LUIS ALBERT ALKABALA-SANCHEZ V. COMMONWEALTH OF KENTUCKY
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LUIS ALBERT ALKABALA-SANCHEZ
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APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
NO. 03-CR-001399-002
V.
APPELLEE
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE NOBLE
AFFIRMING
This case involves the single issue of whether the trial court erred in denying
Appellant's motion to suppress his confession. After the trial court denied the motion,
Appellant, Luis Albert Alkabala-Sanchez, entered a conditional guilty plea to three
counts of criminal conspiracy to commit murder and received a sentence of thirty years.
Thus, he appeals to this Court as a matter of right. Ky. Const. ยง 110(2)(b). Upon review
of the totality of the circumstances of Appellant's interview during which he confessed,
this Court concludes that he was not subject to custodial interrogation at the time he
claims he was denied the warnings required under Miranda v. Arizona , 384 U.S . 436,
444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) . The trial court's order denying suppression is
affirmed .
1. Background
About five years ago, two fishermen found three adult male bodies floating along
the banks of the Kentucky River in Clark County. The fishermen contacted law
enforcement . Kentucky State Trooper James Devasher was dispatched to the scene
and participated in a search of the area . During the search, he found a large pool of
blood and a cell phone, which he later determined belonged to one of the victims .
Cell phone records from the phone located at the scene indicated the last calls
were placed to a residence in Lexington, Kentucky, and to a cell phone registered to a
person named Julio Camacho. About one week after the bodies were discovered,
someone changed the billing address of the cell phone to a residence in Lakewood,
New Jersey. Trooper Devasher requested surveillance at the New Jersey residence .
Through that surveillance, he learned that a vehicle was parked at the house with a
license plate from Clark County, Kentucky.
Five months after the bodies were discovered, Devasher went to Lakewood, New
Jersey, to follow-up on the leads of the vehicle and the phone number. He spoke with
two men at the residence who stated that they knew Camacho, but he did not live there .
They gave Devasher the name of Luis Alkabala-Sanchez, the Appellant, and told him
that Appellant was an associate of Camacho's in a prostitution ring . They gave
Devasher Appellant's home address in New Jersey and informed him that he lived there
with his sister and their uncle.
Devasher went to Appellant's house at about 2 :30 p.m. with an agent from
Immigration and Naturalization Service (INS) and an Ocean County sheriff's deputy,
who served as an interpreter. When the sister arrived after about fifteen minutes, she
denied knowing where Appellant was . The uncle arrived ; and they asked him if he had
a number where they could reach Appellant . In response, he pulled a small piece of
paper from his pocket with a phone number on it that Devasher recognized immediately
as one of the phone numbers from the victim's cell phone . Devasher took the uncle to
the police station to interview him where he maintained that he did not have Appellant's
current phone number, but that the sister did . Devasher returned to the sister's home
with the INS agent and the sheriff's deputy/interpreter. After much urging, they
convinced the sister to call her brother and arrange for an interview. She was upset
when she called her brother and did not want the police to talk to him. By this time, it
was between 9:00 and 10:00 p.m.
At the time, Appellant was working on a farm that was about twenty to thirty
minutes away, and he did not have transportation . Devasher, the INS agent, the
sheriff's deputy, and three other law enforcement officers went in two unmarked police
vehicles to where Appellant had agreed to meet them . Everyone was in plain clothes,
and Devasher, at least, was armed. The sister and uncle accompanied the officers, and
Devasher stopped on the way to meet Appellant and bought dinner for them. Appellant
was waiting for them on the side of the road where Devasher informed him that he was
from Kentucky and that he needed to talk to him about something that may have
happened there . He said that he needed to find out if Appellant knew where a certain
individual was. Appellant agreed to go to the police department and give an interview .
After picking up Appellant, the officers took him, the uncle and sister to the police
department. Devasher was not certain in which vehicle the sister was riding, but the
uncle did not ride in the same vehicle as Appellant, who spoke only Spanish.
At the police department, the uncle went to a lounge area while Devasher took
Appellant to an interview room. At some point, one of the other officers took the sister
home . Devasher, the INS agent, and the deputy/interpreter were present in the
interview room with Appellant. Devasher recorded the interview on a cassette recorder
because the video equipment in Lakewood was not working for recording purposes, but
did work for monitoring purposes so that the other police officers monitored the
interview which began at 10:47 p.m. At the beginning of the interview, Devasher
informed Appellant that he was free to leave and that he did not have to talk to them.
Throughout the interview, they took several breaks during which he was free to use the
bathroom, buy drinks and to spend the break time with the other officers in the detective
work room next to the interview room. At 1 :20 a .m., the first interpreter had to leave,
and a second interpreter, also a law enforcement officer, took over.
