Soares v. State

Jacy Soares v. State, No. 0149 of the 2019 Term, Opinion by Moylan, J. HEADNOTE: MIRANDA V. ARIZONA AND THE RIGHT TO REMAIN SILENT – THE SUPPRESSION HEARING -- THE NEED FOR AN INTERPRETER -- THE ROLE OF THE INTERPRETER IS A LIMITED ONE – A WEIGHTY ADVISEMENT: THE MIRANDA CATECHISM PLUS MARYLAND COMMON LAW – AN ENIGMATIC RESPONSE -- DISHONORING THE RIGHT TO SILENCE – MIRANDA’S RIGHT TO SILENCE: THE UNANSWERED QUESTION – THE PARTING OF THE WAYS: WILLIAMS V. STATE – MULTIPLE DEGREES OF SEPARATION – MIRANDA’S RIGHT TO SILENCE WAS NOT SATISFIED – THE RIGHT TO BE INFORMED OF AND ABOUT THE RIGHT TO SILENCE – ARGUABLE INVOCATION OF THE RIGHT TO SILENCE – HONORING THE RIGHT TO SILENCE – COMPUTING HARMLESS ERROR Circuit Court for Montgomery County Case No. 133754 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0149 September Term, 2019 _____________________________________ JACY SOARES V. STATE OF MARYLAND Leahy, Shaw Geter, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ. Opinion by Moylan, J. _____________________________________ Filed: November 18, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-11-19 09:29-05:00 Suzanne C. Johnson, Clerk The subject of this opinion is Miranda v. Arizona’s right to remain silent, including how that at-times fragile request for silence can sometimes be lost in an overriding cacophony of argumentative noise. The communicative problem is significantly exacerbated, moreover, when the request for silence, as here, has to pass through the prism of Portuguese-English translation.

Clarity was in short supply. * * * The Suppression Hearing The appellant, Jacy Soares, was convicted in the Circuit Court for Montgomery County by a jury, of the possession of cocaine with the intent to distribute and related offenses. On this appeal, he raises the single contention that an inculpatory statement he gave to the police was erroneously admitted into evidence in violation of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). Under the unusual circumstances involved in the police interrogation in this case, we are inclined to agree. It is unnecessary to discuss in any detail the factual circumstances of the crime itself, because our review of the pre-trial suppression hearing is completely dispositive of the appeal.

Following the execution of a search and seizure warrant for the appellant’s home on April 3, 2018, the appellant was arrested. During the early morning hours of April 4, 2018, the appellant was questioned at the station house by Detective Ryan Street. By the end of the interrogation, the appellant, primarily in an effort to exculpate his wife, had thoroughly inculpated himself. The inculpatory statement was, “It’s only my problem.

My wife is [sic] nothing to do with it.” The issue is whether the interrogation should have terminated before the antecedent question was even asked. The appellant filed a pre-trial motion to suppress this confession to the police. A suppression hearing was conducted on September 6, 2018. The judge denied the motion to suppress; the appellant’s statement was admitted into evidence at the trial; and the conviction followed.

This appeal has timely followed. The question before the suppression hearing below and before us on this appeal is the most fundamental of threshold issues. Was the appellant ever informed of his constitutional right to remain silent when being subjected to custodial interrogation and did he attempt to invoke that right? That basic core of the Fifth Amendment privilege against compelled self-incrimination is, of course, the very opening line of the Miranda catechism: “You have the right to remain silent.” It is not enough, moreover, simply to recite those words to the appellant.

The suspect must actually be informed of the right. That deeper aspect of effective communication cannot be blithely assumed. When at the suppression hearing, the State questioned Officer Paulo Bonturi about his having advised the appellant about his right to silence, the answer was less than totally reassuring about so fundamental a constitutional right. Q: Okay.

So at some point, did you read those rights to the defendant? A: I’m pretty sure I did, yes. Q: Okay. Did you tell him that you have the right to remain silent?

