People v. Preciado-Flores, 99CA2533.

• Docket Nº: No. 99CA2533.
• Citation: 66 P.3d 155
• Case Date: October 10, 2002
• Court: Court of Appeals of Colorado

66 P.3d 155

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Francisco Javier PRECIADO-FLORES, Defendant-Appellant

No. 99CA2533.

Colorado Court of Appeals, Div. I.

October 10, 2002.

Certiorari Denied April 14, 2003.

66 P.3d 160

Ken Salazar, Attorney General, Cheryl Hone, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee

David S. Kaplan, Colorado State Public Defender, Lisa Weisz, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

Opinion by Judge METZGER.

Defendant, Francisco Javier Preciado-Flores, appeals the judgment of conviction entered on a jury verdict finding him guilty of accessory to criminally negligent homicide. He also appeals his sentence. We affirm.

According to the evidence at trial, defendant, age nineteen, and an acquaintance, age sixteen, were alone in defendant's apartment. Late that afternoon, someone came to the apartment and shot the acquaintance, who later died.

Police initially suspected defendant of the killing and charged him with second degree murder. During interrogation, defendant first said the acquaintance had shot himself accidentally. Because of the wound's location, police were unconvinced it was self-inflicted.

Defendant next said he was falling asleep when the gun went off and he did not know what had happened. Later, defendant said the gun went off during playful wrestling.

However, ballistics tests showed that the bullet taken from the victim's body did not match the gun found in defendant's apartment. Further tests were positive for gunshot residue on defendant's shirt but not on his hands.

These results led police to revise their theory of the crime. Believing defendant had been a witness to the shooting but was concealing the identity of the shooter, the prosecutor reduced the charge to accessory to second degree murder. A jury convicted defendant of the lesser offense of accessory to criminally negligent homicide. He was sentenced to six years in the Department of Corrections.

I.

Defendant contends the trial court erred in denying his motion to suppress statements he made while in police custody. We disagree.

A.

First, we reject the contention of defendant, a Mexican citizen, that his custodial statements must be suppressed because they were made in violation of his rights under the Vienna Convention to contact his consulate before being interrogated.

Both Mexico and the United States are signatories to the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 71, 34 U.N.T.S. 262. Article 36 of the Convention mandates, in part, "the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State" of the detention of one of its citizens upon his or her request, and that "said authorities shall inform the person concerned without delay of his rights" to communicate with officials and receive consular aid.

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It is not entirely clear whether the Vienna Convention creates a privately enforceable right. The Supreme Court has said the treaty "arguably" creates an individual right to judicial enforcement. Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998); see also United States v. Minjares-Alvarez, 264 F.3d 980 (10th Cir.2001); United States v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir.2000). The state courts of Colorado have not decided the issue

Those courts that recognize a possible private right generally have held that the defendant must show prejudice. See, e.g., Breard v. Greene, supra (suggesting that, absent an effect on the trial, violation of the Vienna Convention will not warrant reversal); United States v. Nai Fook Li, 206 F.3d 56, 78 (1st Cir.2000)(an individual cannot raise Article 36 violations as a defense to criminal prosecution); United States v. Jimenez-Nava, 243 F.3d 192 (5th Cir.2001)(application of the exclusionary rule in a criminal case does not further the purpose of Article 36); United States v. Duarte-Acero, 296 F.3d 1277 (11th Cir.2002); United States v. Bustos De La Pava, 268 F.3d 157 (2nd Cir.2001); and United States v. Emuegbunam, 268 F.3d 377 (6th Cir.2001)(no right under Article 36 to have evidence excluded or an indictment dismissed in a criminal prosecution); United States v. Chaparro-Alcantara, 226 F.3d 616 (7th Cir. 2000); and United States v. Pagan, 196 F.3d 884 (7th Cir.1999)(mistrial properly denied where the defendant did not show how notice of Article 36 rights would have influenced evidence presented to jury). See generally Ann K. Wooster, Annotation, Construction and Application of Vienna Convention on Consular Relations (VCCR), Requiring that Foreign Consulate be Notified When One of its Nationals is Arrested, 175 A.L.R. Fed. 243 (2002).

