State v. Roman

616 A.2d 266, 224 Conn. 63, 1992 Conn. LEXIS 350

• Court: Supreme Court of Connecticut
• Decided: November 17, 1992
• Docket: 14073
• Status: Published

Opinions

Peters, C. J.

The principal issue in this criminal appeal is whether, in the absence of a continuous word-for-word translation of English into Spanish, the trial court should have suppressed, as coerced and involuntary, the inculpatory statements elicited during a custodial interrogation of the defendant, Miguel Roman, a Spanish speaking person. A jury found the defendant guilty of the crime of murder in violation of General Statutes § 53a-54a,¹ and the trial court sentenced him to a term of imprisonment of sixty years. He appeals from the judgment of conviction to this court pursuant to General Statutes § 51-199 (b). We affirm the judgment of the trial court.

The jury could reasonably have found the following underlying facts in support of its ultimate finding that the defendant had strangled the victim. The victim was the defendant’s girlfriend and was pregnant with his child. The defendant had tried, unsuccessfully, to persuade the victim either to have an abortion or to go elsewhere to give birth.

Around 8:30 p.m. on Sunday, January 3, 1988, a neighbor heard sounds of a physical confrontation coming from the vicinity of the apartment where the victim was staying. At the same time, another observer at the site of the apartment saw a car resembling that owned by the defendant.

On Monday, January 4, 1988, a friend was asked, if questioned, to say falsely that she had been with the defendant and Nestor Torres, at a place other than the victim’s apartment, for a period of time including the relevant evening. That day, Torres and the defendant drove to the victim’s apartment, where the defendant nervously approached the door of the apartment, and, without entering, reported having heard running water.

The victim’s body was found on Tuesday, January 5, 1988. The medical examiner concluded that the victim had been physically assaulted and had then been asphyxiated with a heater cord tied around her neck. He placed the time of death at approximately 8 p.m. on January 3, 1988.

The defendant gave the police conflicting information about when he was last in the company of the victim. During the trial, he made a full confession to someone with whom he was sharing incarceration facilities about the circumstances leading to the crime and about his killing of the victim.

In the defendant’s appeal from his conviction for murder, he has raised two contentions that are cognizable on the present record. He maintains that he is entitled to a new trial because the trial court wrongfully: (1) admitted into evidence his postarrest statement to the police; and (2) permitted the state to open its casein-chief after it had rested.²

I

At his trial, the defendant sought to suppress three sets of statements that he had made to the police, two of which antedated his arrest, and one of which postdated his arrest. He claimed that these statements were inadmissible because his command of English was so inadequate that his formal waiver of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), was ineffective and his statements were constitutionally involuntary. He asserted that only a continuous full translation of the investigatory proceedings into Spanish would have sufficed to meet the requirements of federal constitutional law.

In the present appeal, the defendant’s argument is more limited. His constitutional attack is limited to the admissibility of the statement elicited in his postarrest custodial interrogation. With regard to that interrogation, he no longer challenges the validity of his Miranda waiver. He maintains, instead, that because he received Miranda warnings in Spanish and signed the Miranda waiver in Spanish, it was unconstitutionally coercive, and a violation of his federal due process rights,³ to have the subsequent interrogation conducted in English.

The defendant was interviewed twice by the police before his arrest. On the first occasion, January 6, after having been advised orally, in English, of his Miranda rights, he said that he had not seen the victim after the Wednesday before her death. Two days later, he was again questioned after having received Miranda warnings in both Spanish and English. On that occasion, in the presence of Jose Morales, a Spanish speaking police officer, he acknowledged having seen the victim at a party on Saturday, January 2, 1988. During the same interview, the defendant inaccurately described his whereabouts on the afternoon of Sunday, January 3,1988. The defendant also represented that Torres had borrowed his car from that Sunday afternoon to the next morning, a representation immediately contradicted by Torres.

