Juan Raul Cuervo v. State of Florida

SC06-1156

>> ALL RISE, PLEASE.
HEAR YE, HEAR YE, HEAR YE.
THE SUPREME COURT OF FLORIDA
IS NOW IN SESSION.
ALL WHO HAVE CAUSE TO PLEA
BEFORE THIS COURT, GIVE
ATTENTION, AND YOU SHALL BE
HEARD.
GOD SAVE THESE UNITED STATES,
THE GREAT STATE OF FLORIDA
AND THIS HONORABLE COURT.
>> GOOD MORNING.
>> WELCOME TO ORAL ARGUMENT
CALENDAR FOR FEBRUARY 13,
THE FIRST CASE IS CUERVO vs.
STATE OF FLORIDA.
READY TO PROCEED?
GOOD MORNING, YOUR HONOR AND
CHIEF JUSTICE.
MAY IT PLEASE THE COURT.
I REPRESENT MR. CUERVO WHICH
AFFIRM THE DENIAL OF HIS
MOTION TO SUPPRESS.
I'M FROM OSCEOLA COUNTY.
THE ISSUE BEFORE THE COURT
IS WHETHER MR. CUERVO
UNAMBIGUOUS REQUEST TO
REMAIN SILENT WAS
SCRUPULOUSLY HONESTORD BY
LAW ENFORCEMENT.
CAN WE FOCUS ON THAT JUST A
LITTLE BIT WITH REGARD TO
THE TRANSLATION AND WHAT
THAT ACTUAL STATEMENT IS IN
THE SPANNISH VERSION.
IS IT REALLY A FORGONE
CONCLUSION THIS IS
UNAMBIGUOUS, WHAT THAT
STATEMENT IN THE FOREIGN
LANGUAGE.
THE FIFTH DISTRICT THEIR
INTERPRETATION WAS THAT
MR. CUERVO SAID I DON'T WISH
TO DECLARE ANYTHING.
AND DURING THE PRESS -- YOU
READ THE TRANSCRIPT ON THE
MOTION TO SUPPRESS THE PAIN
RECORDER WAS PLAYED BACK
SEVERAL TIMES.
AND DEPUTY GARCIA WHO WAS
THE INTERPRETER DURING THE
INITIAL INTERVIEW WITH
MR. CUERVO INTERPRETED AS I
WISH I DON'T WANT TO DECLARE
ANYTHING.
NOW THE INTERPRETER THAT WAS
AT THE MOTION TO SUPPRESS
AND MR. SPEAKER CUERVO'S
TKPHAF INTERPRETED AS I DO
NOT WANT TO -- I DON'T WANT
NOTHING.
SOMETHING ALONG THOSE LINES
WITH BY THE LOWER COURT
ADOPTED AND FOUND TO BE
AMBIGUOUS.
GO TO THE FIFTH DISTRICT
THEIR READ OF THE CASE WAS
THAT MR. CUERVO STATED I DO
NOT WANT TO DECLARE
ANYTHING.
WHICH WE CONTEND IS MORE
REASONABLE INTERPRETATION
AND IS UNAMBIGUOUS.
WE BELIEVE THE FIFTH
DISTRICT ERRED IN FINDING
THAT STATEMENT WAS
UNAMBIGUOUS.
I ACKNOWLEDGE THERE'S SOME
DISCREPANCY OF THE ACTUAL
INTERVIEW AND THERE WAS SOME
CONFLICT IN THE MOTION TO
SUPPRESS HEARING ALSO AS TO
WHAT THE PHRASE ACTUALLY
MEANT.
BUT THE DEFENDANT ALSO
ADOPTED THE TRANSLATION I DO
NOT WANT TO DECLARE
ANYTHING.
HE'S READING -- THE
TRANSLATOR WAS READING FROM
A PRESET -- IN SPANISH THE
LIST THAT WAS INITIALLY
INITIALED.
WASN'T THAT IN SPANISH.
>> THAT WAS IN SPANISH,
CORRECT.
WHAT WAS THE SPANISH
STATEMENT THAT HE WAS
RESPONDING TO?
>> THE SPANISH STATEMENT
THAT -- ON THE WRITTEN FORM?
>> YES.
WASN'T THAT WHAT WAS BEING
ASKED?
>> WELL HE DID SAY HE
UNDERSTOOD HIS WRITE TO
REMAIN SILENT.
>> AT THAT POINT WHEN HE'S
ASKED THE QUESTION WHAT WAS
THE QUESTION THAT THE
TRANSLATE O ASKED HIM IN
SPANISH?
-- TRANSLATOR ASKED HIM IN
SPANISH.
>> THE QUESTION THE
TRANSLATOR ASKED HIM IN
SPANISH AT WHAT POINT.
I'M NOT SURE --
>> WHEN HE RESPONDS WITH I
DON'T WANT TO DECLARE
ANYTHING IS THAT THE
TRANSLATOR TOLD -- AND I
MEAN BY TRANSLATOR I MEAN BY
GARCIA --
>> DEPUTY GARCIA, YES.
>> HE IS TOLD THEN THAT HE
DOESN'T WANT TO TALK
ANYMORE.
>> RIGHT THAT'S DEPUTY
GARCIA'S UNDERSTANDING OF
MR. CUERVO'S RESPONSE.
>> ISN'T THAT REALLY THE
VERSION THAT WE HAVE TO GO
WITH IS WHAT DETECTIVE
GARCIA ACTUALLY RELATED TO
THE OTHER DETECTIVE.
>> AGREE.
I BELIEVE THAT'S THE REALITY
THAT THE STATE CREATED AND
THE REALITY THEY WERE
WORKING WITH.
WHAT DEPUTY GARCIA
TRANSLATED FOR THE BENEFIT
OF DETECTIVE.
>> THAT'S A CLEAR STATEMENT
HE DIDN'T WANT TO TALK TO
US?
>> CORRECT.
>> NO THIS STATEMENT WAS
MADE IN THE PROCESS IN WHICH
GARCIA WAS GOING THROUGH THE
MIRANDA FORM WITH HIM; IS
THAT CORRECT?
>> HE HAD NOT COMPLETELY
GONE THROUGH ALL THE FORMS
AND GOTTEN THEM INITIAL AND
SIGNED.
IS THAT CORRECT?
>> I DON'T THINK THAT CAN BE
EXACTLY DETERMINED FROM WHAT
WE HAVE AVAILABLE HERE.
THE DETECTIVE WAS CONCERNED
HE HADN'T INITIALED.
I APPEARED DEPUTY GARCIA DID
READ TO HIM AT THAT POINT
AND HE INDICATED THAT HE
UNDERSTOOD WHAT HIS RIGHT
WERE.
BUT DEPUTY PALMARY WAS
CONCERNED HE DIDN'T INITIAL.
>> I'M SAYING THE NORMAL
COURSE OF THE PROCESS FIRST
ASKED HIM HAVE YOU TALKED TO
ANYBODY ELSE?
HE SAID NO.
LET ME READ YOUR RIGHT.
HE READ HIM HIS RIGHT.
THE NORMAL COURSE OF
BUSINESS THEY GET THEM TO
INITIAL AND SIGN.
AND THEN AFTER THEY BEGIN
THE DISCUSSION.
>> CORRECT.
IT'S MY UNDERSTANDING HOW
THAT'S -- THAT WOULD
TYPICALLY OCCUR YES.
IT WAS IN THE PROCESS OF
PRIOR TO THE INITIALING THAT
THIS DISCUSSION --
>> YES.
>> THIS COURT HAS INDICATED!!!!!!!!!!!!!!!!!!
INDICATED -- LET ME TELL YOU
WHAOU WE'RE HERE.
THIS COURT AND DISTRICT
COURTS IN THIS STATE HAVE
INDICATED THAT THE
STATEMENTS THAT WERE
UNAMBIGUOUS THAT A
QUESTIONING OF A SUSPECT
MUST BE SCRUPULOUSLY
HONORED.
