State of Minnesota, Respondent, vs. Burhan Mohammed Farrah, Appellant.

State of Minnesota, Respondent, vs. Burhan Mohammed Farrah, Appellant. A05-1277, Court of Appeals Unpublished, August 29, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1277

 

State of Minnesota,
Respondent,
 
vs.
 
Burhan Mohammed Farrah,
Appellant.

 

Filed August 29, 2006

Affirmed

Wright, Judge

 

Hennepin County District Court

File No. 03083307

 

 

Charles F. Clippert, Special Assistant State Public Defender, 1600 Pioneer Building, 336 North Robert Street, St. Paul, MN  55101 (for appellant)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)

 

 

            Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges his conviction of fourth-degree criminal sexual conduct, arguing that the district court erred when it ruled that appellant's statement was admissible because (1) he should have been provided an interpreter during his interrogation; (2) the police violated his Miranda rights by continuing questioning after he clearly and unequivocally invoked his right to counsel; and (3) he did not validly waive his Miranda rights because he did not have an interpreter, he was intoxicated, and he had not taken his medication to treat his schizophrenia.  Appellant also argues that the district court erred in admitting the complainant's prior statements.  We affirm.

FACTS

On November 20, 2003, Plymouth police received a 911 dispatch to investigate a reported rape in the parking lot of an apartment complex.  Within a few minutes, Officer Robert Topp arrived on the scene and saw appellant Burhan Farrah in the parking lot.  Farrah matched the description of the assailant and put his hands up when the police car approached.  Officer Topp took Farrah into custody. 

Officer Kevin Wilson arrived on the scene a few minutes later and spoke with the complainant, C.B.  C.B. was 14 years old at the time of the incident and is developmentally disabled.  C.B. told Officer Wilson that she left her apartment to take out the garbage and that a car almost hit her.  The driver got out of the car and apologized.  The driver asked her name, and, after she responded, he grabbed her by the arm, pulled her into the car, locked the doors, and lay on top of her and touched her breasts, groin, and buttocks over her clothing.  C.B. stated that she was not injured.  Officer Wilson returned with C.B. to her father's apartment, where C.B. gave a tape-recorded statement. 

Officer Topp took Farrah to the police station, and Farrah gave a recorded statement.  Farrah is from Somalia and speaks English with an accent.  Officer Topp first asked Farrah about his identifying information and his alcohol consumption.  In response, Farrah indicated that he had consumed five beers.  Officer Topp read a Miranda warning and asked Farrah if he understood.  Farrah responded, "Little I'm not (inaudible) speak very good English."  Officer Topp read the Miranda warning again, more slowly, and was interrupted by Farrah asking to know what had happened.  After completing the warning, Officer Topp asked Farrah again if he understood his rights and Farrah responded, "Little, yeah."  When Officer Topp asked Farrah what he did not understand, Farrah referred to the right to counsel.  The following exchange took place:

Q: If you want a lawyer you can have them here before I even talk to you or you can contact them . . .    

A: Okay I think I will talk to lawyer, (inaudible).

Q: What's that?

. . . .

 

Farrah then began describing what had occurred prior to his arrest.  Officer Topp interrupted Farrah and the following exchange occurred:

Q: Yup, and before I talk to you about that you need to understand these, that you do have the right to talk to a lawyer first do you understand that?

A: Like even if I have a lawyer . . .

Q: Then they will give you one for free. In other words, you don't have to talk to me right now, although I would like to, to find out what happened.

A: Okay.

Q: But you don't have to you can talk to a lawyer first if that is what you want to do.

A: Okay.

Q: So do you understand that?

A: Yeah.

Q: Okay having your rights in mind do you want to talk to me now?

A: Yeah go ahead.

Q: Okay you don't want to talk to a lawyer first?

A: No I don't want to.

 

After Farrah indicated that he did not want to talk to a lawyer, Officer Topp asked Farrah what happened in the parking lot.  Farrah said that a woman came over to his car, that she looked like she was 18 or 20 years old, and that the woman asked him for a cigarette and Farrah gave her one.  The two sat in the car and smoked.  She asked him for money and to take her downtown or to a motel.  Farrah said that there was no physical contact between them.  The woman then got angry because he had no money, and she got out of the car.

