No. WOCR2007-0323.Commonwealth of Massachusetts Superior Court. WORCESTER, SS.
November 13, 2007.
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KATHE M. TUTTMAN, Justice of the Superior Court.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER ON DEFENDANT’S MOTION TO SUPPRESS STATEMENTS
The defendant stands indicted for two counts of statutory rape in violation of G.L. c. 265, § 23. He moves to suppress incriminating statements he made to Worcester police officers while in custody following his arrest, asserting that because of his low intelligence and lack of education, he was unable to execute a valid waiver of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). For the reasons discussed below, the defendant’s motion to suppress is ALLOWED.
Findings of Fact
I make the following findings of fact based on the credible evidence adduced at the hearing and the reasonable inferences I draw therefrom.[1]
1. On or about October 3, 2006, the defendant turned himself in to the Worcester Police on charges of statutory rape. It is alleged that he engaged in sexual intercourse with a thirteen year old girl.
2. Following his arrest, the defendant was interviewed by Worcester Police officers and madePage 2
incriminating statements, admitting to having had intercourse with the thirteen year old girl.
3. The defendant was born on January 25, 1984. At the time of his arrest, he was 22 years old. The defendant is Spanish speaking.
4. The interview took place in a small room at the Worcester Police station. The DVD of the interview shows that the defendant was seated at a table, facing toward the camera, opposite a plain-clothes female investigator. Two uniformed officers stood near the table during the administration of the Miranda warnings. One uniformed officer read the Miranda warnings to the defendant in Spanish.
5. The officer began by informing the defendant, in Spanish: “Ismael, this is the room that all you say here is being recorded, OK? The camera is on and so forth, OK?” The defendant nodded affirmatively, but made no audible response. The officer then stated, in Spanish: “I am going to read your rights in Spanish so you can understand them.”
6. The officer then proceeded to read each required Miranda warning to the defendant in Spanish. He spoke quickly. After each warning, he asked whether the defendant understood. The defendant nodded affirmatively in response to at least one of the questions, and again at the end, before being given the form to sign. On the DVD, the defendant can be heard responding audibly (“si”), indicating he understood, to one question. The officer did not translate the defendant’s single audible response, nor did he annotate the printed Miranda form to document any affirmative responses.
7. The defendant was presented with the form and told that he had to sign it. He signed the form where indicated by the officer. He did not read or review the form prior to signing it.
8. The female investigator then conducted the interview. She spoke slowly and deliberately. Her questions were posed in English and translated into Spanish by the Spanish speaking officer. The defendant responded audibly in Spanish, and his responses were translated into English.
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9. In response to questions, the defendant stated his name, that he was 22 years old, had finished 10th
grade, and had not consumed any medication, alcohol or drugs that day. He indicated that he did not suffer from a mental illness, but was “slow” and a “slow learner.” He gave his address. He acknowledged knowing the victim. He stated she had told him that she was 17 years old, and that he had voluntary sexual intercourse with her about three times. He stated that he recently learned from her friend that she was actually 13 years old. He acknowledged that his mother and his brother questioned whether the victim was actually 17 years old.
10. The tenor of the interview was not pressured or coercive. The defendant was alert, and answered the questions responsively. He appeared to fully understand the nature of the charges against him.
11. At the hearing, the defendant testified that, although he recalled police advising him of his rights, he did not comprehend them at the time they were given. In particular, he denied understanding his right to have court appointed counsel. Additionally, he testified that he told the police officer at the station that he did not understand his rights. As noted previously, on the DVD the defendant cannot be perceived making any audible comments, except one “si,” while his rights were being administered.
12. The defendant has some difficulty following instructions, as documented by his self-report, by his performance on the psychodiagnostic testing done in 2005 (Exhibit 3a), and as demonstrated at the motion hearing, when he required repeated explanation in order to comprehend some instructions given him by the court. The defendant appears to be somewhat naive.
