Opinion
No. 53013-5-I
Filed: December 20, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-00582-3. Judgment or order under review. Date filed: 08/29/2003. Judge signing: Hon. L Gene Middaugh.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric J. Nielsen, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
F Rios-Sandoval — Doc #862058 (Appearing Pro Se), Airway Heights Corrections Center, 11919 W. Sprague Ave, P.O. Box 1899, Airway Heights, WA 99001-1899.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Patrick Joseph Preston, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Francisco Rios-Sandoval appeals his conviction for attempted robbery in the first degree — domestic violence. As a native Spanish speaker, he specifically charges that his limited understanding of English prevented him from making a knowing and voluntary waiver of his Fifth Amendment rights prior to making statements to police that were admitted at trial. He further asserts that the court abused its discretion by admitting statements made by the victim to police at the crime scene. Because substantial evidence supports the finding that under the totality of the circumstances, Rios-Sandoval's waiver was knowing and voluntary, and the victim's statements fell within the excited utterance exception to hearsay, we affirm.
On March 23, 2003, Patricia Lynn Harper picked up her fiancee, Francisco Rios-Sandoval, from a casino in Renton. As they drove toward Auburn, Sandoval accused Harper of infidelity and the two began to argue. Harper pulled over and parked near a highway entrance ramp. Rios-Sandoval demanded money from Harper in order to get his belongings out of storage and return to Mexico. Harper, who had just finished her shift as a cab driver, refused to give Rios-Sandoval her earnings. Instead, she wrapped the jacket containing the funds around her arm to protect the money. A struggle ensued. In an attempt to take the jacket, Rios-Sandoval bit Harper's left forearm, her left pinky, and pulled her hair. Rios-Sandoval twice dragged Harper out of the car, but she managed to break away and get back inside. Rios-Sandoval tried using a knife to cut away the jacket, but tossed the knife away when police arrived.
While Rios-Sandoval and Harper were struggling, a Washington State Patrol (WSP) communications officer was monitoring a Department of Transportation traffic camera located on the highway overpass. The officer saw the altercation and began recording the event on videotape. At the same time, he alerted police, who arrived on the scene within minutes. The monitoring officer told police he saw an object being thrown from the car.
Officers arrested Rios-Sandoval, who began cursing at them. The knife was recovered from the roadside. Rios-Sandoval was placed in the back of the patrol car while Officer Joseph Vojir approached Harper, who `looked like she had been through a struggle.' The left side of her face was red, she had a blank look on her face, bloodstains on her shirt and blood on her left hand. Officer Vojir saw bite marks on her left pinky and forearm. Harper at first refused to talk to Officer Vojir, saying only, `[H]e's just drunk.' In response to Vojir's questions however, Harper began to cry. She described picking up Rios-Sandoval at the casino and the fight that ensued.
Rios-Sandoval was taken to the Auburn jail, where Detective James Hamil met with him the next day. Though Hamil was aware that Rios-Sandoval was a native Spanish speaker, he did not bring the Department's Spanish language Miranda form. Instead, he conversed briefly with Rios-Sandoval in English. Determining that Rios-Sandoval's English language proficiency was adequate, Hamil advised Rios-Sandoval of his constitutional rights using the English language Miranda form. Rios-Sandoval waived his rights, initialing each paragraph that explained his constitutional rights. Rios-Sandoval then explained the incident and admitted using a knife in an attempt to cut away the jacket Harper was holding.
The trial court denied the defense motion to suppress statements made to police by both Harper and Rios-Sandoval. The jury found Rios-Sandoval guilty of first degree attempted robbery-domestic violence, and he now appeals.
KNOWING AND VOLUNTARY WAIVER
Rios-Sandoval claims that his custodial statement should have been excluded at trial because he did not make a knowing and intelligent waiver of his constitutional rights. Rios-Sandoval argues that his limited comprehension of English prevented him from making a valid waiver of his Miranda rights, and that the trial court erred in finding otherwise. We disagree.
A custodial statement is admissible if police advised the defendant of his constitutional rights and the defendant knowingly, voluntarily and intelligently waived those rights. Generally, a finding that a defendant's waiver was knowing and voluntarily is viewed as a verity on appeal, provided there is substantial evidence to support the finding. Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding. A waiver may be valid despite a suspect's language difficulties. In State v. Teran, a flawed translation of Miranda warnings into Spanish did not render the defendant's waiver invalid because there was sufficient evidence that he understood his rights.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
State v. Halstien, 122 Wn.2d 109, 128, 857 P.2d 270 (1993).
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
State v. Teran, 71 Wn. App. 668, 672, 862 P.2d 137 (1993), review denied, 123 Wn.2d 1021 (1994).
Teran, 71 Wn. App. at 672.
Here, the totality of the circumstances demonstrates that Rios-Sandoval understood his Miranda rights and knowingly, voluntarily, and intelligently waived them. Rios-Sandoval's argument that he had only a `very basic understanding of English' is not supported by the record. Rios-Sandoval testified at the suppression hearing that he had lived and worked in the United States for three years, and for seven months prior to the incident, he lived with Harper, who spoke little or no Spanish. The trial court did not find Rios-Sandoval's testimony that he spoke little or no English to be credible. The court noted that, at the suppression hearing, Rios-Sandoval answered questions posed in English before the assigned interpreter interpreted the questions. Rios-Sandoval drew a distinction between the English words `argument' and `discussion' during his testimony at the hearing.