The defendant’s postarrest custodial interrogation, on June 10,1988, began with a reading of the defendant’s Miranda rights in English and Spanish. Morales, speaking in Spanish, then reviewed the waiver of rights form with the defendant. The defendant signed the waiver form in its Spanish version. Although Morales was continuously available for translation during the interrogation, the subsequent questioning proceeded in English. The defendant asked Morales to translate some questions into Spanish, and answered questions both in English and in Spanish. He continued to deny having seen the victim on the day of her death. He claimed to have spent Sunday evening shopping with his father and then playing dominoes at home. Near the end of the questioning, he replied affirmatively when asked by Morales, in Spanish, whether he had understood everything that had been asked of him.

At the suppression hearing challenging the admissibility of the statement elicited from the defendant during police interrogation, he testified, through an interpreter, about his lack of familiarity with the English language. Although he acknowledged that he had completed the ninth grade at Hartford High School, he indicated that his school work had been in bilingual courses. He did not state that he had been confused about the meaning of any of the questions put to him at his postarrest custodial interrogation. The state countered with the testimony of George Lopez, who had known the defendant for several years and who told the court that, while the defendant could not speak English well, he had no difficulty understanding what was said to him in English. On this record, amplified by the trial court’s personal observation that the defendant had not routinely availed himself of the interpreter who was available to him during the trial, the trial court concluded that the defendant was conversant in English even though his primary language was Spanish. It therefore concluded that all of his statements to the police were admissible.

The first question for this court is whether the trial court made a finding of fact that was clearly erroneous when it determined that the defendant had a sufficient command of the English language to participate knowingly and willingly in his interrogation by the police. We conclude that the record provides ample support for the trial court’s finding. Indeed, the record contains nothing specifically to the contrary. Although counsel indicated doubts about the defendant’s linguistic capacity to respond to questioning about his conduct, statements of counsel are not evidence. State v. Tillman, 220 Conn. 487, 496, 600 A.2d 738 (1991), cert. denied, U.S. , 112 S, Ct. 3000, 120 L. Ed. 2d 876 (1992); State v. Aillon, 202 Conn. 385, 391, 521 A.2d 555 (1987). The fact that the police had the defendant execute a Miranda waiver in Spanish, to assure the defendant’s understanding of his constitutional right to refuse to participate in the interrogation, does not demonstrate that the defendant, with the assistance of Morales, could not comprehend ordinary questioning in English about recent events in his personal life.

Once this factual question is resolved against the defendant, little remains of his contention that the trial court could not reasonably have found his statements voluntary and uncoerced. The defendant has not challenged either the linguistic competency of Morales to act as an interpreter or his unlimited access to Morales’ services as an interpreter during the entire postarrest interrogation. The defendant’s factual claim of supervening linguistic impairment is inconsistent with his acknowledgment, in Spanish, toward the end of the taped recording of his interview, that he had fully understood what had transpired. In these circumstances, the trial court could reasonably have concluded, by a preponderance of the evidence; State v. Northrop, 213 Conn. 405, 419, 568 A.2d 439 (1990); that conducting the defendant’s questioning in English was not constitutionally defective. The facts developed on this record do not show, as federal constitutional law requires, that the conduct of the police coerced the defendant into making incriminatory statements. See Cobrado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); State v. Northrop, supra; State v. Gonzalez, 206 Conn. 213, 222, 537 A.2d 460 (1988).