Appellant admitted toward the beginning of the interview that he had been in
Kentucky. Devasher asked him if he lived at the Lexington address and if Julio
Camacho lived at that address. Before receiving the Miranda warnings, he told
Devasher that "felon" (nickname for Julio Camacho) had killed the three individuals .
He told him how "felon" had killed them and disposed of their bodies, but claimed he
learned the details from Julio Camacho's wife after the murders . However, he then told
Devasher that he saw the blood and what "felon" had instructed him to do before,
during, and after the murders, including that "felon" had told him to hide and not talk to
the police . He stated that he knew why Devasher was there.
Based on those statements, it became clear to Devasher and the other officers
that Appellant was involved in the murders . At 4:02 a.m., Devasher gave the warnings
required under Miranda . After that, Appellant continued to speak with the officers for
another two hours, the interview concluding at about 6 :00 a.m . At that time, he admitted
to assisting with the planning of the murders and the disposal of the bodies.
Appellant waived extradition to Kentucky. Two months later, he was charged
with three counts of murder, either alone or in complicity with another, and tampering
with evidence . During the course of his criminal proceedings, he filed a motion to
suppress the statements he gave in the New Jersey interview. The focus of the
suppression hearing was (1) whether Appellant was in custody from the start, triggering
the requirement of giving the Miranda warnings at the beginning of the interview,
(2) whether the statement was voluntary or coerced, and (3) the accuracy of the
interpretation by the New Jersey interpreters .
The suppression hearing was delayed for some time to allow for the completion
of a transcript of the tapes and a translation of all Spanish excerpts to English . When
completed, the transcript encompassed at least two hundred pages. Although the trial
court had a copy of the transcript for the purpose of deciding the suppression motion, it
is not part of the record .
The actual suppression hearing spanned three dates and consisted of testimony
from three witnesses : Trooper Devasher, Doris Caspani, the person who transcribed
and translated the interview, and Appellant . The only exhibit introduced at the
suppression hearing was a waiver of rights form, written in Spanish and signed by
Appellant at 4:02 a.m.
The background above is based on Devasher's testimony at the suppression
hearing . Appellant's suppression hearing testimony, however, was that the police came
looking for him at the farm. He believed that his sister and uncle were under arrest in
the other vehicle, and he did not have contact with his family members when the police
picked him up. When his sister had called him earlier, she told him that the INS agent
had threatened that they would take her children away from her.
Appellant further testified that he was never advised that he did not have to say
anything, that he had the right to speak to an attorney, that whatever he said could be
used against him in a court of law, or that he could stop answering questions at any
time . This was apparently refuted by the transcript of the interview. He stated that
about three hours into the questioning, Devasher appeared tense and stated that
Appellant and his family would get a lethal injection. At that point, Appellant, in his own
words (as translated), understood the facts and "made himself be part of what
happened ." He believed that the police had taken his sister in handcuffs to the police
station . He did not sign the waiver of rights form until one-half hour before the interview
ended . On cross-examination, however, he admitted that he agreed to talk with the
police and that they expressed appreciation that he was there talking with them, but he
explained that the police had his sister and his uncle . In his mind, under those
circumstances, he could not do anything but talk to them .
Ms . Caspani discussed particular instances of the first interpreter's translation
that were inaccurate. For example, at the beginning, Devasher stated he appreciated
Appellant's being there. The interpreter translated it as "he makes good use of you
being here talking to us." In another instance, Devasher stated, "Help me out here ."
The interpreter translated it as, "He's going to help you." From the interview, Ms.
Caspani opined that the first interpreter had "good survival skills" but could have done
better. The second interpreter did much better than the first. Ms. Caspani criticized
each interpreter's use of the informal "you," which could be interpreted in Spanish as
talking down to Appellant. There were also several portions of the tapes that were
unintelligible, particularly when Appellant would respond .
At the conclusion of the evidence portion of the suppression hearing, the trial
court allowed the parties to brief the issue. In a later status hearing, the trial court
denied the motion to suppress Appellant's statement. In support, it stated that he was
not in custody before Devasher gave him the Miranda warnings, there was a point at
which Devasher suspected that he was involved in the crimes, and then he advised him
of his rights . The trial court concluded that Appellant understood those rights . By
continuing the interview voluntarily, Appellant waived his rights . In support, the trial
court stated that it had reviewed the transcripts of the interview and concluded that the
translation was sufficiently reliable, and that it was apparent that Appellant understood
the questions, the translation, and either responded appropriately or requested
clarification.
11. The trial court was correct in its conclusion that the Appellant was not in
custody before he received the Miranda warnings.
