Opinion
Editorial Note:
This decision has been designated as "Supreme Court of Kansas Decisions without Published Opinions." in the Pacific Reporter. See KS R S AND A CTS RULE 7.04
Appeal from Finney district court; Thomas F. Richardson, judge. Opinion filed February 8, 2008. Affirmed in part, reversed in part, and remanded for resentencing.
Autumn L. Fox, of Law Office of Autumn L. Fox, P.A., of Abilene, argued the cause and was on the brief for appellant.
Lois K. Malin, assistant county attorney, argued the cause, and John P. Wheeler, Jr., county attorney, and Paul J. Morrison, attorney general, were with her on the brief for appellee.
MEMORANDUM OPINION
PER CURIAM.
Nam Hoang Nguyen was convicted of one count each of felony murder, aggravated kidnapping, conspiracy to commit kidnapping, and conspiracy to commit aggravated burglary, and five counts of kidnapping. He raises two claims on appeal: (1) that the conspiracy charges are multiplicitous and (2) that the admission of his pretrial statements to police requires reversal of his convictions. The State concedes that the conspiracy charges are multiplicitous as determined in our decisions involving two co-defendants who participated in these same crimes. See State v. Pham, 281 Kan. 1227, 136 P.3d 919 (2006), and State v. Nguyen, 281 Kan. 702, 133 P.3d 1259 (2006). For reasons stated in this opinion, we conclude that the trial court properly admitted into evidence the defendant's statements to police.
The defendant along with two others early one winter morning forcibly entered the home of Giang and Bau Tran Nguyen, who lived with their two daughters and two sons in Garden City, Kansas, for the purpose of robbing them in their home. Once the perpetrators were in the home, all family members were gathered in the living room, where their hands were bound and they were made to lie on the floor. One of the sons ran to the kitchen and was shot twice when he tried to wrest the gun from the defendant. He died from his wounds. The defendant and other perpetrators scattered. Police were summoned, and it was reported that several items of jewelry were missing from the home.
The next day, the defendant walked into a Wichita police station and told Officer Clarence Alton that he had shot someone in Garden City. He also told Sergeant Troy Nedbalek that he had killed someone in Garden City. The information was verified, and the defendant was arrested.
Later that same day, Detectives Larry Watson and Jerry Schiffelbein from Garden City, together with Wichita Police Officer Long Nguyen, as interpreter, interviewed the defendant after giving him Miranda warnings. The Miranda form provided to the defendant was printed in Vietnamese. Officer Nguyen asked the defendant whether he understood the warnings, and the defendant stated that he did. The defendant wrote his name after each warning on the form and agreed to speak with the detectives.
The defendant told the detectives that he had driven to Garden City from Liberal early in the morning the previous day with the intention of robbing a family he knew. He parked in front of the house around 5 a.m. and waited for the family to wake up and leave the house. When the garage door opened, the defendant approached Thai Nguyen (one of the sons), put a gun to his head, and forced him back into the house. He forced the entire family into the living room, where he tied them up with pieces of a white t-shirt that he had brought with him. The defendant explained that he was wearing a mask through these events, but one of the daughters said, " 'Nam, is that you?" ' The defendant realized that the girl knew who he was.
The defendant related that one of the sons ran to the kitchen to try to call the police. The defendant followed, and when the son tried to get his gun, the defendant shot him twice. After the shooting, he fled the house and disposed of the gun and his mask in a dumpster. He stated that he drove his car to Liberal and then hitchhiked to Wichita.
In his trial testimony, the defendant for the most part confirmed his statement to police but denied that he was the person who shot the son or the person who tied up the family.
(1) Multiplicity
Based upon our decisions in State v. Pham, 281 Kan. 1227, 136 P.3d 919 (2006), and State v. Nguyen, 281 Kan. 702, 133 P.3d 1259 (2006), we reverse the defendant's conviction for conspiracy to commit kidnapping, recognizing as we did in the above companion cases that "there was only a single continuing conspiracy, i.e., whose object was to rob the Nguyen family in their home." 281 Kan. at 1262.
