STATE OF LOUISIANA NO. 20-KA-176
VERSUS FIFTH CIRCUIT
FERNANDO H. DAROCHA COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 18-7472, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING
January 27, 2021
HANS J. LILJEBERG JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Hans J. Liljeberg
AFFIRMED HJL FHW RAC COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Anne M. Wallis Lynn Schiffman Lindsay L. Truhe
COUNSEL FOR DEFENDANT/APPELLANT, FERNANDO H. DAROCHA Cynthia K. Meyer LILJEBERG, J.
Defendant appeals his conviction and sentence for second degree murder,
arguing that the trial court erred by denying his motion to suppress statements. For
the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On November 29, 2018, defendant, Fernando H. Darocha, with charged by
grand jury indictment with second degree murder, in violation of La. R.S. 14:30.1.
He pleaded not guilty at his arraignment. On January 23, 2019, defendant filed a
motion to suppress statements. After a hearing, the trial court denied the motion
on May 20, 2019.
On September 19, 2019, at the conclusion of defendant’s trial, a twelve-
person jury unanimously found him guilty as charged. On September 23, 2019, the
trial court sentenced defendant to life imprisonment at hard labor to be served
without the benefit of parole, probation, or suspension of sentence.
At trial, Detective Ariel Larce of the Gretna Police Department testified that
on July 31, 2018, around 11:20 a.m., she responded to a call from 1901 Lafayette
Avenue, Apartment 510 in Gretna about an eleven-month-old, later identified as
Aaron Avila, who fell from a bed and hit his head. She stated that she arrived at
11:30 a.m. and first passed the apartment in her haste. When she looked in her rear
view mirror, she saw a white male, later identified as defendant, flagging her down
and pointing in the direction she had passed. She stated that defendant was bare
chested, barefoot, and wearing black sweatpants or joggers. Detective Larce said
she then saw a female, later identified as the baby’s mother, Jennifer Avila,
holding a baby that appeared “almost bluish gray compared to her skin tone.”
Detective Larce testified that she sped back towards Ms. Avila, got out of
the car, and ran to Ms. Avila. The baby, Aaron, only had a diaper on and was blue
and not moving. She stated that Aaron’s head was swollen and she thought he was
20-KA-176 1 dead, so she asked Ms. Avila if he was alive and breathing, to which she responded
that he was breathing. Detective Larce indicated that the paramedics arrived and
she quickly brought Aaron to them. Angela Hunter, who is a paramedic and a
police officer, attempted to ask Ms. Avila what happened, but Ms. Avila stated that
she did not speak English. Detective Larce testified that she then ran to her patrol
unit to call Laura Duran, the secretary for the Gretna Police Department, because
she is “very fluent in Spanish.”
Detective Larce, with the assistance of Ms. Duran on speaker phone, learned
from Ms. Avila that Aaron fell backwards from a high bed onto a hardwood floor
and hit his head. Due to his injuries, Aaron was taken to the hospital. Detective
Larce escorted the ambulance to the hospital. When she opened the back of the
ambulance upon arrival, Aaron’s “color was tan, he was crying, [and] he was kind
of squirming a bit.” She stated that his head appeared bigger than when she first
took him from Ms. Avila.
While she was at the hospital waiting to hear from the doctors, Detective
Larce contacted Sergeant Roland Kindell because she had not had an opportunity
to verify that Aaron could have fallen from a high bed onto a hardwood floor as
she had been told. While waiting for Sergeant Kindell to verify the information,
doctors told her that the baby had multiple skull fractures that could not have come
from one fall. She testified that based on that information, the investigation shifted
to a criminal investigation.
Detective Larce testified that she transported Ms. Avila to the police station
for an interview. She indicated that when they arrived, defendant was there with
Ms. Avila’s four-year-old son, Santiago. She observed that Santiago and Ms.
Avila communicated in English. Detective Larce testified that she remained in
communication with Aaron’s doctors and that she was at the hospital when Aaron
died on his first birthday, August 3, 2018.