See State v. Haack, 88 Wn. App. 423, 435, 958 P.2d 1001(1997), review denied, 134 Wn.2d 1016, 958 P.2d 314 (1998) (`Credibility determinations [at a CrR 3.5 hearing] are for the trier of fact and are not subject to review by this court.').
Further, when being interviewed by Detective Hamil, Rios-Sandoval expressed confusion about only one English word on the waiver form — `lawyer' — for which the detective provided the Spanish word. Rios-Sandoval understood that he was being charged with attempted robbery. When asked what the right to silence meant he responded that it meant he did not have to say anything. Detective Hamil testified that he found Rios-Sandoval to be `very articulate in English' with adequate language skills to understand his Miranda rights.
Rios-Sandoval analogizes United States v. Garibay to his situation, but it is distinguishable. In Garibay, the court found the waiver to be ineffective not simply because of a language barrier, but because of Garibay's IQ score which was `borderline retarded,' combined with his inability to comprehend oral instructions. Here, Rios-Sandoval's intelligence is not at issue, and he clearly demonstrated an ability to comprehend oral instructions.
143 F.3d 534 (9th Cir. 1998).
Garibay, 143 F.3d at 538.
Substantial evidence supports the trial court's finding that Rios-Sandoval understood his Miranda rights well enough to make a knowing, voluntary and intelligent waiver and we will not disturb it on appeal.
EXCITED UTTERANCE
Rios-Sandoval also argues that the court abused its discretion by admitting hearsay statements Harper made to police at the crime scene under the `excited utterance' exception. Again, we disagree.
Hearsay is `a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.' Hearsay is inadmissible as evidence except as specifically provided by the rules of evidence, court rules, or statute. But an excited utterance, defined as a `statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,' is admissible, as an exception to hearsay, to prove the truth of the matter asserted. There are three requirements for a hearsay statement to qualify as an excited utterance: (1) a startling event, (2) the statement must have been made while the declarant was under the stress of excitement caused by the event, and (3) the statement must relate to the startling event. Often, `the key determination is whether the statement was made while the declarant was still under the influence of the event to the extent that the statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment.' We review the trial court's admission of statements as excited utterances for an abuse of discretion.
ER 801(c).
ER 802.
ER 803(a)(2).
State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992).
State v. Woods, 143 Wn.2d 561, 597, 23 P.3d 1046, cert. denied, 534 U.S. 964 (2001).
Woods, 143 Wn.2d at 597-98.
The only factor at issue here is the second one — whether Harper was under the stress of excitement caused by the startling event when she made the admitted statements. Our supreme court has explained that the `key is spontaneity. Ideally, the utterance should be made contemporaneously with or soon after the startling event giving rise to it.'
Chapin, 118 Wn.2d at 688.
Here, Officer Vojir arrived and questioned Harper within minutes of the incident. There is substantial evidence that Harper was still under the influence of the startling event when she first answered Officer Vojir's questions about what happened.
At the suppression hearing, Harper testified that she had not been upset and had not cried during questioning, only speaking to the officer because of his persistent questioning. However, according to Officer Vojir, Harper looked upset and during the questioning Harper began to cry. Officer Vojir, who the court found to be more credible than Harper, testified that he asked Harper a series of open ended questions, rather than repeatedly asking Harper the same questions.
Rios-Sandoval argues that Harper's statements are unreliable because she changed some of her statements after being told the incident had been videotaped. Rios-Sandoval also challenges the reliability of Harper's statements because they were responses to the officer's repetitive questions. But there is no indication in the record that Officer Vojir repeatedly asked the same questions, such that the statements were provoked by the questions, rather than by the startling event. To satisfy the excited utterance exception, a statement need not be completely spontaneous and may be in response to a question. In State v. Williamson, this court rejected similar arguments that a victim's statements to her family and police were responses to specific questions, even given that the victim later recanted.
See State v. Owens, 128 Wn.2d 908, 913, 913 P.2d 366 (1996).
State v. Williamson, 100 Wn. App. 248, 258, 996 P.2d 1097 (2000). See also Woods, 143 Wn.2d at 598-99 (that statement was made in response to questions will not by itself justify exclusion).
Williamson, 100 Wn. App. at 258.
Rios-Sandoval's attempt to distinguish State v. Woods, on which the trial court relied, is unpersuasive. In Woods, the victim, upset and in pain, made statements to paramedics and to relatives about her attacker. Some of her statements were in response to questioning about what had happened.
Woods, 143 Wn.2d at 596.
In addition, the victim in Woods omitted some details when recounting events to her father. The supreme court concluded that, under the circumstances, the statements were not an affirmative fabrication created to make the victim's story more credible to authorities. The same is true here.
Woods, 143 Wn.2d at 596-97.
Woods, 143 Wn.2d at 596-97.
Officer Vojir testified that, in his extensive experience, Harper's reaction wan not unusual for a victim of domestic violence. Harper was under the stress of the struggle that had just taken place. Moreover, by her own testimony, at the time Officer Vojir questioned her, and for some time afterwards, she was in significant pain from the bite wounds to her hand and arm.
The trial court did not abuse its discretion in admitting Harper's statements under the excited utterance exception to hearsay.
We affirm the judgment and sentence.
COX, C.J., APPELWICK, J., and BAKER, J.