COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Athey and White PUBLISHED
Argued at Richmond, Virginia
MARCO ANTONIO MARTINEZ AYALA OPINION BY v. Record No. 0748-22-2 CHIEF JUDGE MARLA GRAFF DECKER OCTOBER 31, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY Randall G. Johnson, Jr., Judge
Paul C. Galanides for appellant.
Tanner M. Russo, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Marco Antonio Martinez Ayala appeals his convictions for two counts of aggravated
sexual battery of a minor under the age of thirteen in violation of Code § 18.2-67.3. He argues
that the trial court erred by denying his motion to suppress his post-arrest statements to law
enforcement because his waiver of rights was not voluntarily, knowingly, and intelligently given.
We hold that the record supports the trial court’s ruling denying the motion to suppress those
statements. Accordingly, the convictions are affirmed.
BACKGROUND1
The appellant was charged with committing multiple sex offenses against his
stepdaughter, D.S, between March 2014 and March 2015, when D.S. was six and seven years
1 In reviewing the denial of a motion to suppress, the appellate court “consider[s] the facts in the light most favorable to the Commonwealth, the prevailing party at trial.” Aponte v. Commonwealth, 68 Va. App. 146, 156 (2017) (quoting Hairston v. Commonwealth, 67 Va. App. 552, 560 (2017)). old.2 D.S. did not tell her mother about the appellant’s conduct until about five years later, in
early 2020, when her mother and the appellant were no longer married.
In May 2020, the appellant was arrested as he was about to leave the country to attend his
brother’s funeral in Mexico. Henrico County Police Detective Charles K. Walker interviewed
the appellant after his arrest. The interview was audio recorded and was played at the
suppression hearing and at trial. Although the appellant’s native language was Spanish, the
interview was conducted in English without an interpreter. The appellant, who had lived in the
United States for several years, told Detective Walker that he understood spoken English but
could not read or write it. He spoke to the detective in English, and he did not request an
interpreter for the interview. Walker testified at the suppression hearing that he would have
obtained an interpreter if he thought the appellant needed one but, based on their conversation,
he believed the appellant understood English “pretty good.”
At the beginning of the interview, the appellant acknowledged to Detective Walker that
the charges had been explained to him, but he said he did not “understand a lot of it.” The
detective personally provided specific information to the appellant about the charges. He told
the appellant that he had been charged with the “serious offenses” of rape, aggravated sexual
battery, and indecent liberties with a minor. Walker then began the process of advising him of
his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).3 The detective started by reading
2 In addition to the aggravated sexual battery offenses at issue in this appeal, the appellant was initially charged with rape of a minor and six other sexual battery and indecent liberties offenses. Prior to trial, the court granted the Commonwealth’s motion to amend the rape charge to object sexual penetration and to nolle prosequi the other six charges. 3 The warnings set out in Miranda are designed to protect a defendant’s constitutional right against self-incrimination during custodial interrogation. See Berkemer v. McCarty, 468 U.S. 420, 428-33, 440 (1984); see also Thomas v. Commonwealth, 72 Va. App. 560, 574-81 (2020) (discussing the purpose and evolution of Miranda warnings). -2- aloud from a Henrico County Police Division form, written in English, that set out those rights.4
When the appellant indicated he did not “know” the right to remain silent, Walker gave him a
Spanish version of the Division’s advisement-of-rights form. The detective pointed to each right
on the Spanish form as he read it in English.5 The appellant verbally acknowledged that he
understood each of his rights.6 The detective asked him to sign the form to acknowledge that he
understood all of these rights. Detective Walker explained that by signing the document, he was
“not admitting guilt.” The appellant signed the Spanish advisement-of-rights form.
Detective Walker then began questioning the appellant. He asked about the
circumstances regarding the allegations and the appellant’s relationship with the victim, D.S.
When Walker told the appellant what D.S. said he had done to her, the appellant responded,
“That’s what she’s saying?” and added, “Wow!” He acknowledged that the allegations were
serious and denied that he improperly touched D.S. When Walker again asked if he denied the
specific allegations, the appellant said that he did not want to say that the incidents did not
happen. Walker responded, “[E]ither you touched her or you didn’t.” The appellant replied that
D.S. could say whatever she wanted to say and he wanted his attorney to see if she could prove
4 The form used by the Henrico County Police Division in this case is titled “Rights Waiver.” However, nothing on the form expressly advises an interviewee that signing it constitutes a waiver of any rights. Therefore, this opinion refers to the document as an advisement-of-rights form or simply a rights form rather than a waiver form. 5 Here, in keeping with the safeguards of Miranda, 384 U.S. at 444, Detective Walker informed the appellant that he had the right to remain silent and to have a retained or court-appointed attorney present during the interview. Walker further explained that if the appellant chose to “make any statement,” it “c[ould] be used against [him] in court.” Finally, the advisement of rights included the appellant’s acknowledgment that “no pressure,” “promises[,] or threats” “ha[d] been made” or “used against” him. The appellant does not challenge the accuracy or completeness of the rights advisement. 6 Although there was a box on the form beside each right, the appellant did not check any of the boxes. Walker explained that he did not ask the appellant to check the boxes and that he viewed obtaining check marks in the boxes as merely optional. -3- it. The appellant denied the allegations when Walker asked again. The detective subsequently
asked if the appellant had any questions for him. At that point, the appellant told Walker he did
not want to say anything more without speaking to his attorney, and Walker ended the interview
without questioning him further.