20-KA-176 2 Ms. Hunter testified that she was working with EMS on July 31, 2018, when
she was dispatched to a call at 1901 Lafayette Street in Gretna regarding an eleven-
month-old that fell off of a bed. She stated that she and her partner, Brooke
Treadaway, arrived at the scene at 11:30 a.m. and saw Deputy Larce holding the
baby. Ms. Hunter testified that she saw a “thin built male with gray hair walking
through the parking lot” and the mother standing outside of the apartment. She
indicated that Deputy Larce handed the baby to Ms. Treadaway, and the baby was
brought to the back of the vehicle. She described the baby as limp, pale, and not
making any noise. She stated that he only made a sound when they touched the
back of his head as they put on an oxygen mask. She felt the back of his head
while doing so and described it as, “crunchy, a mushy feeling.”
Ms. Hunter testified that it is important for EMS to know the facts and
circumstances surrounding how a patient was injured in order to have an idea as to
how to treat them and what to look for. She stated that they attempted to speak to
the mother, but she would not speak English, so Deputy Larce got an interpreter on
her phone. Through the interpreter, the mother told them that the child fell off of a
bed onto a hardwood floor and that she gave the child a bath then waited about
thirty minutes or so before calling 9-1-1. Ms. Hunter testified that she transported
the child to the hospital and, when they arrived, he was still not responsive and his
color was poor. She stated that in her fifteen years as an EMS responder, she had
never seen this type of injury from a child falling from a two-foot-high bed.
Sergeant Roland Kindell with the Gretna Police Department testified that on
July 31, 2018, he was notified of an investigation regarding a baby who fell and
was at the hospital. He stated that Detective Larce responded to a medical call and
then went with EMS officers to the hospital. At the hospital, she notified him of
the baby’s injuries and asked him to assist. Sergeant Kindell testified that he
proceeded to the apartment at 1901 Lafayette, Apartment 510. Crime scene was
20-KA-176 3 called to the apartment and photographs were taken. Crime scene also collected a
store receipt. Sergeant Kindell stated that the bedroom floor was carpet, not a hard
surface, and that the bed was not high. He stated that he informed Detective Larce
of his observations and notified Sergeant Louis Alvarez of the investigation.
Sergeant Ashton Gibbs with the Gretna Police Department testified that he
was notified by Sergeant Alvarez of the investigation on July 31, 2018. He stated
that he took over as lead detective and went to the hospital. Once there, he spoke
to Detective Larce and attempted to speak to Ms. Avila but encountered a language
barrier. Sergeant Gibbs learned from the doctors that Aaron had multiple skull
fractures. He stated that while he was at the hospital, other officers were at the
apartment where the incident occurred. He was informed by those officers that
there was not a high bed or wood floors at the apartment, which did not
corroborate what he had been told. Sergeant Gibbs presented a photograph of the
bed in the apartment to the doctors and was told by the doctors that it was not
likely that Aaron’s injuries were sustained from that bed. At that time, he was not
informed of any injuries in the bathroom.
Sergeant Gibbs stated that after leaving the hospital that day, he went to the
Gretna Police Department to interview Ms. Avila and defendant, who were both
already there. He testified that he first observed Sergeant Alvarez interview
defendant from another room. After an hour, Sergeant Alvarez stopped his
interrogation, and Sergeant Gibbs went to interview Ms. Avila, whom he described
as tearful and nervous at times. Sergeant Gibbs stated that an interpreter was
present, and she was read her rights. During that interview, Ms. Avila stated that
she was at the apartment changing Santiago in a closet when she saw Aaron fall off
of the bed and hit his head. He said that he stopped her interview because her
statement was inconsistent with Aaron’s injuries and with defendant’s statement.
20-KA-176 4 Sergeant Gibbs testified that Sergeant Alvarez then went to speak to
defendant again. After defendant’s second statement, Sergeant Gibbs again spoke
to Ms. Avila. Sergeant Gibbs testified that during her second interview, Ms. Avila
provided another statement that he was able to corroborate with surveillance video
from a local store that showed Ms. Avila enter and exit the store with a grocery
bag. He said she also indicated that Aaron fell in the bath and hit his head on the
faucet. Sergeant Gibbs stated that defendant then gave a third statement that was
inconsistent with his prior statements but consistent with Ms. Avila’s second
statement; both were then arrested.