            Both C.B. and Farrah indicated in their statements to police that, when C.B. got out of the car, she went over to another resident of the building, who had just pulled into the parking lot.  C.B. asked the resident to call 911 to report a rape.  The woman did so, after which she and C.B. got into her car to wait for police.

            Farrah was charged with fourth-degree criminal sexual conduct, a violation of Minn. Stat. § 609.345, subd. 1(b) (2002).  In April 2004, Farrah was found incompetent to stand trial due to schizophrenia and a depressive disorder.  In September, after undergoing treatment, Farrah was found competent.  In December 2004, the state amended the complaint to add charges of kidnapping and false imprisonment.

            Farrah moved to suppress his statement, arguing that he should have been provided the services of an interpreter and that the statement was taken in violation of the Fifth Amendment to the United States Constitution because Farrah invoked his right to counsel.  After a hearing, the district court denied the motion.  The matter proceeded to a jury trial, during which the audio recording of Farrah's custodial interrogation was played for the jury.  The jury convicted Farrah of fourth-degree criminal sexual conduct but acquitted him of kidnapping and false imprisonment.  This appeal followed.

D E C I S I O N

I.

In reviewing a district court's decision on a motion to suppress, we determine whether, in light of the facts, suppression of the evidence is warranted as a matter of law.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). 

Under the Fifth Amendment to the United States Constitution, a defendant must be informed of his right to counsel prior to custodial interrogation by police.  State v. Hannon, 636 N.W.2d 796, 804 (Minn. 2001) (citing Miranda v. Arizona, 384 U.S. 436, 471, 86 S. Ct. 1602, 1626 (1966)).  If a defendant asserts the right to counsel, interrogation must cease unless the defendant initiates further communication with the police and validly waives the earlier request for assistance of counsel.  Id. (citing Smith v. Illinois, 469 U.S. 91, 94-95, 105 S. Ct. 490, 492 (1984)).  A defendant must clearly and unambiguously request counsel in order to invoke the Fifth Amendment right to counsel.  State v. Risk, 598 N.W.2d 642, 648 (Minn. 1999) (citing Davis v. United States,512 U.S. 452, 459, 114 S. Ct. 2350, 2355 (1994)).

A.

Farrah argues that his conviction should be reversed because the district court erred when it failed to suppress his statement to police.  Farrah asserts that his statement "Okay I think I will talk to lawyer" was an unambiguous invocation of the right to counsel.

Although we have reproduced above portions of a transcription of the recorded statement, the evidence of what transpired during Farrah's interrogation is the audio recording.  Based on a review of that recording, the district court determined that "the facts support a conclusion that the statement was equivocal."  Referring to Officer Topp's "what's that?" response to Farrah's statement about a lawyer, the district court found that "there was genuine and legitimate lack of clarity on the part of the officer as to . . . what had been said and whether there was a request for an attorney or not."

"[W]e will uphold a district court's factual determination of whether a defendant invoked the right to counsel unless it was clearly erroneous."  Id. at 647.  To effectively assert the right to counsel, a defendant must make a statement such that a "reasonable police officer under the same circumstances" would understand that the defendant requested an attorney.  State v. Munson, 594 N.W.2d 128, 139 (Minn. 1999).  To evaluate the reasonableness of Officer Topp's actions, our review of the audio recording encompasses all aspects of the interrogation, including what transpired both before and after Farrah's statement about a lawyer, as well as the intonation and manner of Farrah's statements.  See State v. Day, 619 N.W.2d 745, 749 (Minn. 2000) (examining defendant's demeanor and statements prior to invocation); see also State v. Camacho, 561 N.W.2d 160, 170 (Minn. 1997) (referring to the "tone" and "inflection" of police questions when reviewing voluntariness of a confession). 

It is evident from listening to the audio recording that the words that Farrah uttered relate to the right to counsel.  But when his words are heard and considered in context, it is far from clear that Farrah desired the assistance of counsel during his interrogation.  The audio recording suggests that, rather than asserting his rights, Farrah could have been demonstrating an understanding of his rights by repeating what had been explained to him.  Moreover, Officer Topp's intonation and manner of delivery captured exclusively by the audio recording give no indication that Officer Topp's response was a tactic to encourage Farrah to waive his rights after further questioning.  Officer Topp's response, "what's that?," supports our objective conclusion that Farrah's statement was ambiguous.  Cf. Hannon, 636 N.W.2d at 805 (finding an unambiguous invocation based on officer's response that questioning would cease if suspect wanted counsel); Munson, 594 N.W.2d at 139-140 (same).