The appellant filed a pretrial motion to suppress the statements he made during the
interview, alleging that his lack of English comprehension rendered the use of any of those
statements a violation of his Miranda rights. At the suppression hearing, the parties agreed that
the appellant had obtained a middle school education in Mexico, his country of origin, had been
a United States citizen for about eight years at the time of the hearing, and had lived and worked
in this country prior to that time.7 They further agreed that he “had previous experience with
police on two occasions,” which involved being jailed on (but not convicted of) a domestic
violence charge. The trial court admitted documentation into evidence relating to the prior
juvenile and domestic relations court proceeding. The prosecutor pointed out that the court
documents contained no indication that the appellant had “request[ed] or use[d] an interpreter” in
that court.
The trial court admitted into evidence the Spanish and English advisement-of-rights
forms used by Detective Walker. It also listened to the audio recording of the interview and
heard testimony regarding the interview. The court found that the appellant had “sufficient
command of the English language.” It denied the appellant’s motion to suppress, concluding that
he waived his Miranda rights voluntarily, knowingly, and intelligently.
7 The Commonwealth proffered without objection at the 2021 suppression hearing that the appellant became a United States citizen when he married D.S.’s mother, which had been approximately eight years earlier. The appellant testified at his 2021 trial that he had been in the United States for eighteen years. See Tirado v. Commonwealth, 296 Va. 15, 24 (2018) (noting that “[w]hen considering whether to affirm the denial of a pretrial suppression motion,” the appellate court reviews the evidence presented at both the hearing and at trial). -4- At trial, the prosecutor played the recording of the interview for the jury. She argued it
showed that the appellant was evasive about whether he sexually abused the victim and that he
never directly denied the allegations. Defense counsel asserted that the appellant did, in fact,
deny the allegations during the interview but could have issued a “stronger” and “more emphatic
denial” if the interview had been conducted in his native language. After hearing all of the
evidence, the jury found the appellant guilty of two counts of aggravated sexual battery.8
Consistent with the jury’s recommendation, he was sentenced to thirty years in prison, with an
additional six years imposed and suspended as post-release supervision, and fined $100,000.
ANALYSIS
The appellant argues that his Miranda waiver was not made voluntarily, knowingly, and
intelligently because he lacked a “full awareness of both the nature of the right being abandoned
and the consequences of the decision to abandon it.” See Moran v. Burbine, 475 U.S. 412, 421
(1986). He bases his challenge on the fact that he did not have a Spanish-speaking interpreter for
the interview.
In this Court, the appellant “bears the burden to show that the [trial] court committed
reversible error by denying [his] motion to suppress.” Keepers v. Commonwealth, 72 Va. App.
17, 33 (2020). The appellate court reviews the legal portions of such a ruling de novo. See
Thomas v. Commonwealth, 72 Va. App. 560, 574 (2020) (citing Commonwealth v. Quarles, 283
Va. 214, 220 (2012)). The evidence, by contrast, is viewed “in the light most favorable to the
Commonwealth, granting to it all reasonable inferences” flowing from that evidence. Id.
(quoting Giles v. Commonwealth, 28 Va. App. 527, 532 (1998)). On appeal, therefore, the trial
court’s related factual findings “will not be set aside . . . unless plainly wrong.” Tirado v.
8 The jury did not reach a verdict on the object sexual penetration charge, and it is not relevant to this appeal. -5- Commonwealth, 296 Va. 15, 27-28 (2018) (quoting Angel v. Commonwealth, 281 Va. 248, 258
(2011)); see also id. at 24 (observing that an appellate court “considering whether to affirm the
denial of a pretrial suppression motion” reviews the evidence presented at both the suppression
hearing and at trial). This deferential standard includes the trial court’s assessment of the
credibility of the witnesses. Washington v. Commonwealth, 75 Va. App. 606, 615-16 (2022); see
Tirado, 296 Va. at 30.
