State v. Moreno

• Decision Date: 25 October 2007
• Docket Number: No. CR 07-327.,CR 07-327.
• Citation: State v. Moreno, 265 S.W.3d 751, 371 Ark. 336 (Ark. 2007)
• Parties: STATE of Arkansas, Appellant, v. Agustin MORENO, Appellee.
• Court: Arkansas Supreme Court

265 S.W.3d 751

371 Ark. 336

STATE of Arkansas, Appellant, v. Agustin MORENO, Appellee.

No. CR 07-327.

Supreme Court of Arkansas.

October 25, 2007.

Mike Beebe, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellant.

Thurman Ragar, Jr., Deputy Public Defender, for appellee.

PAUL E. DANIELSON, Justice.

The appellant, the State of Arkansas, appeals from the circuit court's order granting the motion to suppress of the appellee, Agustin Moreno. For its sole point on appeal, the State argues that the circuit court erred in granting the motion to suppress because the defendant was given valid Miranda warnings in his native tongue before he was given a second set of warnings at the beginning of his videotaped statement, the set which was later found to be unconstitutional. Because we hold that this is an improper state appeal, we dismiss the appeal.

The underlying facts are these. On December 4, 2005, Moreno was questioned by Crawford County Sheriff Deputy Halbert Torraca regarding events that had allegedly occurred earlier in Moreno's home. Moreno does not speak English. While he can speak Spanish, he is unable to read it.

Additional facts were established at the October 23, 2006 suppression hearing by the testimony of Deputy Torraca. Torraca testified that he Mirandized Moreno in Spanish at his residence, translating it from an English Miranda warning card. While Torraca never received any formal education on reading and writing in Spanish, he grew up speaking Spanish as he lived with his grandparents who were Puerto Rican and could not speak any English. At age eleven, Torraca moved in with his mother and stepfather, a man of Mexican descent, and both English and Spanish were spoken in that household. While he is admittedly "a little bit slow at it," Torraca testified that he can read English and translate it into Spanish.

Torraca began to question Moreno regarding the allegations and Moreno started to answer affirmatively that he had inappropriately touched his niece, a minor child. At that time, Torraca noticed that the battery on his recording device had gone out and he decided to place Moreno under arrest and take him to the Crawford County Sheriff's Department, where he had access to audio and video recording. Moreno was then placed in an interview room at the sheriffs department.

Before questioning Moreno further, a videotape was started and Torraca went over the rights form with him. Torraca had a copy of the English rights form and tried to explain the rights to Moreno, who was equipped with the Spanish rights form. Moreno never indicated that he could not understand what Torraca was explaining and signed the rights form when asked.

The interpreter from the Administrative Office of the Courts provided the circuit court with a transcript of the translation of Torraca's interview with Moreno. The transcript provides in pertinent part:

TORRACA: Sorry that took awhile, there are a lot of (unintelligible). Ok ... ok, right now I am going to re ... um, I'm going to read you ... eh ... I'm going to read you the rights again, ok? Because I want you to understand your rights well, ok? Ok. And here you put (unintelligible). Ok, before uh ... ask you questions, uh ... you ca ... you ... uh ... you ha ... you have the right of to remain silent, do you understand that?

MORENO: U-hu.

TORRACA: Ok? Uh ... you, each thing that you says, can use it uh ... against you in ... a court of law, ok? Uh ... you have the right to consult a lawyer, before I ask you rights. Do you understand that?

MORENO: Yes TORRACA: Yes? Ok, uh ... if you don't uh ... you ... if you want a lawyer and ... and ... don't have the money for a lawyer, we can writ ... write you down a law ... a lawyer, before I ask you rights. You do understand that right?

MORENO: Mh-hu.

TORRACA: Ok? Uh ... If you de ... decide to uh ... to answer my questions, ok? Then some eh ... at so ... some time, that you decide yourself you want a lawyer, you can stop to answer our question you can stop and eh ... to wait for a lawyer. You do understand that right? Ok, uh ... ok, and here it says that uh ... uh ... Can you read Spanish?

MORENO: Very little.

TORRACA: Very little? Ok. Here it says the place, ok. You see here that it says place?

MORENO: Yes. And here?

TORRACA: Here ... here goes write down, this is the name of the ... of our department, ok? Ok, today's date is: twelve, four, zero five and the time is; one thirty five, ok? Uh ... u ... uh ... do you want to read this for a moment?

MORENO: Let's see what it says (unintelligible) more or less.

TORRACA: Uh ... uh ... ok, you do understand your rights?

MORENO: Yes, yes I understand.

TORRACA: Ok, uh ... also under ... uh ... nobody hasn't threatened you or promised you nothing.

MORENO: No.

TORRACA: Ok, uh ... uh ... I didn't promise you ... I haven't promised you anything, uh ... I haven't threatened you, so you answer my questions, uh ... yes? Have I threatened you?

MORENO: No. No.

TORRACA: No? Ok, uh ... I want you to sign here

Moreno did sign the form indicating that he understood his rights and continued to make several incriminating statements during the course of the questioning by Torraca. On October 18, 2006, Moreno filed a motion to suppress any statement that he made to Torraca without the presence of counsel, claiming that his statements were made prior to his being properly informed of his Miranda rights and in violation of his constitutional right to the advice of counsel. The circuit court granted Moreno's motion on January 26, 2007, finding that: Moreno did not speak English with enough proficiency sufficient for him to understand Miranda warnings and rights; Moreno could not, in English, have made an intelligent waiver of those rights; and, the transcript of the interrogation showed that Torraca sufficiently failed to advise Moreno of his Miranda rights in Spanish. The State filed a notice of appeal, which appeal is now before this court.

In its jurisdictional statement, the State argues that the instant appeal involves the correct and uniform administration of the law because the circuit court erroneously interpreted the law to conclude that the second of two sets of Miranda warnings given in Spanish was inadequate to support Moreno's waiver of his Miranda rights and there is a risk that the circuit court's interpretation of Ark. R.Crim. P. 16.2(e) (2007) will be at odds with the interpretations of other circuit courts. The State contends that the circuit court erred by finding that Moreno did not receive proper Miranda warnings and that his waiver of those rights was not knowingly, intelligently, and voluntarily made, as the State proved by a preponderance of the evidence that Moreno was given full and correct warnings not only at the time the video recording was made, but also when he was first arrested at his residence. Furthermore, the State alleges the circuit court erred in applying the law regarding Miranda warnings when it...