We note that our conclusion that Farrah's statement was ambiguous is not dependent on the fact that Farrah's first language is not English.  Indeed, Farrah's accent is part of the context of the interrogation.  But we do not conclude that his statement was ambiguous because Officer Topp could not understand Farrah's accent.  We are mindful that the standard for evaluating whether a suspect's assertion of the right to counsel is ambiguous remains an objective inquiry.  Davis, 512 U.S. at 459, 114 S. Ct. at 2355; see also Hannon, 636 N.W.2d at 804-805 (referring to the "objective" sufficiency of invocation in that case).  But the ever-broadening diversity of linguistic backgrounds among both police and suspects threatens the objective nature of that inquiry.  What is ambiguous to an officer who has extensive experience interrogating Somali suspects may be quite different from what an officer who has never conversed with a person from Somalia would find ambiguous.  The evaluation of what a "reasonable police officer under the same circumstances" would do is increasingly challenging.  Nevertheless, the audio evidence establishes that Farrah's statement, although apparently unambiguous when transcribed, was audibly ambiguous when heard in the context of the oral exchange.  Accordingly, the district court did not err in its determination that Officer Topp was not required to cease all questioning after Farrah said what is transcribed as, "I think I will talk to lawyer."

B.

"[W]hen a suspect indicates by an equivocal or ambiguous statement, which is subject to a construction that the accused is requesting counsel, all further questioning must stop except that narrow questions designed to ‘clarify' the accused's true desires respecting counsel may continue."  State v. Robinson, 427 N.W.2d 217, 223 (Minn. 1988).  This rule provides more protection than is required by the United States Constitution.  Hannon, 636 N.W.2d at 804.  Police may not resume interrogating a suspect unless the "police confirm that the accused is not expressing a desire to deal with the police only through counsel."  Risk, 598 N.W.2d at 649 (emphasis added).

It is clear from the record that Officer Topp followed the Robinson approach.  Officer Topp reiterated that Farrah did not have to speak with police but could speak to a lawyer first and asked again if Farrah understood.  The following exchange then ocurred:

Q: [H]aving your rights in mind, do you want to talk to me now?

A: Yeah go ahead.

Q: Okay you don't want to talk to a lawyer first?

A: No I don't want to.

 

After this response, Officer Topp began to question Farrah about the incident.

C.

            The state may not introduce a defendant's custodial statement absent a voluntary, knowing, and intelligent waiver of the defendant's constitutional rights.  State v. Marin, 541 N.W.2d 370, 374 (Minn. App. 1996) (citing Miranda, 384 U.S. at 444, 86 S. Ct. at 1612), review denied (Minn. Feb. 27, 1996).  The prosecution must prove by a preponderance of the evidence that a defendant's waiver of constitutional rights is valid.  State v. Williams, 535 N.W.2d 277, 286 (Minn. 1995).  The district court found that Farrah executed a voluntary, knowing, and intelligent waiver of his rights.  But Farrah argues that, although he told Officer Topp that he did not want to talk to a lawyer, his statement was an invalid waiver of the right to counsel because he did not have an interpreter, he was intoxicated, and he was mentally ill. 

1.

We first address Farrah's argument that police violated Minnesota statutes by failing to provide him with an interpreter during his interrogation.[1]  Law-enforcement officials must provide an interpreter before interrogating or taking a statement from a person "handicapped in communication."  Minn. Stat. § 611.32, subd. 2 (2002).  A person is handicapped in communication if he or she cannot understand legal proceedings because of a difficulty speaking or comprehending English.  Minn. Stat. § 611.31 (2002).  The statute provides in relevant part:

Following the apprehension or arrest of a person handicapped in communication for an alleged violation of a criminal law, the arresting officer, sheriff or other law enforcement official shall immediately make necessary contacts to obtain a qualified interpreter and shall obtain an interpreter at the earliest possible time at the place of detention. A law enforcement officer shall, with the assistance of the interpreter, explain to the person handicapped in communication, all charges filed against the person, and all procedures relating to the person's detainment and release. . . . Prior to interrogating or taking the statement of the person handicapped in communication, the arresting officer, sheriff, or other law enforcement official shall make available to the person a qualified interpreter to assist the person throughout the interrogation or taking of a statement.