A: I’m pretty sure I did, yes. They are checked off.1 1 It would be ironic, of course, if we are hereby challenging the State with the very challenge that the State frequently likes to pose to criminal defendants: “Are you being sufficiently ‘unambiguous and unequivocal’ with such an answer?” At least by way of general discussion, we are, indeed, so challenging the State. 2 (Emphasis supplied.) Miranda v. Arizona’s guarantee to criminal defendants of basic criminal rights contemplates more by way of satisfaction than mere lip service. It is not enough to recite the words, if that, and then automatically to check off a box. Would such a mechanical recitation and notation suffice, for instance, as the qualifier for the interrogation of a ten- year-old?

If we are properly indulgent about communicating with a ten-year-old, should we be any less indulgent about communicating with someone whose native language is not English? This is the very special communications problem confronting us in this case— communicating with someone whose language is not English. Frequently the linkage between the reciting of the words and the assumption that the words were understood by the auditor is essentially taken for granted. Not so automatic, however, will be our review in the present case.

The Need For An Interpreter The appellant’s native language is Portuguese. Throughout the pre-trial police interrogation of the appellant and at the trial, Officer Bonturi served as the Portuguese- English translator. The appellant’s education did not go beyond the elementary school level. His command of English was very poor and, essentially, he communicated with the court only through his Portuguese interpreter.

It was also through the interpreter that the appellant communicated with the police, most significantly in the course of the police interrogation of the appellant on April 4, 2018. It is that police interrogation of April 4, 2018 that gives us significant pause in this case, as we look with close scrutiny at every detail we can discern about that interrogation. 3 The unorthodox interpretive procedure employed in this case also causes us to cast a jaundiced eye at the modality used for the interpreting in this case. As we review the testimony at the suppression hearing, we will be looking very closely at whether the appellant was truly informed of his right to remain silent, and of its implicit option, once the right to silence is invoked, of having the interrogation terminate. We will also look very closely at whether the appellant at one point did not, in effect, invoke his right to silence, only to have that right blithely ignored.

We will also be looking closely at the interpretive procedure itself. The Role Of The Interpreter Is A Limited One A brief pause in the trial narration may here be appropriate in order to examine proper procedure in the use of an interpreter. There is a proper and accepted technique for bilingual interpretation (as well as for sign language interpretation for the deaf). The interpreter is not supposed to be a third-party participant in a three-party exchange.

The two parties to the exchange are, as in any normal testimonial exchange, the questioner and the respondent. The interpreter’s proper role is to be an essentially invisible and mechanical device effectively behind the scenes. When the questioner asks a question, in English, the interpreter simply repeats the words, verbatim, in Portuguese. The questioner does not tell the interpreter to ask the respondent a question.

The questioner speaks directly to the respondent as if the interpreter is not even there. When the respondent then answers, he answers directly to the questioner as if the interpreter were not even there. At no time in the interpretive process is the interpreter expected to explain to the respondent what the question means or to explain to the questioner what the respondent means. If in doubt, the 4 questioner must simply interrogate the respondent more closely to resolve such doubt.

A skilled interpreter is a necessary logistical aid in a two-party exchange. The interpreter should never become an actual participant in a three-party exchange. The interpreter, moreover, is required to be scrupulously neutral. The use of a police officer as an interpreter is less than ideal.

The interpreter is not supposed to become a witness. In this case, however, the proper interpreter protocol was regularly honored largely in the breach. The interpreter was called upon, as a witness, to give his opinion as to whether the appellant understood his rights and as to whether he invoked his rights. To the interpreter as a witness, moreover, was delegated the dispositive responsibility of concluding whether the appellant’s invocation of his right or rights had been unambiguous and unequivocal.