YOU DON'T BELIEVE THIS
HAPPENED.
THEREFORE THE TRIAL OUR
ERRED IN NOT SUPPRESSING THE
CONFESSION.
>> WHAT IS THE PRECISE RULE
ON THAT?
IS IT THAT ONCE A DEFENDANT
UNEQUIVOCALLY STATES HIS
DESIRE NOT TO SPEAK AT ALL
THAT THE INTERROGATION MUST
CEASE?
>> THAT'S CORRECT, YOUR
HONOR.
HOW WE DEFINE FOR THESE
PURPOSES WHAT AN
INTERROGATION IS?
BECAUSE I WOULD ASSUME THAT
THE RULE DOESN'T PROHIBIT AT
LEAST ASKING DO YOU WANT TO
HAVE A GLASS OF WATER.
DO YOU NEED TO GO TO
BATHROOM?
NOT ALL QUESTIONING MUST
CEASE ONLY AN INTERROGATION
MUST CEASE.
>> I AGREE WITH THAT.
AN INTERROGATION WOULD BE A
QUESTION THAT YOU ILLICIT IN
AN INCRIPPLENATING
RESPOND -- RESPONSE.
I THINK YOU'RE RIGHT ON
THAT.
AND TELL ME WHERE IN THE
FOLLOWING QUAL QUE WITH THE
DEFENDANT WHERE THERE'S
QUESTIONS THAT -- COLLOQUY
WITH THE DEFENDANT WHERE
THERE'S QUESTIONS FOR AN
INCRIMINATING RESPONSE?
>> I THINK THE -- I DOESN'T
HAVE TO BE A QUESTION, BUT
THE ENVIRONMENT THAT HE WAS
SUBJECTED TO -- HE TWICE
STATED HE DIDN'T WANT TO
TALK.
AND DETECT ACTIVE PALMARY AT
THAT POINT WAS CONCERNED AND
WANTED TO -- SHE WANTED TO
MAKE SURE THAT SHE
UNDERSTOOD WHAT IS RIGHT FOR
HIM.
AT THAT POINT THE MR. CUERVO
DECIDED HE WOULD ANSWER ANY
QUESTIONS.
THEN WE DON'T SEE THE SAME
CONCERN AT THIS POINT ON
PART OF DETECTIVE PALMARY IF
HE UNDERSTANDS HIS RIGHT
AGAIN.
OR DECIDES HE WANTS THAT.
>> WHAT QUESTION DO YOU SAY
OR TYPES OF QUESTIONS WHERE
THERE THAT WERE DESIGNED TO
ILLICIT INCRIPPLENATING
RESPONSE?
>> ATTEMPT BY DETECTIVE
PALMARY -- AGAIN, AFTER HE
SAID HE DIDN'T WANT TO
FURTHER INKWEUR.
>> YOU KEEP SAYING "TWICE".
THE WAY I INTERPRET IT IS
THAT ONCE.
WHEN HE SAID I DON'T WANT TO
DECLARE IT.
AND THEN THEY KEEP GOING ON.
AND THE NEXT TIME HE SAYS
THAT IS -- HE SAYS HE IS
SAYING HE DOESN'T WISH TO
SPEAK BECAUSE HE DOESN'T
KNOW IF THE VICTIM ALREADY
SAID ANYTHING OR THE
VICTIM'S MOTHER AND NOW THAT
STATEMENT REALLY BECOMES
AMBIGUOUS.
SO THE FIRST STATEMENT IS
UNAMBIGUOUS BUT THE NEXT
TIME HE SAYS IT STARTS
CREATING AN AMBIGUITY THERE.
>> I THINK HE'S GIVING AN
EXPLANATION AS TO WHY HE
DOESN'T WANT TO.
>> LET ME TRY IT THIS WAY.
WHICH IS THAT -- AND I DON'T
KNOW IF THIS IS A QUESTION
OF LAW OR A QUESTION OF FACT
AND MAYBE YOU CAN ENLIGHTEN
ME ON IT.
IF THE COURT CONCLUDES THAT
HE UNAMBIGUOUSLY SAID THAT
HE DOESN'T WANT TO SAY
ANYTHING CLEARLY YOU DON'T
SEE ANYTHING WRONG WITH
SAYING PLEASE HAVE HIM
INITIAL THESE RIGHT RIGHT.
DO YOU SEE ANY PROBLEMS FOR
HIM TO INITIAL THE RIGHT?
>> I THINK IN THIS SITUATION
IT'S QUITE CLEAR THAT HE'S
ABLE TO READ WHAT THE RIGHTS
ARE.
>> JUST INITIAL EACH ONE IN
YOUR SIGNATURE.
BUT THEN TO ME THE COMMENT
AND I WOULD ASK THE STATE TO
RESPOND THAT REALLY BECOMES
SOMETHING THAT'S DESIGNED TO
ELICIT -- AT LEAST ATTEMPT
TO ELICIT HIM TO SPEAK YOU
CAN EXPLAIN TO HIM AT THIS
TIME IF HE DOES WISH TO
SPEAK TO HUS HE CAN GIVE HIS
SIDE OF THE STORY.
HE DOESN'T WISH TO THAT'S
HIS RIGHT.
THAT'S RIGHT AFTER THE
SIGNATURE.
WHY ISN'T THAT THE ONE THAT
YOU ARE FOCUSING ON AS BEING
THE ONE THAT'S DESIGNED TO
ELICIT AN INCRIMINATING
RESPONSE.
HE ALREADY SAID
UNEQUIVOCALLY, I DON'T WANT
TO SPEAK.
ARE YOU SURE YOU DON'T WANT
TO SPEAK.
IS YOUR TIME TO GIVE YOU
SIDE OF THE STORY?
ED DID YOU ARGUE THAT BELOW
OR DID YOU ARGUE SOMETHING
ELSE TO BE IN THE COURT
BELOW?
>> THE ARGUMENT TO THE COURT
BELOW WAS THAT THE
QUESTIONING SHOULD HAVE
STOPPED AT THE POINT WHERE
HE SAID HE DID NOT WANT TO
TALK.
WE DID NOT ARGUE THAT.
WE ARGUED THAT THE
ADDITIONAL COMMENTS OR
QUESTIONS BY DETECTIVE
PALMARY WERE IMPROPER.
THAT'S WHAT ESSENTIALLY WORE
HIM TIME.
THIS ALL TRANSPORTATION
ENTIRED IN A BRIEF FEW
MOMENTS.
HAD THERE BEEN PERHAPS SOME
TIME FOR REFLECTION OR YOU
KNOW THE NEXT DAY OR WEEKS
LATER THE APPROACHED HIM
AGAIN, MAYBE THAT WOULD HAVE
BEEN A DIFFERENT SITUATION.
>> HOW DOES -- THE ANSWER TO
JUSTICE CANTERO AND FOR ALL
OF US.
YOU ARE REFERRING TO RHODE
ISLAND VERSUS ENNIS ALTHOUGH
IT'S NOT CITED IN YOUR BRIEF
THAT'S THE CASE THAT SAID
INTERROGATION IS ANYTHING
THAT IS DESIGNED TO ELICIT
AN INCRIMINATING RESPONSE.
MY QUESTION IS HOW IS THAT
DETERMINATION MADE?
IS THAT A QUESTION OF LAW?
A QUESTION OF FACT?
MIXED QUESTION OF LAW OR
FACT?
>> BECAUSE WE AGREE WITH YOU
THIS IS UNEQUIVOCAL.
IT'S NOT JUST THAT ANYTHING
CAN'T BE SAID.
>> I AGREE.
QUESTIONS THAT ARE DESIGNED
TO ELICIT AN INCRIPPLENATING
RESPONSE?
>> SURE.