A Miranda waiver has two distinct components: it must be (1) a “choice” that is
“uncoerced” and (2) one that is “made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.” Tirado, 296 Va. at 28 (quoting
Moran, 475 U.S. at 421). The first component—whether the waiver was voluntary—is a legal
question. See id. The second component—whether the waiver was knowing and intelligent—is
a question of fact. See id. at 27. Both components must be satisfied for a waiver to be valid. See
id. at 28.
Regarding the first requirement, the legal component of voluntariness, the appellant
provides no legal basis upon which to conclude that his waiver was involuntary. See id.9 The
trial court ruled that the appellant’s “will was not overborne by anything that Detective Walker
said or did” during the interview. See Secret v. Commonwealth, 296 Va. 204, 226 (2018)
(“‘[C]oercive police activity is a necessary predicate’ to finding a confession constitutionally
involuntary.” (emphasis added) (quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986))). The
9 To the extent that the appellant alleges that his brother’s recent death impacted his ability to validly waive the rights afforded by Miranda, “the Fifth Amendment privilege is not concerned with ‘moral and psychological pressures to confess emanating from sources other than official coercion.’” Kauffmann v. Commonwealth, 8 Va. App. 400, 405-06 (1989) (quoting Colorado v. Connelly, 479 U.S. 157, 170 (1986)). The death of the appellant’s brother, therefore, is not relevant to our legal analysis. See id. at 402-03, 405-06 (holding that the defendant’s Miranda waiver was valid even though he was described as “grieving,” in “awful condition,” and “hysterical” about the suicide of the fourteen-year-old daughter he was accused of sexually molesting). -6- recording of the interview, coupled with the English and Spanish versions of the
advisement-of-rights form and the detective’s testimony about how he utilized those forms,
provides necessary context for evaluating voluntariness. This evidence confirms that Walker
spoke to the appellant about his rights calmly and in a conversational voice. Walker obtained
verbal confirmation that the appellant understood each one before proceeding to the next right.
The detective further explained to him that signing the advisement-of-rights form was not an
admission of guilt. We hold that the record entirely supports the legal conclusion that the
appellant’s waiver and subsequent statements to Walker were made voluntarily. See Tirado, 296
Va. at 28-29 (holding that the defendant provided “no evidence or assertion” of coercion that
rendered his waiver involuntary). Consequently, the first component required for a lawful
Miranda waiver was met.
The second requirement or factual component, the “knowing and intelligent requirement
of a Miranda waiver[,] focuses on whether the defendant comprehended the plain meaning of the
required warnings.” Id. at 29. The Commonwealth “bears the burden of showing a knowing and
intelligent waiver” to the satisfaction of the trial court. Id. at 27 (quoting Angel, 281 Va. at
257-58). That court’s decision will not be reversed unless “plainly wrong.” Id. at 27-28
(quoting Angel, 281 Va. at 258). The analysis takes into account the totality of the
circumstances. Id. at 28. “Courts may consider ‘the defendant’s age, education, language,
alienage, experience with police, and whether the defendant stated that he understood his rights
as read to him’ to evaluate ‘whether the defendant comprehended the plain meaning of the
required warnings.’” Keepers, 72 Va. App. at 37 (quoting Tirado, 296 Va. at 29).
The appellant argues that his Miranda waiver was not valid because he “has only the
barest functionality with the English language.” The law is clear that a defendant’s waiver in a
second language is valid as long as he sufficiently understands the rights he surrenders. See
-7- Tirado, 296 Va. at 29-30. In Tirado, the Supreme Court of Virginia upheld a waiver given in a
defendant’s second language, noting that the defendant chose to speak that language, affirmed
that he understood each Miranda right and signed the waiver form, and “responded
appropriately” to the questions. Id. The Court reached this conclusion despite the defendant’s
claim at trial that he did not understand his rights at the time of his interview. Id. at 30
(recognizing that the trial court, in its role as fact finder, was “not bound to accept [the
defendant’s] self-serving testimony”).
To assess the appellant’s claim that the waiver was not knowing and intelligent, we look
to the totality of the circumstances to determine if the facts support the trial court’s conclusion.
The appellant was thirty-two years old at the time of the interview. He had a middle-school
education in his country of origin. At the time of the police interview, he had been in the United
States for seventeen years and had been a citizen for about seven of those years.10 At the
interview’s start, he confirmed to Detective Walker that although he could not read or write
English, he could understand and speak it. In fact, he was speaking English at that time. In an
abundance of caution, Walker gave him a rights form written in Spanish that enumerated each
Miranda right. The appellant reviewed each right written in Spanish as the detective verbally
identified it in English. The appellant verbally acknowledged in English that he understood the
rights. He then signed the Spanish rights form.
