Lead Opinion
It is settled that, before conducting a custodial interrogation, the police must comply with the dictates of Miranda v. Arizona,
Petitioner is a Mexican immigrant who does not speak or comprehend the English language. His native language is Mixtee, an indigenous language spoken in a particular region of Mexico.
Before trial, Petitioner sought suppression of the statement on the grounds that he did not receive proper Miranda warnings and, consequently, was unable to make a knowing, intelligent, and voluntary waiver of the rights addressed in those warnings. The suppression court denied the motion. Petitioner’s statement to the police was admitted into evidence at trial, and he was convicted of first degree murder and related offenses.
On appeal to the Court of Special Appeals, Petitioner argued, among other claims of error, that the State failed to prove that he was properly advised of, and validly waived, the Miranda rights. A panel of the Court of Special Appeals issued an unreported opinion holding that the record developed at the suppression hearing sufficed to permit the court to rule that the Miranda warnings and Petitioner’s waiver complied with constitutional dictates. For the reasons that follow, we agree with the Court of Special Appeals.
I.
The trial that led to Petitioner’s conviction for first degree premeditated murder was conducted over three days in October 2009. The crime, however, had occurred four years earlier.
The record discloses that, on the night of October 15, 2005, the victim, Cheryl Williams, joined Petitioner and his acquaintance, Rutilio Melo, in a minivan. Melo drove the minivan to a site near a wooded area of Princess Anne, Somerset County, where Williams later was murdered.
The suppression hearing
A suppression hearing was held to determine the admissibility of the statement Petitioner made during the police interrogation. Detective Sergeant George Nelson, the lead investigator, described the interrogation, which took place at the Princess Anne State Police Barrack. Detective Nelson testified that Trooper Torres issued Petitioner the Miranda warnings in Spanish, using a Maryland State Police (MSP) 180 form. That process consumed 22 minutes and was not recorded. Detective Nelson then conducted the interrogation, with Trooper Torres interpreting for Petitioner, in Spanish. Pursuant to his usual practice, Detective Nelson first conducted what he called a “pre-interview” to determine whether Petitioner had any valuable information; that pre-interview likewise was not recorded. After the pre-interview, Detective Nelson and Trooper Torres left the room. They returned several hours later to conduct a second interrogation of Petitioner, which was recorded on audiotape.
[Petitioner] would shrug his shoulders, shake his head. Sometimes he would say si. Even prior to Trooper Torres finishing his question, the responses were, in most instances, normal, almost immediate. There wasn’t a pause like he was trying to figure out what Trooper Torres was saying. I didn’t see a problem. If I did, I wouldn’t have continued.
Trooper Torres also testified at the hearing. Much of his testimony focused on his issuance of the Miranda warnings to Petitioner, Petitioner’s waiver of the Miranda rights, and the subsequent interrogation, during which Trooper Torres served as the interpreter. Trooper Torres testified that he was not a certified interpreter, but his parents were born in Puerto Rico. Although he was born in the United States, Trooper Torres lived in Puerto Rico until the age of nine or ten, where he spoke predominantly Spanish in the home. He testified that he regularly serves as an unofficial interpreter when Spanish-speakers arе arrested. Trooper Torres explained that there are times when he recognizes that an individual for whom he is interpreting does not comprehend what is being translated:
Generally when I do interpret and I discover that the person I’m translating to doesn’t understand what I’m speaking or what I’m trying to — the point I’m trying to get across, I will backtrack and first what I’ll do is I’ll translate for them. If they don’t understand, they need to tell me, “I don’t know what you mean.” Then I’ll break it down in layman’s terms, so to speak. I’ll rephrase it or change the wording, and generally that will — and then I’ll ask them, “Do you understand now,” and they’ll give me the proper response yes or no. And if the answer is no, then I’ll just*641 change the way I ask the question. And most — well, they always ask — I always ask, “Do you understand now?” They’ll reply, “Yes, I understand.”
Turning to Petitioner’s case in particular, Trooper Torres testified that he first encountered Petitioner when he arrested Petitioner at his home. At that time, Torres communicated in Spanish with others at the house and then with Petitioner, while placing him under arrest. Trooper Torres testified that, at the State Police Barrack, he and Detective Nelson went into the interview room together to meet with Petitioner. Trooper Torres described that at the outset he identified himself and Detective Nelson as police officers, and he advised Petitioner that he was a subject of a murder investigation and that is why he was placed under arrest. Trooper Torres delivered all of this in Spanish and Petitioner responded in Spanish that he understood. Trooper Torres testified that “there was no confusion in [Petitioner’s] face. There was no doubt in my mind that he understood what I was telling him.”