Sergeant Gibbs testified that while the interviews were taking place, another
officer obtained a search and seizure warrant for the apartment in Gretna. Sergeant
Gibbs then went to the apartment where measurements and photographs were
taken. He stated that the bed was two feet and two inches high. Sergeant Gibbs
testified that he obtained surveillance video from the Budget Saver for July 31,
2018, depicting Ms. Avila entering the store at 10:33 a.m. and exiting with a white
grocery bag at 10:40 a.m. In the apartment, he located a purchase receipt from the
Family Dollar that was time stamped 10:59 a.m. that morning. Sergeant Gibbs
stated that the video and receipt corroborated that Ms. Avila was away from the
apartment from at least 10:32 a.m. to 10:59 a.m.
Sergeant Gibbs stated that he went to the hospital on August 3, 2018, and he
learned that Aaron died that day from his injuries. Sergeant Gibbs testified that he
obtained Aaron’s medical records, which showed a diagnosis that included a
fractured skull and anoxic brain damage. He stated that the records indicated
Aaron suffered from: blunt force trauma, diffuse axonal brain injury, hematomas,
suspected child abuse, craniectomy, brain herniation, occipital fractures, depressed
skull fracture, other fractures to his skull, hemorrhages of his eyes, and
principal/non-accidental traumatic injury to the child. Sergeant Gibbs concluded
20-KA-176 5 that based on the investigation, defendant was the only person left alone with
Aaron prior to his fatal injuries.
Sergeant Louis Alvarez with the Gretna Police Department testified that an
investigation began on July 31, 2018, regarding an injured baby. He stated that
Sergeant Gibbs was sent to the hospital while he proceeded to the apartment on
Lafayette Street. Sergeant Alvarez stated that defendant and Santiago were present
when officers arrived, and he attempted to communicate with defendant, but he
“sounded like he spoke Spanish.” Sergeant Alvarez contacted another officer to
bring Ms. Duran, a Spanish speaking secretary, to translate because time was
important. He testified that defendant told him that he laid Aaron on the bed and
went to take a shower. Sergeant Alvarez stated defendant told him he then heard a
noise and a scream, so he got out of the shower and saw Aaron on the floor.
Sergeant Alvarez stated that Ms. Avila and defendant were later brought to
the Gretna Police Department, and he learned of Aaron’s injuries from Sergeant
Gibbs. Sergeant Alvarez, through Ms. Duran acting as translator, spoke to
defendant. He stated that it appeared defendant understood Ms. Duran at the
apartment, but he later learned that defendant spoke Portuguese. Defendant made
three recorded statements, and the audio was later translated and transcribed by a
Portuguese speaker. Sergeant Alvarez stated that he presented defendant with his
Miranda rights and the first interview began at 2:08 p.m. that afternoon. The
interview was played for the jury.
Sergeant Alvarez stated that in defendant’s first statement, he mentioned
giving Aaron a bath but did not indicate that any injuries occurred in the bathtub.
Sergeant Alvarez testified that he asked repeatedly if anything happened in the
bathroom, but defendant denied any injury occurring in the bathroom. He stated
that defendant instead said he put Aaron on the bed and talked about him falling
off of the bed. Sergeant Alvarez testified that later in the interview, defendant
20-KA-176 6 stated that Aaron hit his head on a TV stand. Sergeant Alvarez testified that
defendant stated that he was never alone with the children, but the evidence from
the Budget Saver and the Family Dollar refuted that statement. The first interview
ended at 3:05 p.m.
Sergeant Alvarez testified that Sergeant Gibbs then spoke with Ms. Avila.
Afterwards, Sergeant Alvarez conducted a second interview with defendant, which
was also recorded, translated, and played for the jury. During that interview,
defendant stated that Ms. Avila did not leave the apartment that day. However,
Sergeant Alvarez stated that he was able to prove this was a lie and that defendant
had the sole care, custody, and control of Aaron while Ms. Avila was away.
Defendant later admitted that he was alone with the children when Ms. Avila went
to the store. He stated that he gave Aaron a bath, but he denied that any injuries
occurred in the bathroom. This second interview concluded, and Sergeant Gibbs
again spoke with Ms. Avila. Sergeant Alvarez stated that Ms. Avila’s second
statement was different than the first and was corroborated by other evidence.
