STATE of Minnesota, Respondent, v. Burhan Mohammed FARRAH, Appellant.
No. A05-1277.
Supreme Court of Minnesota.
July 19, 2007.
735 N.W.2d 336
[REDACTED] Under the plain language of
Reversed and remanded for entry of an order that the garnished funds be redeposited.
ANDERSON, RUSSELL A., Chief Justice.
Appellant Burhan Mohammed Farrah was convicted of felony fourth-degree criminal sexual conduct following a jury trial in Hennepin County. On appeal, the court of appeals affirmed, rejecting Farrah‘s claim of reversible error in the admission at trial of his recorded statement to police. State v. Farrah, No. A05-1277, 2006 WL 2473655, at *1 (Minn.App. Aug.29, 2006). Concluding that the state did not establish that Farrah, a limited English-speaker, made a valid waiver of his Miranda rights and that the admission of the statement was not harmless, we reverse and remand for a new trial.
On November 20, 2003, Plymouth police responded to a 911 report of a sexual assault in progress or of recent occurrence in the parking lot of an apartment complex on Harbor Lane. Officer Robert Topp arrived within less than a minute, entered the parking lot in his marked squad car, saw a male matching the description given in an updated dispatch, and drove toward him. The male, later identified as Farrah, turned around and put his hands up in the air. He had a 24-ounce can of malt liquor in his jacket pocket and appeared intoxicated. The officer removed the can, handcuffed Farrah, and placed him in the back of the squad car. Farrah asked the officer “what this was all about,” and the officer asked Farrah if he “had any idea what this was about.” Farrah replied that “the female” told him “she was 20.”
Meanwhile, Officer Kevin Wilson, who arrived shortly after Officer Topp, located the complainant, C.B., who was 14 years old and developmentally disabled. She told the officer that she had left her apartment to take some trash to the dumpster, and as she was walking through the parking lot, a car pulled in and almost struck her. After parking the car, the driver got out and apologized. As C.B. started back toward the apartment building, the driver approached, grabbed her arm, pulled her into the backseat of his car, locked the doors, and laid on top of her, kissing her neck and face and touching her intimate parts over the clothing. After “some time of this,” she was able to push him off, unlock the door, and run to the apartment building entrance where she encountered a neighbor and asked her to call 911. C.B. described her assailant and said he was carrying a beer can. Officer Wilson escorted C.B. to her apartment and taped her statement.
Officer Topp transported Farrah to the Plymouth Police Department and placed him in the interview room for questioning. Farrah, who emigrated from Somalia in 1999, spoke with a “strong” accent. The officer began the interrogation by confirming Farrah‘s identification, date of birth, and residence. The officer asked Farrah about his alcohol consumption, and Farrah said he had “five beers,” the “tall ones.” The officer read Farrah his Miranda rights from a department-issued card and asked if he understood “all that?” Farrah responded, “Little I‘m not (inaudible) speak very good English.” The officer, who tended to speak somewhat rapidly, offered to read the advisory more slowly, and then started to repeat the advisory at about the same pace. Farrah interrupted, wanting to “know what happened.” The officer told Farrah, “before I can talk to you, you need to understand these.”
The officer then repeated the advisory, after which the following exchange occurred:
A: Okay. Little, yeah.
Q: What don‘t you understand cause I need to explain before I can even ask you any questions.
A: Well, you ask me ...
Q: If you want a lawyer?
A: Pick the lawyer.
Q: Right.
A: That‘s what (inaudible).
Q: If you want a lawyer you can have them here before I even talk to you or you can contact them ...
A: Okay I think I will talk to lawyer, (inaudible).
Q. What‘s that?
The officer then went back over the right-to-counsel portion of the Miranda advisory:
A: Like even if I have a lawyer ...
Q: Then they will give you one for free. In other words you don‘t have to talk to me right now, although I would like to, to find out what happened.
A: Okay.
Q: But you don‘t have to you can talk to a lawyer first if that is what you want to do?
A: Okay.
Q: So do you understand that?
A: Yeah.
Q: Okay having your rights in mind do you want to talk to me now?
A: Yeah go ahead.
Q: Okay you don‘t want to talk to a lawyer first?
A: No I don‘t want to.