Trooper Torres testified that he next administered the Miranda warnings to Petitioner in Spanish. Trooper Torres explained that he read from a Spanish language copy of a Miranda rights card and then translated into Spanish each right listed on the MSP 180 form, which contained the Miranda warnings, line by line.
Trooper Torres stated that, during his issuance of the Miranda warnings, Petitioner indicated that he did not understand the Spanish words for “court” and “attorney.” In order to explain those words to Petitioner, Trooper Torres read from a card the phonetic spelling of what he believed to be the Mixtee versions of those two words. Trooper Torres explained that he obtained the phonetic spelling of “court” and “attorney” in Mixtee from the sister of Petitioner’s confederate, Rutilio Melo. Torres testified that, while administering the Miranda warnings to Melo earlier that day,
I made contact with [Melo’s] sister who was also there at the barrack, and I would ask her what was the Mixtecan word for attorney, judge and court because those are words that [Melo] did not understand at that point. And she actually wrote them down phonetically for me, and then I went back into the interview with Melo and said it in [the] Mixtecan word for it, and at that point he did understand the Miranda.
Trooper Torres could not recall what Mixtee words he used in advising Petitioner. Yet he testified that,
[w]hen [Petitioner] had a question on a certain portion of it, I would stop____And that’s when I utilized that paper I used with the other subject, translated into Mixtecan, and I*643 just said it phonetically. And I even asked him, am I saying it right, and if he understood, and he would say yes, so then I would proceed.
Similarly, Trooper Torres stated that, when Petitioner indicated he did not understand,
I would stop, explain it again just in layman’s terms. And if he still didn’t understand, I would say, “Okay, what part am I saying do you not understand?” And then he would say whatever word he didn’t understand. Again, attorney, abogado. And then I would say — I refer to my little note that the sister had provided me, and I would say, “Abogado means this.” And he would say, “Okay.”
Trooper Torres added that he could tell from the expression on Petitioner’s face that he understood what was meant by the Mixtee version of “attorney.”
Trooper Torres testified that, after interpreting the five lines of warnings from the MSP 180 form, and concluding that Petitioner understood the warnings, he proceeded to interpret for Petitioner the portion of the form that set forth “an acknowledgment saying that he has read or have had read the explanation of his rights to him. And I asked him if that’s correct, sign that line. And I had my finger on the signature line. And he did sign it, and he put the date.”
Trooper Torres then detailed how he reviewed with Petitioner the “waiver” portion of the MSP 180 form. He read the Spanish version on the Miranda rights card and then went over the form and translated it for Petitioner. Torres testified: “I translated it for him what the waiver of his rights was and asked him if he had any questions to ask me, and if that was correct, if he was waiving his rights, to sign that line and I pointed to the signature line, and he did.” Trooper Torres confirmed that “each one of these lines” on the form was “translated word for word.” Trooper Torres repeated that at no time did he fail to address Petitioner’s lack of understanding. Petitioner signed the waiver of rights on the MSP 180 form.
[T]he question [from Detective Nelson] was, “Do you remember the time — what time it was?” And I interpreted it in Spanish, and I asked him in Spanish, “Do you remember what time it was?” And his reply was, “No, I did not have a watch with me.” And that was all in Spanish. It was immediate, no hesitation. There was no facial gestures of confusion, no stuttering or pondering, searching for words. His replies were immediate and correct.
At no time during the pre-interview did Petitioner ask for a further explanation of the questions asked. Trooper Torres similarly testified that during the subsequent, recorded interrogation Petitioner responded in Spanish to the questions and he “[n]ever stuttered” and he “didn’t indicate to me that he did not understand what I was saying.”
The State introduced without objection a transcript and audiotape of the recorded interrogation. The judge listened to the tape for the express purpose of determining for himself whether, as the trooper had described, Petitioner answered without hesitation the questions that were put to him.
