State v. Farrah
| Decision Date | 19 July 2007 |
| Docket Number | No. A05-1277.,A05-1277. |
| Citation | 735 N.W.2d 336 |
| Parties | STATE of Minnesota, Respondent, v. Burhan Mohammed FARRAH, Appellant. |
| Court | Minnesota Supreme Court |
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:
Q. What's that?
The officer then went back over the right-to-counsel portion of the Miranda advisory:
Farrah then gave a statement in which he made incriminating remarks.1
Farrah was charged by complaint with fourth-degree criminal sexual conduct in violation of Minn.Stat. § 609.345, subd. 1(b) (2002). In April 2004, the criminal proceedings were suspended because of a district court finding that Farrah was incompetent due to schizophrenia. Upon Farrah's restoration to competency through treatment, the criminal proceedings resumed in September 2004. The state later amended the complaint to add charges of kidnapping and false imprisonment.
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.
The Fifth Amendment to the U.S. Constitution and Article I, Section 7 of the Minnesota Constitution protect persons from compelled self-incrimination.3 Because of the coercion inherent in custodial interrogation, a criminal suspect must be
warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.
Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).4
The defendant may waive his Miranda rights "provided the waiver is made voluntarily, knowingly and intelligently." Id. at 444, 86 S.Ct. 1602. The prosecution has the burden of proving a valid waiver by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). "Only if the totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (internal quotation marks omitted) ( that "the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it"). Factors commonly considered include age, intelligence and education, familiarity with the criminal justice system, physical and mental condition, and language barriers. State v. Camacho, 561 N.W.2d 160, 168 (Minn.1997). Findings of fact surrounding a claimed Miranda waiver are reviewed for clear error; legal conclusions based on those facts are reviewed de novo. See State v. Linder, 268 N.W.2d 734, 735 (Minn.1978) citing Brewer v. Williams, 430 U.S. 387, 403, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) ().
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."
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"). Minn.Stat. § 611.30 (2006).5 Under this policy, following the apprehension or arrest of a person disabled in communication, law enforcement has the obligation to obtain a language interpreter to assist the person throughout custodial interrogation. Minn.Stat. § 611.32, subd. 2 (2006).6 A person disabled in communication includes one who, "because of difficulty in speaking...
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