Farrah then gave a statement in which he made incriminating remarks.1
A Somali interpreter was appointed for Farrah at trial. Farrah moved to suppress the statement he made in the squad car as well as the recorded statement made in the police department interview room on the ground that both statements had been obtained in violation of his constitutional rights. The district court granted the motion to suppress the first statement2 but denied the motion to suppress the second statement, which was subsequently played for the jury. The state also presented the testimony of C.B. and the neighbor who made the 911 call. The state was permitted, over objection, to present statements C.B. made to the neighbor, Officer Wilson, C.B.‘s grandmother, and C.B.‘s best friend. After Farrah exercised his right not to testify, his cousin testified about their family‘s adherence to certain social customs. The jury found Farrah guilty of fourth-degree criminal sexual conduct and not guilty of the remaining offenses. The court entered judgment on the conviction and imposed the presumptive guidelines sentence of a year and a day, execution stayed, with conditions of probation to include 120 days in the county workhouse. The court of appeals affirmed, and we granted further review. Farrah claims reversible error in the admission of his recorded statement to police and the complainant‘s out-of-court statements.
I.
[REDACTED] The Fifth Amendment to the
Here, the record clearly indicates that Farrah‘s primary language is Somali and that, as the prosecutor noted, he “speaks with a heavy accent.” At the beginning of the recorded police interrogation, Farrah told the officer that he did not speak English very well. Although the services of an interpreter were available, none were provided because the officer felt that Farrah had an adequate comprehension of the officer‘s questions. The officer acknowledged, however, that at times he had difficulty understanding Farrah because of Farrah‘s accent. Farrah‘s cousin also testified that “[o]ne fact that we see as a family is that people are speculating Burhan knows English very well, and that is not true.”
[REDACTED] To protect or facilitate the exercise of constitutional rights, it is the express policy in Minnesota to provide qualified interpreters to assist persons in legal proceedings who are handicapped in communication (now referred to as “disabled in communication“).
[REDACTED] That Farrah had difficulty in expressing himself in English was underscored by the disposition of his claim that he asserted his right to counsel. When a suspect asks for counsel, questioning must cease “until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The request for counsel must be clear and unequivocal. Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (holding that in a post-waiver situation, Edwards does not require that questioning stop upon the equivocal or ambiguous reference to an attorney). The inquiry as to the clarity of a suspect‘s request for counsel is objective; the interrogating officer need not stop questioning if “a reasonable police officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel.” Davis, 512 U.S. at 458-59, 114 S.Ct. 2350. In Minnesota, if the request is equivocal, the police must stop and clarify, asking only narrow questions designed to clarify the suspect‘s intentions. State v. Risk, 598 N.W.2d 642, 648-49 (Minn.1999).
Here, the interrogation transcript showed that Farrah told the officer, “Okay I think I will talk to lawyer, (inaudible).” The district court listened to the recorded statement several times and noted the accuracy of the transcript but nevertheless determined that the request for counsel was equivocal based on its finding that there was a legitimate lack of clarity on the officer‘s part as to what Farrah had said. In other words, the officer did not understand Farrah‘s request because of Farrah‘s poor language skills. See
As to the waiver of rights, the district court made no specific finding regarding Farrah‘s language skills, stating “I don‘t know right now Mr. Farrah‘s proficiency in language.” The court indicated that the need for an interpreter at trial did not imply an inability to understand and waive Miranda rights, but also noted that noncompliance with the interpreter statutes can be relevant in evaluating the validity of a waiver. The court determined that Farrah had been given a warning, that he waived his rights, and that there was “no [] evidence to conclude that it * * * was not a knowing and intelligent waiver.”
In our view, the totality of the circumstances surrounding the interrogation do not make known whether Farrah‘s Miranda waiver was made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Farrah was ad-
The dissent, however, notes that the interrogating officer felt that he and Farrah understood each other and that medical evaluations done in October 2003 and September 2004 indicated that Farrah had adequate comprehension of English. But the officer also admitted to repeating or explaining questions when Farrah had trouble understanding, the interrogation itself reflected the officer‘s and Farrah‘s problems in communication, there was other evidence that Farrah did not comprehend English all that well, and Farrah was provided language-interpreter services for the medical evaluations as well as for trial.
“A defendant who does not understand English can give an effective waiver if the warnings were given in his native tongue.” 2 Wayne R. LaFave, et al., Criminal Procedure § 6.9(b) (2d ed.1999). As we have said before, prudent investigators would be wise to implement a system for the provision of language-interpreter services for persons disabled in communication. E.g., State v. Sanchez-Diaz, 683 N.W.2d 824, 835 (Minn.2004) (stating that prudent police investigators should comply with the statutory requirements for language services); Mitjans, 408 N.W.2d at 831 (stating that “[i]n the future, prudent police investigators * * * are advised to comply with the statutory requirements” for language services); State v. Vu, 339 N.W.2d 892, 898 (Minn.1983) (stating that “the police and the trial court would be wise to engage an interpreter before interrogation so that this issue need never arise again in Minnesota“). Here, the warnings were not given in Farrah‘s own language, and under the totality-of-the-circumstances test, we hold that the state did not meet its burden to prove that Farrah knowingly and intelligently waived his Miranda rights.