THIS WAS WE HAVE THE INTENT
FROM THE TRANSCRIPT WOULD BE
TO ELICIT AN ADDITIONAL
RESPONSE.
NOT A SIMPLE WOULD YOU LIKE
A GLASS OF WATER OR CREAM
FOR YOUR COFFEE OR ARE YOU
HUNGRY?
AND OFFERING HIM ANOTHER
OPPORTUNITY TO MAKE A
STATEMENT IMPLYING THAT
SOMETHING -- NOT WAIVING HIS
RIGHT TO SAY ANYTHING LATER
BUT HE CAN SAY SOMETHING
NOW.
HE'S GIVEN AN OPPORTUNITY
TO.
CERTAINLY THE DESIGN OF THAT
FURTHER INQUIRY WAS TO
ELICIT AN INCRIMINATING
RESPONSE.
IT WAS SOME INNOCUOUS
QUESTION ARE YOUR NEEDS
TAKEN CARE OF.
ARE YOU COMFORTABLE.
THE DESIGN CLEARLY WOULD BE
TO ELICIT SOMETHING
ADDITIONAL FROM HIM?
>> ARE YOU ARGUING THEN HERE
THAT ANY STATEMENT ONCE THE
DEFENDANT HAS UNEQUIVOCALLY
DEMONSTRATED HIS DESIRE TO
REMAIN SILENT, THAT THE
POLICE HAVE THEN NOT
QUESTIONED HIM ABOUT THE
EXERCISE OF THAT RIGHT?
I MEAN, BECAUSE THAT SEEMS
TO BE WHAT REALLY HAPPENED
HERE.
ONCE HE HAD EXERCISED HIS
RIGHT TO REMAIN SILENT, THE
POLICE OFFICERS PALMAY
DECIDED -- ARE YOU PRETTY
MUCH SURE YOU WANT TO DO
THAT.
SO IS YOUR ARGUMENT THAT YOU
CAN NO LONGER QUESTION THE
DEFENDANT ABOUT HIS EXERCISE
OF HIS RIGHT?
>> THAT WOULD BE OUR
ARGUMENT, RIGHT.
WE SEE NO REQUIREMENT THERE
HAS TO BE A -- THAT HE
NEEDED TO NITCH SHRUL THE
STATEMENT -- THAT HE NEEDED
TO INITIAL THE STATEMENT.
>> DIDN'T THIS EVEN OCCUR
AFTER THE INITIALING.
ONCE HE EXERCISED HIS RIGHT
THEY THEN GOT HIM TO
ACTUALLY INITIAL THE
STATEMENT AND THEN WE GET
INTO THE QUESTIONING AGAIN
ABOUT ARE YOU SURE YOU WANT
TO DO THIS?
THIS IS YOUR OPPORTUNITY TO
TALK TO US.
>> RIGHT.
BUT DETECTIVE PALMARY
TESTIFIED THAT THE WHAT
PRECIP TATED THE QUESTION
WAS THAT THE MR. CUERVO HAD
NOT INITIALED THE FORM.
THAT'S WHAT KEPT THE WHOLE
THING GOING.
THE TESTIMONY OF THE HEARING
WAS THAT SHE WAS CONCERNED
THAT THE -- THAT HE DIDN'T
UNDERSTAND THAT HE WANTED TO
INITIAL THE FORM.
SO OUR POSITION IS THAT THAT
HE SHOULD NOT HAVE.
HE INDICATED EARLIER
VERBALLY THAT HE UNDERSTOOD
HIS RIGHT AND THAT WHEN HE
STATED UNAMBIGUOUSLY THAT HE
DIDN'T WANT TO SAY ANYTHING
ADDITIONAL THAT SHOULD HAVE
BEEN THE END OF IT.
WHAT YOUR ARGUMENT IS THAT
ONCE A DEFENDANT VERBALLY
SAID "I DON'T WANT TO SPEAK,"
THAT POLICE OFFICERS ARE
PROHIBITED FROM GETTING HIS
SIGNATURE ON A DOCUMENT
MEMOIRIZING THAT HE
UNDERSTANDS HIS RIGHT AND
HIS REFUSAL TO WAIVE.
I'M NOT AWARE OF ANY
REQUIREMENT.
THAT'S A NECESSITY.
>> WELL, CERTAINLY HIS
CREDIBILITY TO LEASE LATER
ON IF THEY SAY THAT THEY
CLAIM THE DEFENDANT WAIVED
HIS RIGHT AND THEY CAN
PRESENT A SIGNED FORM WHERE
HE'S INFORMED OF HIS RIGHT.
AND HE WAIVES THEM.
APPARENTLY WOULD SEEM TO BE
COULD POLICE WORK AND ALSO A
GOOD WAY TO MAKE SURE THAT
THE DEFENDANT UNDERSTANDS
HIS RIGHT.
HE HAS THEM ORALLY AND IN
WRITTEN FORM.
IT SEEMS YOU ARE ARGUING
THEY ARE PROHIBITED FROM
DOING THAT.
>> THERE MAY BE A SITUATION.
WE DON'T KNOW IF MR. CUERVO
WAS ABLE TO READ.
WHAT IF THE SUSPECT CAN'T
READ THE FORM?
AND HE JUST --
>> WE DON'T KNOW HE WASN'T
ABLE TO READ.
>> WE DON'T KNOW THAT.
MAYBE THAT'S THE REASON HE
DID NOT DO IT.
>> HE DID EVENTUALLY.
>> HE DID.
BUT THERE MAY HAVE BEEN A
REASON WHY HE DIDN'T WANT TO
INITIALLY.
>> AND DIDN'T THE POLICE
ALLOWED TO INQUIRE WHETHER
HE CAN READ?
WHY HE ISN'T SIGNING THE
FORM.
WHY HE HASN'T INITIALED IT?
>> I THINK AT THAT POINT
THEY SHOULD HAVE STOPPED.
>> WELL, THE DISTRICT COURT
SEEMS TO BE CONCERNED AND IN
ITS OPINION ABOUT THE FACT
THAT THIS DID HAVE TO DO
WITH A LANGUAGE BARRIER.
IT WAS A VERY BRIEF TYPE OF
ENCOUNTER HERE, LESS THAN
FIVE MINUTES AS THE DISTRICT
COURT SAID.
THAT REALLY DIFFERS FROM
TRAILER DOESN'T.
BECAUSE TRAILER DIDN'T HAVE
ANYTHING TO DO WITH THE
LANGUAGE BARRIER.
IT WAS -- AND ALL OF THAT
LANGUAGE -- WHAT IS YOUR
CONFLICT?
THE CONFLICT WITH THE
DISTRICT COURT?
>> YES.
WELL, SPECIFICALLY I THINK
THEY ARE SIMILAR IN THAT THE
TIME FRAME WAS VERY BRIEF
ALSO.
>> DID SMITH HAVE A LANGUAGE
PROBLEM?
>> NO IT DIDN'T HAVE TO DO
WITH A LANGUAGE PROBLEM.
>> DID DILLY.
>> PARDON.
>> YOUR OTHER CASE IS DILL?
>> I'M SORRY.
IT'S OUT OF THE THIRD
DISTRICT.
AND THAT'S DEALING WITH A
VERY COMPRESSED TIME FRAME.
THE SUSPECT SAID HE HAD
NOTHING TO SAY.
AND THEN THEY CONTINUED ON.
AND HE SAID, WELL.
THE COURT FOUND THAT THE
STATEMENT I HAVE NOTHING TO
SAY WAS SUFFICIENT JUST TO
CUT OFF THE QUESTION AND
TERMINATE IT IMMEDIATELY AT
THAT POINT.
>> YOU ARE TALKING ABOUT A
COMPLETELY DIFFERENT ISSUE.
