Soares v. State
| Decision Date | 18 November 2020 |
| Docket Number | No. 0149, Sept. Term, 2019,0149, Sept. Term, 2019 |
| Citation | 241 A.3d 981,248 Md.App. 395 |
| Parties | Jacy SOARES v. STATE of Maryland |
| Court | Court of Special Appeals of Maryland |
Submitted by: Claudia A. Cortese (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.
Submitted by: Menelik Coates (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
Leahy, Shaw Geter, Charles E. Moylan, Jr. (Senior Judge, Specially Assigned), JJ.
The subject of this opinion is Miranda v. Arizona’s right to remain silent, including how that at-times fragile request for silence can sometimes be lost in an overriding cacophony of argumentative noise. The communicative problem is significantly exacerbated, moreover, when the request for silence, as here, has to pass through the prism of Portuguese-English translation. Clarity was in short supply.
* * *
The appellant, Jacy Soares, was convicted in the Circuit Court for Montgomery County by a jury, of the possession of cocaine with the intent to distribute and related offenses. On this appeal, he raises the single contention that an inculpatory statement he gave to the police was erroneously admitted into evidence in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Under the unusual circumstances involved in the police interrogation in this case, we are inclined to agree.
It is unnecessary to discuss in any detail the factual circumstances of the crime itself, because our review of the pre-trial suppression hearing is completely dispositive of the appeal. Following the execution of a search and seizure warrant for the appellant's home on April 3, 2018, the appellant was arrested. During the early morning hours of April 4, 2018, the appellant was questioned at the station house by Detective Ryan Street. By the end of the interrogation, the appellant, primarily in an effort to exculpate his wife, had thoroughly inculpated himself. The inculpatory statement was, The issue is whether the interrogation should have terminated before the antecedent question was even asked.
The appellant filed a pre-trial motion to suppress this confession to the police. A suppression hearing was conducted on September 6, 2018. The judge denied the motion to suppress; the appellant's statement was admitted into evidence at the trial; and the conviction followed. This appeal has timely followed.
The question before the suppression hearing below and before us on this appeal is the most fundamental of threshold issues. Was the appellant ever informed of his constitutional right to remain silent when being subjected to custodial interrogation and did he attempt to invoke that right? That basic core of the Fifth Amendment privilege against compelled self-incrimination is, of course, the very opening line of the Miranda catechism: "You have the right to remain silent." It is not enough, moreover, simply to recite those words to the appellant. The suspect must actually be informed of the right. That deeper aspect of effective communication cannot be blithely assumed. When at the suppression hearing, the State questioned Officer Paulo Bonturi about his having advised the appellant about his right to silence, the answer was less than totally reassuring about so fundamental a constitutional right.
(Emphasis supplied.)
Miranda v. Arizona’s guarantee to criminal defendants of basic criminal rights contemplates more by way of satisfaction than mere lip service. It is not enough to recite the words, if that, and then automatically to check off a box. Would such a mechanical recitation and notation suffice, for instance, as the qualifier for the interrogation of a ten-year-old? If we are properly indulgent about communicating with a ten-year-old, should we be any less indulgent about communicating with someone whose native language is not English? This is the very special communications problem confronting us in this case—communicating with someone whose language is not English.
Frequently the linkage between the reciting of the words and the assumption that the words were understood by the auditor is essentially taken for granted. Not so automatic, however, will be our review in the present case.
The appellant's native language is Portuguese. Throughout the pre-trial police interrogation of the appellant and at the trial, Officer Bonturi served as the Portuguese-English translator. The appellant's education did not go beyond the elementary school level. His command of English was very poor and, essentially, he communicated with the court only through his Portuguese interpreter. It was also through the interpreter that the appellant communicated with the police, most significantly in the course of the police interrogation of the appellant on April 4, 2018.
It is that police interrogation of April 4, 2018 that gives us significant pause in this case, as we look with close scrutiny at every detail we can discern about that interrogation. The unorthodox interpretive procedure employed in this case also causes us to cast a jaundiced eye at the modality used for the interpreting in this case. As we review the testimony at the suppression hearing, we will be looking very closely at whether the appellant was truly informed of his right to remain silent, and of its implicit option, once the right to silence is invoked, of having the interrogation terminate. We will also look very closely at whether the appellant at one point did not, in effect, invoke his right to silence, only to have that right blithely ignored. We will also be looking closely at the interpretive procedure itself.
A brief pause in the trial narration may here be appropriate in order to examine proper procedure in the use of an interpreter. There is a proper and accepted technique for bilingual interpretation (as well as for sign language interpretation for the deaf). The interpreter is not supposed to be a third-party participant in a three-party exchange. The two parties to the exchange are, as in any normal testimonial exchange, the questioner and the respondent. The interpreter's proper role is to be an essentially invisible and mechanical device effectively behind the scenes. When the questioner asks a question, in English, the interpreter simply repeats the words, verbatim, in Portuguese. The questioner does not tell the interpreter to ask the respondent a question. The questioner speaks directly to the respondent as if the interpreter is not even there. When the respondent then answers, he answers directly to the questioner as if the interpreter were not even there. At no time in the interpretive process is the interpreter expected to explain to the respondent what the question means or to explain to the questioner what the respondent means. If in doubt, the questioner must simply interrogate the respondent more closely to resolve such doubt. A skilled interpreter is a necessary logistical aid in a two-party exchange. The interpreter should never become an actual participant in a three-party exchange. The interpreter, moreover, is required to be scrupulously neutral. The use of a police officer as an interpreter is less than ideal.
The interpreter is not supposed to become a witness. In this case, however, the proper interpreter protocol was regularly honored largely in the breach. The interpreter was called upon, as a witness, to give his opinion as to whether the appellant understood his rights and as to whether he invoked his rights. To the interpreter as a witness, moreover, was delegated the dispositive responsibility of concluding whether the appellant's invocation of his right or rights had been unambiguous and unequivocal. That, of course, is not the interpreter's job. For an interpreter, the testimonial bete noire is indirect quotation.
The primary witness at the suppression hearing was Officer Paulo Bonturi, the Portuguese interpreter. At the very outset of the police interrogation of the appellant on April 4, 2018, Officer Bonturi recited the following paragraph to the appellant in Portuguese:
(Emphasis supplied.)
We have no idea whether that heavy composite of Miranda rights and Maryland statutory rights was perceived by the appellant in the conjunctive or in the disjunctive. No one ever inquired. It is highly questionable whether it is wise to pack so much substance into a single unbroken advisement, particularly where the unilluminating answer will probably be, "Yes, I understand." Was he supposed to understand them all, moreover, or was he supposed to pick one? Were these cumulative rights or alternative rights? As related by the interpreter, the appellant made a choice among a panoply of rights and opted for a prompt presentment before a commissioner.
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