Sergeant Alvarez stated that based on Ms. Avila’s second interview, he
returned to interview defendant a third time starting at 5:28 p.m. This third
interview was also recorded, translated, and played for the jury. Sergeant Alvarez
testified that defendant again repeatedly denied anything occurring in the
bathroom. Defendant stated that Aaron was fine when Ms. Avila left the
apartment. Sergeant Alvarez stated that after he was confronted with Ms. Avila’s
statement, defendant said that he was alone with Aaron and bathed him, and that
Aaron was injured in the bathroom. Defendant also indicated that Aaron’s head
was swollen. Sergeant Alvarez testified that no version of events from defendant
fit with the injuries Aaron sustained or with what the doctors were saying. He also
noted that defendant did not ask about Aaron during the entire interview process.
20-KA-176 7 Dr. Jason Wilson, a neurosurgeon, testified that Aaron had multiple skull
fractures and that he performed a craniectomy on Aaron on July 31, 2018. He
testified that there was blood on the surface of the brain and between the two
hemispheres, and his intracranial pressure was extremely high. He indicated that
Aaron’s skull was fractured on both sides and the extent that the bone was broken
up suggested that there could have been an impact on both sides causing the skull
to break or possibly a significant impact on the base in the back of the skull.
Dr. Wilson described the craniectomy as removing as much bone as possible
and opening the brain’s protective covering to relieve intracranial pressure. He
stated that typically, the skull comes off in one or two pieces, but because Aaron’s
skull was very fractured, it came off in several shattered pieces. Dr. Wilson noted
that Aaron had a subdural hematoma, which is related to significant force and
shaking of the brain. Dr. Wilson stated a child falling and hitting the same spot on
the skull in a two-day span on a TV stand, faucet, and a carpeted floor would be
inconsistent with Aaron’s injuries.
Dr. Neha Mehta testified that she is a medical doctor at Children’s Hospital,
and she was accepted as an expert in general pediatrics and child abuse pediatrics.
Dr. Mehta testified that in her expert opinion, Aaron’s injuries were not consistent
with a fall out of the bed in the apartment, nor with hitting his head on the bathtub
faucet in the apartment, nor a combination of both of those falls. She concluded
that his injuries were consistent with multiple impacts to the head and “very high
force rapid acceleration, deceleration injury, meaning the head whiplashing.” She
stated that such force cannot be generated by a child but must come from a “much
larger person acting on a much smaller child.” Dr. Mehta stated that Aaron’s
injuries are “highly associated with violent child physical abuse, abusive head
trauma.”
20-KA-176 8 Dr. Yen Van Vo, an expert in forensic pathology, testified as to the autopsy
she performed on Aaron on August 4, 2018. Dr. Vo stated that she determined that
the cause of death was multiple blunt force injuries, particularly blunt force injury
of the head and neck, and the manner of death was homicide.
Ms. Avila testified that criminal charges were pending against her at the time
of trial. She stated that she is the mother of Santiago, age five, and Aaron, who
was eleven months old when he died. Ms. Avila testified that in 2018, she lived in
Monroe, Louisiana. She and defendant were co-workers for six months, and they
were in a relationship for four of those months. Ms. Avila stated that on July 30,
2018, she and her two children left Monroe and picked defendant up in
Mississippi. She noted that they were going to Kenner because she needed to get a
license plate for her car, and they were going to stay at defendant’s brother-in-
law’s apartment in Gretna. She indicated that when they left Monroe, Aaron had
no trouble breathing or walking, and his head was not swollen.
Ms. Avila testified that at the apartment that evening, Aaron was crawling
around the television, and when he tried to stand up, he bumped his head on the
stand. She said he did not have trouble breathing, walking, or playing afterwards.
She indicated that Aaron had no issues eating dinner later and was put to bed. Ms.
Avila testified that when Aaron woke up the next morning, he was still breathing
and walking normally. She stated that when she left the apartment the next
morning to go to the store, defendant and her children were awake and stayed at
the apartment. She testified that she went to two stores and made a purchase at the
second store, the Family Dollar.
Ms. Avila stated that she arrived back at the apartment and went to the living
room where she saw her older son watching TV. She indicated that she then went
to where Aaron was on the bed, and he looked like he was sleeping. When she
went closer to check on him, she noticed that his lips were purple, and his head
20-KA-176 9 was swollen. Defendant was in the shower at the time. Ms. Avila testified that she
screamed, and defendant entered the bedroom. She asked him what happened, and
he said he just bathed Aaron; when she asked again, defendant said that when he
was bathing Aaron, he fell in the tub. She stated that she then called the police.