ASSUMING YOU ARE CORRECT,
ALL THE QUESTIONING MUST
HAVE STOPPED, ALL THIS IS
SUPPRESSED.
WHY ISN'T IT HARMLESS ERROR
BECAUSE OF ALL THE OTHER
EVIDENCE OF THIS GUILT THAT
WAS INTRODUCED?
>> WELL, CERTAINLY IT WOULD
EFFECT TRIAL STRATEGY.
THERE WAS NO PHYSICAL
EVIDENCE TYING MR. CUERVO TO
THE CRIME.
I WAS JUST THE TESTIMONY OF
THE VICTIM IN THIS CASE.
>> THAT'S PRETTY STRONG
TESTIMONY.
>> IT IS.
BUT WE THINK IT COULD HAVE
BEEN CHALLENGED.
IT WAS DARK OUT.
HE WAS -- THE DEFENDANT WAS
WEARING DARK CLOTHING.
>> WHAT TIME OF THE DAY OR
NIGHT WAS IT?
>> IT WAS DARK.
I DON'T RECALL THE EXACT
TIME.
>> DID THE EYEWITNESS SEE
THE DEFENDANT?
>> I DON'T RECALL HER SAYING
THAT SPECIFICALLY THAT SHE
SAW HIM.
BUT IT WAS IMPLIED THAT SHE
CERTAINLY NEW WHO HE WAS.
>> NOT THE VICTIM, BUT THE
PERSON THAT THE VICTIM
FLAGGED DOWN?
>> I DON'T BELIEVE SHE SAW
MR. CUERVO.
THE ONLY TESTIMONY OF
HERS --
>> THIS IS NOT SWUNG WHO A
STRANGER TO THE VICTIM.
THEY KNEW EITHER VERY WELL.
>> YES.
AS FAR AS THE TRIAL SHOULD
BE THE ATTORNEY HAD TO I
SHAOEUPBT SAY HAD TO -- BUT
CHOSE TO GO TO LESSER
INCLUDED.
PERHAPS WITHOUT THE
CONFESSION -- THIS IS YOU
KNOW AN ANALOGY A CATEGORY 5
LEVEL DEVASTATION TO THE
CASE.
THIS WAS YOU KNOW A
CONFESSION.
IT COULD HAVE BEEN WORSE HAD
HE SAID I INTENDED TO KILL
HER.
BUT STILL IT WAS QUITE
DEVASTATING.
>> THAT'S YOUR TIME.
THANK YOU.
>> YOU CAN USE IT AS YOU
PLEASE.
THANK YOU.
MAY IT PLEASE THE COURT I'M
KRISTEN DAVENPORT.
I REPRESENT THE STATE OF
FLORIDA.
FIRST OF ALL WE DON'T AGREE
THIS WAS AN UNAMBIGUOUS
REQUEST TO REMAIN SILENT.
WE HAVE A FACTUAL FIND
BEINGTY TRIAL COURT THAT IS
FULLY SUPPORTED BY COMPETENT
EVIDENCE IN THE RECORD THAT
HIS RESPONSE TO QUESTION OF
DO YOU WANT TO TALK TO US OR
MAKE A STATEMENT IS NO I
DON'T WANT NOTHING.
WHAT THE COMPETENCE AND
SUBSTANTIAL EVIDENCE SHOULD
SUPPORT THAT, BECAUSE THE
TRANSLATION ON THE SPOT WAS
HE DOES NOT WANT TO TALK TO
US.
SO WHAT IS THE OTHER
SUBSTANTIAL COMPETENT
EVIDENCE THAT SAYS THAT'S
NOT TRUE.
>> THIS WAS ALL RECORDED ON
AN AUDIO CD.
THEY PLAYED THE CD
REPEATEDLY OVER AND OVER
THIS PART BECAUSE THE
DETECTIVE, THE DEPUTY WHEN
HE WAS ON THE STAND WAS
LISTENING TO IT AND HE SAID
ROUGHLY THAT MEANS I DON'T
WANT TO SAY ANYTHING.
AND THE PROSECUTOR SAID WE
CAN'T HAVE ROUGHLY HERE.
WE NEED TO KNOW EXACTLY WHAT
HE SAYS.
THEY WENT BACK AND FORTH AND
PLAYED THAT OVER AND OVER
AND THE COURT INTERPRETER
THERE TO HELP THE DEFENDANT
SAID THE TRANSLATION IS I
DON'T WANT ANYTHING.
OR A DOUBLE NEGATIVE IN
SPANISH.
BUT, WHEN YOU LOOK AT THIS
THE ACTUAL TRANSLATION THAT
WAS GIVEN TO THE OFFICERS ON
THE SCENE WAS THAT I -- HE
DOES NOT WANT TO TALK WITH
US.
RADIO IT.
>> AND SO WHY SHOULDN'T
THAT -- WHETHER OR NOT
THAT'S THE TRUE
INTERPRETATION OF WHAT HE
SAID OR NOT THAT'S
THE -- THAT'S WHAT IS
OFFICER RRS TOLD.
WHY SHOULDN'T THE OFFICERS
HAVE TO RELY ON THAT AND TO
THEN ACT IN ACCORDANCE WITH
THAT?
>> BECAUSE FIRST OF ALL,
IT'S NOT ABOUT WHAT THE
OFFICER WAS TOLD.
IT'S ABOUT WHAT THE
DEFENDANT SAID.
THE SUSPECT HAS TO
ARTICULATE A DESIRE TO CUT
OFF QUESTIONING.
>> THEY ARTICULATED THROUGH
THE TRANSLATION OF THE OTHER
OFFICER; CORRECT?
>> IT WASN'T EXACTLY A
WORD-FOR-WORD TRANSLATION
EITHER.
HE WAS PARAPHRASING.
THE DETECTIVE WHO DIDN'T
SPEAK ANY SPANISH TESTIFIED
AT THE HEARING AND THE TRIAL
COURT FOUND THIS TO BE
CREDIBLE THAT BASED ON THE
CIRCUMSTANCES SHE COULDN'T
TELL IF SHE WAS GETTING A
WORD-FOR-WORD TRANSLATION OR
EXACTLY WHAT THIS DEPUTY WAS
TELLING THE DEFENDANT.
SO FOR EXAMPLE IF SHE TOLD
HIM READ HIM HIS RIGHT AND
HAVE HIM INITIAL THE FORM.
>> YOU KNOW WHAT CONCERNS ME
ABOUT THIS ARGUMENT IS, WHAT
WAS THE PURPOSE THEN OF
HAVING THE OFFICER COME IN
WHO SPOKE SPANISH AND
TRANSLATE TO THEM IF THEY
WILL SAY, OH, WE'RE NOT SURE
WE CAN RELY ON WHAT THIS
OFFICER SAYS AND SO WE WILL
KEEP GOING UNTIL WE GET
SOMETHING WE THINK WE CAN
RELY ON.
>> ALL SHE WAS DOING WAS
HAVING THEM CLARIFY.
IT WAS CLEAR --
>> LET ME.
CAN I ASK A QUESTION.
I'M REALLY TROUBLED BY THAT
ON CLARIFY.
BECAUSE I DON'T KNOW OF A
MORE SUBTLE WAY TO GET
SOMEONE TO TALK THAN TO SAY
SOMETHING TO THE EFFECT "NOW
IS YOUR CHANCE IF YOU WANT
TO TELL YOUR SIDE OF THE
STORY."
THAT TO ME JUST SEEMS THE
REALLY UNDERMINES THIS WHOLE
AREA TO SUGGEST THAT, THAT
QUESTION IS NOT SUGGESTING
TO THEM, YOU DON'T TALK NOW,
YOU REALLY ARE GOING TO GET
IT.
NOW IS YOUR CHANCE.
>> BUT THERE'S NOTHING
MISLEADING ABOUT THAT.
THAT'S AN ACCURATE
STATEMENT.
THEY READ THE RIGHT.
