Urbin Adan Lopez-Perez v. State of Arkansas

ar04-167

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CACR04-167

September 29, 2004

URBIN ADAN LOPEZ-PEREZ AN APPEAL FROM CARROLL

APPELLANT COUNTY CIRCUIT COURT

WESTERN DISTRICT [CR01-16]

V. HON. ALAN D. EPLEY, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Urbin Adan Lopez-Perez appeals his conviction for delivery of a controlled substance. He argues that the circuit court admitted videotaped statements taken by the police in violation of his Miranda rights and his Sixth Amendment right to counsel. He also argues that the circuit court erred when it allowed the State to orally amend its criminal information on the day of trial from conspiracy to deliver a controlled substance, a Class A felony, to accomplice to delivery of methamphetamine, a Class Y felony. We hold that the totality of the circumstances demonstrates that the circuit court did not err when it admitted appellant's statements over his motion to suppress. We also hold that although the trial court allowed the State to orally amend the information and charge appellant with a crime different in nature and degree, appellant failed to demonstrate prejudice from the change. Thus, we affirm the conviction.

On March 28, 2001, Lopez-Perez was arrested for being a supplier to two individuals who sold methamphetamine to a police officer in an undercover operation. At trial, the two individuals testified that they negotiated the sale of four ounces of methamphetamine to a third party. They further testified that they contacted Lopez-Perez at his home, and that he agreed to meet them at a local motel with the drugs. When he arrived at the motel, he did not have the drugs with him. He made a phone call and, in Spanish, arranged to obtain four ounces of methamphetamine. He was arrested later that day.

The next day, he was interrogated by Berryville Police Officer Greg Lester. Lopez-Perez speaks little English, so interpreter Alfonso Trevino translated for Officer Lester. Before the interrogation, Officer Lester, through Trevino, informed Lopez-Perez of his Miranda rights. After being satisfied that Lopez-Perez understood his rights, Officer Trevino interrogated him, which resulted in incriminating statements. Lopez-Perez moved to have these statements suppressed on the grounds that he did not knowingly and intelligently waive his Miranda rights. The court denied the motion.

On April 19, 2001, the State filed a criminal information alleging that Lopez-Perez was an accomplice to delivery of a controlled substance, pursuant to Ark. Code Ann. § 5-64-401 (Repl. 1997), a Class Y felony. On June 12, 2003, the State amended its information to conspiracy to deliver a controlled substance. The information mistakenly listed the offense as a Class Y felony; however, conspiracy is a Class A felony. See Ark. Code Ann. § 5-3-404(1) (Repl. 1997). On the day of trial, July 2, 2003, the State asked the court to allow it to amend its information back to the original offense, because the original offense carried a longer sentence. Lopez-Perez objected, stating that he prepared a defense against the conspiracy charge. The court allowed the amendment. Lopez-Perez was subsequently tried, convicted for delivery of methamphetamine, and sentenced to eighteen years' imprisonment. This appeal followed.

Appellant first argues that the circuit court admitted videotaped statements taken by the police in violation of his Miranda rights and his Sixth Amendment right to counsel.1 When reviewing the denial of a motion to suppress, we make an independent examination based on the totality of the circumstances and will reverse only if the circuit court's decision is clearly against the preponderance of the evidence. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000); Hilton v. State, 80 Ark. App. 401, 96 S.W.3d 757 (2003). We defer to the superior position of the circuit court on questions of credibility and weight to be given to testimony. Hilton, supra.

The State has the burden of showing that appellant's confession was made after a voluntary, knowing, and intelligent waiver of his rights. Steggall, supra. This court must determine whether appellant "waived his rights with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Rankin v. State, 338 Ark. 723, 731, 1 S.W.3d 14, 18-19 (1999). In making this determination, we must consider his "age, experience, education, background, and intelligence, and . . . whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights." Stegall, 340 Ark. at 196, 8 S.W.3d at 546 (quoting Clay v. State, 318 Ark. 122, 883 S.W.3d 822 (1994)).

The relevant part of the transcript of the videotaped interrogation is as follows (emphasized portions indicate translated Spanish):

Lester: What I'm gonna do is, I'm gonna discuss what occurred last night.

Interpreter: He's going to talk to you right now about what, about what happened last night.

Lopez-Perez: Uh huh.

Interpreter: With you.

Lester: We are gonna go into it from before the fact, during the fact, and after the fact what occurred in reference to the Methinphetamines [sic] that were transported and, and the money that you were gonna pick up.

Interpreter: He's going to talk to you about what happened at the beginning, at mediation and after what happened last night, uh, against the, uh the meths.

Lopez-Perez: Uh huh.