On cross-examination of the State’s witnesses, defense counsel established that a normal reading in English of the Miranda warnings takes approximately 32 seconds but that,
Petitioner did not testify at the suppression hearing. Defense counsel asked the court to take judicial notice оf a transcript of a hearing that had occurred two months earlier, on May 7, 2009. That earlier hearing, presided over by the same judge as presided at the suppression hearing, had been held to determine whether defense counsel was able to communicate effectively with his client, Petitioner, and whether Petitioner would be able to comprehend the proceedings. Two interpreters were present at the May 2009 hearing: Jose Lopez, who interpreted from English into Spanish; and Jose Gonzalez, who interpreted from Spanish into Mixtee Bajo. Petitioner’s defense attorney had proffered at that hearing that he was having “an extraordinary amount of difficulty in communicating” with Petitioner. According to defense counsel, the two interpreters also “seemed to be having a great deal of difficulty in establishing true communication with” Petitioner, in part because the Mixtee interpreter spoke the Mixtee Bajo dialect, while Petitioner spoke Mixtee Alto. The court determined at the May 2009 hearing that, in order “to be effective, we need to try again to find a Mixteco Alto interpreter.” The suppression hearing judge stated that he would consider what had occurred at that May hearing.
At the conclusion of the suppression hearing, the court heard argument of counsel and then ruled, denying the motion to suppress. The court framed the relevant question as whethеr, in light of the totality of the circumstances, Petitioner “could sufficiently understand Spanish in order to waive his rights under Miranda and could freely and voluntarily respond to the questions posed to him by Somerset County Detective Sergeant Nelson and interpreted into Spanish by Maryland State Trooper Torres.” The court stated that it
The trial and appeal
Petitioner was tried before a jury in the Circuit Court for Somerset County. The jury found Petitioner guilty of first degree murder, first degree assault, and second degree assault. After merging the two assaults with the murder conviction, the court sentenced Petitioner to life in prison.
On appeal to the Court of Special Appeals, Petitioner argued, among other claims of error, that the statement he gave to the police was obtained in violation of Miranda. Petitioner argued that the State failed in its burden to prove the constitutional adequacy of the Miranda warnings and his waiver of the Miranda rights was neither informed nor voluntary. The intermediate appellate court held in an unreported opinion that the State had carried its burden of proving the constitutionality of both the warnings and waiver.
Petitioner filed a petition for writ of certiorari to answer the following questions:
1. Can the State ever meet its burden of persuasion in establishing that the language used by an advising officer reasonably conveyed the content of the Miranda warnings and that the defendant knowingly, intelligently, and voluntarily waived his rights when the officer issues the warnings in a foreign language and the State fails to place the content of those warnings into the record at trial?
*647 2. Did the State fail to meet its burden in establishing that the Miranda warnings issued to the Petitioner reasonably conveyed his Miranda rights and that his waiver of those warnings was knowing, intelligent, and voluntary where the advising officer issued the warnings in a combination of Spanish and Mixtee, a Pre-columbian indigenous language with no relation to Spanish that was foreign to the officer; where the State failed to introduce the Mixtee language warnings used; where the officer testified that Petitioner had difficulty understanding the warnings, including the terms “court” and “attorney”; and where Petitioner was an 18 year old Mixtee Indian who had recently immigrated to the United States with no prior knowledge of the court system and no education?
3. Did the Court of Special Appeals improperly shift the burden of persuasion in the determination of the constitutionality of the Miranda waiver to the Petitioner when it required that the Petitioner present sufficient evidence that he did not understand Spanish when he was informed of his Miranda rights?
We granted the petition. Gonzalez v. State,
II.
When reviewing the denial of a motion to suppress evidence, “we confine ourselves to what occurred at the suppression hearing. We view the evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party on the motion, here, the State.” Lee v. State,
Petitioner contests the constitutional adequacy of both the warnings and the waiver. He relies on the undisputed facts that: (1) his native language is Mixtee (sub-dialect Alto), which is not merely a form of the Spanish language, but a different language altogether; (2) at the time of the interrogation, October 2005, Petitioner neither spoke nor comprehended English; and (3) Trooper Torres, who does not know Mixtee, could not recall, and the record does not otherwise demonstrate explicitly, what he said to convey to Petitioner the meaning of the words “court” and “attorney,” as those terms are employed in the Miranda warnings. As for his claim that he could not possibly have made a knowing and intelligent waiver of the Miranda rights, Petitioner relies on these same undisputed facts and the added facts that, at the time of the interrogation, he was barely 18 years old, uneducated, and a recent immigrant to the United States with no prior contact with our criminal justice system.