The State contends there is no need to remand for resentencing because the defendant's sentence for conspiracy to commit kidnapping was to run concurrently with the defendant's consecutive sentences for his felony murder and aggravated kidnapping convictions and would therefore not affect the sentence imposed. However, we have vacated the defendant's sentence for conspiracy to commit kidnapping because that charge is multiplicitous. We therefore afford the defendant the same relief granted in the companion cases and reverse the defendant's conviction for conspiracy to commit kidnapping, vacate that sentence, and remand for resentencing on the conviction for conspiracy to commit aggravated burglary. See 281 Kan. at 1262.
(2) Admission of the Defendant's Statements to Police
After a Jackson v. Denno hearing to determine the admissibility of the defendant's statements, the district court concluded that the defendant's initial statements at the Wichita police station were "purely voluntar[y]" and were not coerced. See 378 U.S. 368, 12 L.Ed.2d 908, 84 S.Ct. 1774 (1964). The court emphasized that the defendant entered the police station voluntarily and approached the officers, and that any questions made by the officers during that time were "purely informational."
The court also found that the statements made by the defendant to the detectives were voluntary. It explained that "the defendant was given proper Miranda warnings, ... he was under no duress or coercion, ... he freely and voluntarily gave his consent to talk to the officers and be interviewed, [and] ... no promises or threats were made to him in return for his testimony." The court found that the use of Officer Nguyen as the interpreter did not violate the defendant's rights.
On appeal, the defendant again argues that his statements were not voluntary. According to the defendant, "his statement could hardly have been voluntary when the interpreter was a police officer sworn to uphold the law and investigate crimes." The defendant frames this issue as follows: "[W]ith two (2) police officers present--did Defendant understand that he did not have to give a statement and that the interpreter was, in fact, a police officer [?]" Finally, the defendant claims that the record is unclear as to whether the defendant understood that his statements to the police officers could be used against him later in court.
The Fifth Amendment Right Against Self-Incrimination
The Fifth Amendment to the United States Constitution states: "No person ... shall be compelled in any Criminal Case to be a witness against himself." See Malloy v. Hogan, 378 U.S. 1, 8, 12 L.Ed.2d 653, 84 S.Ct. 1489 (1964) (the Fifth Amendment right against self-incrimination is made applicable to the States by way of the Fourteenth Amendment). Similarly, the Kansas Constitution Bill of Rights § 10 provides that "[n]o person shall be a witness against himself." This court has found that the same analysis applies under both constitutional provisions. See State v. Jones, 283 Kan. 186, 194, 151 P.3d 22 (2007).
The touchstone of this court's analysis to determine whether a defendant's statement is admissible under the Fifth Amendment is whether the statement wasvoluntary. See State v. Zuniga, 237 Kan. 788, 792, 703 P.2d 805 (1985) ( " 'When a trial court conducts a full ... hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily and knowingly given, and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence." ' [Emphasis added.] ).
When a defendant claims his or her confession was not made voluntarily, the prosecution has the burden of proving by a preponderance of the evidence that the statement was voluntary. The essential inquiry is whether the statement was the product of the accused's free and independent will. The court looks at the totality of the circumstances surrounding the confession and determines its voluntariness by considering the following factors: (1) the defendant's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the defendant to communicate on request with the outside world; (4) the defendant's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the defendant's fluency with the English language. State v. Walker, 283 Kan. 587, 596-97, 153 P.3d 1257 (2007).
In Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966), the United States Supreme Court held that protections in addition to the voluntariness considerations were necessary to protect persons against the "coercive pressures that can be brought to bear upon a suspect in the context of custodial interrogation." Berkemer v. McCarty, 468 U.S. 420, 428, 82 L.Ed.2d 317, 104 S.Ct. 3138 (1984). Miranda stated:
"[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of [a] defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." 384 U.S. at 444.
The Court reiterated this holding in Berkemer, explaining that "if the police take a suspect into custody and then ask him questions without informing him of the rights enumerated [in Miranda ], his responses cannot be introduced into evidence to establish his guilt." 468 U.S. at 429.