Interpreter: When they caught you and what they did, exchange of the money and the, and the, and all that.

Lester: But, before I do that, I'm, I'm required to read you your rights.

Interpreter: But before he does that he has to, to read your rights.

Lopez-Perez: Oh.

Lester: These are called your Miranda warnings.

Interpreter: They're call the, the, the Miranda, uh, this I'll give it to you in the court, by law he has to read it to everyone.

Lopez-Perez: Uh huh.

Interpreter: Ok.

Lester: Ok. You have the same form that I do. I want you to read along with me, Ok?

Interpreter: He says that he has the same that you have, to read when, with him.

Lopez-Perez: Uh huh.

Interpreter: Like this when he's reading.

Lester: You have the right to remain silent.

Lopez-Perez: You have the right.

Interpreter: You have the right to remain silent.

Lopez-Perez: Uh huh.

Lester: Anything you say can and will be used against you in a court of law.

Interpreter/

Lopez-Perez: Everything you say will be used against you.

Lopez-Perez: In the court.

Interpreter: Yes.

Lester: Understand?

Lopez-Perez: Uh huh.

Lester: Is that a "si"?

Interpreter: Yes.

Lopez-Perez: Yes.

Lester: You have the right to talk to a lawyer for advise [sic] before we ask you any questions.

Interpreter: You have the right to talk to an attorney (voices overlap) to receive advise [sic] before of a (voices overlap) the questions.

Lopez-Perez: of . . . advise [sic] before we ask you any questions and you have the, the right to, to have him with you during the questioning, according to your with you can use the telephone to communicate with your family, friends or attorney.

Lester: Ok?

Interpreter: Understood?

Lopez-Perez: Uh huh.

Lester: ... and to have him with you during the questioning.

Interpreter: And to have him with you during the, the questioning.

Lopez-Perez: You have the right to receive economic conditions, of which hire one.

Interpreter: No we are still up here.

Lopez-Perez: Oh, yes.

Interpreter: He's reading, he's reading what you read. He's reading the Spanish.

Lester: Oh.

Interpreter: He's, he's already about here.

Lester: That's fine as long as he, he, I want him to read it all and stop. He reads just this line and stop, and I'm going to read it to you and you are going to read it out to him again.

Interpreter: That, that you start reading everything and then you stop there and we, he is going to say it in English and I'm going to repeat it in Spanish for you.

Lopez-Perez: Uh huh.

Interpreter: Ok.

Lester: Let me just, let me say, let me speak, you don't read nothing and then you read it over and say if you understand. We'll do it that way. I'm gonna try it one more time from the top. You have the right to talk to a lawyer for advise [sic] before we ask you any questions and to have them with you during the questioning, in this connection we will make the telephone available to you in order that you may contact your family, friends or attorney.

Interpreter: He says, that you have the right to talk to an attorney, to receive advise [sic] before we ask you any questions and you have the right to have him with you during the questioning, according to your rights you can use the telephone to communicate with your family, friends or attorneys.

Lopez-Perez: Uh huh.

Interpreter: Understood?

Lester: Do you understand that?

Lopez-Perez: Uh huh.

Interpreter: Yes.

Lester: Is that yes?

Lopez-Perez: It is.

Interpreter: You have to tell him yes or no, yes or no.

Lester: So, we are going down to the third one.

Interpreter: Let's go to the third one.

Lester: You have these same rights to the advise [sic] in the presence of a lawyer even if you can not afford to hire one.

Interpreter: You have this same right to receive advise [sic], to be in the company of an attorney even if you can not afford to hire one.

(voices overlap)

Lester: Do you understand?

Interpreter: Understood? Yes.

Lester: Ok, if you decide to answer questions now, without a lawyer present, you will still have the right to stop the questioning at any time. You also have the right to stop answering at any time until you talk to a lawyer. Do you understand?

Interpreter: If y, if you decide to answer the questions now, without the presence of your attorney, you still have, you'll have the right to stop answering, at any time, until you talk to an attorney.

Lester: Do you understand?

Lopez-Perez: I understand.

Interpreter: Yes.

Lester: Knowing your rights, do you want to answer any questions?

Interpreter: Now that you know your rights, do you want to answer to my questions?

Lopez-Perez: Uh huh.

At this point, Lester asked Lopez-Perez to initial beside each question on the Miranda form. He was then asked to sign the form. At first, Lopez-Perez printed his name, but after clarification, he signed it. After some initial questioning, Lester momentarily left the room. Then, the following exchange took place between the interpreter and Lopez-Perez:

Lopez-Perez: What I didn't understand about that sheet, for, when, to go to court or is that what they're going to, to tell me at the bond?

