Alkabala-Sanchez v. Com., No. 2006-SC-000196-MR.

• Decision Date: 19 June 2008
• Docket Number: No. 2006-SC-000196-MR.
• Citation: 255 S.W.3d 916
• Parties: Luis Albert ALKABALA-SANCHEZ, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

255 S.W.3d 916

Luis Albert ALKABALA-SANCHEZ, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2006-SC-000196-MR.

Supreme Court of Kentucky.

June 19, 2008.

Randall L. Wheeler, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for appellant.

Jack Conway, Attorney General, Clint Evans Watson, Assistant Attorney General, Criminal Appellate Division, Frankfort, KY, for appellee.

Opinion of the Court by Justice NOBLE.

This case involves the single issue of whether the trial court erred in denying Appellant's motion to suppress his confession. After the trial court denied the motion, Appellant, Luis Albert Alkabala-Sanchez, entered a conditional guilty plea to three counts of criminal conspiracy to commit murder and received a sentence of thirty years. Thus, he appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). Upon review of the totality of the circumstances of Appellant's interview during which he confessed, this Court concludes that he was not subject to custodial interrogation at the time he claims he was denied the warnings required under Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court's order denying suppression is affirmed.

I. Background

About five years ago, two fishermen found three adult male bodies floating along the banks of the Kentucky River in Clark County. The fishermen contacted law enforcement. Kentucky State Trooper James Devasher was dispatched to the scene and participated in a search of the area. During the search, he found a large pool of blood and a cell phone, which he later determined belonged to one of the victims.

Cell phone records from the phone located at the scene indicated the last calls were placed to a residence in Lexington, Kentucky, and to a cell phone registered to a person named Julio Camacho. About one week after the bodies were discovered, someone changed the billing address of the cell phone to a residence in Lakewood, New Jersey. Trooper Devasher requested surveillance at the New Jersey residence. Through that surveillance, he learned that a vehicle was parked at the house with a license plate from Clark County, Kentucky.

Five months after the bodies were discovered, Devasher went to Lakewood, New Jersey, to follow-up on the leads of the vehicle and the phone number. He spoke with two men at the residence who stated that they knew Camacho, but he did not live there. They gave Devasher the name of Luis Alkabala-Sanchez, the Appellant, and told him that Appellant was an associate of Camacho's in a prostitution ring. They gave Devasher Appellant's home address in New Jersey and informed him that he lived there with his sister and their uncle.

Devasher went to Appellant's house at about 2:30 p.m. with an agent from Immigration and Naturalization Service (INS) and an Ocean County sheriff's deputy, who served as an interpreter. When the sister arrived after about fifteen minutes, she denied knowing where Appellant was. The uncle arrived; and they asked him if he had a number where they could reach Appellant. In response, he pulled a small piece of paper from his pocket with a phone number on it that Devasher recognized immediately as one of the phone numbers from the victim's cell phone. Devasher took the uncle to the police station to interview him where he maintained that he did not have Appellant's current phone number, but that the sister did. Devasher returned to the sister's home with the INS agent and the sheriff's deputy/interpreter. After much urging, they convinced the sister to call her brother and arrange for an interview. She was upset when she called her brother and did not want the police to talk to him. By this time, it was between 9:00 and 10:00 p.m.

At the time, Appellant was working on a farm that was about twenty to thirty minutes away, and he did not have transportation. Devasher, the INS agent, the sheriff's deputy, and three other law enforcement officers went in two unmarked police vehicles to where Appellant had agreed to meet them. Everyone was in plain clothes, and Devasher, at least, was armed. The sister and uncle accompanied the officers, and Devasher stopped on the way to meet Appellant and bought dinner for them. Appellant was waiting for them on the side of the road where Devasher informed him that he was from Kentucky and that he needed to talk to him about something that may have happened there. He said that he needed to find out if Appellant knew where a certain individual was. Appellant agreed to go to the police department and give an interview.

After picking up Appellant, the officers took him, the uncle and sister to the police department. Devasher was not certain in which vehicle the sister was riding, but the uncle did not ride in the same vehicle as Appellant, who spoke only Spanish.

