State v. Farrah

735 N.W.2d 336, 2007 Minn. LEXIS 395, 2007 WL 2051008

• Court: Supreme Court of Minnesota
• Decided: July 19, 2007
• Docket: A05-1277
• Status: Published

Opinions

OPINION

ANDERSON, RUSSELL A., Chief Justice.

Appellant Burhan Mohammed Farrah was convicted of felony fourth-degree criminal sexual conduct following a jury trial in Hennepin County. On appeal, the court of appeals affirmed, rejecting Far-rah’s claim of reversible error in the admission at trial of his recorded statement to police. State v. Farrah, No. A05-1277, 2006 WL 2473655, at *1 (Minn.App. Aug.29, 2006). Concluding that the state did not establish that Farrah, a limited English-speaker, made a valid waiver of his Miranda rights and that the admission of the statement was not harmless, we reverse and remand for a new trial.

On November 20, 2003, Plymouth police responded to a 911 report of a sexual assault in progress or of recent occurrence in the parking lot of an apartment complex on Harbor Lane. Officer Robert Topp arrived within less than a minute, entered the parking lot in his marked squad car, saw a male matching the description given in an updated dispatch, and drove toward him. The male, later identified as Farrah, turned around and put his hands up in the air. He had a 24-ounce can of malt liquor in his jacket pocket and appeared intoxicated. The officer removed the can, handcuffed Farrah, and placed him in the back of the squad car. Farrah asked the officer “what this was all about,” and the officer asked Farrah if he “had any idea what this was about.” Farrah replied that “the female” told him “she was 20.”

Meanwhile, Officer Kevin Wilson, who arrived shortly after Officer Topp, located the complainant, C.B., who was 14 years old and developmentally disabled. She told the officer that she had left her apartment to take some trash to the dumpster, and as she was walking through the parking lot, a car pulled in and almost struck her. After parking the car, the driver got out and apologized. As C.B. started back toward the apartment building, the driver approached, grabbed her arm, pulled her into the backseat of his car, locked the doors, and laid on top of her, kissing her neck and face and touching her intimate parts over the clothing. After “some time of this,” she was able to push him off, unlock the door, and run to the apartment building entrance where she encountered a neighbor and asked her to call 911. C.B. described her assailant and said he was carrying a beer can. Officer Wilson escorted C.B. to her apartment and taped her statement.

Officer Topp transported Farrah to the Plymouth Police Department and placed him in the interview room for questioning. Farrah, who emigrated from Somalia in 1999, spoke with a “strong” accent. The officer began the interrogation by confirming Farrah’s identification, date of birth, and residence. The officer asked Farrah about his alcohol consumption, and Farrah said he had “five beers,” the “tall ones.” The officer read Farrah his Miranda rights from a department-issued card and asked if he understood “all that?” Farrah responded, “Little I’m not (inaudible) speak very good English.” The officer, who tended to speak somewhat rapidly, offered to read the advisory more slowly, and then started to repeat the advisory at about the same pace. Farrah interrupted, wanting to “know what happened.” The officer told Farrah, “before I can talk to you, you need to understand these.”

The officer then repeated the advisory, after which the following exchange occurred:

Q: Do you understand your rights?

A: Okay. Little, yeah.

Q: What don’t you understand cause I need to explain before I can even ask you any questions.

A: Well, you ask me ...

Q: If you want a lawyer?

A: Pick the lawyer.

Q: Right.

A: That’s what (inaudible).

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?

The officer then went back over the right-to-counsel portion of the Miranda advisory:

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.

Farrah then gave a statement in which he made incriminating remarks.¹

Farrah was charged by complaint with fourth-degree criminal sexual conduct in violation of Minn.Stat. § 609.345, subd. 1(b) (2002). In April 2004, the criminal proceedings were suspended because of a district court finding that Farrah was incompetent due to schizophrenia. Upon Farrah’s restoration to competency through treatment, the criminal proceedings resumed in September 2004. The state later amended the complaint to add charges of kidnapping and false imprisonment.