Petitioner acknowledges the general rule that the State need not prove exactly what was said in issuing the Miranda warnings. He asserts nonetheless that, when it is shown that a suspect is being given Miranda warnings in a language that the advising officer does not himself speak fluently, the State must produce a precise record of “the critical words used to obtain that waiver,” whether it be a recording, a transcript, notes, or exact rеcollection of the specific foreign-language words used. Petitioner emphasizes that Trooper Torres could not recall what Mixtee words were used to explain “court” and
The State counters that, even without a record of the Mixtee words used by Trooper Torres to convey the words “court” and “attorney” to Petitioner, the State met its burden to prove by a preponderance of the evidence that the warnings satisfy the requirements of Miranda and its progeny. The State directs us to the testimony of Trooper Torres, who the suppression court expressly found to be truthful. Trooper Torres explained in detail how he advised Petitioner of the Miranda rights in Spanish, how Trooper Torres obtained the Mixtee translation of certain words from Melo’s sister, and how Petitioner indicated eventually that he understood each warning contained on the MSP 180 form. The State points out that Trоoper Torres’s testimony is corroborated by the audiotaped interview, where the Petitioner appeared to answer questions in Spanish appropriately and without hesitation.
We resolve the parties’ dispute by resort, first, to the applicable law. The Fifth Amendment to the United States Constitution protects individuals from being compelled to make self-incriminating statements: “No person shall ... be compelled in any criminal case to be a witness against himself.”
The prophylactic measures developed in Miranda are the now-familiar warnings that law enforcement personnel are required to convey to a suspect before embarking on any custodial interrogation: ‘
[A 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 priоr to any questioning if he so desires.
Id. at 479,
The rights accorded by Miranda can be waived. See id. at 475,
No particular wording or “precise formulation” need be used to impart the nature of the Fifth Amendment rights to the suspect. Duckworth v. Eagan,
In determining the adequacy of the Miranda warnings, we look to the totality of the advisements. State v. Luckett,
[I]f the warnings, viewed in the totality, in any way misstate the suspect’s rights to silence and counsel, or mislead or confuse the suspect with respect to those rights, then the warnings are constitutionally infirm, rendering any purported waiver of those rights constitutionally defective and requiring suppression of any subsequent statement.
Id. at 380,
Even if the warnings themselves pass constitutional muster, the State still must prove, upon proper challenge, that the suspect’s waiver of the rights conveyed in those warnings was knowing and voluntary. The adequacy of a suspect’s waiver of the Miranda rights “is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.” North Carolina v. Butler,
In evaluating the validity of a waiver in a given case, the court must consider “the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst,
*652 First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, 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. 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,
Upon our independent review of the record developed at the suppression hearing, we conclude, for the reasons that follow, that the circuit court properly denied Petitioner’s motion to suppress his statement to the police. As we shall see, the facts found by the suppression court largely dictate our conclusion.
The Miranda warnings
In evaluating the adequacy of the warnings issued by Trooper Torres, we begin with a crucial credibility determination made by the suppression court. The court stated that it “believe[d] the testimony of Trooper Torres to be both truthful and persuasive.” That credibility determination is virtually unassailable. Consequently, we, as the reviewing court, must accept as fact (as obviously did the suppression court) Trooper Torres’s testimony concerning his impressions of Petitioner’s comprehension of not only the Spanish language,
We therefore view the testimony of Trooper Torres as presenting an accurate recitation of what occurred as he delivered the Miranda warnings to Petitioner. Based on Trooper Torres’s recitаtion of what occurred, we, like the suppression court, are able to conclude the following: (1) with the exception of two words (“court” and “attorney”) Trooper Torres painstakingly — and, ultimately, successfully — conveyed to Petitioner in Spanish the balance of the Miranda warnings accurately set forth on the MSP 180 form;
Our conclusion that witness testimony may be sufficient to establish the adequacy of Miranda warnings delivered in a foreign language, without an audiotape or a transcript of the advisement, finds support in the decisions of other state supreme and federal courts. For example, in United States v. Abdi Wali Dire,
Tague v. Louisiana,
he read petitioner his Miranda rights from a card, that he could not presently remember what those rights were, that he could not recall whether he asked petitioner whether he understood the rights as read to him, and that he “couldn’t say yes or no” whether he rendered any tests to determine whether petitioner was literate or otherwise capable of understanding his rights.