To the extent that the defendant’s claim on appeal can be understood as suggesting that, because of his linguistic impairment, the federal constitution required continuous interpretation during his custodial interrogation, we reject such a contention. The federal due process clause requires continuous translations at trial when a non-English speaking defendant cannot understand or appreciate the proceedings. Luna v. Black, 772 F.2d 448, 451 (8th Cir. 1985); United States ex rel. Negron v. New York, 434 F.2d 386, 389 (2d Cir. 1970); cf. 28 U.S.C. § 1827 (1988) (Court Interpreters Act). Failure to provide continuous word-for-word translation will render a trial fundamentally unfair, however, “only on a showing of abuse.” Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir. 1989); see also United States v. Joshi, 896 F.2d 1303, 1309 (11th Cir.), cert. denied sub nom. Panchal v. United States, 498 U.S. 986, 111 S. Ct. 523, 112 L. Ed. 2d 534 (1990). On at least one occasion, a federal court has extended to pretrial hearings the requirement of continuous translations for criminal defendants who cannot understand or appreciate the proceedings. United States v. Cirrincione, 780 F.2d 620, 634 (7th Cir. 1985). We need not consider whether to follow the federal Circuit Court’s extension of the continuous translation rule, however, because here the trial court found that the defendant was “conversant with the English language,” “comport[ed] himself fairly well in the English language,” and “sat through most of the trial without the active use of the interpreter.” See id., 634-35 (lack of inter-prefer at pretrial hearings did not violate due process because defendant could understand and speak English and rarely used the interpreter provided at trial). Because the trial court’s finding about the defendant’s linguistic capacity was not clearly erroneous, his claim of impairment of his due process rights must fail.

II

The defendant’s alternate claim for a new trial challenges the validity of the trial court’s exercise of its discretion to permit the state to open its case against the defendant, after both the state and the defendant had rested, to present the testimony of Ioannis Merkouris, with whom the defendant had been confined during the defendant’s trial. The record does not indicate whether the defendant had orally moved for acquittal in advance of the state’s motion, but it is conceded that he had filed no written motion for acquittal and never advanced any formal argument claiming an evidentiary insufficiency in the case against him.

The testimony offered by the state was evidence of a confession by the defendant to Merkouris, who had been confined to the same prison cellblock as the defendant during the defendant’s trial.⁴ Merkouris testified, over the defendant’s objection, that the defendant had told him that he was angry with the victim and that he had gone to the victim’s apartment with the intention of killing her. The defendant further had told him that he had encountered a black male at the victim’s apartment upon his arrival, that the victim had refused to identify this other person after his departure, and that he had then killed the victim.

The issue before this court is whether the trial court abused its discretion in allowing the state to open its case to present the testimony of Merkouris after both the state and the defendant had rested. Our cases have indicated that, except in special circumstances, appellate courts should generally defer to the trial court’s judgment in resolving the admissibility of evidence offered after the parties have rested. See State v. Greene, 209 Conn. 458, 475, 551 A.2d 1231 (1988); State v. Allen, 205 Conn. 370, 380, 533 A.2d 559 (1987); State v. Brigandi, 186 Conn. 521, 545-46, 442 A.2d 927 (1982). Unless the state’s offer seeks to fill an evidentiary gap in its prima facie case that was specifically called to the state’s attention by the defendant’s motion for acquittal; see State v. Allen, supra, 385; the trial court may permit additional evidence to be presented even though that evidence strengthens the case against the defendant. State v. Watson, 165 Conn. 577, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974). The defendant’s contention that he did not have adequate time to prepare a cross-examination of this witness cannot be sustained when trial counsel failed to ask for a continuance. Accordingly, we conclude that the trial court did not abuse its discretion in allowing the state to open its case.⁵

The judgment is affirmed.

In this opinion Callahan, Borden and Norcott, Js., concurred.

1 General Statutes § 53a-54a provides, in relevant part: “murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

2 The defendant’s claim of ineffective assistance of counsel must await an appropriate factual record, which can only be developed pursuant to a petition for habeas corpus. State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); see also State v. Walker, 215 Conn. 1, 9, 574 A.2d 188 (1990).

3 Neither at trial nor in this court has the defendant raised an independent claim under the due process clause of article first, § 8 of the Connecticut constitution.

4 The state represented to the court, on May 18,1990, immediately before the defendant rested, that it had only the previous day learned of the existence of Merkouris. The defendant has not contested the accuracy of the state’s representation that it had had no prior knowledge of the existence of this witness or of the testimony that he was prepared to offer.

5 To the extent that the defendant intends to raise, as a separate issue, that he was unable effectively to impeach this belatedly identified witness, we conclude that this contention has no merit. The defendant could have asked the trial court for a continuance, but he did not do so. In the absence of such a request, we have no basis for concluding that his opportunity for impeachment was unjustifiably impaired.