedy for a violation of Article 36, and . . . a State may apply
its regular rules of procedural default to Article 36 claims." Sanchez-Llamas v.
Oregon , 126 S.Ct. 2669, 2674 (2006) .
Although the Sixth Circuit has found that the treaty does not confer
individual rights, see United States v. Emuegbunam, 268 F.3d 377, 394 (6th Cir.
2001) (holding that "the Vienna Convention does not create a right for a detained
foreign national to consult with the diplomatic representatives of his nation that
the federal courts can enforce" and noting that "the Preamble to the Convention
expressly disclaims the creation of any individual rights[.]"), the United States
Supreme Court declined to resolve whether the Convention grants such
individual rights. Rather, the Court held:
[t]he Convention does not prescribe specific remedies for violations
of Article 36. Rather, it expressly leaves the implementation of
Article 36 to domestic law: Rights under Article 36 are to "be
exercised in conformity with the laws and regulations of the
receiving State." Art. 36(2), 21 U.S .T., at 101 . As far as the text of
the Convention is concerned, the question of the availability of the
exclusionary rule for Article 36 violations is a matter of domestic
Id. at 2678.
The Supreme Court reasoned that "where a treaty does not provide a
particular remedy, either expressly or implicitly, it is not for the federal courts to
impose one on the States through lawmaking of their own ." Id. at 2680. Further,
the Court opined that "[t]he failure to inform a defendant of his Article 36 rights is
unlikely, with any frequency, to produce unreliable confessions . . . . [Thus,]
[s]uppression would be a vastly disproportionate remedy for an Article 36
violation ." Id . at 2681 . Moreover, the Court found that because foreign nationals
detained on suspicion of a crime enjoy the same protections of Due Process as
anyone else in this country, "Article 36 adds little to these `legal options,' and
[thus it is] unnecessary to apply the exclusionary rule where other constitutional
and statutory protections-many of them already enforced by the exclusionary
rule-safeguard the same interests [Appellant] claims are advanced by Article 36."
Id. at 2682 .
Thus, in finding that the Vienna Convention does not require suppression
of evidence as a remedy for a violation of its articles and in refusing to implement
its supervisory authority over state judicial proceedings, the United States
Supreme Court meant for the states to implement their own procedural rules in
resolving the issue of whether or not certain evidence should be suppressed.
Accordingly, we hold that suppression is not an available remedy under the
Convention, and because suppression was not otherwise warranted under the
circumstances of this case, the trial court's denial of Appellant's motion to
suppress was correct .
Finally, Appellant argues that, as a result of the Supreme Court's decision
in Sanchez-Llamas , supra, a violation of Article 36 of the Convention must be
considered as part of the totality of the circumstances in resolving the
admissibility of Appellant's statement to the police . We are not persuaded by
these arguments and find again that Appellant's statements were given
voluntarily, knowingly, and intelligently . Furthermore, we do not consider a
request to speak with an attorney, as provided in RCr 2.14(1), to be equivocal to
a foreign national's request to speak with his or her consulate under the
Convention. Moreover, the portion of Sanchez-Llamas upon which Appellant
relies in making this argument requires the alleged Article 36 violation to be
brought to the attention of the trial court so that the "court can make appropriate
accommodations to ensure that the defendant secures, to the extent possible,
the benefits of consular assistance." Sanchez-Llamas , 126 S .Ct. at 2682. Here,
Appellant failed to allege that he was prejudiced in any way by the officers' failure
to inform him that he could ask to have the Mexican Consulate notified of his
detention, and thus the trial court could not consider the "totality of the
circumstances" in order to properly determine whether he voluntarily, knowingly
and intelligently gave statements to the police .
Accordingly, we affirm that much of the trial court's ruling finding that
suppression of the statements was not an available remedy in this instance . A
clear reading of Article 36 and all other applicable parts of the treaty do not
compel the result Appellant requests . There is simply no way of reading the
treaty as providing a remedy for suppression of statements taken in the course of
criminal interrogations in which the defendant has validly waived his rights under
For the reasons set forth above, we affirm the judgment of the Jefferson
Lambert, C.J. ; Graves, Roach, Scott and Wintersheimer, JJ ., concur .