Similarly, in Hale, the Court of Special Appeals held that a criminal defendant’s statements were improperly admitted at trial.
The present case is readily distinguishable from Tague and Hale. In Tague, unlike here, the advising officer did not testify as to what he said and did in the course of delivering the Miranda rights, much less did that officer detail, as Trooper Torres did, the efforts he made to guarantee, insofar as reasonably he could, that Petitioner comprehended the rights being explained to him. In Hale, unlike here, there was no evidence that the suspect was made aware of at least several of the key rights that Miranda requires be included in the advisement, including the right to consult with an attorney, to have the attorney present during questioning, and to have an attorney appointed by the court if he was indigent.
We re-emphasize that, had the police audiotaped or, better still, audio— and videotaped the issuance of the Miranda rights and Petitioner’s waiver of them, there would be little cause to decide, as the suppression court and two appellate courts have had to do, whether the warnings issued to Petitioner satisfy the constitutional standard of an adequate expía
The Miranda waiver
We likewise conclude that the State proved the constitutionality of Petitioner’s waiver of the Miranda rights. Petitioner makes no allegation that he was threatened or coerced into making statements, that deceptive practices were used against him, or that his statements were the result of promises or inducements or that his will was overborne. Rather, Petitioner argues that his lack of comprehension of the Miranda warnings, assessed together with his personal characteristics, made it impossible for him to have made a knowing waiver of his Miranda rights.
Much of what we have said in analyzing the warnings given to Petitioner holds true for his waiver of the rights described in those warnings. Indeed, Petitioner’s argument for why his waiver was “unknowing” rests largely upon the contention that he could not make a good waiver of the rights without being adequately informed of those rights. We have explained, supra, why that argument fails.
Nor was Petitioner’s waiver rendered unknowing by the facts that, at the time, Petitioner was 18 years old, uneducated, and a recent immigrant to the United States unacquainted with this country’s criminal justice system. Without more, these facts do not render Petitioner unable, as a matter of law, to make a knowing (or, for that matter, involuntary) waiver of his Miranda rights. Indeed, in MeIn
Petitioner also finds support for his position in the evidence offered at the suppression hearing that, at an earlier hearing held in May 2009, the same judge who presided at the suppression hearing had determined that a Mixtee Alto interpreter was required in order for Petitioner to be able to understand the trial proceedings and to permit effective communication between Petitioner and defense counsel. Petitioner’s reliance on the May 2009 hearing is, in the end, unavailing. It does not follow from the judge’s ruling at the May 2009 hearing that Petitioner was to have a Mixtee Alto interpreter at trial that Petitioner did not sufficiently comprehend the Miranda warnings and make a knowing waiver of the Miranda rights. Indeed, as the State points out, at the May 2009 hearing the judge did not have the benefit of listening to the audiotaped interrogation, which demonstrates Petitioner’s ability to understand and answer questions posed in Spanish. See, e.g., Campaneria v. Reid,
Conclusion
We hold that the suppression court reasonаbly could find, from the totality of the evidence offered by the State, not countered by testimony of Petitioner to the contrary,
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.
BELL, C.J., HARRELL and GREENE, JJ., dissent.
Notes
. The words Mixtee and Mixteco are used interchangeably in the record. Petitioner advises us that Mixteco is the Spanish word for Mixtee, and Mixtee is the language spoken by the indigenous people inhabiting the La Mixteca region of Mexico, which includes the states of Oaxaca, Guerrero, and Puebla. The Mixtee language has at least two sub-dialects, Mixtee Bajo and Mixtee Alto. Petitioner speaks Mixtee Alto.
. The record reflects that in 2006 Petitioner entered an Alford plea, named for the case of North Carolina v. Alford,
. An interpreter provided simultaneous Mixtee Alto interpretation throughout the hearing.
. Detective Nelson testified that the interrogation was conducted in a room typically used for that purpose, bоth he and Trooper Torres were in street clothes, and neither was carrying a weapon. Petitioner was
. The Maryland State Police (MSP) 180 form, entitled “Advice of Miranda Rights,” was admitted into evidence at the suppression hearing. The Miranda warnings are written on the form as follows:
1. You have the right to remain silent.
2. Anything you say or write may be used against you in a court of law.
3. You have the right to talk to a lawyer before answering any questions and to have a lawyer present at any time before or during questioning.