Ms. Avila testified that before speaking to the police, she again asked defendant
what happened, and he said Aaron fell off of the bed. She said she told the police
he fell off of the bed because defendant told her to say that.
Ms. Avila testified that she ran outside with Aaron when she heard the
ambulance and saw it pass the apartment. She went with Aaron to the hospital and
continued to say that Aaron fell from a bed. She testified that she then went to the
police station and spoke with officers. She admitted that she lied to the officers by
stating that she was there when he fell. Ms. Avila said she lied because she was
worried her children would be taken away from her since she left them with
someone else. She stated that she eventually told the police the truth because she
realized his injuries were serious. Ms. Avila was interviewed twice at the police
station. During the second interview, she told them about the incident the night
before when Aaron bumped his head on the TV stand and that she was not there
when Aaron was injured.
LAW AND DISCUSSION
In his sole assignment of error, defendant argues that the trial court erred in
denying his motion to suppress the statements he made to Sergeant Alvarez. He
asserts that the State failed to prove that he was advised of his Miranda1 rights in a
language that he could understand and that he made a knowing and voluntary
waiver of his rights. Defendant notes that he is a twenty-eight-year-old immigrant
from Brazil and had only been in the United States for two years. He states that he
informed officers at the apartment that he spoke Portuguese, but they made no
1 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
20-KA-176 10 attempt then or during his four-hour interrogation period to obtain a Portuguese
interpreter. Defendant contends that the interpreter, Ms. Duran, does not speak
Portuguese, has no formal training in interpretation, and has not been certified as
an interpreter by the courts. He contends that the video shows that he and Ms.
Duran had difficulty communicating, but Sergeant Alvarez continued the
interrogation despite the language barrier.
Defendant asserts that given the totality of the circumstances, in light of his
short time in the United States, the language barriers, and the difficulties in
communication during the interrogation, the trial court should have found that
there was not a valid waiver of his Miranda rights and suppressed his statements.
Defendant concludes that had the statements not been admitted, it is likely the jury
would not have returned a verdict of guilty to second degree murder and his
conviction should therefore be set aside.
The State acknowledges that defendant properly preserved for appeal his
claim that he did not validly waive his Miranda rights due to the language
differences. However, the State asserts that defendant now also argues that Ms.
Duran was not an official interpreter and had no “formal training in interpretation
and is not certified as an interpreter by the courts.” The State argues that this
particular claim regarding Ms. Duran’s lack of formal training or certification is
waived, because it was not argued below or included in the written motion to
suppress.
In addition, the State asserts that defendant’s claim that he did not
understand the rights he was waiving has no merit. The State argues that despite
defendant’s assertion that he did not understand his Miranda rights because they
were in Spanish, the record reflects that defendant speaks both Spanish and
Portuguese. The State notes that the mother of the victim, with whom defendant
had a relationship for four months, speaks Spanish, and they communicated in
20-KA-176 11 Spanish. The State also states that Ms. Duran testified that she was able to
communicate with defendant and that he indicated to her that he spoke Spanish.
The State further asserts that Louisiana law does not require that a translator be
certified. The State argues that it was not error to admit the statements and that
even if it had been, such an error was harmless.
Defendant filed a written motion to suppress statements, asserting that any
statements taken by the police were taken in violation of his “Constitutional rights,
as the officers did not have an arrest or search warrant, and they did not read the
defendant his Miranda rights.” Defendant further argued that “[a]ny and all
statements were taken by the officers and given by the defendant due to the
officers’ coercion and promises, and consequently, they were not voluntary.”
At the hearing on defendant’s motion to suppress statements, Sergeant
Alvarez testified that he went to 1901 Lafayette Street, Apartment 510, on July 31,
2018. Due to a language barrier, he contacted Laura Duran, who was “a Spanish
speaking interpreter who [they] use at the department.” He stated that Ms. Duran
came to the apartment, and it appeared defendant understood her. Sergeant
Alvarez stated that defendant gave them permission to access the apartment, and he
was not under arrest or a suspect at that time. Sergeant Alvarez indicated that he
again spoke to defendant that same date at the Gretna Police Department, and Ms.
Duran was present then as well.
Sergeant Alvarez testified at the hearing that prior to speaking to defendant,
he presented defendant with a Rights of Arrestee or Suspect form in English and
read through the form with Ms. Duran translating it. He indicated that defendant
initialed next to each right and appeared to understand his rights. Sergeant Alvarez
stated that defendant signed the form agreeing to waive those rights, and defendant
answered his questions. He indicated that he did not force, coerce, or threaten
defendant at any time.