[REDACTED] Still, the admission of a defendant‘s statements to police at trial in violation of Miranda does not require a new trial if the state can show beyond a reasonable doubt that the error was harmless. See State v. Juarez, 572 N.W.2d 286, 291 (Minn.1997). If the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt. Id. at 292 (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Following the Chapman/Juarez standard, the question then becomes: “What effect did the jury‘s hearing [the defendant‘s] statement * * * actually have on the guilty verdict rendered?” Id.
The state argues that any error in the admission of the recorded police statement was beneficial to Farrah because the statement placed his denial of any wrongdoing before the jury without requiring his testimony. But the statement contained Farrah‘s admission that he was in his car with the complainant. When the officer asked him what the complainant might say about what happened in his car, he said “(inaudible) rubbed her.” Farrah‘s statement was the last piece of evidence presented by the prosecution in its case-in-chief. In closing
II.
[REDACTED] Having concluded that a new trial is required, we need not reach Farrah‘s claim of error in the admission of C.B.‘s out-of-court statements, but we will briefly address the claim because the admissibility of the statements is likely to arise in the new trial. C.B.‘s statements to the 911 caller and Officer Wilson were properly admitted at trial. An out-of-court statement made by a witness who testifies at trial and is subject to cross-examination is not hearsay if it is “a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.”
C.B.‘s statements to her grandmother and best friend were offered as prior consistent statements. “A statement is not hearsay if * * * [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * consistent with the declarant‘s testimony and helpful to the trier of fact in evaluating the declarant‘s credibility as a witness * * *.”
[REDACTED] Rule 801(d)(1)(B), as amended in 1990, was aimed in part at addressing some confusion related to the treatment of prior consistent statements as non-hearsay when offered to corroborate trial testimony. “Under the amended rule, prior consistent statements can be admitted to enhance the credibility of a witness and as substantive evidence if the court determines the statements would be helpful in evaluating credibility.” 11 Peter N. Thompson, Minnesota Practice—Evidence § 801.01 (3d ed.2001). To be helpful, however, the credibility of the witness must have been challenged. State v. Nunn, 561 N.W.2d 902, 909 (Minn.1997). The district court retains the discretion under
Reversed and remanded for a new trial.
Concurring in part, dissenting in part, GILDEA, MEYER, and ANDERSON, G. BARRY, JJ.
GILDEA, Justice (concurring in part; dissenting in part).
I agree with the majority‘s analysis of the evidentiary issue in section II, but I respectfully dissent from section I of the majority opinion. I would hold that the district court did not clearly err when it found that Farrah understood the English language well enough to knowingly waive his Miranda rights. I would therefore conclude that the state has met its burden to prove that Farrah waived his Miranda rights.
We review the legal question of whether a suspect knowingly waived his Miranda rights de novo. State v. Ray, 659 N.W.2d 736, 742 (Minn.2003). But we review the factual findings underlying that legal conclusion for clear error. Id. A finding is not clearly erroneous simply because an appellate court might have resolved the question differently. Stiff v. Associated Sewing Supply Co., 436 N.W.2d 777, 779 (Minn.1989) (“An appellate court exceeds it proper scope of review when it bases its conclusions on its own interpretation of the evidence and, in effect tries the issues anew and substitutes its own findings for those of the trial judge.“); see also Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 102 (Minn.1999) (“An appellate court may not reverse a trial court due to mere disagreement with its findings.“); Gjovik v. Strope, 401 N.W.2d 664, 668 (Minn.1987) (noting that an appellate court “should not substitute its findings for that of the trial court merely because it feels that the case was wrongly decided“). Instead, the clearly erroneous standard means that the finding below will stand unless it “is not reasonably supported by the evidence as a whole.” EOP-Nicollet Mall, L.L.C. v. County of Hennepin, 723 N.W.2d 270, 284 (Minn.2006) (internal quotation marks omitted); see also Miles v. City of Oakdale, 323 N.W.2d 51, 54 (Minn.1982) (“We have defined a clearly erroneous finding variously to mean palpably and manifestly against the weight of the evidence or not reasonably supported by the evidence as a whole.“).
