State v. Santiago

• Decision Date: 07 November 1995
• Docket Number: No. 94-1200-CR,94-1200-CR
• Citation: 542 N.W.2d 466,198 Wis.2d 82
• Parties: STATE of Wisconsin, Plaintiff-Respondent, d v. Carlos SANTIAGO, Defendant-Appellant. dd
• Court: Wisconsin Court of Appeals

Page 466

542 N.W.2d 466

198 Wis.2d 82

STATE of Wisconsin, Plaintiff-Respondent, ^d v. Carlos SANTIAGO, Defendant-Appellant. ^dd

No. 94-1200-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 3, 1995.

Opinion Released Nov. 7, 1995.

Opinion Filed Nov. 7, 1995.

APPEAL from a judgment of the circuit court for Milwaukee County: LEE E. WELLS, Judge. ¹ Reversed and cause remanded with directions.

For the defendant-appellant the cause was submitted on the briefs of Eduardo M. Borda of Milwaukee.

For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, Attorney General, and Thomas J. Balistreri, Assistant Attorney General.

Before SULLIVAN, FINE, and SCHUDSON, JJ.

SULLIVAN, Judge.

Carlos Santiago appeals from a judgment, upon a guilty plea, convicting him of possession of a controlled substance with intent to deliver--tetrahydrocannabinol (marijuana), contrary to §§ 161.14(4)(t) and 161.41(lm)(h), STATS. (1991-92). At issue in this case is whether the trial court erred in concluding that the State met its burden in showing that Santiago knowingly and intelligently waived his Miranda rights. ² We conclude that the trial court's conclusion that Santiago knowingly and intelligently waived his rights is unsupported by the current evidentiary record in this case. Further, because the trial court prevented Santiago from preserving, through either spoken or written testimony, the exact Spanish wording of the Miranda warnings given to him by the police, the appellate record is insufficient for this court to review whether the State met its burden in showing that Santiago knowingly and intelligently waived his Miranda rights. Accordingly, we must reverse the judgment of conviction and remand the matter to the trial court for further evidentiary hearings on this issue.

I. BACKGROUND

In January 1993, police obtained a warrant to search Santiago's residence on West Greenfield Avenue in the City of Milwaukee. While executing the search warrant, the police forced their way into the home and found fifteen "baggies" containing marijuana in Santiago's bedroom. Police arrested Santiago, but it became apparent to the officers that Santiago did not speak English. The officers requested that a Spanish-speaking officer be sent to the residence to act as an interpreter. Officer John Garcia arrived twenty minutes after the arrest and provided Santiago with the Miranda warnings at issue in this appeal. Santiago later made a custodial statement to police admitting that the marijuana found in the bedroom belonged to him. Consequently, the State charged Santiago for the drug offense.

Santiago filed a motion to suppress his statements to police because of alleged Miranda deficiencies. He argued that he did not knowingly and intelligently waive his rights. Officer Garcia testified at the suppression hearing that he had no formal training in Spanish, and that he could neither read nor write Spanish. He did testify, however, that he spoke Spanish for most of his life, and that he considered himself a fluent Spanish speaker. Further, he testified that he had been used as a Spanish "interpreter" in more than one hundred investigations over his seventeen-year career as a Milwaukee police officer.

Officer Garcia testified that he first read the warnings to Santiago in English, then he looked at a card providing the Miranda warnings in English and simultaneously attempted to translate the English words into Spanish. After he read each of the rights, he asked Santiago if he understood what he had just said. Santiago responded, "Yes," in English, to each query. Garcia also told Santiago in Spanish that "[I]f he were cooperative, that would be the best thing for him."

Santiago's counsel then requested Officer Garcia to recite the Spanish words he used to inform Santiago of his Miranda rights. Counsel suggested that the court-appointed interpreter translate the Spanish words into English for the court reporter. ³ The trial court refused to allow Officer Garcia to testify in Spanish and have his testimony translated by the interpreter. The court feared that the original Spanish words used by Officer Garcia would become lost, and that the interpreter's translation would become the "official version of what he said." Further, because Officer Garcia could not write in Spanish, a written version of his testimony could not be recorded. On facing this dilemma, the trial court and Santiago's counsel sought an appropriate avenue to preserve for the record the warnings Officer Garcia provided Santiago.