A Somali interpreter was appointed for Farrah at trial. Farrah moved to suppress the statement he made in the squad car as well as the recorded statement made in the police department interview room on the ground that both statements had been obtained in violation of his constitutional rights. The district court granted the motion to suppress the first statement² but denied the motion to suppress the second statement, which was subsequently played for the jury. The state also presented the testimony of C.B. and the neighbor who made the 911 call. The state was permitted, over objection, to present statements C.B. made to the neighbor, Officer Wilson, C.B.’s grandmother, and C.B.’s best friend. After Far-rah exercised his right not to testify, his cousin testified about their family’s adherence to certain social customs. The jury found Farrah guilty of fourth-degree criminal sexual conduct and not guilty of the remaining offenses. The court entered judgment on the conviction and imposed the presumptive guidelines sentence of a year and a day, execution stayed, with conditions of probation to include 120 days in the county workhouse. The court of appeals affirmed, and we granted further review. Farrah claims reversible error in the admission of his recorded statement to police and the complainant’s out-of-court statements.

I.

The Fifth Amendment to the U.S. Constitution and Article I, Section 7 of the Minnesota Constitution protect persons from compelled self-incrimination.³ Because of the coercion inherent in custodial interrogation, a criminal suspect must be

warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).⁴

The defendant may waive his Miranda rights “provided the waiver is made voluntarily, knowingly and intelligently.” Id. at 444, 86 S.Ct. 1602. The prosecution has the burden of proving a valid waiver by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). “Only if the totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (internal quotation marks omitted) (stating that “the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it”). Factors commonly considered include age, intelligence and education, familiarity with the criminal justice system, physical and mental condition, and language barriers. State v. Camacho, 561 N.W.2d 160, 168 (Minn.1997). Findings of fact surrounding a claimed Miranda waiver are reviewed for clear error; legal conclusions based on those facts are reviewed de novo. See State v. Linder, 268 N.W.2d 734, 735 (Minn.1978) citing Brewer v. Williams, 430 U.S. 387, 403, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (stating that “the question of waiver [is] not a question of historical fact, but one which * * * requires application of constitutional principles to the facts as found” (internal quotation marks omitted)).

Here, the record clearly indicates that Farrah’s primary language is Somali and that, as the prosecutor noted, he “speaks •with a heavy accent.” At the beginning of the recorded police interrogation, Farrah told the officer that he did not speak English very well. Although the services of an interpreter were available, none were provided because the officer felt that Far-rah had an adequate comprehension of the officer’s questions. The officer acknowledged, however, that at times he had difficulty understanding Farrah because of Farrah’s accent. Farrah’s cousin also testified that “[o]ne fact that we see as a family is that people are speculating Bu-rhan knows English very well, and that is not true.”

To protect or facilitate the exercise of constitutional rights, it is the express policy in Minnesota to provide qualified interpreters to assist persons in legal proceedings who are handicapped in communication (now referred to as “disabled in communication”). Minn.Stat. § 611.30 (2006).⁵ Under this policy, following the apprehension or arrest of a person disabled in communication, law enforcement has the obligation to obtain a language interpreter to assist the person throughout custodial interrogation. Minn.Stat. § 611.32, subd. 2 (2006).⁶ A person disabled in communication includes one who, “because of difficulty in speaking or comprehending the English language, cannot fully understand the proceedings or any charges made against the person * * * or is incapable of presenting or assisting in the presentation of a defense.” Minn.Stat. § 611.31 (2006). The term disabled in communication also includes persons disabled in expression or comprehension of the English language. Cf. State v. Mitjans 408 N.W.2d 824, 829 (Minn.1987) (stating that Spanish speaking defendant “was no more [disabled] in understanding and in expressing himself to [a bilingual police officer] than an English-speaking suspect is in understanding and in expressing himself to an English-speaking officer”).

That Farrah had difficulty in expressing himself in English was underscored by the disposition of his claim that he asserted his right to counsel. When a suspect asks for counsel, questioning must cease “until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The request for counsel must be clear and unequivocal. Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (holding that in a post-waiver situation, Edwards does not require that questioning stop upon the equivocal or ambiguous reference to an attorney). The inquiry as to the clarity of a suspect’s request for counsel is objective; the interrogating officer need not stop questioning if “a reasonable police officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel.” Davis, 512 U.S. at 458-59, 114 S.Ct. 2350. In Minnesota, if the request is equivocal, the police must stop and clarify, asking only narrow questions designed to clarify the suspect’s intentions. State v. Risk, 598 N.W.2d 642, 648-49 (Minn.1999).