That, of course, is not the interpreter’s job. For an interpreter, the testimonial bete noire is indirect quotation. A Weighty Advisement: The Miranda Catechism Plus Maryland Common Law The primary witness at the suppression hearing was Officer Paulo Bonturi, the Portuguese interpreter. At the very outset of the police interrogation of the appellant on April 4, 2018, Officer Bonturi recited the following paragraph to the appellant in Portuguese: OFFICER STREET: You have the right now and at any time to remain silent.

MR. SOARES: Okay. OFFICER STREET: Anything you say may be used against you. You have the right to a lawyer before and during any questioning.

If you cannot afford 5 a lawyer, one will be appointed for you. You have the right to be taken promptly before a District Court commissioner who is a judicial officer not connected to the police. A commissioner will inform you of each offense you are charged with and the penalties for each offense, provide you with a written copy of the charges against you, advise you of the rights to counsel, make a pre-trial custody determination and advise you whether you have the right to a preliminary hearing before a judge at a later time. (Emphasis supplied.) An Enigmatic Response We have no idea whether that heavy composite of Miranda rights and Maryland statutory rights was perceived by the appellant in the conjunctive or in the disjunctive.

No one ever inquired. It is highly questionable whether it is wise to pack so much substance into a single unbroken advisement, particularly where the unilluminating answer will probably be, “Yes, I understand.” Was he supposed to understand them all, moreover, or was he supposed to pick one? Were these cumulative rights or alternative rights? As related by the interpreter, the appellant made a choice among a panoply of rights and opted for a prompt presentment before a commissioner.

OFFICER BONTURI: He understands. He’s saying he wants to go straight to the commissioner. We haven’t gotten that far yet, so. OFFICER STREET: Okay.

So he said he wants to go straight to the commissioner? OFFICER BONTURI: Yes. OFFICER STREET: Okay. No problem.2 2 That entire exchange was a conversation between Detective Street and Officer Bonturi.

They were talking to each other about the appellant. It was not a case of Detective 6 (Emphasis supplied.) “No problem”? If Detective Street, who was conducting the interrogation saw “no problem,” what did that mean? Whatever “No problem” meant to Detective Street, what did that mean to the appellant?

Did it mean that the interrogation would cease and that the appellant would be taken promptly before a commissioner? No such termination, however, remotely happened or was even discussed. Throughout the interrogation, it was clearly Detective Street’s strategy to keep the appellant talking. He did not want the interrogation to stop, and he handled Officer Bonturi’s conclusions about the appellant’s responses in a way that permitted the interrogation to continue moving forward.

To the lawyers in the courtroom, a “prompt” appearance before a commissioner may have meant, as mandated by Maryland statutory law, an appearance within the next 24 hours. To the appellant, by contrast, it may well have meant an immediate alternative to any further police interrogation. “[H]e said he wants to go straight to the commissioner.” We simply do not know for certain what the appellant meant, and no Street talking directly to the appellant nor one of the appellant replying directly to Detective Street. That is not the role of bilingual interpretation. If proper interpretive practice were being followed, the transcript would have read more like this: APPELLANT: I want to go straight to the commissioner.

OFFICER STREET: You want to go straight to the commissioner? APPELLANT: Yes. OFFICER STREET: Okay. No problem. 7 one made any effort to find out.

In a bilingual context such as this, this is not effective communication. As long as the recitation was nominally correct, no one paid any attention to the appellant’s actual wishes. To go immediately before the commissioner, moreover, could mean to end (or not even to begin) the interrogation by the police. This is what the appellant may have been asking for, but we don’t know.

In any event, the request was ignored without any clarification being sought and the interrogation proceeded. An aggravating problem with respect to the appellant’s wishes is that we do not have the appellant’s literal response. What we have is Officer Bonturi’s conclusion about what the appellant said. A: You may have to play back the very end but I think he said that I have a right to a lawyer or I can go straight to the commissioner, and he said he wanted to go straight to the commissioner, and he shook his head yes every time I, and said yes a couple of times every time I read him one of the lines.