Kansas courts employ a two-step approach to determine whether a defendant's statement was admissible. First, a court must determine whether the statement was made as a result of custodial interrogation. Jones, 283 Kan. at 192-201. If the statements were made while the defendant was in custody, the court must determine whether the defendant received his Miranda warnings and whether the defendant freely, knowingly, and voluntarily agreed to speak with the police after receiving those warnings. Zuniga, 237 Kan. at 792. If the statements were not made while the defendant was in custody, the court need only determine whether, considering the totality of the circumstances, the statements were made voluntarily. See Jones, 283 Kan. at 201.
Standard of Review
In reviewing a district court's ruling on a motion to suppress a defendant's confession, the appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard. State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006). Substantial evidence is evidence possessing both relevance and substance; it is evidence that provides a substantial basis of fact from which the issues can reasonably be determined. Specifically, substantial evidence refers to legal and relevant evidence that a reasonable person could accept as adequate to support a conclusion. Walker, 283 Kan. at 594-95. The appellate court does not reweigh evidence, assess the credibility of witnesses, or resolve conflicting evidence. Ackward, 281 Kan. at 8. Nevertheless, the ultimate legal conclusion drawn from the court's factual findings is reviewed de novo. 281 Kan. at 8.
These same standards apply when courts consider whether a person is in custody at the time he or she makes an incriminating statement. State v. James, 276 Kan. 737, 751, 79 P.3d 169 (2003). In Jones, this court explained that "there are two discrete inquiries essential to the determination of whether an interrogation is custodial." 283 Kan. at 194. The court continued:
"[O]ur first inquiry is: what were the circumstances surrounding the interrogation? Our standard of review for this prong on the inquiry is whether there is substantial competent evidence to support the trial court's findings regarding the circumstances. The second inquiry is: under the totality of those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave? We review this determination de novo. [Citation omitted.]" 283 Kan. at 194.
Defendant's Initial Statements
In Jones, this court recently reiterated a number of nonexclusive factors that courts may consider when determining whether a particular line of questioning is custodial (and thus requiring Miranda warnings) or investigatory (where no Miranda warnings must be given). These factors include:
" '(1) when and where the interrogation occurred; (2) how long it lasted; (3) how many police officers were present; (4) what the officers and the defendant said and did; (5) the presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door; (6) whether the defendant is being questioned as a suspect or a witness; (7) how the defendant got to the place of questioning, that is, whether he came completely on his own in response to a police request or was escorted by police officers; and (8) what happened after the interrogation--whether the defendant left freely, was detained, or was arrested. The importance of each factor varies from case to case.' [Citations omitted.]" Jones, 283 Kan. at 195.
Jones also made clear that these factors are not " 'hard and fast" 'rules--instead, the court emphasized that each case must be analyzed on its own facts. 283 Kan. at 195. However, the factors may be relevant to determine the nature of the interrogation. 283 Kan. at 195. The United States Supreme Court has stated that " 'the ultimate inquiry [in determining whether a statement was made in custody] is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.' [Citation omitted.]" Yarborough v. Alvarado, 541 U.S. 652, 662, 158 L.Ed.2d 938, 124 S.Ct. 2140 (2004).
The district court correctly concluded that the defendant's initial statements were not custodial. In particular, the court found that the defendant went to the police substation voluntarily without any police prompting and that he made the incriminating statements to Officer Alton and Sergeant Nedbalek at the substation desk in the waiting room. The court also found that any questions directed at the defendant by the police officers were informational in nature--trying to determine the defendant's name and where the shooting he was describing took place.