At the police department, the uncle went to a lounge area while Devasher took Appellant to an interview room. At some point, one of the other officers took the sister home. Devasher, the INS agent, and the deputy/interpreter were present in the interview room with Appellant. Devasher recorded the interview on a cassette recorder because the video equipment in Lakewood was not working for recording purposes, but did work for monitoring purposes so that the other police officers monitored the interview which began at 10:47 p.m. At the beginning of the interview, Devasher informed Appellant that he was free to leave and that he did not have to talk to them. Throughout the interview, they took several breaks during which he was free to use the bathroom, buy drinks and to spend the break time with the other officers in the detective work room next to the interview room. At 1:20 a.m., the first interpreter had to leave, and a second interpreter, also a law enforcement officer, took over.

Appellant admitted toward the beginning of the interview that he had been in Kentucky. Devasher asked him if he lived at the Lexington address and if Julio Camacho lived at that address. Before receiving the Miranda warnings, he told Devasher that "Pelon" (nickname for Julio Camacho) had killed the three individuals. He told him how "Pelon" had killed them and disposed of their bodies, but claimed he learned the details from Julio Camacho's wife after the murders. However, he then told Devasher that he saw the blood and what "Pelon" had instructed him to do before, during, and after the murders, including that "Pelon" had told him to hide and not talk to the police. He stated that he knew why Devasher was there.

Based on those statements, it became clear to Devasher and the other officers that Appellant was involved in the murders. At 4:02 a.m., Devasher gave the warnings required under Miranda. After that, Appellant continued to speak with the officers for another two hours, the interview concluding at about 6:00 a.m. At that time, he admitted to assisting with the planning of the murders and the disposal of the bodies.

Appellant waived extradition to Kentucky. Two months later, he was charged with three counts of murder, either alone or in complicity with another, and tampering with evidence. During the course of his criminal proceedings, he filed a motion to suppress the statements he gave in the New Jersey interview. The focus of the suppression hearing was (1) whether Appellant was in custody from the start, triggering the requirement of giving the Miranda warnings at the beginning of the interview, (2) whether the statement was voluntary or coerced, and (3) the accuracy of the interpretation by the New Jersey interpreters.

The suppression hearing was delayed for some time to allow for the completion of a transcript of the tapes and a translation of all Spanish excerpts to English. When completed, the transcript encompassed at least two hundred pages. Although the trial court had a copy of the transcript for the purpose of deciding the suppression motion, it is not part of the record.

The actual suppression hearing spanned three dates and consisted of testimony from three witnesses: Trooper Devasher, Doris Caspani, the person who transcribed and translated the interview, and Appellant. The only exhibit introduced at the suppression hearing was a waiver of rights form, written in Spanish and signed by Appellant at 4:02 a.m.

The background above is based on Devasher's testimony at the suppression hearing. Appellant's suppression hearing testimony, however, was that the police came looking for him at the farm. He believed that his sister and uncle were under arrest in the other vehicle, and he did not have contact with his family members when the police picked him up. When his sister had called him earlier, she told him that the INS agent had threatened that they would take her children away from her.

Appellant further testified that he was never advised that he did not have to say anything, that he had the right to speak to an attorney, that whatever he said could be used against him in a court of law, or that he could stop answering questions at any time. This was apparently refuted by the transcript of the interview. He stated that about three hours into the questioning, Devasher appeared tense and stated that Appellant and his family would get a lethal injection. At that point, Appellant, in his own words (as translated), understood the facts and "made himself be part of what happened." He believed that the police had taken his sister in handcuffs to the police station. He did not sign the waiver of rights form until one-half hour before the interview ended. On cross-examination, however, he admitted that he agreed to talk with the police and that they expressed appreciation that he was there talking with them, but he explained that the police had his sister and his uncle. In his mind, under those circumstances, he could not do anything but talk to them.

Ms. Caspani discussed particular instances of the first interpreter's translation that were inaccurate. For...