U.S. v. Bernard S.

• Decision Date: 25 July 1986
• Docket Number: No. 85-1326,85-1326
• Citation: 795 F.2d 749
• Parties: 21 Fed. R. Evid. Serv. 196 UNITED STATES of America, Plaintiff-Appellee, v. BERNARD S., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 749

795 F.2d 749

21 Fed. R. Evid. Serv. 196

UNITED STATES of America, Plaintiff-Appellee, v. BERNARD S., Defendant-Appellant.

No. 85-1326.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 1986.

Decided July 25, 1986.

Rhonda L. Ripp, Virginia A. Mathis, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

Javier Chon-Lopez, Tucson, Ariz., for defendant-appellant.

Appeal from the United States District Court for the District of Arizona.

Before PREGERSON, POOLE, and JOHN T. NOONAN, Jr., Circuit Judges.

PREGERSON, Circuit Judge:

Bernard S., a juvenile, appeals from his conviction of assault resulting in serious bodily injury. He asserts that the district court erred in: (1) finding that he waived his Miranda rights before making inculpatory statements to an FBI agent; and (2) admitting into evidence medical records indicating

the extent of the victim's injuries. We affirm.

BACKGROUND

On May 3, 1985, an altercation occurred between appellant and Lemuel Goode in a house on the San Carlos Apache Indian Reservation. Goode received head injuries which required hospitalization.

On May 14, 1985, FBI Agent Lynn Bedford questioned appellant at the San Carlos Police Department on the reservation. Appellant's mother and San Carlos Police Lieutenant Stevens, who both spoke Apache, were also present.

Prior to questioning, Agent Bedford advised appellant of his Miranda rights by reading from a standard form in English. Bedford then explained each individual right to appellant and his mother. After each right, Bedford asked appellant if he understood his rights, and he stated that he did. Appellant also stated that he was willing to waive his rights and signed a written waiver form. Appellant never indicated that he did not understand his rights. He did ask his mother and Lt. Stevens to explain a few items into Apache, but these translations were made after the Miranda rights were read and waived, and did not involve those rights. ¹

Bedford questioned appellant after he had signed the waiver form. He responded to Bedford's questions in English. During the questioning, appellant made inculpatory statements indicating that he had assaulted Lemuel Goode.

Appellant was charged with juvenile delinquency, 18 U.S.C. Secs. 5031-5037, for assault resulting in serious bodily injury, 18 U.S.C. Secs. 113(f), 1153. A bench trial and a hearing were held on September 13, 1985. Before trial, appellant objected to the government's use of his statements to Agent Bedford on the ground that they were obtained involuntarily and in violation of his Miranda rights. Appellant also objected at trial to the admission of a copy of the victim's medical records as violating the confrontation clause of the sixth amendment. The district court overruled both objections and found the defendant guilty. Appellant was sentenced to the custody of the Attorney General until his 18th birthday.

DISCUSSION

A. Waiver of Miranda Rights

1. Standard of Review

We review the district court's determination that a defendant waived his Miranda rights under the clearly erroneous standard. United States v. Doe, 787 F.2d 1290, 1293 (9th Cir.1986); United States v. Binder, 769 F.2d 595, 598 (9th Cir.1985).

2. Requirements of a Valid Waiver

To be valid, a waiver of Miranda rights must be voluntarily, knowingly, and intelligently made. Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966); Binder, 769 F.2d at 599. Whether there has been a valid waiver depends on the totality of the circumstances, including the background, experience, and conduct of defendant. North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1757-58, 60 L.Ed.2d 286 (1979); see Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The age of the defendant is one factor in applying the totality test. See Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2571, 61 L.Ed.2d 197 (1979). Similarly, any language difficulties encountered by the defendant are considered to determine if there has been a valid waiver. See United States v. Heredia-Fernandez, 756 F.2d 1412, 1415 (9th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 110, 88 L.Ed.2d 90 (1985); see also United States v. Gonzales, 749 F.2d 1329, 1335-36 (9th Cir.1984) (reviewing language difficulties in determining

                whether waiver was valid);  United States v. Martinez, 588 F.2d 1227, 1235 (9th Cir.1978) (assuming "without so holding that if Miranda warnings are given in a language which the person being so instructed does not understand, a waiver of those rights would not be valid").  There is a presumption against waiver, and the burden of showing a valid waiver is on the prosecutor.   Butler, 441 U.S. at 373, 99 S.Ct. at 1759;  Binder, 769 F.2d at 599
                