To establish prejudice, a defendant must show (1) he or she did not know of the right to contact a consul or official; (2) he or she would have taken advantage of the right had he or she known of it; and (3) the contact likely would have resulted in assistance to the defendant. United States v. Esparza-Ponce, 7 F.Supp.2d 1084 (S.D.Cal. 1998).

The exclusionary rule deters only constitutional violations, not statutory or treaty violations. United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966); see also People v. Martinez, 898 P.2d 28 (Colo.1995). No other signatory to the Vienna Convention requires suppression of evidence as a remedy for violations, and the United States Department of State has concluded suppression is not an appropriate remedy. See United States v. Lombera-Camorlinga, supra. Other courts have held that the right to contact a consul does not rise to the level of a constitutional right. See, e.g., Murphy v. Netherland, 116 F.3d 97 (4th Cir.1997).

Defendant is a Mexican citizen and resident alien in the United States. His right under the Vienna Convention to have had the Mexican Consulate notified upon his arrest is beyond doubt. However, he was taken into custody after 6:00 p.m. on the day of the shooting and was not informed he had such a right. Detectives did not notify the Consulate until the second day following the shooting.

Finding that defendant had suffered no prejudice, the trial court denied his motion to suppress his custodial statements that were made before the Mexican Consul was notified of his arrest. The court reasoned that, because defendant knowingly, intelligently, and voluntarily waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the presence of a consular officer would not have affected the outcome. The record supports this determination, and we will not disturb it on review.

Nevertheless, defendant argues the police have no incentive to follow the Vienna Convention if courts will not enforce it, and he asserts the United States must give foreign nationals the same respect and due process it expects its own nationals to receive abroad. These and related issues have been a matter of great concern to the State Department. See, e.g., Linda Jane Springrose, Note, Strangers in a Strange Land: The Rights of Non-Citizens Under Article 36 of the Vienna Convention on Consular Relations, 14 Geo. Immigr. L.J. 185 (1999). However,

66 P.3d 162

we follow the lead of the federal circuit courts and conclude that suppression is not the proper remedy for a violation of the Vienna Convention rights of a foreign national

B.

We next reject defendant's contention that he did not make a knowing and voluntary waiver of his Miranda rights.

Statements made during a defendant's custodial interrogation must be suppressed unless authorities advise the defendant of his or her rights and the prosecution proves by a preponderance of the evidence that the defendant made a knowing, intelligent, and voluntary waiver of those rights. Miranda v. Arizona, supra; People v. Mejia-Mendoza, 965 P.2d 777 (Colo.1998).

The question whether a waiver is voluntary, knowing, and intelligent involves two distinct facets. First, the waiver must be a voluntary act, which is the result of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must be knowing and intelligent, meaning the defendant must be aware of both the nature of the right and the consequences of the decision to waive it. See People v. Mejia-Mendoza, supra, 965 P.2d at 780.

The voluntariness of a statement is determined by evaluating the totality of the circumstances under which it was made. However, a statement is involuntary only if coercive governmental conduct played a significant role in obtaining it. See People v. Miranda-Olivas, 41 P.3d 658 (Colo.2001).

Defendant was arrested about 6:15 p.m. About 8:00 p.m., detectives began to interview him. He was read Miranda warnings, which were translated into Spanish for him, and he initialed a written Miranda form in English. About 8:30 p.m., he agreed to take a polygraph test, he was read his Miranda rights in Spanish again, and the polygraph test was explained to him. He signed another Miranda waiver form and a consent form for the test, both of which were translated into Spanish for him. He took the polygraph test about 9:00 p.m. He failed the test and was notified of the results about 10:30 p.m. Detectives told defendant the victim could not have been killed by a self-inflicted injury. Defendant then told detectives he had accidentally shot the victim during a playful wrestling match. The interview ended about 11:00 p.m.

These facts support the trial court's determination that defendant's waiver of his Miranda rights was knowing, voluntary, and intelligent. He received thorough advisements in Spanish at every stage, and there is no evidence of any coercive governmental conduct.

We reject defendant's assertion that the interpreter did not translate the Miranda advisement form into Spanish for him. Although the translator testified she did not remember whether she had translated the form, a detective testified...