(Emphasis supplied). Detective Ryan Street, the aggressive lead detective of the interrogation, leaped to the assumption that the appellant had been furnished with all of the constitutional niceties he was entitled to, and that the interrogation could proceed unencumbered. OFFICER STREET: But he understands his rights? OFFICER BONTURI: He understood.3 (Emphasis supplied.).

That decision, of course, cannot be delegated to the interpreter. 3 A more proper exchange should have been: OFFICER STREET: Do you understand your rights? APPELLANT: I do. 8 As a stark reality, that exchange consists of one policeman (the interpreter) telling another policeman (Detective Street) that the appellant understood all of the rights to which he was entitled, pursuant to both Miranda v. Arizona and the Maryland common law, and that the appellant, albeit aware of those rights, was nonetheless willing to have the interrogation continue. That is a hard sell—unless lip service is enough. As the record itself, to wit, the trial transcript, clearly demonstrates, not a single question was directly asked of the appellant and not a single answer was directly rendered by the appellant touching on the subject of the appellant’s understanding of his rights.

If there was a private conversation between the appellant and the interpreter explaining the rights, it is not to be found in the record. If we are simply being offered the unexplained conclusions of the interpreter in that regard, we are not told that. We do know that the full legal text of the rights in question was once correctly recited to the appellant. Beyond that, everything is pure surmise.

Once Detective Street had the benefit of Officer Bonturi’s conclusion that the appellant understood his Miranda rights, however, Detective Street assumed that he and the appellant were on an equal footing as the adversarial battle between them unfolded. The appellant would make his feeble effort to have the interrogation terminated. Detective Street could make his more sophisticated effort to see that the interrogation continued. The longer it continued, of course, the greater the possibility that the appellant would lapse into saying something incriminating.

Nothing the appellant said in the course of the skirmish, moreover, would have any efficacy unless it could be determined that, according to a vast and convoluted caselaw well beyond the appellant’s ken, the appellant’s words were spoken “unambiguously” and “unequivocally.” The conclusion as to whether the 9 appellant’s words, in Portuguese, were said unambiguously and unequivocally was, moreover, delegated to Officer Bonturi rather than being inferred by the court from the words themselves. Certainly there was no clarification offered by the appellant himself. This playing field was steeply tilted, even if it might not be considered to be tilted in a monolinguistic context. It was the interpreter who was concluding as to what the appellant was thinking and understanding and choosing, rather than confining himself to reporting the actual words of the appellant.

That, quintessentially, is going well beyond the proper, and largely mechanical, role of an interpreter. There is also some question as to the interpreter’s neutrality, but that is another issue beyond the scope of this opinion. Dishonoring The Right To Silence Near the end of the interrogation, there was one very significant question asked by Detective Street that we believe to speak volumes about the purpose and strategic intent of his interrogation. The meaning of the passage is by no means transparent, and we, of necessity, rely on our reading of what the words really say.

Officer Bonturi was explaining one of the appellant’s responses. The actual transcript of the police interrogation characterized the heart of the response as “unintelligible.” The defense brief, on the other hand, describes it thusly: “Appellant ‘wants to know if he has to answer’ or if he could ‘keep his mouth shut.’” In any event, Detective Street jumped in at that point: DETECTIVE STREET: You always, I mean, I’VE ADVISED YOU OF YOUR RIGHTS ALREADY. BUT I’M ASKING YOU THESE QUESTIONS BECAUSE WE’RE TRYING TO MOVE PAST YOU IN OUR INVESTIGATION. We’d also like to, the place where the cocaine was found was the laundry room, your bedroom, on your wife’s side.