THE DETECTIVE TOLD THE
DEPUTY TO HAVE THEM INITIAL.
THEY WENT THROUGH THIS LONG
SPANISH THING.
THIS DETECTIVE SPEAK NO
SPANISH AT ALL.
THEY HAD NO IDEA WHAT THEY
WERE SAYING TO HER.
THEN HE ASKED THIS QUESTION
AND HE SAID HE DOESN'T WANT
TO TALK ABOUT IT.
AND HE SAID OKAY YOU DIDN'T
HAVE THE RIGHT INITIALS.
WE'RE NOT EXACTLY SURE HE
UNDERSTANDS WHAT IS GOING ON
HE HANDS THEM AND SAYS HAVE
HIM WRAOET THIS AND INITIAL
IT.
I GUESS WE CAN REALLY GO
BACK AND FORTH.
I'M STILL NOT SURE I
UNDERSTAND IF THE
SPANISH-SPEAKING DETECTIVE
TELLS THE ENGLISH SPEAKING
DETECTIVE HE DOES NOT WISH
TO TALK TO US, WHAT IS
AMBIGUOUS ABOUT THAT
STATEMENT.
>> WHAT'S AMBIGUOUS IS THE
TOTALITY OF THE
CIRCUMSTANCES.
SHE IS NOT SURE THAT HE
UNDERSTANDS HIS RIGHT.
THAT'S THE AM BIG TKPWAOUITY.
THE WAY SHE NOW EXPLAINS IT
YOU EXPLAIN AND I WILL JUST
FOLLOW WHAT JUSTICE LEWIS
SAID BECAUSE IT DISTURBED ME
GREATLY.
HE DOESN'T WISH TO SPEAK
WITH THEM THEN HE CAN GIVE
HIS SIDE OF THE STORY.
HE ALREADY SAID SHE'S HEARD
HE DOESN'T WANT TO DECLARE
ANYTHING OR HE DOESN'T WANT
TO SAY ANYTHING.
WHICH IS WHAT THE DETECTIVES
SAYS AS JUDGE THOMPSON SAID
IN THIS THERE'S ONLY TWO
THINGS THAT WILL COME FROM
THAT.
EITHER HE WILL STILL SAY, I
DON'T WANT TO TALK OR HE
WILL NOW GIVE HIS SIDE OF
STORY AND I THINK WHAT IS
MISLEADING IS IT'S NOT
COUPLED WITH THIS IS YOU GOT
A RIGHT TO REMAIN SILENT AND
ANYTHING YOU SAY CAN BE USED
AGAINST YOU.
THIS IS NOT YOUR ONLY CHANCE
TO TELL YOUR SIDE OF THE
STORY.
ONCE YOU HAVE AN ATTORNEY
WHICH CAN BE APPOINTED AT
STATE EARNINGS PENS IF YOU
CAN'T AFFORD ONE YOU WILL
HAVE ANOTHER CHANCE TO TELL
YOUR SIDE OF TORE
CITY -- STORY IF YOU WANT TO
TELL YOUR SIDE OF THE STORY.
SHE DID COUPLE IT WITH SHE
DOESN'T -- IF HE DOESN'T
WISH TO TELL HIS SIDE OF THE
STORY, THAT IS HIS RIGHT.
HE DOES NOT HAVE TO.
LET HIM KNOW THAT.
THAT'S EXACTLY WHAT WAS
TRANSLATED TO HIM.
THIS IS YOUR CHANCE TO TALK.
>> BUT IF YOU -- YOU ARE NOT
OBLIGATED, BUT IF YOU WISH
TO TALK THERE'S STILL TIME.
AS IF IF YOU DON'T SPEAK OUT
NOW OR FOREVER HOLD YOUR
PEACE.
>> BUT THEY'VE READ HIT
MIRANDA TWO TIMES.
YOU HAVE THE RIGHT TO REMAIN
SILENT.
ANYTHING YOU SAY CAN BE USED
AGAINST YOU.
HE TELLS HIM TO INITIAL.
SHE WANTS TO MAKE SURE THE
DEFENDANT UNDERSTOOD HIS
RIGHT.
YOU GET BROUGHT INTO THE
POLICE STATION.
IT'S A COERCESIVE
ATMOSPHERE.
MIRANDA IS DESIGNS TO COMBAT
THAT.
SO THAT PEOPLE AREN'T GOING
IN NOT UNDERSTANDING THAT
YOU WILL NOT GET BEATEN UP
AND YOU CAN STOP TALKING AT
ANYTIME.
AND IT'S REALLY NOT A
ONE-SIDED DEAL LIKE YOU
MIGHT THING -- THINK WHEN
YOU ARE INITIALLY ARRESTED.
THAT'S THE WHOLE POINT OF
MIRANDA.
THEY READ HIM MIRANDA.
SHE'S NOT SURE HE
UNDERSTANDS.
GIVES HIM A WRITTEN FORM SO
THERE'S NO QUESTION ABOUT
TRANSLATION.
STANDARD FORM IN ANY WAYTIVE
LANGUAGE.
IS YOUR CHANCE TO TALK BUT
HE DOESN'T HAVE TO.
BE DETECTIVE TOLD HIM THAT
AGAIN THEN THE DEFENDANT
SAID I NOTICE THE VICTIM
ALREADY TALKED AND THEN GET
INTO MORE CONFUSING
STATEMENT HOW LONG THEY'VE
BEEN IN THE COUNTRY.
THEY SAY OKAY THEY GO
THROUGH --
>> THIS IS ADDITIONAL
QUESTIONING REALLY IS WHAT
STARTS THE CONFUSION.
IF THE OFFICER HAD HONORED
HIS ORIGINAL STATEMENT THAT
HE DID NOT WANT TO TALK WITH
US WE WOULDN'T HAVE ON THIS
RECORD ANY CONFUSION ABOUT
WHETHER OR NOT THE VICTIM
HAD AND HER MOTHER HAD OR
HAD NOT DIS -- DISCUSSED
ANYTHING.
IM -- I'M REALLY CONCERNED
THAT HERE WE HAVE WHETHER
YOU AGREE OR NOT, THE
OFFICER -- THE
SPANISH-SPEAKING OFFICER
TOLD THE OTHER OFFICER THIS
MAN DOES NOT WANT TO TALK TO
US.
AND WHAT IN THE WORLD IS
AMBIGUOUS ABOUT THAT?
>> THERE'S NOTHING AMBIGUOUS
ABOUT JUST THAT SINGLE
STATEMENT WITHOUT VIEWING IT
IN CONTEXT.
YOU HAVE TO VIEW KNIT THE
CONTEXT SHE KNEW SHE WASN'T
GETTING A WORD-FOR-WORD
TRANSLATION.
SHE NYE SHE ASKED THE
OFFICER TO ASK HIM TO
INITIAL THE FORM AND SHE
DIDN'T DO THAT.
SHE'S NOT SURE WHAT WAS SAID
TO HIM IF THEY READ
THEM -- THEM THE RIGHT OR IF
HE WAS PARAPHRASING IN THE
WAY THAT WAS MISLEADING TO
THEM.
ALL THEY DID WAS CLARIFY
THAT.
AND YOU CAN'T GO BY WHAT THE
TRANSLATOR SAYS.
YOU HAVE TO GO BY WHAT THE
DEFENDANT SAYS.
>> OKAY.
AND SO DIDN'T THE TRANSLATOR
START WITH READING EACH OF
THE RIGHT AND THEN TRANSLATE
HIS ANSWER, YES HE
UNDERSTOOD.
SO WHAT WAS CONFUSING ABOUT
THAT ASPECT OF IT WHEN THE
OFFICER READ HIM THE RIGHT,
HIS ANSWER, THE OFFICER'S
TRANSLATION OF THAT ANSWER.