20-KA-176 12 Sergeant Alvarez testified that he did not obtain a Portuguese interpreter
because he did not initially know that Portuguese was defendant’s first language.
Rather, he thought it was Spanish. Sergeant Alvarez again stated that it appeared
that defendant understood Ms. Duran and that his translated responses made sense
in connection with the questions he asked. When asked about Ms. Duran’s
qualifications, Sergeant Alvarez stated he did not know her qualifications but she
was “used in many complex cases within the department.”
Ms. Duran testified at the suppression hearing that she worked for the Gretna
Police Department and translated as needed. She stated that her first language is
Spanish, and she does not speak Portuguese. Ms. Duran stated that she first
encountered defendant at the apartment complex and was able to communicate
with him in Spanish. She indicated that when she arrived at the apartment, she
“could tell he had an accent” and asked him what his first language was. When he
told her it was Portuguese, she asked him if he spoke Spanish, and he told her that
he did. She stated that she also asked how he communicated with Ms. Avila and
he responded, “oh, I speak Spanish.” Ms. Duran testified that there was no attempt
to obtain a Portuguese interpreter because defendant said he spoke Spanish. She
indicated that she asked him several questions at the apartment that enabled her to
determine that he spoke Spanish and could understand her.
Ms. Duran further testified that she met with defendant at the Gretna Police
Department, and she translated defendant’s Miranda rights on behalf of Sergeant
Alvarez. She stated that she read the rights from a Spanish form and asked
defendant if he understood each right after she read it. She indicated that she then
had defendant initial by each right if he understood it. She stated that he
understood her and communicated with her.
On cross-examination, Ms. Duran acknowledged that she has never
translated in a court or been certified by the Louisiana Supreme Court as an
20-KA-176 13 interpreter. However, she stated that she has worked as a supervisor in the radio
room at the Jefferson Parish Sheriff’s Office, and one of her tasks was to translate
Spanish emergency calls. She further stated that she has translated in the radio
room at the Gretna Police Department and was the secretary for the Bureau where
she was tasked with translating. She testified that she started translating at the
sheriff’s office at eighteen years old and was thirty-seven at the time she testified.
Ms. Duran acknowledged that she has no formal language education.
After considering the testimony and the arguments of counsel, the trial court
found that defendant voluntarily waived his Miranda rights and gave voluntary
statements with no force, threats, coercion, or promises. The trial court stated:
While the Court notes that Spanish is not Mr. Darocha’s primary language or first language, he certainly has communicated in Spanish and has alleged that his main form of communication with Ms. Avila is in Spanish. I have no doubt that this defendant understood his rights and thoroughly waived his rights.
A defendant bears the burden of asserting the basis for his motion to
suppress in order to give the State adequate notice so that it may present evidence
and address the issue. State v. Lobo, 11-51 (La. App. 5 Cir. 10/25/11), 77 So.3d
427, 436, writ denied, 11-2586 (La. 3/30/12), 85 So.3d 117. Articulating a new
basis for the motion to suppress for the first time on appeal is prohibited under La.
C.Cr.P. art. 841, since the trial court would not be afforded an opportunity to
consider the merits of the particular claim. State v. Berroa-Reyes, 12-581 (La.
App. 5 Cir. 1/30/13), 109 So.3d 487, 496 (citing State v. Harris, 414 So.2d 325
(La. 1982)). Louisiana courts have long held a defendant may not raise new
grounds for suppressing evidence on appeal that he did not raise at the trial court in
a motion to suppress. Berroa-Reyes, 109 So.3d at 496.
The State argues that defendant waived any argument regarding the
translator’s qualifications because he did not argue the issue below or include it in
his written motion. We agree. Defendant’s written motion makes no mention of
20-KA-176 14 Ms. Duran’s qualifications and instead focuses on defendant’s Miranda rights and
the voluntariness of his statements. At the hearing, information was elicited
regarding Ms. Duran’s Spanish abilities, training, and experience. However,
defendant did not orally argue that Ms. Duran was unqualified. Because he did not
raise this argument in the trial court, defendant waived the argument that Ms.
Duran lacked the appropriate qualifications to act as a translator.