The issue on appeal is whether the Appellant was subjected to custodial
interrogation before he was given the Miranda statement of rights . Under Miranda,
exculpatory or inculpatory statements made by the defendant under custodial
interrogation may not be used against him at trial unless procedural safeguards are
given which are sufficient to secure the privilege against self-incrimination . 384 U .S .
436, 444, 86 S .Ct. 1602, 1612. This means that a defendant's statements may only be
used against him if he knowingly makes the statements in the exercise of his free will.
The main question here is whether Appellant was "in custody" when he made
statements in an interview with a Kentucky State Police officer in New Jersey. The
question of "custody" is reviewed de novo on the application of the law to the facts,
though the trial court's findings of historical fact are conclusive if supported by
substantial evidence. Thompson v. Keohane , 516 U.S. 99, 100-03, 116 S .Ct. 457, 460,
133 L.Ed .2d 383 (1995) ; see also United States v. Salvo , 133 F.3d 943, 948 (6th Cir.
1998) ("The issue of whether the defendant was `in custody' is a mixture of law and fact,
and is thus reviewed de novo.").
The trial court, after a hearing which occurred over three dates, concluded that
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Appellant was not in custody prior to being given the Miranda warnings . A transcript of
the interview in New Jersey, which was over two hundred pages long, was reviewed .
The interrogating officer, Devasher, and Appellant testified as to the facts. Doris
Caspani, the interpreter who translated the transcription of the interview, which
contained several responses in Spanish due to Appellant's inability to speak English,
testified to the interpretations made to Appellant by the two interpreters used during the
interview . There was a substantial amount of evidence before the trial court upon which
to base his conclusion, including briefs by each party which the trial court took under
submission and considered before issuing his findings orally at a subsequent status
hearing . Unfortunately, not all of that evidence is in the record . While the testimony
and the trial court's findings were recorded, a copy of the transcript of the interview was
not entered into evidence, and apparently cannot be found. This transcript would have
allowed for a more thorough review of the trial court's conclusions . Anything that is
viewed or relied upon by the trial court must be made a part of the record . Not doing so
thwarts the most complete review by an appellate court. Trial courts should note this
and strive to ensure that any such documents are placed in the record . Nonetheless, it
is the litigants who are responsible for ensuring that all appropriate evidence is in the
record, and when they do not, this Court must show deference to the trial court's
findings, as he is in the best position under such circumstances to know what the
evidence actually was. Cf. Clark v. Commonwealth , 223 S .W .3d 90, 102 (Ky. 2007)
("[W]e have consistently and repeatedly held that it is an appellant's responsibility to
ensure that the record contains all of the materials necessary for an appellate court to
rule upon all the issues raised . And we are required to assume that any portion of the
record not supplied to us supports the decision of the trial court." (citations omitted)) . In
his findings, the trial court specifically found that he had reviewed the transcript, that
Appellant understood the questions and the translation, and that he responded
appropriately to the questions or asked for clarification .
While Appellant and Devasher told significantly different stories about how the
interview came about, the trial court had the opportunity to weigh the credibility of each
witness, and to determine what he believed . The trial court stated that, based on the
interview'transcript which he found to be sufficiently reliable, there came a point where
Devasher suspected that Appellant was involved, and that is when Devasher gave the
Miranda warnings. Further, the trial court found that Appellant waived his rights when
he continued giving a statement after the warnings . While the trial court did not give a
lengthy recitation of the, facts upon which it relied, his conclusions are amply supported
by evidence in the record .
Upon discovering one of the victim's cell phone, Devasher had an opportunity to
follow a trail of information . When the phone billing address changed to Lakewood,
New Jersey, this was consistent with flight after a crime, and warranted surveillance of
the New Jersey address. Another piece of information came from that: a car parked at
the residence had Clark County, Kentucky license plates. Following up on this
information, Devasher went to the address in New Jersey, where two men there knew
the suspect, Camacho, but denied that he lived there . Instead, they told the officer of
an associate of Camacho's, the Appellant, and where they thought he lived. Pursuing
the lead, Devasher, a local deputy sheriff who spoke Spanish, and an INS officer went
there, where the Appellant's sister and uncle soon arrived .
Appellant's sister denied knowing where he was, but his uncle gave Devasher a
phone number which he recognized as one of the numbers on the victim's cell phone. It
is obvious that at this point there was "hot pursuit" of evidence, which seemed to
increase with each contact. The uncle was taken to the police station for questioning,
and though he denied knowing another phone number for Appellant, he admitted that
the sister did. This sent Devasher back to the sister's residence. At this point, the uncle
and sister had successfully stonewalled the officers for a lengthy time. Once they
returned to the sister's residence, she did call Appellant, after much urging. She was
upset, did not want the police to talk to Appellant, and apparently insisted on relaying
the message to her brother. By that time, it was getting late, but given the difficulty in
contacting Appellant, continuing with an attempt to talk to him that night was
reasonable.