>> THE OFFICER DIDN'T
TRANSLATE UNTIL AT THE END.
HE READ HIM ALL OF HIS
RIGHTS IN SPANISH.
THE DEFENDANT REPLIED IN
SPANISH.
AND THE DETECTIVE DOESN'T
UNDERSTAND ANY OF THIS.
HE GETS TO THE VERY END AND
HE SAYS OKAY.
YOU UNDERSTAND ALL YOUR
RIGHT.
YOU WISH TO TALK ABOUT THE
MATTER AND MAKE THE
STATEMENT.
YES OR NOT?
THAT'S THE ONLY -- THE
DEFENDANT SAYS "I DON'T WANT
ANYTHING."
AND THE TRANSLATOR SAYS OKAY
HE DOESN'T WANT TO TALK TO
US.
LET'S MAKE SURE -- WHAT WAS
THE SPANISH -- WE
TALK -- YOU STARTED EARLIER
SAYING THIS COMPETENT
SUBSTANTIAL EVIDENCE.
THIS IS AN AUDIOTAPE.
RIGHT.
>> AND IS THERE ANY DEBATE
ABOUT WHAT THE AUDIOTAPE
SAYS IN SPANISH?
>> NO.
I THINK THAT'S CLEAR.
>> WHAT IS THE SPANISH
STATEMENT?
>> PARDON MY PRONUNCIATION.
[SPEAKING IN SPANISH]
>> IS THERE ANY AMBIGUITY
ABOUT WHAT THAT SAYS?
>> I THINK THERE'S A FACTUAL
FINDING BY THE TRIAL COURT
BASED ON WHAT THE COURT
INTERPRETER SAID AT THE
HEARING THAT THAT MEANS, NO,
I DON'T WANT ANYTHING.
>> ANYTHING.
>> BUT DECLARE SOUNDS PRETTY
MUCH DECLARE.
I MEAN, EVEN IF ENGLISH THAT
SOUNDS LIKE DECLARE.
>> IN ENGLISH -- I AGREE
WITH THAT.
BUT.
>> I DON'T WANT TO DECLARE
ANYTHING.
>> SO WE CAN'T REALLY SECOND
GUESS A FACTUAL FINDING BY
THE TRIAL COURT THAT'S
SUPPORTED BY COMPETENT
FINANCIAL EVIDENCE.
THIS COURT
INTERPRET -- INTERPRETER
SAID THIS IS WHAT HE SAID.
EVERYBODY AGREED TO.
THE TRIAL COURT CHOSE TO
BELIEVE.
EVEN THE DEPUTY SAID SHE IS
BETTER THAN THIS THAN I AM.
HE WAS GIVING ROUGH
PROBLEMSMATION.
>> THE PROBLEM WITH THAT TO
ME IS THAT INTERPRETER DID
NOT TELL THE OFFICER THAT
THE NONSPANISH SPEAKING
OFFICERS ON THE SCENE THAT,
THAT'S WHAT THE DEFENDANT
SAID.
RADIO -- RIGHT.
>> AND IF THAT'S ALL THERE
WAS AND YOU HAD A WORD TO
WORD TRANSLATION AND THE
DEPUTY SAID I DON'T WANT TO
TALK TO YOU AS THE
WORD-FOR-WORD TRANSLATION
AFTER FOLLOWING THE
DETECTIVE INSTRUCTION AND
HAVING THEM INITIAL THE
MIRANDA RIGHT FORMS I THINK
IT WOULD BE HARD FOR US TO
ARGUE THERE WAS AN AMBIGUITY
THAT NEEDED CLARIFICATION.
THAT'S NOT WHAT THE FACTS
ARE.
THE FACTS ARE HE WASN'T
FOLLOWING HER INSTRUCTION.
SHE WASN'T SURE WHAT HE WAS
TOLD.
AND THE FACTS ARE WHAT HE
ACTUALLY SAID WAS AMBIGUOUS.
>> CAN I UNDERSTAND ONE
THING IS THAT YOU MADE THE
STATEMENT A COUPLE OF TIMES.
I WANT TO BE CLEAR ON THIS.
IF THE DEFENSE IN THIS CASE
AT THE TRIAL COURT LEVEL
VIRTUALLY STIPULATED THAT,
THAT'S WHAT WHAT WAS SAID.
IS THAT WHAT YOU ARE TELLING
US?
>> IT WAS A FINDING BY THE
TRIAL COURT.
>> I'M ASKING WHAT YOU SAID
THAT THEY DIDN'T PRESENT ANY
OTHER TESTIMONY.
THERE'S NO OTHER EVIDENCE
AND THEY VIRTUALLY AGREED
WITH THAT.
WAS THERE ANOTHER STATEMENT
AS TO WHAT THAT
INTERPRETATION WAS?
OR THAT TRANSLATION?
>> THE -- THIS HAPPENED WHEN
THE DEPUTY WAS ON THE STAND.
>> THAT'S THE ONLY ONE --
>> HE SAID ROUGHLY THIS
MEANS I DON'T WANT TO SAY
ANYTHING.
THE PROSECUTOR SAID WE CAN'T
GET INTO ROUGHLY.
WE NEED TO KNOW EXACTLY WHAT
HE SAID.
SO THE DEPUTY SAID HE
DOESN'T WANT TO DECLARE
ANYTHING AND THEN HE SAYS
OVER AND OVER THE COURT
INTERPRETER BY THE DEPUTY
SAY SHE IS BETTER THAN THIS.
>> THE ONLY WITNESS PUT ON
THAT WOULD CONTRADICT THIS
IS THAT I AGREE WITH THE
INTERPRETER, TRANSLATOR.
HE SAID SHE'S BETTER THAN
THIS THAN I AM.
EVERYBODY WAS OPERATING
UNDERSTAND THE -- UNDER
TRANSLATION PROVIDED WAS "I
DON'T WANT ANYTHING."
DURING THE FINAL WHEN HE
MAKES HIS FACTUAL FINDING AT
THE END HE SAID THIS WAS A
LITTLE BIT CONCERNING.
ON THE TRANSCRIPT IT -- IT
SAIDS NO I DON'T WANT NOT
NOW.
WHICH WAS COMPLETELY
INACCURATE.
SO THE COURT HAD TO CHOOSE
BETWEEN THE DIFFERENT
INTERPRETATION HE CHOSE THE
ONE INTERPRETED BY THE COURT
INTERPRETER.
>> WHAT'S THE STATE POSITION
TO GET BEYOND THAT.
THAT'S SAY HE MADE AN
UNEQUIVOCAL REQUEST.
WHAT'S THE STATE'S POSITION
AS TO WHETHER THE
QUESTIONING THAT CONTINUED
CONSTITUTES AN INTERROGATION
OR WHAT?
>> IF THIS STATEMENT YOU
HAVE TIME TO TELL YOUR STORY
BUT YOU DON'T HAVE TO.
IF THAT IS AN INTERROGATION
THEN READING MIRANDA IS
INTEAR TPWAEUGS.
IT'S TELLING HIM IS WHAT THE
SITUATION IS.
YOU CAN TALK TO US NOW.
YOU DON'T HAVE TO.
HE SAID HE UNDERSTANDS HIS
RIGHT.
THAT'S NOT AN INTERROGATION.
IT CAME WHEN HE SHE SAID
TELL ME WHAT HAPPENED
YESTERDAY.
THAT'S WHEN THEY STARTED
INTERROGATING HIM AND THAT
DIDN'T HAPPEN UNTIL HE SAID
YOU CAN ASK QUESTIONS AND I
WILL ANSWER IF I WANT TO.
HE SAID WILL ANSWER
QUESTIONS.
WHEN YOU LOOK AT HIS INTENT
WHEN YOU LOOK HOW THIS WAS
CLARIFIED.
HE DIDN'T WANT TO MAKE A
DECLARATIVE STATEMENT.