4. If you now want the assistance of a lawyer but cannot afford to hire one, you will not be asked any more questions at this time and you may request the court to appoint a lawyer for you without charge.
5. If you agree to answer questions, you may stop at any time and request the assistance of a lawyer, and no further questions will be asked of you.
I fully understand each of these rights and I am willing to answer questions without consulting a lawyer or having a lawyer present at this time. My decision to answer questions is entirely free and voluntary and I have not been promised anything nor have I been threatened or intimidated in any manner.
Below the statement of waiver is a signature line, on which Petitioner affixed his signature.
. The State also called Petitioner’s confederate, Rutilio Melo, to establish further that Petitioner had at least a basic knowledge of Spanish. The suppression judge did not express reliance on Melo’s testimony when ruling on the motion to suppress.
. The Fifth Amendment privilege against compelled self-incrimination applies to the States through the Fourteenth Amendment. Malloy v. Hogan,
. We readily presume, see Thornton v. State,
. Petitioner argued to the suppression court, and reargues here, that the length of time Trooper Torres took in explaining the Miranda rights (22 minutes) is evidence of Petitioner’s lack of comprehension. The suppression court saw no merit in the argument, given the totality of the evidence suggesting the contrary. Neither do we. If anything, the length of time Trooper Torres spent explaining the rights is indicative of his desire to ensure that Petitioner understood those rights.
. In their unreported opinion in this case our collеagues on the Court of Special Appeals expressed the same sentiment this way:
[Wlhere officers are required to provide the Miranda warnings in a foreign language, we believe that the better practice is to either record the advisement of rights or, at a minimum, create a record of the words that the officer used so that a reviewing court can determine if the officer gave the warnings properly.
. We too have listened to the audiotaped interrogation and agree with the suppression court’s conclusion that, judging from both the tempo and substance of Petitioner's responses, he appeared to understand Trooper Torres’s Spanish interpretation of Detective Nelson’s questions.
. The panel of the Court of Special Appeals in its unreported opinion referred (as we have done) to the fact that Petitioner did not testify at the suppression hearing. Petitioner contests in his third question presented that, by doing so, the panel shifted the burden to him to prove that the Miranda warnings and his waiver were unconstitutional. He directs us to the following excerpt from the panel opinion:
At the suppression hearing, Gonzalez failed to present any evidence to support his position that he did not understand Spanish when Trooper Torres informed him of his rights.... Although, at a suppression hearing, the burden to prove a voluntary, knowing, and intelligent waiver of rights rests with the State, Johnson [v. Zerbst], 304 U.S. [458,] 464,58 S.Ct. 1019 ,82 L.Ed. 1461 [(1938)], where the State satisfies that burden and the defendant appeals, the defendant must be able to present sufficient evidence to support its allegation of error.
The panel, however, expressly disavowed any suggestion that it was shifting the burden to Petitioner:
*660 Our conclusion should not be understood as placing the burden of proof in a suppression hearing on the defendant. As we stated above, the burden of proof quite clearly rests with the State----However, where the State satisfies that burden below, we require more than a proffer by the defendant’s attorney to conclude that the trial court erred in reaching a factual conclusion. The trial court is in a better position to make such factual determinations, and we do not believe that there is sufficient evidence in the record to conclude that it was wrong.
We do not read the excerpt of the unreported opinion of the Court of Special Appeals upon which Petitioner relies as demonstrating a flawed analysis by that court of his Miranda claims. Indeed, this Court has noted that once the State had presented legally sufficient evidence to prove by a preponderance of the evidence that a defendant made a knowing and voluntary waiver of the Miranda rights, and the suppression court credits that evidence and is persuaded by it, the defendant is hard-pressed on appeal to contend, as Petitioner has done here, that the suppression ruling was legally incorrect. See Lee v. State,
Dissenting Opinion
dissenting, in which HARRELL and GREENE, JJ., join.
After trial before a jury in the Circuit Court for Somerset County, the petitioner, Ramiro Arce Gonzalez, was found
The majority affirms the judgment of the Court of Special Appeals. Gonzalez v. State,
I.