The State has the burden of proving the admissibility of a purported
confession or statement by the defendant. La. C.Cr.P. art. 703(D); State v. Arias-
Chavarria, 10-116 (La. App. 5 Cir. 9/28/10), 49 So.3d 426, 433, writ denied, 10-
2432 (La. 2/25/11), 58 So.3d 460. Before an inculpatory statement made during a
custodial interrogation may be introduced into evidence, the State must prove
beyond a reasonable doubt that the defendant was first advised of his Miranda
rights, that he voluntarily and intelligently waived his Miranda rights, and that the
statement was made freely and voluntarily and not under the influence of fear,
intimidation, menaces, threats, inducements or promises. Id.; State v. Sierra, 11-
161 (La. App. 5 Cir. 12/28/11), 83 So.3d 239, 248.
A determination of voluntariness is made on a case-by-case basis, depending
on the totality of the facts and circumstances of each situation. State v. Gross, 12-
73 (La. App. 5 Cir. 2/21/13), 110 So.3d 1173, 1185, writ denied, 13-661 (La.
10/25/13), 124 So.3d 1091. The admissibility of a confession or statement is a
determination for the trial judge, and the judge’s conclusions on the credibility and
weight of the testimony relating to the voluntary nature of the confession or
statement are entitled to great weight and will not be overturned unless
unsupported by the evidence. Id. Testimony of the interviewing police officer
alone may be sufficient proof that a defendant’s statements were freely and
voluntarily given. State v. Estes, 14-781 (La. App. 5 Cir. 2/25/15), 168 So.3d 847,
860, writ denied, 15-654 (La. 2/5/16), 186 So.3d 1164.
20-KA-176 15 In determining whether the trial court’s ruling on a defendant’s motion to
suppress is correct, an appellate court is not limited to the evidence adduced at the
suppression hearing but may also consider the evidence presented at trial. Berroa-
Reyes, 109 So.3d at 495. In our review, we have considered the testimony from
both the suppression hearing and trial.
Defendant provided four statements—one at the apartment and three at the
police station. We first address defendant’s statements at the apartment. Sergeant
Alvarez testified that he went to the apartment on Lafayette Street and attempted to
communicate with defendant, but he seemed to speak Spanish. Sergeant Alvarez
testified that he contacted Detective Landry to bring Ms. Duran, a Spanish
speaking secretary, to the apartment. He stated that given the “issues with the
child at that point in time,” timing was very important. Sergeant Alvarez stated
that defendant told him that he laid Aaron on the bed and went to take a shower; he
then heard a noise and a scream, so he got out of the shower and saw Aaron on the
floor. Sergeant Alvarez indicated that at the time of that conversation, he had not
spoken to anyone at the hospital and had no information indicating that it was not
an accident. Defendant was not a suspect or under arrest at that time.
The Louisiana Supreme Court has held that “Miranda warnings are not a
pre-requisite to admissibility of statements taken by officers during noncustodial,
general, on-the-scene investigations, conducted to determine the facts and
circumstances surrounding a possible crime, absent a showing that the
investigation has passed the investigatory stage and has focused on the accused.”
Estes, 168 So.3d at 860 (citing State v. Weeks, 345 So.2d 26, 28 (La. 1977)
(emphasis as found in original)).
In Weeks, 345 So.2d at 28, officers arrived at the scene of a shooting and had
only been informed that a killing had occurred. The officers inquired as to whether
anyone knew what happened, and the defendant relayed that she was present with
20-KA-176 16 the victim when he was killed. The defendant offered other statements in response
to general investigatory questioning and sometimes offered spontaneous
statements. Id. The court concluded that the investigation did not begin to focus
on the defendant as a possible offender until she provided those statements, and at
that time the officers were not compelled to advise her of her Miranda rights.
Weeks, 345 So.3d at 28.
Similarly, in Estes, 168 So.3d at 859, a deputy arrived on the scene with
limited information that someone had been shot. He inquired as to what happened,
to which the defendant said, “I did it.” While the deputy placed the defendant in
his patrol car, he testified that the questions he asked the defendant during that time
period were to secure the scene and for clarification as he was unsure if there was
another shooter or victim involved. Id. This Court found that the questions of
where the firearm was located and the question of what happened were
clarification questions following up on the voluntary statement previously made
and were general, on-the-scene investigatory questions to determine the
circumstances surrounding the possible crime. This Court concluded that the
Miranda rights were not required prior to the defendant’s statements to the deputy.