HERE'S WHAT HAPPENED TO ME
AND I WILL TELL YOU THE
STORY.
BUT HE WAS CERTAINLY WILLING
TO ANSWER QUESTIONS.
AND THAT'S WHAT HE DID.
AND HE UNDERSTOOD THAT HE
DIDN'T HAVE TO ANSWER ALL OF
THE QUESTIONS.
>> I GUESS I'M GETTING BACK
TO WHAT HE SAID.
IF HE ACTUALLY SAID I DON'T
WANT TO DECLARE ANYTHING,
ONE CAN INTERPRET THAT AS
SAYING I DON'T WANT TO MAKE
A STATEMENT OR THAT I DON'T
WANT TO ANSWER QUESTIONS.
AS I CLARIFIED THAT'S
EXACTLY WHAT HE WANTED TO
DO.
HE KEPT SAYING I DON'T WANT
TO MAKE A STATEMENT.
THERE'S NO EVIDENCE
APPARENTLY ACCORDING TO
YOU -- THERE'S NO EVIDENCE
IN THE RECORD OF AT ALL.
THERE'S NOT EVEN A HINT IN
THE RECORD.
CORRECT?
>> THAT'S WHAT THE OFFICER.
>> NO, THE OFFICER JUST SAID
THAT.
YOU SAID THE OFFICER SAID HE
DOESN'T WANT TO TALK TO US.
>> THAT'S WHAT HE SAID AT
THE I'M.
DURING THE HEARING.
>> THERE'S NO DISTINCTION,
THOUGH.
THIS ARGUMENT IS GOING
EVERYWHERE.
IT'S LIKE GRABBING JELL-O.
YOU YOU ARE SAYING THAT THE
DECORATION HE DIDN'T WANT TO
GIVE A UNILATERAL STATEMENT.
THAT'S NOT DISCUSSED AT THE
TRIAL LEVEL.
IS IT?
>> LET ME MAKE MY POSITION
MORE CLEAR.
FIRST OF ALL, THE FACT AND
FINDING BY THE TRIAL COURT
IS I DON'T FIND ANYTHING.
THAT'S AMBIGUOUS.
IF WE GO WITH DECLARE
OBVIOUSLY MEANS DECLARE IN
SPANISH.
>> THERE'S NO EVIDENCE OF
THAT YOU ARE SAYING?
>> THE OFFICER GAVE THAT AS
HIS INTERPRETATION.
THAT'S NOT WHAT THE TRIAL
COURT FOUND.
>> THE OFFICER SAID HE
DIDN'T WANT TO TALK WITH US.
YOU ARE DRAWING NOW A
STKEUFRBGS TO MAKE A
DECLARATION AS TO GET A
UNILATERAL STATEMENT.
>> I THINK THAT'S AN
AMBIGUOUS ANSWER AND YOU
ALSO HAVE TO CONSIDER THE
QUESTION THAT WAS ASKED.
YOU -- DO YOU WISH TO TALK
ABOUT THE MATTER AND MAKE A
STATEMENT?
>> THAT'S A COMPOUND KIND OF
CONFUSING QUESTION.
HE DIDN'T PHRASE IT VERY
WELL.
>> RIGHT.
THE WHOLE POINT OF IS THAT
THIS AMBIGUOUS.
DID HE MEAN AT THAT POINT I
DON'T WANT TO SAY ANYTHING?
LEAVE ME ALONE OR DID HE
MEAN I DON'T WANT TO MAKE A
DECLARATIVE STATEMENT BUT I
WILL ANSWER QUESTIONS.
AS IT WAS
DECLARE -- CLARIFIED THAT'S
EXACTLY WHAT CAME OUT.
THAT'S WHAT WAS INTENT WAS.
COMPOUND QUESTION AND
CONFUSING ANSWER.
THEY READ HIM RIGHT AGAIN.
THEY WENT THROUGH IN DETAIL
AND SAID NOW IS YOUR TIME TO
TALK BUT YOU DON'T HAVE TO.
THAT'S NOT AN INTERROGATION.
THAT'S INFORMING HIM WHAT
THE DEAL IS.
AND ONLY WHEN HE SAYS HE'S
REFUSING TO TALK TO US.
NO, I WILL ANSWER QUESTIONS.
THAT'S THE ONLY TIME THAT
THEY ACTUALLY STARTED AN
INTERROGATION.
NOW IN DAVIS THE COURT SAID
THAT THE POLICE OFFICER
DON'T HAVE TO ASK CLARIFYING
QUESTIONS BUT IT'S STILL A
GOOD POLICE PRACTICE AND THE
REASON THEY SAID IT'S A GOOD
POLICE PRACTICE IS BECAUSE
IT WILL PROHIBIT SECOND
GUESSING BY THE JUDICIARY.
>> ASKING CLARIFYING
QUESTIONS WHEN THERE'S SOME
AMBIGUITY.
>> AND IT'S OUR POSITION
THERE IS AMBIGUITY.
YOU SAY IN DAVIS THERE'S A
DISTINCTION WE AT LEAST
RECOGNIZE FOOTNOTE IN ALMEDA
BETWEEN SOMETHING THAT COMES
UP DURING INTERROGATION,
AFTER SOMEBODY HAS ALREADY
SAID "I WILL SPEAK."
AND THEN SOMETHING OCCURS
VERSUS WHAT THE INITIAL
MIRANDIZING PROCESS.
>> THE COURTS DO DRAW THAT
DISTINCTION.
>> AND THIS ONE IS REALLY,
AGAIN THE ISSUE HERE THAT
I'M STILL HAVING -- THIS
PROBLEM WITH.
WHICH IS THAT AND, AGAIN,
YOU KNOW WE DON'T WANT TO
HAVE A DISCRIMINATORY
STANDARD FOR PEOPLE THAT
DON'T SPEAK ENGLISH.
>> RIGHT.
>> AND IF THIS OFFICER WHEN
SHE WENT ON TO ASK FURTHER
QUESTIONS WAS TOLD BY DEPUTY
GARCIA HE DOES NOT WISH TO
TALK WITH ME.
SO THE IDEA THAT THERE WOULD
BE A FINDING THAT THE
STATEMENT THAT HE MADE THAT
THE OFFICER WHO THEN
CONTINUES TO QUESTION BUT
WAS AMBIGUOUS COULDN'T BE
AMBIGUOUS BECAUSE THAT
OFFICER DIDN'T UNDERSTAND
SPANISH TO KNOW THAT THERE
WAS SOME POTENTIAL
AMBIGUITY.
THE WHOLE TOTALITY OF THE
CIRCUMSTANCES IS WHAT RENDER
THIS AMBIGUOUS.
LET ME ADDRESS THE
TRANSLATEOR SAID THIS AT THE
TIME.
IF WE GO WITH WHAT THE
TRANSLATOR SAID, INSTEAD OF
WHO THE DEFENDANT SAID IF
THE DEFENDANT SAID I WANT TO
EXERCISE MY RIGHT TO REMAIN
SILENT AND THE TRANSLATOR
SAID HE WANTS TO TALK US
THEN WE WOULD HAVE TO GO
WITH THAT TOO.
THAT'S NOT FAIR EITHER.
YOU HAVE TO GO WITH WHAT THE
SUSPECT ACTUALLY SAID.
WE HAVE A TRANSLATION OF IT.
WE KNOW EXACTLY WHAT HIS
WORDS ARE.
WE HAVE A AFRICA ACTUAL
FINDING BY THE TRIAL COURT.
WE HAVE A CD OF WHAT WAS
SAID.
WE KNOW EXACTLY WHAT
HAPPENED HEARD.
WE HAVE GO WITH WHAT HE
ACTUALLY SAID.
NOT WITH WHAT THE DEPUTY
TOLD HER.