 

Id., subd. 2. 

In Marin, we concluded that section 611.32 had been violated because an interpreter was available, the defendant indicated that he did not understand his rights, the officers had to explain the defendant's rights several times, the misunderstandings continued throughout the interrogation, and Marin provided inappropriate responses to the officers' questions.  541 N.W.2d at 373-74.  Here, the record establishes that Farrah said at the beginning of the interrogation that he did not speak English well.  Farrah twice indicated that he understood his rights only a "little."  And the officer was required to repeat his explanation of the Miranda warning.  On this record, Officer Topp had a statutory duty to obtain a qualified interpreter.  Accordingly, Minn. Stat. § 611.32, subd. 2, was violated.

2.

A violation of Minn. Stat. § 611.32, subd. 2, does not automatically lead to suppression of statements taken without the aid of an interpreter.[2]  State v. Mitjans, 408 N.W.2d 824, 829-31 (Minn. 1987).  But Farrah correctly asserts that the statutory violation is a relevant factor in our legal analysis of whether Farrah's waiver of his constitutional rights was valid.  See Marin, 541 N.W.2d at 373-74 (considering violation of interpreter statute when determining whether defendant's constitutional rights were knowingly and intelligently waived).

Thus, we next consider whether, in combination with other circumstances, the violation of the interpreter statute led to an invalid waiver.  We review de novo whether the state established waiver by a preponderance of the evidence.  Marin, 541 N.W.2d at 374.  "If the police fully advise an accused of his Miranda rights, and the accused indicates that he understands his rights and nevertheless gives an incriminating statement, the state is deemed to have met its burden of proving that the accused knowingly and intelligently waived his rights."  Williams, 535 N.W.2d at 286.  But if there is other credible evidence that the waiver was not knowing and intelligent, we examine the totality of the circumstances to determine whether the waiver was valid.  Camacho, 561 N.W.2d at 168. 

The totality of the circumstances is a subjective, factual inquiry.  State v. Marshall, 642 N.W.2d 48, 54 (Minn. App. 2002), review denied (Minn. May 28, 2002).  Relevant factors to be considered include: the defendant's age, maturity, intelligence, education, experience, and ability to comprehend; the lack of or adequacy of warnings; the length and legality of the detention; the nature of the interrogation; the use of physical deprivation; and the defendant's access to counsel and friends.  State v. Earl, 702 N.W.2d 711, 718-19 (Minn. 2005).

Apart from his language impairment, Farrah argues that he did not knowingly and intelligently waive his rights because he has limited experience with the courts, he has a limited education, he was intoxicated at the time of the interrogation, and he is mentally ill.  Farrah's only other contact with the criminal-justice system was a previous arrest for driving while intoxicated.  Educated in Somalia, Farrah attended school only until age 15.  And neither party disputes that Farrah was under the influence of alcohol when he was questioned by Officer Topp.  The record also demonstrates that Farrah has schizophrenia with auditory hallucinations and he has not always been compliant with his treatment regimen. 

Evidence of intoxication and mental illness, however, is not determinative in our analysis.  See Wold v. State, 430 N.W.2d 171, 177 (Minn. 1988) (holding that "neither alone, nor in combination, did appellant's reduced intellectual capacity and/or his degree of intoxication vitiate appellant's waiver of his Fifth Amendment rights" because Wold was clear and reasonable in audio recording of interrogation).  Nor are we persuaded that Farrah's limited education and experience with the courts vitiates his waiver.  The record establishes that, despite these potential impairments, Farrah had an understanding of English sufficient to be able to execute a valid waiver of his rights. 

Again, we rely on the audio recording of Farrah's interrogation as the best evidence of his ability to comprehend and waive his rights.  Although sometimes difficult to understand, Farrah was able to comprehend and respond to Officer Topp's questions.  During the suppression hearing, Officer Topp testified:

It was obvious to me that [Farrah] had a strong accent, but I didn't feel that he was unable to understand, nor was I unable to understand him. . . . Any question I felt that he had trouble understanding in regards to his language interpretation, I would either repeat it or more fully explain to him. 