For the almost fifty-minute interview, the appellant and the detective spoke entirely in
English in a very conversational manner. During that time, the appellant provided responsive
and sometimes detailed answers about the history of his relationship with D.S. and her mother.
He also discussed the specifics of the allegations. When he appeared a few times not to grasp a
10 The police interview occurred more than eight months before the suppression hearing, at which the appellant testified he had been a citizen for eight years. -8- particular word or term, Walker rephrased the question so that the appellant could understand.11
At trial, the appellant acknowledged on cross-examination that many of the answers he gave to
Detective Walker in English during the interview matched the trial testimony he gave through a
Spanish interpreter.
In his argument on brief, the appellant concedes that in the interview, he “spoke without
any hesitation for minutes on end about D.S. and her mother, and the issues that had arisen
between them.” He similarly notes that he “expressed utter shock in the interview when the
detective explained” the nature of the allegations. Further, he acknowledges that “[a]fter the
detective repeated and clarified [the allegations], [he] promptly said he would want his attorney
present to prove that th[ey were] not true.” Although the appellant now argues that he did not
understand the rights he waived, he asserted those very rights at the end of the interview when he
told Walker that he did not “wanna say anymore [sic]” and indicated that he planned to “wait ‘til
[he] g[ot his] attorney.” As a result of those comments, Walker complied without question and
ended the interview.
The record supports the trial court’s factual finding that the appellant had a “sufficient
command of the English language” to render him able to waive his rights pursuant to Miranda in
a way that was knowing and intelligent.
The appellant asserts that he did not understand “the consequences of the decision to
abandon” his Miranda rights because he “did not know why he was in police custody.” This
suggestion is unavailing. “[W]hether [the defendant] fully appreciates the beneficial impact on
his defense that silence may have—whether he fully understands the tactical advantage, in our
11 For example, when asked about a previous address, the appellant did not understand the meaning of “prior” but did understand the word “before” and provided a responsive answer. -9- system of justice, of not speaking—does not affect the validity of his waiver.” Tirado, 296 Va.
at 29 (alterations in original) (quoting United States v. Yunis, 859 F.2d 953, 965 (D.C. Cir.
1988)).
The facts also belie this contention. At the beginning of the interview, Detective Walker
told the appellant what the alleged crimes were, reciting the general offenses. The detective also
conveyed that his circumstances were “serious” and told the appellant the identity of the victim.
When Walker later reemphasized the seriousness of the allegations, the appellant replied
“correct.” Additionally, the appellant was not new to the criminal justice system. He had prior
experience with the police due to a domestic violence incident and specifically discussed with
Walker how D.S.’s mother had previously “put [him] in jail” as a result of other allegations.
Toward the end of the interview, he asked Detective Walker about getting bond. Again, the
record supports the trial court’s finding that the appellant had a “firm understanding” of the
seriousness of the charges.
Lastly, the appellant argues he did not waive his Miranda rights because he never
expressed that waiver verbally. It is true that “a valid waiver will not be presumed simply from
the silence of the accused.” Angel, 281 Va. at 259 (citing Harrison v. Commonwealth, 244 Va.
576, 582 (1992)). But “Miranda [does not] require[] a waiver to be in writing or verbally
expressed, nor does it preclude the conclusion that a waiver occurred based on the suspect’s
course of conduct.” Id. (citing Harrison, 244 Va. at 582). Accordingly, a “waiver may be
inferred from the words and actions of” the individual being questioned. Thomas, 72 Va. App. at
582 (citing Harrison, 244 Va. at 582).
Again, in this case, the appellant verbally expressed his understanding of his rights as
Detective Walker went through each enumerated right on the Spanish rights form, which he then
signed. The appellant’s ensuing voluntary communication with the detective, as well as his
- 10 - termination of that communication, demonstrates the validity of his waiver. See id. at 586
(holding that the defendant’s choice to reengage with detectives after asserting his right to
silence was an implied waiver); Angel, 281 Va. at 259-60 (holding that the juvenile defendant’s
voluntary conversation with officers after signing a Spanish Miranda “waiver of rights form”
was a valid waiver). The tone of the interview was conversational, and it lasted only about fifty
minutes. It ended when the appellant verbally asserted his rights to remain silent and to have an
attorney present, demonstrating that he both understood those rights and initially chose to waive
them. These facts support the trial court’s findings that the appellant “acknowledged” his
Miranda rights both verbally and in writing and validly waived them by his conduct.
Consequently, like the first, the second component required for a lawful Miranda waiver, that it
was knowing and intelligent, was met.
CONCLUSION
The trial court’s ruling that the appellant waived his Miranda rights voluntarily,
knowingly, and intelligently is supported by the law and the record. We hold that the trial court
did not err by denying the motion to suppress, and the convictions are affirmed.
Affirmed.
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