[c]omparing the complexity and breadth of what is typically done and said in the courtroom with what is involved in the Miranda warning, limited English skills may suffice to understand the latter but not former. For that matter, judges are more likely to err on the side of caution when it comes to deciding if an interpreter is necessary. 846 F. Supp. 921, 925 (D. Kan. 1994). Other courts that have dealt with this issue have noted that the appointment of a translator is not dispositive to whether a defendant understood his Miranda rights. See, e.g., Campaneria v. Reid, 891 F.2d 1014, 1020 (2d Cir. 1989) (finding that defendant's "command of English was sufficient for him to have understood the Miranda warnings given to him" despite using a court-appointed interpreter); United States v. Bernard S., 795 F.2d 749, 752 (9th Cir. 1986) (ruling that although defendant used Apache interpreter at trial, the defendant knowingly waived his rights because he told the officer he understood the Miranda rights in English and never indicated that he did not understand them); United States v. Abou-Saada, 785 F.2d 1, 10 (1st Cir. 1986) (rejecting the argument "that the very fact the government provided him with an interpreter indicates a lack of knowledge of English"); Granados, 846 F. Supp. at 925 (finding court translator necessary for proceedings but ruling defendant
[c]omparing the complexity and breadth of what is typically done and said in the courtroom with what is involved in the Miranda warning, limited English skills may suffice to understand the latter but not former. For that matter, judges are more likely to err on the side of caution when it comes to deciding if an interpreter is necessary. 846 F.Supp. 921, 925 (D. Kan. 1994). Other courts that have dealt with this issue have noted that the appointment of a translator is not dispositive to whether a defendant understood his Miranda rights. See, e.g. , Campaneria v. Reid , 891 F.2d 1014, 1020 (2d Cir. 1989) (finding that defendant's "command of English was sufficient for him to have understood the Miranda warnings given to him" despite using a court-appointed interpreter); United States v. Bernard S. , 795 F.2d 749, 752 (9th Cir. 1986) (ruling that although defendant used Apache interpreter at trial, the defendant knowingly waived his rights because he told the officer he understood the Miranda rights in English and never indicated that he did not understand them); United States v. Abou-Saada , 785 F.2d 1, 10 (1st Cir. 1986) (rejecting the argument "that the very fact the government provided him with an interpreter indicates a lack of knowledge of English"); Granados , 846 F.Supp. at 925 (finding court translator necessary for proceedings but ruling defenda
Finally, the Fifth Amendment does not require a person to sign a written waiver. See United States v. Granados, 846 F.Supp. 921, 925-26 & n.2 (D. Kan. 1994) (holding that the failure of the police to offer a written form does not vitiate a waiver of Miranda rights); see also North Carolina v. Butler, 441 U.S. 369, 373 (1979) (noting that an express written waiver is neither “necessary or sufficient to establish waiver” and that the “question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived” his rights).
“Comparing the complexity and breadth of what is typically done and said in the 23 courtroom with what is involved in the Miranda warning, limited English skills may suffice to understand the latter but not [the] former.” United States v. Granados, 846 F.Supp. 921, 925 (D. Kan. 1994). The Court finds that, at the time SA Coletti read the Defendant his Miranda rights on September 20, 2018, the Defendant understood English sufficiently well to both understand and waive his Miranda rights.
The Fifth Amendment does not require a person to sign a written waiver nor does it require that the reading of Miranda rights be recorded. United States v. Granados, 846 F. Supp. 921, 926 (D. Kan. 1994) (holding that failure of police to offer a written form does not undo a waiver of Miranda rights); United States v. Yunis, 859 F.2d 953, 961 (D.C. Cir. 1988) (holding that law enforcement's failure to use recording equipment available to them does not undermine the validity of a Miranda waiver). As indicated above, both Officer Wilbur's testimony and Defendant's recorded acknowledgement establish that Defendant was read and voluntarily waived his Miranda rights. (Tr. of Nov. 30, 2017 Hr'g at 9:13-12:24; Doc. 24-1 at 1-2; Interview at 00:00-01:04.)
The inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda.") (citation and internal quotation marks omitted); United States v. Muniz, 93 F. App'x 208, 210 (10th Cir. 2004) (officer's testimony that he read defendant his rights from "a Miranda card" not admitted into evidence was sufficient to prove that officer gave defendant standard Miranda warnings); see also United States v. Granados, 846 F. Supp. 921, 926 n.2 (D. Kan. 1994) ("An express written or oral statement of waiver of [Miranda] rights . . . is not inevitably either necessary or sufficient to establish waiver."). Unpublished decisions are not binding precedent in the Tenth Circuit, but may be cited for their persuasive value.
While petitioner had received some lacerations to his face, he did not complain of being in pain. See, e.g., United States v. Granados, 846 F. Supp. 921, 926 (D.Kan. 1994) (rejecting defendant's claim that his statement was involuntary because he was in pain from cuts to head and hand received during an automobile accident, where defendant told the police that he understood his Miranda rights, gave rational, coherent, and responsive answers, and never complained that the pain was so great as to prevent him from answering the officer's questions). Petitioner has therefore failed to show that he was incapable of knowingly and intelligently waiving his Miranda rights or that the state court's decision was contrary to, or an unreasonable application of clearly estalblished federal law.
In these instances, the courts consider what effort the officer made to communicate, whether the defendant responded that he understood his rights or ever indicated that he did not understand them, and what the defendant displayed in English language skills. This court recently addressed similar issues and arguments to those raised by Sanchez in United States v. Granados, 846 F. Supp. 921 (D.Kan. 1994). In Granados, the defendant sought an order suppressing statements he made to the Kansas Highway Patrol. Granados was interviewed by officers after the vehicle he was allegedly driving collided with a light pole.
But the emphasis is still on the police's use of overbearing influence or improper questioning, as it was in Mincey. See alsoConnelly, 479 U.S. at 164–65, 107 S.Ct. 515 (noting that while mental condition is relevant, a violation occurs only if police overreach and exploit the condition); United States v. Granados, 846 F.Supp. 921, 926–27 (D.Kan.1994) (same). Clearly, Trooper McPherson did not employ any of the coercive methods described in Mincey.