State v. Hindsley, 99-1374-CR.

• Decision Date: 11 May 2000
• Docket Number: No. 99-1374-CR.,99-1374-CR.
• Citation: 614 N.W.2d 48,2000 WI App 130,237 Wis.2d 358
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Cross-Respondent, v. George W. HINDSLEY, Defendant-Respondent-Cross-Appellant.
• Court: Wisconsin Court of Appeals

237 Wis.2d 358

2000 WI App 130

614 N.W.2d 48

STATE of Wisconsin, Plaintiff-Appellant-Cross-Respondent,¹ v. George W. HINDSLEY, Defendant-Respondent-Cross-Appellant.

No. 99-1374-CR.

Court of Appeals of Wisconsin.

Submitted on briefs March 15, 2000.

Decided May 11, 2000.

On behalf of the plaintiff-appellant-cross-respondent, the cause was submitted on the briefs of Scott Roberts, assistant district attorney, of Stevens Point.

On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the briefs of James B. Connell of Crooks, Low, Connell & Rottier, S. C. of Wausau.

Before Dykman, P.J., Vergeront and Deininger, JJ.

¶ 1. VERGERONT, J.

The State of Wisconsin appeals from an order of the circuit court suppressing a statement of George Hindsley on the ground that the State did not prove by a preponderance of the evidence that Hindsley, who is deaf, was adequately informed of his Miranda rights² and knowingly and intelligently waived them. The State contends the trial court erred because its findings of fact are clearly erroneous in that the evidence shows that Hindsley did have an adequate understanding of his Miranda rights through an interpreter provided by the City of Stevens Point Police Department and did knowingly and intelligently waive those rights. The State also contends the trial court erred because it required a greater degree of understanding for a valid waiver than the case law requires. Finally, the State asks us to adopt a good faith exception to the requirement that a suspect's waiver of Miranda rights be knowing and intelligent when a police department provides a certified interpreter who it believes in good faith can communicate effectively with the suspect. Hindsley cross-appeals, challenging the court's determination that Hindsley's statement was voluntary. Hindsley contends that, even if there is no coercive police conduct, a statement is not voluntary if Miranda rights are not effectively communicated to a deaf suspect in the language of the suspect.

¶ 2. We conclude the trial court's findings of fact are not clearly erroneous and the trial court applied the correct legal standard to those facts in concluding that Hindsley did not knowingly and intelligently waive his Miranda rights. We do not consider whether the good faith exception proposed by the State should be adopted because that is not an appropriate function for this court. We also conclude that the standard for voluntariness proposed by Hindsley is not supported by the case law, and, based on the trial court's factual findings that the police conduct was not coercive, the court correctly determined the statement was voluntary. We therefore affirm the order of the circuit court.

BACKGROUND

¶ 3. Hindsley was charged with first-degree intentional homicide arising out of the death of his two-year-old son, George Thunder Hindsley, which occurred when Hindsley was residing with his son at the Salvation Army Hope Center in Stevens Point. The death occurred on January 21 or 22, 1997. Upon the discovery of the child's body, employees of the Salvation Army summoned officers from the Stevens Point Police Department. Sergeant Ronald Carlson, one of the officers who arrived at the Salvation Army, communicated with Hindsley by note writing and testified that it was Hindsley who brought up the subject of his son. Hindsley was taken to the Portage County Law Enforcement Center so that Sergeant James Dowling of the Stevens Point Police Department could take a statement concerning his son's death.

¶ 4. The police department contacted Elaine Hernandez who agreed to serve as an interpreter for Hindsley. Hernandez had been certified for interpretation by the Registry of Interpreters for the Deaf in August of 1996.³

¶ 5. The interview of Hindsley by Sergeant Dowling with Hernandez interpreting lasted two hours and six minutes and was videotaped. At the beginning of the interview Sergeant Dowling read aloud a statement of Miranda rights, rephrased them a number of times, answered Hindsley's numerous questions conveyed to him by Hernandez, and showed Hindsley the written statement of Miranda rights, which Hernandez ultimately signed.⁴ During the remainder of the interview, Sergeant Dowling took a statement conveyed by Hernandez from Hindsley concerning Hindsley's background, the circumstances leading up to his residence at the Salvation Army Hope Center with his son, and the circumstances of his son's death.

