State v. Zuniga

• Decision Date: 26 July 1985
• Docket Number: No. 57439,57439
• Citation: 703 P.2d 805,237 Kan. 788
• Parties: STATE of Kansas, Appellee, v. Armondo B. ZUNIGA, Appellant.
• Court: Kansas Supreme Court

Page 805

703 P.2d 805

237 Kan. 788

STATE of Kansas, Appellee, v. Armondo B. ZUNIGA, Appellant.

No. 57439.

Supreme Court of Kansas.

July 26, 1985.

Syllabus by the Court

1. In determining the voluntariness of a confession, it is to be viewed in light of the totality of the circumstances, including the following factors: (1) The duration and manner of interrogation; (2) the accused's ability upon request to communicate with the outside world; (3) the accused's age, intellect and background; (4) the fairness of the officers in conducting the interrogation; and (5) the accused's fluency in the English language.

2. When an in-custody statement is taken in English from an accused whose primary langauge is Spanish, but who also speaks English, failure of the officers to have an interpreter in attendance pursuant to K.S.A. 75-4351(e) does not vitiate the statement if it was freely, voluntarily, knowingly and understandingly made with full knowledge of the Miranda rights.

3. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily and knowingly given, and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence.

4. A trial court's ruling excluding evidence under the rape shield statute, K.S.A.1984 Supp. 21-3525, should not be overturned on appeal except upon a showing of abuse of discretion.

5. In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained.

6. K.S.A. 21-4618 prohibits probation or suspension of sentence for those convicted of the various offenses referred to therein only if a firearm has been used in the commission thereof.

Terry Pullman, Deputy Public Defender, argued the cause, and Kathy Vetter, Appellate Counsel, Sedgwick County Public Defender, was with him on brief for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Kimberly Gee Vines, Asst. Dist. Atty., Clark V. Owens, Dist. Atty. and Robert T. Stephan, Atty. Gen., were on brief for appellee.

MILLER, Justice:

This is an appeal by the defendant, Armondo B. Zuniga, from his conviction of rape, by jury trial in the Sedgwick District Court, and from the sentence imposed. He raises five issues, contending that his post-arrest statement to a detective should have been suppressed because the State did not comply with K.S.A. 75-4351; that the trial court erred in excluding from evidence the results of a pregnancy test; that the court erred in limiting defendant's cross-examination of the victim; that the evidence was not sufficient to support the verdict; and that the trial court erred in sentencing defendant under K.S.A. 21-4618. Since the sufficiency of the evidence is challenged, we turn first to the facts.

Defendant went to trial on an information charging him with aggravated burglary and rape. The jury convicted him only of the latter offense. The victim, T.H., testified that she was living with her two children, both toddlers. On June 11, 1984, the victim was talking with her mother on the telephone while the television news was on, between 10:00 and 10:30 p.m. The children were asleep. It was a hot night, and she had left the front door open and the screen door closed but unlatched. When she hung up the telephone, she saw the defendant standing inside the front door. She asked him what he wanted, and he replied that he had some things he wanted to talk about. He moved toward her and pinned her to the couch. She escaped, ran to the bedroom and went for the phone. The defendant grabbed her around the waist and pulled her back to the living room. He placed her on the floor, pinned her arms above her head with one hand, and removed her clothing with the other. As he started to remove his own clothes, she got up and ran to the bedroom. Once again, he followed, grabbed her, and pulled her back into the living room. He raped her on the living room floor. Afterward, she went into the bathroom, locked the door, and stayed there until the defendant left. As soon as she heard the screen door shut, she came out of the bathroom, dialed the 911 emergency number and reported the rape. The police took her to St. Joseph's Hospital, where she was examined. She told the police that she knew the man who attacked her as Arthur Rodriquez or Armondo Zuniga.

About a week later, while the victim was away from home and her mother was babysitting, the defendant came to the house and asked if T.H. was there. When informed that she was not, he left. He was driving a van. When the victim arrived home, her mother told her that the defendant had been there asking for her. When the mother left, both women saw the defendant's van parked nearby; the victim called the police. They arrived and arrested the defendant. He denied that he had been to the home asking for the victim earlier that evening. When questioned by a police detective, defendant first denied that he had had sexual relations with the victim on June 11; later, he admitted that he had had intercourse with the victim on that occasion, but claimed that it was consensual.

Defendant testified in his own behalf. He stated that while he was attending a ball game, a girl whose name he did not know came to him and told him that T.H. wanted to talk to him. A few days later he went to her home. He knocked on the door and she admitted him. They sat on the couch and talked; she told him about her divorce. She later took him into the bedroom and showed him her divorce papers. They returned to the living room, started kissing, removed their clothing, and eventually had consensual sex. He was in the neighborhood at the time of his arrest to return a ball glove to a friend whose name he did not know. He did not stop at the victim's home that evening prior to his arrest.

At the conclusion of the trial, the jury returned a verdict finding the defendant guilty of rape but not guilty of aggravated burglary. This appeal followed.

The first issue is whether the trial court erred in refusing to suppress the defendant's statement to the police detective. Defendant contends that it should have been suppressed because the police did not comply with the provisions of K.S.A. 75-4351. The applicable portions of that statute read as follows:

"A qualified interpreter shall be appointed in the following cases for persons whose primary language is one other than English, or who are deaf or mute or both....

....

"(e) when such person is arrested for an alleged violation of a criminal law of the state or any city ordinance. Such appointment shall be made prior to any attempt to interrogate or take a statement from such persons."

The following sections, of which this statute was originally a part, provide for the appointment and compensation of interpreters, state the qualifications of interpreters, provide for an oath of the interpreters, and define their duties.

K.S.A. 75-4351 and the sections that follow it provide the machinery for the selection, appointment and compensation of interpreters under various circumstances. They authorize the expenditure of public funds for that purpose. The statutes do not contain any sanctions for violations thereof. Suppression is a severe sanction, much criticized. While the purpose is to encourage peace officers to follow statutes or constitutional guidelines, it may prevent otherwise proper evidence from being introduced in the case at hand.

There is no question here but that the statute was not complied with, and the trial court so found. When the statement was challenged, the trial court held a Jackson v. Denno hearing, out of the presence of the jury, to determine the admissibility of the statement. There was evidence that the defendant, a native of Mexico, had been in this country seven or eight years. He spoke English to the victim. He apparently had no difficulty in understanding the speech of the officers and the directions given to him by them at the time of his arrest. Detective Clark first filled out a personal history sheet. All of the conversation was in English. Defendant never indicated that he could not understand. Both the arresting officers and Detective Clark read a statement of the Miranda rights to the defendant, and he appeared to understand those. When Detective Clark first questioned the defendant about the alleged rape, he denied that he had had intercourse with the victim. Later, he admitted that they had had intercourse, but stated that it was with her consent. Detective Clark wrote the statement out, read it to the defendant, and asked him if he wished to add, delete or change anything, and the defendant responded that he did not. The trial court held that the statement was admissible, finding that it was knowingly and voluntarily made with a knowing and voluntary waiver of the right not to speak.

The purpose behind K.S.A. 75-4351(e) is to ensure that there is clear communication between one who is in custody and the officers who are questioning him. The statute does not state a rule of evidence. Whether or not an interpreter is appointed and is present at the taking of the statement, the trial court must still determine whether an in-custody statement was freely, voluntarily and knowingly given, with knowledge of the Miranda rights. That determination must be based upon the totality of the circumstances. In State v. Newfield, 229 Kan. 347, 357, 623 P.2d 1349 (1981), we said:

"In determining the voluntariness of a...