There is ample evidence in the record to support the district court's findings that defendant's initial statements were not custodial. At the hearing on the suppression motion, Officer Alton testified that the defendant entered the police substation voluntarily and approached the desk; Officer Alton thought that he was one of the "transients" from the street adjacent to the police station. Upon approaching the officer, the defendant said he did not speak very good English, and then stated that he had shot somebody in self-defense. At that time, Officer Alton went and retrieved Sergeant Nedbalek, who walked up to the desk and asked the defendant, " 'Can I help you?" ' The defendant responded, " 'I killed someone." ' The sergeant then asked the defendant where and when this killing had occurred, and the defendant respectively answered, " 'Garden City" ' and " 'Yesterday." ' The defendant was not handcuffed or otherwise restrained while making the statements, but instead made the statements in the substation waiting room. Moreover, the questions directed at the defendant were purely informational.
We find, as did the district court, that a reasonable person under the above circumstances would have felt free to leave at any time during this exchange until the information imparted by the defendant was verified. See Jones, 283 Kan. at 198 (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 50 L.Ed.2d 714, 97 S.Ct. 711 [1977] ) (an interview is not custodial " 'simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect" '). There is no evidence to suggest that such a conclusion is altered by the defendant's limited ability to speak English. Moreover, there is no evidence of duress or coercion. We conclude that the defendant's statements to Officer Alton and Sergeant Nedbalek were noncustodial and were made voluntarily.
Defendant's Statement After Receiving Miranda Warnings
The statements made by defendant after being warned of his rights were made in the context of a custodial interrogation. The question we must resolve concerning these statements is whether they were made " 'freely, voluntarily, knowingly, and understandingly ... with full knowledge of the Miranda rights." ' State v. Nguyen, 251 Kan. 69, 75, 833 P.2d 937 (1992).
Defendant again emphasizes that "his statement could hardly have been voluntary when the interpreter was a police officer sworn to uphold the law and investigate crimes." K.S.A. 75-4353 states the qualifications required of an interpreter providing, in part, that "[n]o one shall be appointed to serve as an interpreter" who "is otherwise interested in the outcome of the proceeding, unless the appointing authority determines that no other qualified interpreter is available to serve." K.S.A. 75-4353(a). Other than being a police officer in Wichita, there is no serious dispute that the interpreter in this case met all statutory requirements.
The defendant argues that "the purpose of K.S.A. 75-4351 is to ensure communication between one who is in custody and officers who are questioning him." Because the interpreter in this case, Officer Nguyen, was a police officer, the defendant argues that he did not clearly understand the gravity of his statements or that he was not required to make such statements. The defendant argues that his inability to understand the effect of his interview is evident in later proceedings, such as during a plea hearing, when the defendant became confused as to his legal rights.
The defendant's emphasis on K.S.A. 75-4351 is misplaced. First, the district court found after hearing all of the testimony during the hearing on the suppression motion that Officer Nguyen was qualified to make translations to and from Vietnamese and that he was not an interested party because the case was not one in his jurisdiction (Wichita). These findings are supported by the record.
Officer Nguyen testified at the hearing that he was a certified bilingual interpreter from English to Vietnamese and that he spoke the same dialect as the defendant. Officer Nguyen also testified that the defendant told him that he understood English but was more comfortable speaking in Vietnamese. The officer explained that he was able to communicate clearly and easily with the defendant and to translate back and forth between Vietnamese and English.
Officer Nguyen also testified that he was not related to any of the Nguyens involved in the case and that he had no connection to the case other than interpreting the interview. The fact that the interpreter was a police officer for another department does not appear to render him "interested" within the meaning of the statute. See K.S.A. 75-4353(a) (defining an interested party as a party "married to that person, related to that person within the first or second degrees of consanguinity, living with that person or ... otherwise interested in the outcome of the proceeding"). While it is true that Officer Nguyen is a police officer "sworn to uphold the law and investigate crimes," Officer Nguyen is a member of the Wichita Police Department and is therefore limited to practicing within that jurisdiction. For crimes that occur outside of Wichita, such as the shooting in this case, the interpreter's personal interest in the outcome of the case is no different from that of an ordinary citizen who wishes to see the law upheld and enforced. This conclusion is strengthened by the fact that Officer Nguyen was compensated for his interpreter services by the Wichita Police Department, not by the police in Garden City who were investigating the crime. Finally, Officer Nguyen testified that he had no financial or other interest in the outcome of the case.