¶ 6. After a preliminary examination Hindsley was bound over for trial.⁵ He moved to suppress his statement and a hearing was held on May 29, 1997.⁶ Sergeants Carlson and Dowling testified concerning the circumstances of Sergeant Carlson's interview with Hindsley at the Salvation Army Hope Center and Sergeant Dowling's interview of Hindsley at the Law Enforcement Center. Scott Bartelme, a case worker at the Salvation Army, testified that he communicated with Hindsley in "broken English" in writing, and that if Hindsley did not understand, he would write "What mean?" and Bartelme would then rewrite it in another way. Bartelme acknowledged that he did not know what Hindsley did not understand when he wrote "What mean?," that it was time consuming to write and rewrite, and that Hindsley was often confused about the rules; but he felt that he was able to effectively communicate with Hindsley.

¶ 7. Hernandez testified she used sign language with Hindsley, but she could not specifically remember whether she used American Sign Language (ASL) or whether she used transliteration.⁷ She had never communicated Miranda rights to a deaf person before; however, she felt that she was able to communicate with Hindsley.

¶ 8. Hindsley, who was twenty at the time of this hearing, testified that he had been deaf since he was two. He knows ASL, which he learned primarily at the Wisconsin School for the Deaf in Delavan; he attended that school for approximately three years. He testified that he cannot write English; he writes as he signs, that is, he writes ASL; and he can only read "kids books" in English. According to Hindsley, Hernandez did not use ASL; she sometimes used English, and he did not understand the English, so he did not understand what she was communicating concerning his Miranda rights.

¶ 9. The trial court determined there was no coercion by the police and, therefore, Hindsley's statement to Sergeant Dowling was voluntary. It also determined that, although the videotape of the interview by Sergeant Dowling showed some confusion on the part of Hindsley and although Hindsley testified that he did not understand his Miranda rights, he did knowingly and intelligently waive them. The court did not rely on the written statement of Miranda rights presented to Hindsley during the interview because it found Hindsley's English reading level was not adequate to read that document.

¶ 10. On September 9, 1997, Hindsley entered a plea of guilty to first-degree intentional homicide. Several weeks later, and before sentencing, he obtained new counsel and moved to withdraw his guilty plea. The basis of Hindsley's motion for withdrawal of the plea was that he did not fully understand the rights he was waiving in entering his plea. The trial court held a lengthy evidentiary hearing on this motion, which took place on four different days between February 25, 1998 and June 19, 1998, and subsequently entered an order allowing Hindsley to withdraw his guilty plea. Hindsley then filed another motion for suppression of his statement to Sergeant Dowling. The court informed the parties that it was going to consider all of the evidence from the prior hearings in deciding this motion, and it allowed the parties to present additional evidence, which occurred on April 22 and 23, 1999.

¶ 11. We summarize here the significant evidence presented at the hearings in 1998 and 1999 that is relevant to the suppression motion and was not presented at the hearing on May 29, 1997.⁸ Three of Hindsley's teachers from the Wisconsin School for the Deaf in Delavan, one deaf, two hearing, and all fluent in ASL, testified that Hindsley was fluent in ASL. Test results showed that he had superior intelligence and in 1993, when Hindsley was about seventeen years old, he read English at a second grade level. Two of the teachers agreed that Hindsley had limited proficiency in English and written communication and that if someone used English in communicating to him he would understand "random words," but would not get the message. The third teacher disagreed, stating that if someone signed in English, he might not get all of it, but "he would get ... the basis of it," and "he is able to write and read [English] pretty well." Another faculty member (not deaf) who had not been Hindsley's teacher but knew him, testified that she could communicate effectively with him in ASL, but he was not good at reading and writing English.

¶ 12. Several employees from the Salvation Army, the Wisconsin School for the Deaf (not teachers), and an employee in the jail where Hindsley was incarcerated (all hearing and none knowing ASL) gave testimony similar to that of Bartelme: they communicated with Hindsley by writing notes and making signs, his writing was "broken English," and they felt they could communicate effectively with him.

¶ 13. The defense presented two witnesses who had experience and training in interpreting for the deaf in legal proceedings and who had viewed the videotape of the interview with Sergeant Dowling: Tupper Dunbar and Linda Carroll.⁹ Both described Hindsley's sign language as ASL, with some differences because of his Native American culture and, perhaps, for other reasons.¹⁰ Both agreed that Hernandez was using a form of signing that was English-based and was not ASL, and agreed that her interpreting exhibited a lack of legal training. Dunbar testified that Hernandez was transliterating Miranda rights, not interpreting them into ASL. Throughout the...