3. Analysis

Appellant challenges the finding that he validly waived his Miranda rights on essentially two grounds. First, he argues that because he has a limited knowledge of English, he could not validly waive his rights because they were not explained to him in Apache. Second, appellant notes that he is only seventeen years old and claims that the district court "failed to scrutinize a confession, by a juvenile, with special care." A review of the record, however, reveals substantial evidence supporting the district court's determination that appellant understood and validly waived his Miranda rights.

It is clear from the record that appellant does have some difficulty with English. He testified that he neither reads nor writes English, he occasionally spoke Apache with his mother and Lt. Stevens during the questioning to clarify some items, and he was assisted in his testimony at trial by an interpreter. On the other hand, he admitted that he studied English through the seventh grade and that he answered Agent Bedford's questions in English.

Most importantly, after Bedford explained each of his rights to him in English, appellant stated that he understood his rights. Bedford testified that "I asked him if he understood [his rights], if he understood all of the wording, and he stated that he did. He didn't have any questions. I also made sure that his mother understood what his rights were. And I explained to both of them and asked them if they understood. And they stated that they did." At no time did appellant indicate that he did not understand his rights.

Despite the language difficulties encountered by appellant, the evidence seems to indicate that he understood his rights and voluntarily, knowingly, and intelligently waived them. See Martinez, 588 F.2d at 1234-35; ² see also Gonzales, 749 F.2d at 1336 ("The court and jury also heard ample testimony concerning both [the agent's] Spanish ability and [the Spanish-speaking defendant's] English ability, and that evidence would support a determination that the two understood each other."). ³

Appellant's second contention, that the district court failed to scrutinize the issue of waiver with "special care because of [appellant's] age," is without merit. Although age is a factor in determining whether there has been a valid waiver of Miranda rights, the totality of the circumstances test is equally applicable to juveniles and adults. Fare, 442 U.S. at 725-27, 99 S.Ct. at 2571-73. The Court in Fare noted:

The totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. We discern no persuasive reasons why any Id. at 725, 99 S.Ct. at 2572. The record in this case does not indicate that appellant's age negated the district court's finding that he validly waived his Miranda rights. See Fare, 442 U.S. at 726-27, 99 S.Ct. at 2572 (valid waiver by sixteen year-old juvenile); Doe, 787 F.2d at 129 (valid waiver by juvenile); United States v. Palmer, 604 F.2d 64, 67 (10th Cir.1979) (valid waiver by seventeen year-old).

other approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits--indeed, it mandates--inquiry into all the circumstances surrounding the interrogation.

In sum, the evidence tends to indicate that appellant made a voluntary, knowing, and intelligent waiver of his Miranda rights. At appellant's request, and in the presence of his mother, Agent Bedford read his rights to him and explained each right to him individually. After he was explained each of his rights, appellant stated that he understood that right. He answered Agent Bedford's questions in English and at no time indicated that he did not understand what was being said to him. Finally, appellant signed a written waiver of his Miranda rights. ⁴ Accordingly, the district court's finding that appellant voluntarily, knowingly, and intelligently waived his Miranda rights is not clearly erroneous. See Doe, 787 F.2d at 1293 ("At the time appellant ⁵ was first questioned, he was in the eleventh grade, had a good command of the English language and was able to converse coherently and rationally with [an FBI agent]. There is no indication that he was too upset or of insufficient intelligence and maturity to understand the rights he was waiving or the consequences of his waiver.").

B. Admission of Medical Records

1. Standard of Review

We review a district court's decision to admit evidence for an abuse of discretion. See United States v. Ordonez, 737 F.2d 793, 811 (9th Cir.1984).

2. Hearsay and the Confrontation Clause

The sixth amendment's confrontation clause provides that "in all criminal prosecutions the accused shall enjoy the right ... to be confronted with the witnesses against them." U.S. Const. amend. VI. The clause indicates a preference for face-to-face confrontation at trial and is primarily intended to secure the right of cross-examination. Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980). Although based on similar principles, the confrontation...