IF YOU GO WITH WHAT THE KEPT
TOLD HER HE SAID THEN YOU
HAVE TO LOOK AT THE WHOLE
TOTALITY THAT THE DEPUTY
WASN'T FOLLOWING HER
INSTRUCTION.
SHE JUST WANTED TO CLARIFY
AND MAKE SURE HE UNDERSTOOD
WHAT THE DEAL WAS.
NOW IS THE TIME TO TALK, BUT
YOU DON'T HAVE TO.
YOU CAN ANSWER QUESTIONS AT
THAT TIME.
YOU DON'T HAVE TO MAKE A
STATE.
DY DIDN'T START
INTERROGATION UNTIL HE SAID
I WILL ANSWER YOUR
QUESTIONS.
>> AND SO WHEN WE HAVE A
NONENGLISH SPEAKING
DEFENDANT THE POLICE CAN
KEEP CLARIFYING UNTIL THEY
GET TO WHERE THEY WANT.
>> IF YOU HAVE AN AMBIGUOUS
SITUATION THE POLICE SHOULD
CLARIFY SO THAT WE KNOW
WHETHER HE WANTS TO WAIVE
HIS RIGHT OR NOT.
THAT'S ALL HE DID.
WE'RE TALKING ABOUT TWO
MINUTES.
HE DIDN'T COERCE HIM.
THEY DIDN'T YELL AT HIM.
THEY DIDN'T PLAY GOOD
COP/BAD COP.
IT'S ALL VERY MATTER OF
FACT.
THEY DID EXACTLY WHAT THEY
SHOULD HAVE DONE WHICH IS
MAKE SURE THEY UNDERSTOOD
WHAT IS RIGHT.
HE HAS THE RIGHT TO NOT
TALK.
HE UNDERSTOOD THAT.
THIS WAS HIS CHANCE TO TALK
TO THEM TOO.
THERE'S NOTHING WRONG WITH
TELLING A DEFENDANT THAT
WHEN HE UNDERSTANDS WHAT HIS
RIGHTS ARE.
THEY DID EXACTLY WHAT THEY
SHOULD HAVE DONE.
THEY GOT A VALID WAIVER.
HE SAID I WILL ANSWER YOUR
QUESTION.
AND THEN UNTIL THEY GOT THAT
ABSOLUTE UNEQUIVOCAL WAIVER
OF HIS RIGHT THEY DIDN'T ASK
HIM ANYTHING
INCRIPPLENATING.
ALL THEY DID WAS --
>> IS THAT A TRANSLATION
ABOUT AN OFFICER THAT SAYS I
WILL ANSWER YOUR QUESTIONS?
>> WHEN WE LOOK AT THE
TRANSCRIPT THAT'S BEEN
TRANSLATED FROM THE SPANISH
TO ENGLISH HE SAID YOU CAN
ASK QUESTIONS AND I WILL
ANSWER IT.
>> SO WHEN THAT WAS
TRANSLATED THAT'S WHAT HE
SAID, THEY TOOK THAT AS THE
ACCURATE TRANSLATION.
>> HE KEPT -- THE DEPUTY
KEPT FOLLOWING UP AND SAYING
YOU DO WANT TO TALK TO US WE
NEED TO MAKE THAT CLEAR.
>> I'M JUST WONDERING HOW
WE.
>> AT ONE POINT WE DON'T
ACCEPT THE OFFICER'S
TRANSLATION OF WHAT THE
DEFENDANT SAID.
BUT AT THE OTHER POINT WE TO
ACCEPT IT THE OFFICER'S
TRANSLATION OF WHAT THE
DEFENDANT SAID.
>> I THINK YOU HAVE TO GO
WITH WHAT THE DEFENDANT SAID
ALWAYS.
AND WHAT THE DEFENDANT SAID
IS I WILL ANSWER YOUR
QUESTIONS.
IF YOU WANT THE GO WITH THE
TRANSLATOR THE TRANSLATOR
SAID HE WANTS TO ANSWER
QUESTIONS UNLESS HE FEELS
LIKE HE DOESN'T WANT TO.
EITHER WAY I THINK THAT'S A
VALID WAIVER BASED ON WHAT
THE DEPUTY SAID AND BASED O
WHAPB THE DEFENDANT SAID.
20EB9SD LET ME JUST CLOSE BY
SAYING THIS THE CLEARLY
HARMLESS ERROR.
THIS IS VICTIM THEY ACTUALLY
USED THIS IN HIS FAVOR.
WE WOULD ASK YOU TO AFFIRM.
THANK YOU VERY MUCH.
>> REBUTTAL.
>> THIS IS NOT A COMPLEX
AGREEMENT THAT NEEDS TO BE
HATCHED OUT AND HAVE
REVIEWED BY ANY EXPERT IN
VARIOUS LANGUAGES IT'S A
SIMPLE.
NO I DON'T WANT TO SAY
ANYTHING.
THERE WAS NO AMBIGUITY.
HOW LONG WAS THIS GO ON.
WE NEED TO BRING, THREE?
FOUR?
FIVE?
INTERPRETERS TO MAKE SURE WE
GET WHAT A SIMPLE STATEMENT
OF "NO" MEANS.
>> THE PURPOSE OF MIRANDA TO
PREVENT REPEATED ROUNDS OF
QUESTIONING TO UNDERMINE THE
WILL OF THE PERSON BEING
QUESTIONED.
GIVE ME YOUR BEST SHOT AS TO
WHAT QUESTIONING HERE
UNDERMINED THE DEFENDANT'S
WILL?
>> THE QUESTION, DOES HE
UNDERSTAND WHY DID HE
TPHEUFRP SHEUL IT?
THE UNDERSTANDING HE HAD AN
OPPORTUNITY TO GIVE HIS SIDE
OF THE STORY.
THOSE ARE QUESTIONS THAT
UNDER THE CIRCUMSTANCES WERE
WORN DOWN AFTER HE -- IT'S
OUR VIEW --
>> I HAVE A REAL PROBLEM
WITH WEARING DOWN WHEN THIS
HAPPENED WITH WHAT YOUR
OPPONENT SAID WAS TWO
MINUTES.
AND THE PERSON BE WORN DOWN
IN TWO MINUTES?
>> IS THAT YOUR POSITION?
>> THAT'S OCCURRING IN TWO
MINUTES.
HE HAD BEEN -- HE SLEPT IN A
TREE THAT NIGHT.
>> I'M TALKING ABOUT WHAT
THE POLICE WERE -- WHAT LAW
ENFORCEMENT -- DOESN'T LAW
ENFORCEMENT HAVE TO BE GIVEN
SOME LEEWAY HERE?
SOME LEEWAY THERE THIS TIME
OF SITUATION WHERE WE LOOK
AT THE WHOLE PICTURE.
ISN'T THAT WHAT WE ARE
SUPPOSED TO BE DOING?
>> AGAIN THE WHOLE PICTURE
INCLUDES THE FACT THAT HE
SLEPT IN A TREE OR INTENDED
TO SLEEP IN THE NIGHT
BEFORE.
HE SWAM ACROSS THE LIVER.
HE DECIDED TO TURN HIMSELF
IN.
HE WAS PICKED UP WHEN HE WAS
WALKING DO UNTHE STREET.
SO I THINK HE WAS EXTREMELY
TIRED AT THIS POINT.
I THINK WE CAN TAKE THE
WHOLE LOOK AT THE TOTALITY
OF THE CIRCUMSTANCES.
AND THESE CIRCUMSTANCES WHEN
HE -- TERMINATED AFTER HE
SAID I DON'T WANT TO DECLARE
ANYTHING.
THAT'S WHAT THE DEFENDANT
SAID.
AND IF THERE'S ANY
ADDITIONAL QUESTIONS.
>> YOU'VE USED ALL YOUR
TIME.
THANK YOU VERY MUCH.
WE WILL TAKE THE CASE UNDER
ADVISEMENT.