Estes, 168 So.3d at 861.
In the present case, the record shows that any questions at the apartment
were general, on-the-scene investigatory questions to determine the circumstances
surrounding what was then believed to be an accident and that the investigation, at
that time, did not focus on defendant. See Estes, supra; Weeks, supra.
Accordingly, we find that Miranda rights were not required prior to any statements
defendant made at the apartment.
Next, we address defendant’s three statements at the police station.
Defendant argues that he did not understand his Miranda rights because they were
given to him in Spanish, not in his first language, Portuguese. However, the
20-KA-176 17 testimony shows that defendant understood Spanish and could communicate with
Ms. Duran. Sergeant Alvarez testified at the suppression hearing that it appeared
defendant understood Ms. Duran. He also stated that defendant’s translated
responses made sense in connection with the questions he asked. At the hearing,
Ms. Duran testified that when she arrived at the apartment, she noticed defendant
had an “accent.” She asked if he spoke Spanish, and he told her that he did. Ms.
Duran also asked him how he communicated with Ms. Avila, with whom he was in
a relationship and who speaks Spanish, and he replied that he speaks Spanish. Ms.
Duran stated that she was able to communicate with and understand defendant.
She indicated that she asked defendant several questions when they first met at the
apartment to ascertain if they could understand each other in Spanish, and she
found that they could.
The record also shows that defendant was presented with and understood his
Miranda rights. Sergeant Alvarez testified that prior to speaking to defendant, he
presented defendant with a Rights of Arrestee or Suspect form in English and read
through the form while Ms. Duran translated it. He indicated that defendant
initialed next to each right and appeared to understand them. Sergeant Alvarez
stated that defendant signed the form agreeing to waive those rights, and defendant
answered his questions. Sergeant Alvarez stated that he did not force, coerce, or
threaten defendant at any time. The Rights of Arrestee or Suspect form, which was
admitted into evidence, also reflects that defendant initialed each right, checked
that he understood the rights read to him, and signed that he was waiving those
rights. The form indicates that it was signed at 2:09 p.m. on July 31, 2018.
Ms. Duran testified at the suppression hearing that she met with defendant at
the Gretna Police Department, and she translated defendant’s Miranda rights on
behalf of Sergeant Alvarez. She stated that she read him the rights from a Spanish
20-KA-176 18 form and asked defendant if he understood each right after she read it. She
indicated that she then had defendant initial next to each right if he understood it.
The first recorded statement indicates that defendant was presented with his
rights immediately after being asked his name and age. The transcript indicates
that the interview began at 2:08 p.m. on July 31, 2018. Sergeant Alvarez stated
one right at a time, Ms. Duran translated it, and then Sergeant Alvarez asked if he
understood that right. Sergeant Alvarez, with Ms. Duran translating, told him to
put his initials by the right if he understood it. This process was repeated for each
right and defendant indicated, either verbally or by nodding his head, that he
understood the rights and agreed to speak to the officers. Defendant was then
asked to sign the form if he understood what had been read to him and wanted to
speak to the police and give a statement about what happened. Defendant
answered affirmatively and then signed the form.
At the beginning of the second interview, Sergeant Alvarez asked if
defendant remembered the rights previously read to him. Through Ms. Duran,
defendant stated that he did. Sergeant Alvarez then asked if he understood them,
and defendant replied yes.
Sergeant Alvarez began the third interview by again addressing defendant’s
rights. He asked defendant if he remembered the rights form that he signed, and
defendant answered affirmatively. Sergeant Alvarez asked if it was okay to talk
about the baby more and defendant said yes. Sergeant Alvarez then proceeded to
question defendant further.
The trial court found that defendant was able to understand Spanish and
communicate in Spanish, and that he understood his Miranda rights, which were
presented in Spanish, and voluntarily chose to waive them. Based on the testimony
and evidence, we find that the trial court did not err by denying defendant’s motion
to suppress statements. This assignment of error is without merit.
20-KA-176 19 ERRORS PATENT
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175
(La. App. 5 Cir. 1990). Our review reveals no errors requiring corrective action.
DECREE
For the foregoing reasons, we affirm defendant’s conviction and sentence for
second degree murder.
AFFIRMED
20-KA-176 20 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
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