Here, the interrogation transcript showed that Farrah told the officer, “Okay I think I will talk to lawyer, (inaudible).” The district court listened to the recorded statement several times and noted the accuracy of the transcript but nevertheless determined that the request for counsel was equivocal based on its finding that there was a legitimate lack of clarity on the officer’s part as to what Farrah had said. In other words, the officer did not understand Farrah’s request because of Farrah’s poor language skills. See Minn. Stat. § 611.31. Because Farrah was disabled in communication, the obligation to provide the services of a language interpreter attached.

As to the waiver of rights, the district court made no specific finding regarding Farrah’s language skills, stating “I don’t know right now Mr. Farrah’s proficiency in language.” The court indicated that the need for an interpreter at trial did not imply an inability to understand and waive Miranda rights, but also noted that noncompliance with the interpreter statutes can be relevant in evaluating the validity of a waiver. The court determined that Far-rah had been given a warning, that he waived his rights, and that there was “no [ ] evidence to conclude that it * * * was not a knowing and intelligent waiver.”

In our view, the totality of the circumstances surrounding the interrogation do not make known whether Farrah’s Miranda waiver was made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Farrah was advised of his rights orally in English. He was not advised of his rights in Somali, he was not given a written waiver to sign in either English or Somali, and he did not have the assistance of a language interpreter. Cf. State v. Dominguez-Ramirez, 563 N.W.2d 245, 250, 253 (Minn.1997) (concluding that defendant’s waiver of his Miranda rights was valid where the Miranda advisory was read in Spanish three times, he was shown a Miranda advisory written in Spanish, he signed the written version, and the police provided an interpreter for the interrogation). Farrah indicated that he did not understand the advisory, prompting repetition of the advisory; and other than the right to counsel, there is no evidence that each component of the advisory was adequately explained.

The dissent, however, notes that the interrogating officer felt that he and Farrah understood each other and that medical evaluations done in October 2003 and September 2004 indicated that Farrah had adequate comprehension of English. But the officer also admitted to repeating or explaining questions when Farrah had trouble understanding, the interrogation itself reflected the officer’s and Farrah’s problems in communication, there was other evidence that Farrah did not comprehend English all that well, and Farrah was provided language-interpreter services for the medical evaluations as well as for trial.

“A defendant who does not understand English can give an effective waiver if the warnings were given in his native tongue.” 2 Wayne R. LaFave, et al., Criminal Procedure § 6.9(b) (2d ed.1999). As we have said before, prudent investigators would be wise to implement a system for the provision of language-interpreter services for persons disabled in communication. E.g., State v. Sanchez-Diaz, 683 N.W.2d 824, 835 (Minn.2004) (stating that prudent police investigators should comply with the statutory requirements for language services); Mitjans, 408 N.W.2d at 831 (stating that “[i]n the future, prudent police investigators * * * are advised to comply with the statutory requirements” for language services); State v. Vu, 339 N.W.2d 892, 898 (Minn.1983) (stating that “the police and the trial court would be wise to engage an interpreter before interrogation so that this issue need never arise again in Minnesota”). Here, the warnings were not given in Farrah’s own language, and under the totality-of-the-cireumstances test, we hold that the state did not meet its burden to prove that Farrah knowingly and intelligently waived his Miranda rights.

Still, the admission of a defendant’s statements to police at trial in violation of Miranda does not require a new trial if the state can show beyond a reasonable doubt that the error was harmless. See State v. Juarez, 572 N.W.2d 286, 291 (Minn.1997). If the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt. Id. at 292 (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Following, the Chapman/Juarez standard, the question then becomes: “What effect did the jury’s hearing [the defendant’s] statement * * * actually have on the guilty verdict rendered?” Id.

The state argues that any error in the admission of the recorded police statement was beneficial to Farrah because the statement placed his denial of any wrongdoing before the jury without requiring his testimony. But the statement contained Far-rah’s admission that he was in his car with the complainant. When the officer asked ■him what the complainant might say about what happened in his car, he said “(inaudible) rubbed her.” Farrah’s statement was the last piece of evidence presented by the prosecution in its case-in-chief. In closing argument, the prosecutor told the jury that Farrah’s statement was “significant” because it showed that he was concerned about the complainant’s age “from the beginning.” The prosecutor told the jury that the “rubbed her” comment was “most significant” because the officer had not mentioned the allegations against Farrah. The prosecutor told the jury that Farrah said that “because that’s exactly what happened.” The prosecutor argued that Far-rah’s claim of having a boyfriend/girlfriend conversation with C.B. was incredible, unbelievable, and evidence of his guilt. Given the evidentiary value the state placed on Farrah’s statement, we cannot conclude that the verdict was “surely unattributable” to the erroneous admission of the statement, and we hold that the error was not harmless beyond a reasonable doubt, thus warranting a new trial.