Interpreter: No its [sic] just your rights what, what you have, for example, they tell you that you, you have the right to, to be with an attorney present in, in the questioning, or if you don't have an attorney, when you go to court the, the county or the city will give you a free attorney.

The circuit court decided that, despite his language deficiency, Lopez-Perez understood his rights. We agree. When reading the form with Officer Lester, Lopez-Perez indicated that he understood that he had the right to remain silent and that everything he said would be used against him in court. After some confusion, Officer Lester informed him that he had the right to counsel, even if he could not afford one. Lopez-Perez verbally indicated at that time that he understood these rights. Lopez-Perez argues that Officer Lester went through the warnings the second time without mentioning Lopez-Perez's right to remain silent; however, the transcript shows that Lopez-Perez understood his right to remain silent when that right was explained to him and that Officer Lester was using that time to explain Lopez-Perez's right to counsel.

At the hearing, Lopez-Perez testified that he remembered being told that he was entitled to counsel but did not recall being told that he would be provided one if he could not afford one himself. The transcript shows Officer Lester informing Lopez-Perez of this right, and immediately after informing him that if he could not afford counsel, one would be provided for him. The circuit court could conclude, based on this evidence, that Lopez-Perez knowingly waived his right to counsel during the custodial interrogation.

Lopez-Perez argued that when initialing the Miranda form, he did so mechanically without confirming that he understood the warnings. This may be true; however, he gave verbal indications that he understood the warnings. Given the totality of the circumstances, we cannot say that the circuit court's decision not to suppress Lopez-Perez's statements was against the preponderance of the evidence.

Lopez-Perez further argues that the circuit court erred when it allowed the prosecution to orally amend its criminal information on the day of trial. Arkansas Code Annotated section 16-85-407(a) (1987) allows prosecutors to amend a criminal information at any time. Amendments are even allowed during the course of a trial. See Johnson v. State, 55 Ark. App. 117, 932 S.W.2d 347 (1996). However, the Arkansas Code prohibits amendments that change the nature of the crime charged or the degree of the crime charged. Ark. Code Ann. § 16-85-407(b) (1987). An amendment does not change the nature or degree of an offense simply because it authorizes a penalty more severe than that of the original charge. Kelch v. Erwin, 333 Ark. 567, 970 S.W.2d 255, (1998). However, we will not reverse a conviction based on § 16-85-407 absent surprise or prejudice. Hoover v. State, 353 Ark. 424, 108 S.W.3d 618.

Lopez-Perez argues that his defense was handicapped because the amendment required him to defend himself against a crime of a completely different nature based on a set of completely different facts and legal principles than those for which he prepared in the month before trial. It is certainly true that the inchoate offense of conspiracy to deliver a controlled substance is different from being charged as an accomplice to delivery of methamphetamine. Both the nature and severity of the offenses changed. On the other hand, the original information, dated April 19, 2001, accused Lopez-Perez of the exact offense for which he was tried and convicted. The State did not amend the information to conspiracy to deliver a controlled substance until June 12, 2003. With the exception of the month prior to trial, Lopez-Perez was preparing a defense for delivery of a controlled substance. Counsel for Lopez-Perez admitted at the pretrial hearing that they had been preparing for the delivery charge for two years. When the State moved to amend on the day of trial, counsel for Lopez-Perez claimed surprise; however, he admitted that the amendment from conspiracy to accomplice removed certain elements from the case. He also stated that he had no other reason why such an amendment would cause surprise.

Our decision is in line with the Arkansas Supreme Court's decision in Hoover, supra. In that case, the defendant was arrested for aggravated robbery after confessing to planning to stab the victim to death in order to obtain money. The information alleged felony capital murder and robbery. Four days before trial, the prosecution amended the information, substituting aggravated robbery for robbery. As in the case before us, the supreme court affirmed the conviction and noted that the defendant never argued that he was surprised or unable to defend himself on the charges.

Finally, Lopez-Perez argues that the prosecution's decision to proceed with the conspiracy charge, a Class A felony with a potential sentence that is five years lower than the delivery charge, may have influenced his decision to proceed to trial rather than enter a plea bargain. This argument is without merit. As already stated, a defendant cannot invoke the protection of § 16-85-407(b) simply because the amended information authorizes a more severe sentence. Kelch, supra. Further, Lopez-Perez could have asked for a continuance to reconsider his decision to go to trial or to prepare a different defense strategy if he felt that it was necessary. The record does not indicate that he asked and was refused a continuance, or that the trial court would have denied a continuance motion had one been made.

Affirmed.

Robbins and Baker, JJ., agree.

1 While appellant contends that his Sixth Amendment right to counsel was violated, his only arguments refer to his Miranda rights. Therefore, his Sixth Amendment rights are unaddressed.