Whether a defendant understands English well enough to be able to waive his Miranda rights is a factual question. A district court‘s factual finding related to this question is reviewed for clear error. See United States v. Rodriguez-Preciado, 399 F.3d 1118, 1127 (9th Cir.2005) (“The district court‘s finding that [the defendant‘s] alleged difficulty with English did not prevent him from knowingly and intelligently waiving his Miranda rights was not clearly erroneous.“), amended by 416 F.3d 939 (9th Cir.2005); United States v. Marrero, 152 F.3d 1030, 1034 (8th Cir.1998) (holding “that district court did not clearly err in finding that defendant could understand English and that he effectively waived his Miranda rights“); United States v. Vue, 13 F.3d 1206, 1209 (8th Cir.1994) (same).
Here, the district court heard testimony from the interrogating officer, considered two psychologist‘s reports, both of which stated that Farrah was able to communicate adequately in English, and listened to
The district court‘s finding regarding Farrah‘s language skills is supported by the evidence in the record. First, the officer conducting the interview testified at the suppression hearing in part:
Q: [D]id he have any difficulty listening to or following questions that you asked?
A: He didn‘t appear to, no.
Q: Did he appear to have any difficulty enunciating his words?
A: It was obvious to me that he had a strong accent, but I didn‘t feel that he was unable to understand, nor was I unable to understand him.
Second, a forensic evaluation report dated September 10, 2004, describes records from Farrah‘s hospitalization in October 2003. The notes from this hospitalization reflect that “[h]e was able to communicate adequately in English, but used the interpreter at times.” This hospitalization was just one month before Farrah‘s interview with police that is at issue in this case. Third, in the recorded interview, Farrah responds appropriately to the officer‘s questions. Although he says he only understands a “little” English, that claim is belied by Farrah‘s reaction and responsiveness to the questions posed to him. In short, the evidence supports the district court‘s factual finding, and therefore, the finding is not clearly erroneous.
The majority does not directly hold that the district court‘s finding is clearly erroneous. Rather, the majority largely ignores the district court on the key issue in this case, and finds for itself that “Farrah had difficulty in expressing himself in English.” With this factual predicate, the majority then concludes Farrah was “disabled” in communication, and therefore entitled to an interpreter under
To support its factual finding that Farrah was “disabled” in communication, the majority cites the district court‘s “disposition of [Farrah‘s] claim that he asserted his right to counsel,” but it does not find that the district court erred in its resolution of that question. The district court concluded that Farrah‘s statement about a
Q: Yup and before I talk to you about that you need to understand these, that you do have the right to talk to a lawyer first do you understand that?
A: Like even if I have a lawyer ...
Q: Then they will give you one for free. In other words you don‘t have to talk to me right now, although I would like to, to find out what happened.
A: Okay.
Q: But you don‘t have to you can talk to a lawyer first if that is what you want to do?
A: Okay.
Q: So do you understand that?
A: Yeah.
Q: Okay having your rights in mind do you want to talk to me now?
A: Yeah go ahead.
Q: Okay you don‘t want to talk to a lawyer first?
A: No I don‘t want to.9
It was only after securing this understanding that the officer proceeded with the interrogation.
We have said that the state is deemed to have met its burden “to prove by a preponderance of the evidence that a defendant knowingly, intelligently, and voluntarily waived his [Miranda] right[s]” if the state can show that “the Miranda warnings were given, the defendant stated he understood those warnings, and the defendant gave a statement.” State v. Ganpat, 732 N.W.2d 232, 240 (Minn.2007). In reaching the conclusion that Farrah‘s statements must be suppressed, the majority seems to be holding that the state will be unable to meet its burden anytime an immigrant is not read the warning in his native language or provided an interpreter.10 I cannot embrace such a broad holding. In my view, whether a suspect understands English well enough to waive his rights is inherently a fact question that absent clear error, we should leave to the district court. Here, it is undisputed that the Miranda warnings were given and repeated. Farrah stated that he understood the warnings, and the district court found that Farrah‘s difficulties with English did not inhibit his ability to waive his rights. Farrah then gave a statement. On this record, I would hold that the state has met its burden, and would affirm.
MEYER, J. (concurring in part; dissenting in part).
I join in the concurrence and dissent of Justice Gildea.
I join in the concurrence and dissent of Justice Gildea.
Notes
Following the apprehension or arrest of a person disabled in communication for an alleged violation of a criminal law, the arresting officer, sheriff or other law enforcement official shall immediately make necessary contacts to obtain a qualified interpreter and shall obtain an interpreter at the earliest possible time at the place of detention. *** Prior to interrogating or taking the statement of the person disabled in communication, the arresting officer, sheriff, or other law enforcement official shall make available to the person a qualified interpreter to assist the person throughout the interrogation or taking of a statement.