II.

Having concluded that a new trial is required, we need not reach Farrah’s claim of error in the admission of C.B.’s out-of-court statements, but we will briefly address the claim because the admissibility of the statements is likely to arise in the new trial. C.B.’s statements to the 911 caller and Officer Wilson were properly admitted at trial. An out-of-court statement made by a witness who testifies at trial and is subject to cross-examination is not hearsay if it is “a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.” Minn. R. Evid. 801(d)(1)(D); see State v. Pieschke, 295 N.W.2d 580, 582, 584 (Minn.1980) (holding that statements made within a few minutes of an accident were close enough in time to qualify under Rule 801(d)(1)(D), although statements made almost an hour after the incident were taken too long after the incident to qualify).

C.B.’s statements to her grandmother and best friend were offered as prior consistent statements. “A statement is not hearsay if * * * [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * consistent with the declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility as a witness * * Minn. R. Evid. 801(d)(1)(B). Thus, when a witness’ prior statement contains assertions about events that have not been described by the witness in trial testimony, those assertions are not helpful in supporting the credibility of the witness and are not admissible under this rule. Minn. R. Evid. 801(d)(1) Comm. Cmt.-1989. “What seems important is that the exception should not be the means to prove new points not covered in the testimony of the speaker.” 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 405 (2d ed.1994).

Rule 801(d)(1)(B), as amended in 1990, was aimed in part at addressing some confusion related to the treatment of prior consistent statements as non-hearsay when offered to corroborate trial testimony. “Under the amended rule, prior consistent statements can be admitted to enhance the credibility of a witness and as substantive evidence if the court determines the statements would be helpful in evaluating credibility.” 11 Peter N. Thompson, Minnesota Practice — Evidence § 801.01 (3d ed.2001). To be helpful, however, the credibility of the witness must have been challenged. State v. Nunn, 561 N.W.2d 902, 909 (Minn.1997). The district court retains the discretion under Minn. R. Evid. 403 and 611 to limit or preclude cumulative prior statements. Nunn, 561 N.W.2d at 909; Thompson, supra, § 801.07. Accordingly, assertions consistent with the complainant’s testimony would be admissible if helpful in evaluating credibility, subject of course to the court’s discretion to limit or preclude cumulative evidence. If the assertions are not consistent, they would be admissible, if at all, only if the district court exercises its discretion and determines that they meet the criteria of the residual hearsay exception of Minn. R. Evid. 807.

Reversed and remanded for a new trial.

Concurring in part, dissenting in part, GILDEA, MEYER, and ANDERSON, G. BARRY, JJ.

1 . Farrah admitted talking to an 18- or 20-year-old girl in his car and said that they had a boyfriend/girlfriend conversation, although he denied any physical contact. When asked what the girl might say happened in the car, Farrah said, "(inaudible) rubbed her.”

2 .See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (stating that "the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect” (footnote omitted)).

3 . "[N]or shall [any person] be compelled in any criminal case to be witness against himself,” U.S. Const, amend. V; Minn. Const, art. I, § 7 (employing similar language).

4 . The Miranda advisory need not take a rigid form so long as it conveys to the suspect (1) that he has the right to remain silent, (2) that anything he says can be used against him in court, (3) that he has the right to a lawyer, (4) that he has the right to have the lawyer present during interrogation, and (5) that a lawyer will be appointed at no cost if he cannot afford one. See California v. Prysock, 453 U.S. 355, 359-61, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981).

5 . By 2005 revisor instruction, the term "handicapped” was changed to "disabled” wherever it appears in the statutes. Act of May 16, 2005, ch. 56, § 1, 2005 Minn. Laws 337, 337. Because there appears to be no substantive difference between the terms, we will subsequently use the term disabled and reference the current statutes.

6 . Minnesota Statutes § 611.32, subd. 2, provides:

Following the apprehension or arrest of a person disabled 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. ⅜ * * Prior to interrogating or taking the statement of the person disabled 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.