When we review a trial court’s grant or denial of a motion to suppress, we “consider only the facts and information contained in the record of the suppression hearing.” Longshore v. State,
The Fifth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment, Malloy v. Hogan,
Compliance with the Miranda Court’s mandate, thus, requires, “[a]t the outset, if a person in custody is to be subjected to interrogation, [that] he ... first be informed in clear and unequivocal terms that he has a right to remain silent.” Id.,
To be sure, the Supreme Court has made clear that, in administering the Miranda warnings, “no talismanic incantation [is] required to satisfy its strictures.” California v. Prysock,
While a defendant may waive his Fifth Amendment privilege against self-incrimination, thus foregoing the protections set forth in Miranda, the validity of such a waiver is governed by the high standard, consistently reinforced by the Supreme Court, that applies to the waiver of constitutional rights. See Johnson v. Zerbst,
“First, the relinquishment of thе right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, 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. 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,
II.
The petitioner is an immigrant to the United States from Mexico, whose native language is Mixtee, and who does not speak or comprehend the English language. While in custody, charged with the murder of Cheryl Williams, the petitioner made the inculpatory statement whose admission is at issue in this case. In the statement, he admitted to having sexual intercourse with the victim, being present when she was bludgeoned to death, and helping Rutilio Melo, another suspect in the murder, hide her body. The petitioner’s statement also suggested that the murder was premeditated.
The petitioner subsequently moved to suppress his inculpatory statement. At the suppression hearing, Trooper Ed Torres, who gave the petitioner the Miranda warnings, testified as to how that process proceeded.
After obtaining the petitioner’s written acknowledgment and waiver, Detective Nelson proceeded to conduct a pre-interview of the petitioner in English, with Trooper Torres translating to Spanish. According to the officers, the petitioner answered the questions withоut hesitation, and did not, at any time, ask for further explanation of the questions asked. A transcript and audiotape of the officers’ subsequent interrogation was introduced into evidence, to enable the suppression judge to corroborate the description provided by Detective Nelson and Trooper Torres of the interrogation.
On the basis of this testimony, and in light of the evidence before it, the suppression court denied the motion to suppress, finding that the petitioner knowingly, intelligently and voluntarily waived his Miranda rights. It reasoned:
“We know that the question is not one of form with respect to Miranda, but rather, whether the defendant, in fact, knowingly and voluntarily waived the rights delineated in the Miranda case.
“Under the totality of the circumstances, the Court must determine whether defendant acted voluntarily, knowingly, and intelligently in waiving his rights under Miranda. The Court must, as indicated, assess the credibility of the witnesses.
“In this case, the Court believes the testimony of Trooper Torres to be both truthful and persuasive. He was a person in the best position as he is fluent in Spanish and English to review the Miranda form with the defendant to assess the defendant’s level of understanding of the Miranda form. “The Court finds by a preponderance of the evidence, under the totality of the circumstances, after considering the testimony and the exhibits, that the defendant voluntarily, know*667 ingly, and intelligently waived his Miranda Rights, and his statement made thereafter was made without force or coercion, or was made — and was not made after any hope оr promise made to the defendant. For those reasons, the defendant’s motion to suppress is denied.”
A trial was then held, following which a jury convicted the petitioner of first degree murder, first degree assault, and second degree assault.
The petitioner’s arguments, made on appeal to the Court of Special Appeals, that the State failed to prove either that he was properly advised of his Miranda rights or that he knowingly, intelligently, and voluntarily waived those rights, were rejected by that court. The intermediate appellate court, heavily relying on the testimony of Detective Nelson and Trooper Torres, professed to be satisfied that “the State ... met its heavy burden to show that Gonzalez understood his rights and freely waived them,” although it also concluded that “[a]t the suppression hearing, Gonzalez failed to present any evidence to support his position that he did not understand Spanish when Trooper Torres informed him of his rights.”
The petitioner subsequently petitioned this Court for a writ of certiorari, which we granted, Gonzalez v. State,
*668 “1. Can the State ever meet its burden of persuasion in establishing that the language used by an advising officer reasonably conveyed the content of the Miranda, warnings and that the defendant knowingly, intelligently and voluntarily waived his rights when the officer issues the warnings in a foreign language and the State fails to place the content of those warnings into the record at trial?
“2.- Did the State fail to meet its burden in establishing that the Miranda warnings issued to the Petitioner reasonably conveyed his Miranda rights and that his waiver of those warnings was knowing, intelligent, and voluntary where the advising officer issued the warnings in a combination of Spanish and Mixtee, a Pre-columbian indigenous language with no relation to Spanish that was foreign to the officer; where the State failed to introduce the Mixtee language warnings used; where the officer testified that Petitioner had difficulty understanding the warnings, including the terms “court” and “attorney”; and where Petitioner was an 18 year old Mixtee Indian who has recently immigrated to the United States with no prior knowledge of the court system and no education?