Since Appellant did not have transportation, Devasher, the deputy sheriff, the
INS agent, three other policemen, and the sister and uncle went to see Appellant, who
had agreed to meet them on the side of the road at his work place which was 20 to 30
minutes from the sister's residence . Traveling in two unmarked cars and in plain
clothes, Devasher and the others found Appellant where he said he would be. He
obviously did not have to be there, and could have refused to meet with the officers .
Rather than interview him by the roadside, Devasher logically asked him to accompany
him to the police station, and told Appellant who he was and why he was there.
Appellant agreed to go to the station to talk.
At the beginning of the interview, Devasher told Appellant he was free to leave
and did not have to talk to them . The trial court, having benefit of the transcript, found
that Appellant understood this and gave appropriate responses. At all times an
interpreter was present, and the trial court, again with benefit of the transcript, found
that any faults in interpretation were not material . Appellant voluntarily remained .
10
Throughout the rest of the interview, Appellant was free to take breaks, go to the
bathroom unattended, buy soft drinks from the drink machine and move about . When
he did not understand something, he asked for clarification.
When Appellant admitted knowing Camacho and about the murders, he led the
officers to believe that he had been told about it by Camacho's wife. At this point, he
was clearly being interviewed for information alone, as a witness, not as a suspect.
Devasher testified that he had not even heard Appellant's name until he got to New
Jersey. But sometime during the course of the evening, Appellant began to talk too
much, and to make statements not consistent with second-hand information. When he
began talking about what he knew or saw, Devasher stopped the interview and gave
Appellant his Miranda warnings. From that point forward, for the next two hours,
Appellant was in a custodial interrogation . The trial court was not in error when it found
that, having been warned, Appellant waived his rights by continuing the interrogation .
Again, having benefit of the transcript, the trial court was in the best position to judge
the voluntariness of Appellant's statements throughout the interview.
Further, the facts of this case do not support a finding that Appellant was
subjected to a "question first" technique as described in Missouri v. Seibert , 542 U .S .
600, 124 S .Ct. 2601, 159 L.Ed .2d 643 (2004), where the defendant was questioned
extensively so that he confessed before being given Miranda warnings and questioned
again . As the Supreme Court plurality found in Seibert , the facts of the case must
determine if Miranda warnings are effective in accomplishing their purpose when they
are given. Here, the Appellant had been telling a story as if it were told to him by
Camacho's wife, but interspersed statements that indicated personal knowledge. He
was then given his Miranda warnings, and did not confess to his participation until after
that, which he did voluntarily by continuing the interview for two more hours . As Justice
Kennedy noted in his separate concurring opinion,' the "question first" technique should
only be suppressed when it is employed in bad faith in a "calculated way to undermine
the Miranda warning ." Id . at 622, 124 S.Ct . at 2616 (Kennedy, J., concurring) .
Devasher began the interview under the assumption that Appellant was simply a
witness with knowledge of the crime, and as soon as it became clear that Appellant was
involved, he gave the Miranda warnings . Devasher's actions do not demonstrate an
attempt to bypass Miranda and were done in good faith .
There was clearly a more than sufficient basis for the trial court to form the
conclusions it did, and there was no abuse of discretion in the findings it made .
Moreover, in light of the totality of the circumstances surrounding the interview, this
Court concludes that Appellant was not in custody during the first part of the interview,
and when the questions pointed to a need for Appellant to be in custody, the Miranda
warnings were properly given .
111. Conclusion
Based on the analysis above, the judgment of conviction and sentence of the
Appellant are affirmed .
Lambert, C.J . ; Abramson, Cunningham and Scott, JJ ., concur . Minton, J.,
dissents because all of the relevant circumstances (including the presence of multiple
officers, the time of day of the interview, the length of the interview, the isolation of
' Justice Kennedy's separate opinion is arguably controlling under Marks v.
United States, 430 U .S. 188, 97 S.Ct. 990 (1977), since it favors a narrower application
of Miranda to two-step interrogations . Justice Breyer articulated a similar standard in
his own concurring opinion, and Justice Kennedy's "opinion insofar as it is consistent
with this approach and makes clear that a good-faith exception applies ." Seibert , 542
U.S . 600, 618, 124 S .Ct. 2601, 2614 (Breyer, J ., concurring) .
12
Appellant from his family members before and during questioning, and the language
barrier between Appellant and the officers) have caused him to conclude that AlkabalaSanchez was in custody from the beginning of his interview with the police. Schroder,
J ., dissents without separate opinion .
COUNSEL FOR APPELLANT :
Randall L. Wheeler
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Clint Evans Watson
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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