 

In addition, a court-appointed psychologist's report indicated that, although Farrah used an interpreter during sessions, "it was evident [that Farrah] was often able to understand and express himself in English."  Our careful review of the record establishes that the state met its burden of proving by a preponderance of the evidence that Farrah voluntarily, knowingly, and intelligently waived his Miranda rights.  Accordingly, the district court properly received Farrah's statement into evidence.

II.

Farrah also challenges the district court's decision to admit C.B.'s out-of-court statements to her grandmother and Officer Wilson because, he asserts, they were not consistent with her trial testimony and thus are not admissible under Minn. R. Evid. 801(d)(1)(B).  At trial, C.B. testified that, after she took out the trash, a man grabbed her by the left arm, pushed her into his car, lay on top of her, and touched her breasts on top of her clothes.  She said that he tried to get under her clothes, and that she resisted, pushed him off, and got out of the car.  She also testified that she told her friend about the incident but that she did not call and speak with her grandmother about what happened. 

C.B.'s tape-recorded statement to Officer Wilson was played for the jury.  In that statement, C.B. said that the man touched her breasts and her buttocks, that the assault lasted five to ten minutes, and that she got away by sitting up and unlocking the door.  C.B.'s grandmother testified that C.B. called her on the day of the incident and told her that a man dragged her to his car and put his hands on her "boobs" and "fanny."

We review the district court's decision as to the admissibility of evidence for an abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  The admissibility of prior consistent statements by a testifying witness is governed by Minn. R. Evid. 801(d)(1)(B) as interpreted in State v. Nunn, 561 N.W.2d 902 (Minn. 1997), and State v. Bakken, 604 N.W.2d 106 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000).

            As an initial matter, prior consistent statements are admissible only if the witness's credibility has been challenged.  Bakken, 604 N.W.2d at 109.  Here, C.B. was the first witness to testify and her statement is the only evidence that a crime took place.  She was cross-examined extensively by the defense, during which her credibility was challenged.  The first element of the Nunn/Bakken analysis is satisfied here.

            The next step in the Nunn/Bakken analysis requires us to determine whether a prior statement would be helpful to the jury in evaluating witness credibility.  Id. at 109.  Although mere repetition of a statement does not in itself imply veracity, a prior consistent statement may bolster credibility by "showing a fresh complaint, obviating an improper influence or motive, providing a meaningful context, or demonstrating accuracy of memory."  Id.  In Bakken, we noted that, when a witness's memory at trial is "sketchy," the district court acts within its discretion to admit prior statements to help the jury assess credibility.  Id.  Here, C.B. had trouble remembering many details during her trial testimony.  As such, the prior consistent statements were helpful to assess her credibility.

            Next, we compare the prior statements to the trial testimony for consistency.  Id.  The statements need not be verbatim.  Id.  But if there are inconsistencies that directly affect the elements of the criminal charge, the statements may not be received as substantive evidence under Minn. R. Evid. 801(d)(1)(B).  Fourth-degree criminal sexual conduct is defined as intentional touching of the genitals, breasts, buttocks, or groin, either under or over the clothing.  Minn. Stat. § 609.341, subds. 5, 11 (2002).  Although there were inconsistencies by omission in her statements, C.B.'s prior statements are consistent with her testimony that the person who assaulted her touched her breasts.  Because for purposes of admissibility under Minn. R. Evid. 801(d)(1)(B) the statements are consistent, the district court did not abuse its discretion by admitting them in evidence. 

            Notwithstanding the violation of the interpreter statute, because Farrah's waiver of his Miranda rights was valid and because C.B.'s prior statements were properly admitted under Minn. R. Evid. 801(d)(1)(B), we affirm.

            Affirmed.

[1] It is undisputed that an interpreter was available.

[2] Indeed, it appears that there currently is no remedy under Minnesota law for a defendant whose statement is taken in violation of Minn. Stat. § 611.32, subd. 2.  The absence of a remedy is of particular concern, given that it is

the policy of this state that the constitutional rights of persons handicapped in communication cannot be fully protected unless qualified interpreters are available to assist them in legal proceedings.  It is the intent of sections 611.30 to 611.34 to provide a procedure for the appointment of interpreters to avoid injustice and to assist persons handicapped in communication in their own defense.

Minn. Stat. § 611.30 (2004).