Other than reading the defendant his Miranda warnings, Officer Nguyen's only interaction with the defendant was limited to translating information between the detectives and the defendant during the interview. The district court's findings that Officer Nguyen was a qualified interpreter and that he had no interest in the outcome of the case are supported by substantial competent evidence.
In addition, this court has repeatedly found that the statutory provisions for an interpreter in Kansas are not rules of evidence and are merely one consideration in determining whether a defendant's statement was voluntary. See Pham, 281 Kan. at 1240-41; Zuniga, 237 Kan. at 791-92. This court has held that a confession may be admitted even when no interpreter is provided, as long as the court determines that the statement was made voluntarily. Nguyen, 251 Kan. at 74-75; State v. Garcia, 243 Kan. 662, Syl. ¶ 9, 763 P.2d 585 (1988).
The defendant in this case was provided a Miranda form written in Vietnamese; Officer Nguyen also asked the defendant to read the Miranda form out loud in Vietnamese to test his "competency and understanding of the Vietnamese language." Officer Nguyen testified that he asked the defendant after reading each statement whether the defendant understood each right, and the defendant verbally answered that he did. The defendant then initialed next to each statement indicating that he understood the right described. After reading all of the rights, the defendant initialed by the statement on the form that provides (in English), "I read this statement of my rights and understand what my rights are." After the last question on the form, which asks, "do you wish to talk to us now?" the defendant "placed his name in the yes box" and indicated that he wished to speak with the detectives. Officer Nguyen testified that he did not make any threats or promises to the defendant to induce him to sign the Miranda form or agree to speak with the detectives and that to the best of his knowledge, the defendant signed the form of his own volition.
The ensuing interview between the defendant and Detectives Watson and Schiffelbein lasted approximately 4 hours, during which time the parties took several breaks. The defendant sat at a table during the interview and was not restrained. Neither detective physically threatened or intimidated the defendant, made promises of leniency, or otherwise attempted to coerce him to speak. Detective Watson testified that the defendant did not appear to be under the influence of alcohol or drugs. Furthermore, although the defendant stated that he only had the equivalent of a third grade education, he explained that he had been in the United States for 6 years. The defendant never asked for a lawyer or otherwise asked that the interview be stopped.
The defendant claims that although he was read his Miranda rights in Vietnamese, his later statements during a plea hearing, which fell apart the day before trial, indicate that he did not actually understand the legal process or that his initial statements could be used against him later in the proceedings. However, the plea hearing did not involve the defendant's statements; instead, the question was whether the defendant actually understood the effect of a plea on his right to an appeal. After a meeting with his attorney during the plea hearing itself, the defendant changed his mind and indicated that he did not want to plead guilty. Thus, the defendant's confusion at the plea hearing may demonstrate that he had some difficulty understanding parts of the legal process but does not demonstrate that he had problems understanding his Miranda rights or the effect of his previous statements on later proceedings.
More importantly, the voluntariness of a particular statement is determined from the totality of the circumstances surrounding the making of the statement, not the circumstances surrounding the trial in general. See State v. Newfield, 229 Kan. 347, 357, 623 P.2d 1349 (1981). The totality of the circumstances surrounding the defendant's statements to the detectives in this case, and in particular the defendant's initialing and verbal indications that he understood his Miranda rights and agreed to speak with the detectives with full knowledge of these rights, demonstrate that the statements were made freely, voluntarily, and knowingly. The district court did not err when, after a full evidentiary hearing on this matter, it denied the defendant's motion to suppress.
We conclude that the findings of the district court are supported by substantial competent evidence. We further conclude that the defendant's statements during his interview with Detectives Watson and Schiffelbein were made freely, knowingly, and voluntarily, with full knowledge of his Miranda rights.
We reverse the defendant's conviction for conspiracy to commit kidnapping and remand for resentencing consistent with this court's decision in Pham, 281 Kan. at 1261-62. In all other respects, the convictions and sentence are affirmed.
NUSS, J., not participating.
BUSER, J., assigned.