13. The defendant’s intellectual functioning is in the borderline range of intelligence, and he has limited reading skills. He began his schooling in Puerto Rico, and he was kept back several times in the early grades. His academic performance was so poor that he was placed in a special group. Eventually, he was transferred to a vocational school because he could not keepPage 4
up with the mainstream academic curriculum.
14. The defendant received training in cooking at the vocational school but did not learn to cook. He has been employed doing cleaning and maintenance work. He has been fired from such jobs because difficulties with following instructions and remembering information prevent him from fully carrying out his duties.
15. The defendant had been arrested and advised of Miranda rights one time previously.
Conclusions of Law
The parties concede that the questioning of the defendant took place in a custodial setting, thus triggering the application of principles governing the admission of Miranda rights. Commonwealth v. Morse, 427 Mass. 117, 122-23 (1998). The defendant claims that his Miranda waiver was involuntary because, due to his low intelligence and lack of education, he did not understand the meaning of the Miranda warnings nor the implications of waiving his rights. The defendant does not contend that the police failed to fully advise him of his Miranda rights or that his ensuing statement was involuntary.
The validity of a Miranda waiver and the voluntariness of statements are distinct though often related issues. Commonwealth v. Garcia, 379 Mass. 422, 428 (1980). When properly raised, the government bears the burden of proving each beyond a reasonable doubt. Commonwealth v.Williams, 388 Mass. 846, 851 n. 2(1983); Commonwealth v. Ortiz, 431 Mass. 134, 140 (2000). A Miranda waiver is valid where it is made voluntarily, knowingly, and intelligently under the totality of the circumstances. Commonwealth v. Edwards, 420 Mass. 666, 670 (1995); see also Commonwealth v. Hilton, 443 Mass. 597, 606 (2005); Moran v. Burbine, 475 U.S. 412, 421 (1986) (waiver of rights is made knowingly and intelligently when defendant is fully aware of the nature of the right being abandoned, and the consequences of the decision to abandon it, at the time of the interrogation). Various factors, including but not limited to the defendant’s age, education, level of intelligence and/or
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illiteracy, mental illness, emotional state, and intoxication from alcohol and/or drugs, should be considered when determining whether a defendant’s waiver was knowing and intelligent. Commonwealth v. St.Peter, 48 Mass. App Ct. 517, 519-20 (2000); Commonwealth v. Scott, 430 Mass 351, 355 (1999).
The police and courts “must give special attention to whether a person of low intelligence waived Miranda rights . . .” Commonwealth v. Jackson, 432 Mass. 82, 86 (2000), quoting Commonwealth v. Hartford, 425 Mass. 378, 381 (1997). While a person with low intelligence and limited education may validly waive his Miranda rights, the court must make that determination based on a careful consideration of the totality of the circumstances. See, e.g., Jackson, 432 Mass. at 84-87 (waiver determined to be valid where defendant with low intelligence had read the Miranda warnings aloud from a waiver form and initialed each warning on the form and signed the form, and where it was documented that: he had attended public schools; had spent much of his time in the regular classroom; had never been diagnosed as being retarded; had held down several full time jobs; and was never fired for failing to properly perform his work.) Here, the defendant has minimal education, his intelligence is borderline, and he has difficulty remembering and following instructions which has led employers to fire him for poor performance. Further, he advised the police that he was “slow” and a “slow learner.” He did not audibly or visibly respond after several of the Miranda warnings were given. Although the defendant did acknowledge his understanding by nodding at the end of the officer’s recitation, the record does not establish that he understood each individual right and its general implications. Moreover, the defendant was not given an opportunity to attempt to read the Miranda form when it was presented to him, and he was instructed that he had to sign without being told what he was signing. Considering these circumstances, as well as the defendant’s relative youth and inexperience with the criminal justice system and his apparent naivety, it cannot be said that the defendant was fully aware of the nature of the rights he abandoned at the time of the interrogation. Accordingly, the Commonwealth
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has failed to sustain its burden to prove that the waiver was voluntary beyond a reasonable doubt, and the defendant’s statements must be suppressed.
Order
For the foregoing reasons, it is hereby ORDERED that the defendant’s motion to suppress statements is ALLOWED.