After further questions, Officer Garcia testified that in 1978 he worked with the Spanish Center in Milwaukee to produce a Spanish version of the Miranda warnings. He testified that although he could not read Spanish, he would give the Spanish language cards to defendants to allow them to better understand his verbal Spanish-language Miranda warnings. He did not have the card with the Spanish version when he gave the warnings to Santiago. Officer Garcia testified that the Spanish warnings on the card would have been substantially similar to those he generally gave in January of 1993, but were not the actual Spanish words he spoke to Santiago. He testified that the actual spoken version was more "street language" than the language of the card. He also confirmed that the Spanish-language card was "in no way close to being verbatim of what [he] said to Mr. Santiago on January 27th." Based on this testimony, defense counsel contended that the Spanish card should not be substituted for the actual warnings spoken by Officer Garcia. Defense counsel then suggested that Officer Garcia testify in Spanish and then have the interpreter write the testimony in Spanish. The trial court originally granted counsel's motion, but before Officer Garcia could testify, the trial court reversed itself and denied this motion, stating that the written card would accomplish the same thing. The State objected to the relevance of the card because Officer Garcia testified that he did not use it with Santiago.

Santiago offered the card into evidence and the trial court received it, but neither the card nor Officer Garcia's spoken version is part of the appellate record; we only have minute portions of the alleged Spanish warnings provided in the testimony of Officer Garcia. He testified that he told Santiago "apuntar un abogado" to express the phrase "appoint you a lawyer." Further, he testified that he never said anything in Spanish which was the equivalent to "You can have a lawyer without any cost to you." Another Spanish-speaking officer testified later that abogado means "lawyer," and that apuntar means "to point." Further, the officer testified that the correct Spanish word for the English phrase "to appoint" is "otorgar." Finally, Santiago testified at the hearing and stated that he did not remember Officer Garcia reading him any constitutional rights.

Before making its ruling, the trial court provided lengthy factual findings. The trial court found that "with some exceptions, Officer Garcia talked to the defendant in substantially the words and terms that [we]re set forth in" the Spanish Miranda card. Further, the court found that "he made every effort to use [S]panish words that he believed would best communicate these rights to the defendant." Accordingly, the trial court found that Santiago knowingly, intelligently, and voluntarily waived his Miranda rights when he gave the incriminating statements to police. The trial court concluded that the State had met its burden by "the greater weight of the credible evidence."

II. APPLICATION

Santiago argues that the State failed to make a prima facie showing that he knowingly, intelligently, and voluntarily waived his Miranda rights. Accordingly, he argues that his custodial statements should have been suppressed because their admission would violate his constitutional rights under the federal and state due process clauses. Resolving this issue requires us to apply the trial court's factual findings to federal and state constitutional principles. State v. Lee, 175 Wis.2d 348, 354, 499 N.W.2d 250, 252 (Ct.App.1993). While we review the trial court's factual findings under the "clearly erroneous" standard, see State v. Esser, 166 Wis.2d 897, 903, 480 N.W.2d 541, 543 (Ct.App.1992), the application of those facts to the constitutional principles presents a question of law that we review de novo. Lee, 175 Wis.2d at 354, 499 N.W.2d at 252.

When the state seeks to admit a defendant's custodial statement, constitutional due process requires that it make two discrete showings: "First, ... that the defendant was informed of his Miranda rights, understood them[,] and [knowingly and] intelligently waived them. Second, ... that the defendant's statement was voluntary." Id. at 359, 499 N.W.2d at 255 (citation omitted). Once the state has established both the prima facia case of a defendant's waiver of his Miranda rights, and the voluntariness of the defendant's custodial statement, the trial court should admit the statement into evidence. Id. Further, if this prima facia burden is met, a defendant may provide "countervailing evidence that his [or her] waiver was not knowing and intelligent." Id. at 361, 499 N.W.2d at 255-56. The trial court must then determine by the "totality of the circumstances" whether the defendant's waiver was knowingly and intelligently made. Id. at 361, 499 N.W.2d at 256. Under this "objective" standard, the validity of the Miranda waiver must be determined by the trial "court's inspection of the particular circumstances involved, including the education, experience and conduct of the accused as well as the credibility of the police officer's testimony." Id. at 364, 499 N.W.2d at 257.

Santiago first argues that the trial court applied the incorrect burden of proof for the State's prima facia showing that he waived his Miranda rights by "the greater weight of the credible...