McAnulty, J., dissents by separate opinion, with Minton, J ., joining that dissent .
COUNSEL FOR APPELLANT :
Frank W . Heft, Jr .
Officer of the Louisville Metro Public Defender
200 Advocacy Plaza
719 W . Jefferson St .
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Officer of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
Perry T. Ryan
Assistant Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
RENDERED OCTOBER 19, 2006
NOT TO BE PUBLISHED
,;vuyrrmr (~vurf of ` rnfurhv
APPEAL FROM JEFFERSON CIRCUIT COURT
HON. JUDITH MCDONALD-BURKMAN, JUDGE
COMMONWEALTH OF KENTUCKY
DISSENTING OPINION BY JUSTICE McANULTY
Respectfully, I dissent from that part of the Majority's Opinion which affirms the
trial court's denial of Rivera-Reyes's motion to suppress any and all statements made
by him. Although I can locate no express finding in the trial court's order that Rivera
Reyes voluntarily waived his rights, to the extent that this finding may be implied, I
conclude that it was not based on substantial evidence. Thus, it was clearly erroneous,
and I would reverse and remand .
A waiver is coerced -- not voluntary -- when not made with a full awareness both
of the nature of the right being abandoned and the consequences of the decision to
abandon it. (See Mills v. Commonwealth , 996 S.W .2d 473, 482 (Ky. 1999) (citing
Moran v. Burbine , 475 U .S. 412, 106 S . Ct. 1135, 89 L. Ed . 2d 410 (1986) for its holding
that there are two distinct dimensions to a voluntary waiver: (1) uncoerced choice and
(2) the requisite level of comprehension) . "Only if the `totality of the circumstances
surrounding the interrogation' reveal both an uncoerced choice and the requisite level of
comprehension may a court properly conclude that the Miranda rights have been
waived ." Moran, 475 U .S . at 421 (quoting Fare v. Michael C. , 442 U .S . 707, 725, 99
S. Ct. 2560, 61 L. Ed . 2d 197 (1979)).
In my opinion, the circumstances in this case compel a finding of an invalid
waiver because they show that at all times Rivera-Reyes and the law enforcement
officers were speaking two different languages. Rivera-Reyes spoke Spanish, not
English. Once the detectives learned that he did not speak English, they requested an
officer who spoke Spanish "somewhat" -- not a Spanish interpreter. They relied on the
officer who spoke Spanish "somewhat" to present Rivera-Reyes with a rights form -- not
a waiver of rights form. The officer who spoke Spanish "somewhat" could not translate
the provisions of the form that he presented to Rivera-Reyes to sign. The rights form
did not inform Rivera-Reyes that he may stop the questioning or making of any
statements at any time by refusing to answer further or by requesting to consult with an
attorney -- a provision which is included on the English form . As noted above, the rights
form contained no waiver provision as the English form does. Roughly translated, the
Spanish form simply states : You understand your rights . Understanding your rights, do
you still wish to speak with me? While the English form states :
WAIVER OF RIGHTS
I have read this statement of my rights and I understand what my
rights are. I am willing to make a statement and answer questions.
I do not want a lawyer at this time . I understand and know what I
am doing. No promises or threats have been made to me and no
pressure or coercion of any kind has been used against me.
No, the English form does not contain any additional rights, but I believe it does
contain that which is necessary to impress upon a person being interrogated those
rights that he or she is waiving and assure the continuous opportunity to exercise those
rights at a later stage . The additional language on the English form demonstrates that
the waiver is made with a full awareness both of the nature of the right being
abandoned and the consequences of the decision to abandon it. Standing alone -which under these facts it must -- the Spanish form does not.
Minton, J., joins this dissent.