Does she have any involvement in it? 10 (Emphasis supplied.) Our reading of that less than clarion passage credits Detective Street with a very clever, indeed deceptively clever, interrogation tactic to keep the interrogation going. According to our reading of an otherwise obscure passage, Detective Street is agreeing that the appellant, indeed, has a right to silence and the concomitant right to terminate the interrogation. In our reading, moreover, the detective seems to say, “Soares, at this point our interrogation of you as a suspect is finished. But I’m asking a few additional questions of you ‘because we’re trying to move past you in our investigation.’ Simply in an effort to interview you as a potential State’s witness, we’d like your information about your wife’s possible guilt.” At that point, of course, the appellant opened up and confessed to his own exclusive involvement.

The technique worked, although it strikes us as grossly improper. “Move past you?” Detective Street relentlessly continues the interrogation even as he ostensibly terminates it. He pretends to honor the appellant’s Miranda-based right to silence by formally ending the interrogation of the appellant in his capacity as a suspect. He then, however, MOVES PAST THE APPELLANT by simply interviewing him in a different capacity, as a witness with respect to his wife’s possible criminal involvement. That presumably, in the detective’s thinking, would not be an interrogation aimed at the appellant himself, and does not, therefore, trigger Miranda v. Arizona.

Keep the appellant talking long enough and he will say something incriminating. The Fifth Amendment, of course, is concerned with whether a person incriminates himself and not with the subject matter being discussed as the medium of that incrimination. If Detective Street’s maneuver 11 indicates anything, it indicates that Detective Street knew that the interrogation of the appellant should have terminated. If that were not the case, there would have been no necessity to MOVE PAST THE APPELLANT.

The appellant was still there, of course, and the appellant, on cue, inevitably incriminated himself. This deliberate MOVE PAST YOU sleight-of-hand did not honor Miranda’s right to silence. It played games with it. Detective Street kept the appellant talking long enough and the appellant incriminated himself.

If anything, when the ostensible subject matter of the conversation shifted from the appellant’s guilt to his wife’s guilt, that amped up rather than toned down the factor of compulsion. The detective found the right button to push. This we will not countenance. In terms of what we are grasping for as the controlling standard for clear and readily understandable communication in the context of police interrogation while using a Portuguese-English interpreter, the explanation to the appellant that “we’re trying to move past you in this investigation” strike us as badly failing the “unambiguous” and “unequivocal” tests.

The State may be “hoist on [its] own petard.”4 Interrogating a reluctant witness about his wife’s guilt can violate the Fifth Amendment Privilege Against Compelled Self-incrimination as readily as interrogating that witness about his own guilt. The State never volunteered an explanation as to what MOVING PAST YOU means. Miranda’s Right To Silence: The Unanswered Question 4 Hamlet, Act 3, Scene 4. 12 Throughout the suppression hearing, the hearing judge was bothered by the very question that bothers us. When the appellant expressed his desire to be taken promptly before a commissioner, was this not the way for the appellant, across the Portuguese- English language barrier, to attempt to assert his right to silence.

At one point, the judge asked: THE COURT: There is no evidence of that other than him saying – the question becomes what is the significance of his invoking or stating that he wanted to be taken to the commissioner. And maybe we should get the exact language he uses that’s in the video. (Emphasis supplied.) Shortly thereafter, the judge asked again: THE COURT: Are you saying that – well the question I’m going to say is are you, and this is where I sort of look at it, or what I thought you were doing was what does that mean, I want to be taken to the commissioner? Are you stating that’s an assertion of his right to remain silent?

(Emphasis supplied.) The judge was saying, as are we, “Don’t get hung up over the literal words about being taken promptly before a commissioner. Was the appellant, as best he could, attempting to assert his right to keep silent?” No satisfactory answer was ever given. On this Tower of Babel in this case, everyone simply kept talking about sundry issues and nothing was resolved. One final time, the judge persisted: THE COURT: Well, he’s got that.

And he got that. I don’t think there is any question that he got that. The question is, in my mind would be does that mean something other than what it, on face value is yes, I want to be taken to the commissioner. Does that mean I don’t want to talk to you; I want to be taken to the commissioner?

Does that mean I want to talk to, I want my attorney taken to the