“3. Did the Court of Special Appeals improperly shift the burden of persuasion in the determination of the constitutionality of the Miranda waiver to the Petitioner when it required that the Petitioner present sufficient evidence that he did not understand Spanish when he was informed of his Miranda rights?”
The majority affirms the judgment of the Court of Special Appeals, and thus of the suppression court, largely on the basis of the suppression court’s credibility determination regarding the testimony of Trooper Torres. Gonzalez,
I believe, as does the petitioner, that the Miranda warnings given to the petitioner in this case could not, and did not, pass constitutional muster.
There is a “heavy burden” of proving that a waiver of Miranda rights was adequаte — intelligently, knowingly and voluntarily done. That heavy burden rests squarely on the State.
The suppression court could not, and should not have found, based primarily on the testimony of Trooper Torres, that the petitioner’s wаiver was knowing and intelligent. In so doing, the suppression court, in the absence of evidence to support that conclusion, simply presumed, on the basis of the Trooper’s deficient testimony, which it found credible, that the warnings he gave were adequate, that the petitioner understood them and that he knowingly waived them. As already pointed out, the issue in this case is not one resolvable by reference, or deference, to the court’s first level fact-finding. Rather, the issues are the adequacy of the warnings given and whether the petitioner properly waived his Miranda rights, mixed questions of law and fact. In'the absence of a recording reflecting what the petitioner was told with regard to his rights, the suppression court could not have, and should not have, concluded that the warnings were constitutionally adequate or that the petitioner’s waiver of the rights was intelligently and knowingly done.
This record is clearly and undisputedly deficient. First, there is no record of the actual warnings given. To be sure, Trooper Torres, who had no knowledge of the petitioner’s
The inadequacy of the Miranda warnings necessarily invalidates the petitioner’s subsequent waiver of his rights, which is
I dissent.
Judges HARRELL and GREENE authorize me to state that they join in the views expressed in this dissenting opinion.
. Detective Nelson, the lead investigator in the case, also testified.
. Maryland State Police Form 180 delineates 5 rights, consistent with Miranda rights, to be read to detainees:
“1. You have the right to remain silent.
“2. Anything you say or write may be used against you in a court of law.
“3. You have the right to talk to a lawyer before answering any questions and to have a lawyer present at any time before or during questioning.
"4. If you now want the assistance of a lawyer but cannot afford to hire one, you will not be asked any more questions at this time and you may request the court to appoint a lawyer for you without charge.
"5. If you agree to answer questions, you may stop at any time and request the assistance of a lawyer, and no further questions will be asked of you.”
The form includes the acknowledgment, “I have read or have had read to me this explanation of my rights.” Finally, the form includes a "Waiver of Miranda Rights,” which reads:
"I fully understand each of these rights and I am willing to answer questions without consulting a lawyer or having a lawyer present at this time. My decision to answer questions is entirely free and voluntary and I have not been promised anything nor have I been threatened or intimidated in any manner.”
In this case, the petitioner signed both the acknowledgment and the Waiver. This was done, according to Trooper Torres, after he, using the same procedure, interpreted the "Acknowledgment” and the “Waiver” portion of the MSP 180 form, word for word, subsequently obtaining the petitioner's signature.
. Apparently aware of the potential for interpreting the lаtter conclusion as shifting the burden of proof, the Court of Special Appeals was quick to disavow any such intention:
"Our conclusion should not be understood as placing the burden of proof in a suppression hearing on the defendant. As we stated above, the burden of proof quite clearly rests with the State to demonstrate a voluntary, knowing, and intelligent waiver of rights. However, where the State satisfies that burden below, we require more than a proffer by the defendant’s attorney to conclude that the trial court erred in reaching a factual conclusion. The trial court is in a better position to make such factual determinations, and we do not believe that there is sufficient evidence in the record to conclude that it was wrong.”
I do not believe that this disclaimer actually lays a claim of burden shifting to rest. Indeed, I believe it makes it even more problematic and real.
. The petitioner maintains, and therefore argues, that, given the language barrier, involving both the Trooper and himself, in the absence of a recording, transcript, notes, or the officer’s own recollection regard