Opinion
No. 51431-8-I.
Filed: April 5, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 01-1-08583-9. Judgment or order under review. Date filed: 11/08/2002. Judge signing: Hon. Cheryl Carey.
Counsel for Appellant(s), Eric Broman, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), E Bradford Bales, King Co Pros Aty Ofc, 516 3rd Ave, Seattle, WA 98104-2390.
This court generally will not review an argument raised for the first time on appeal; however, we will review such an argument if a criminal defendant shows that he was actually prejudiced by an error affecting a constitutional right. Here, Alpizar-Galvez argues for the first time on appeal that the police violated his right to due process, but he fails to show how a police officer who acted as a translator during his interview actually denied him due process. We therefore refuse to consider this new argument. Because Alpizar-Galvez did not challenge the trial court's findings of fact or conclusions of law, and because he argues no other basis for his claim of error, we affirm.
FACTS
The State charged Alpizar-Galvez with the crime of indecent liberties under RCW 9A.44.100(1)(a). Before trial, Alpizar-Galvez moved to suppress a statement he made to the police on the ground that he did not knowingly or voluntarily waive his Miranda rights before he made the statement. Following a hearing on the statement's admissibility, the trial court found these facts:
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
In the course of their investigation of this case, Detectives Wilcox and Hutchinson met Alpizar-Galvez where he worked to interview him. The detectives were wearing plain clothes, they were driving an unmarked police car without lights or a cage, and they did not show Alpizar-Galvez that they were armed with guns. After the detectives identified themselves to Alpizar-Galvez, he agreed to go with them to the police station to talk about the incident. Before going to the station, however, the detectives allowed Alpizar-Galvez to change his clothes outside of their presence. Alpizar-Galvez was not handcuffed or restrained in any way.
Detective Wilcox interviewed Alpizar-Galvez at the police station. Lieutenant Leddy assisted the detective by acting as an interpreter. Lieutenant Leddy translated the detective's questions into Spanish for Alpizar-Galvez, and he translated Alpizar-Galvez's answers into English for the detective. Spanish is the lieutenant's natural language; he lived in Mexico between the ages of 6 and 19, he attended a Spanish-only elementary school, and he spoke Spanish at home, in high school, in the army, and during his law enforcement career.
Lieutenant Leddy read Alpizar-Galvez a form entitled "Explanation/Waiver of My Constitutional Rights." After reading each enumerated Miranda right to Alpizar-Galvez, the lieutenant asked him whether he understood. Each time, Alpizar-Galvez said that he understood, and he placed his initial on the form, next to the numbered right. The lieutenant also read the waiver portion of the form, stopping after each sentence to ensure that Alpizar-Galvez understood it. Alpizar-Galvez then signed his name at the bottom of the form. He never indicated that he did not understand his rights, nor did he have trouble following the conversation. The lieutenant had no trouble communicating with Alpizar-Galvez.
The form shows that Alpizar-Galvez was advised of, and that he decided not to exercise, the following enumerated rights: "1. I have the right to remain silent. 2. Anything I say can be used against me in a court of law. . . . 3. I have the right at this time to talk to a lawyer and have him/her present with me while I am being questioned. 4. If I cannot afford to hire a lawyer, one will be appointed to represent me before any questioning, if I wish. 5. I can decide at any time to exercise these rights and not answer any questions or make any statements." Clerk's Papers at 31.
Alpizar-Galvez answered Detective Wilcox's questions, and the detective accurately summarized their conversation. The interview was not tape-recorded. Alpizar-Galvez was not threatened or subjected to force during the interview, and he never asked for an attorney, to remain silent, to end the interview, or to leave the police station.
Based on these facts, the trial court concluded that Miranda did not apply because Alpizar-Galvez was never in custody. Moreover, the trial court concluded that even if Alpizar-Galvez was in custody, he was properly advised of his rights, he understood them, and he waived them. Finally, the trial court concluded that Alpizar-Galvez spoke to the detective, through Lieutenant Leddy, freely and voluntarily. The trial court declared the statement to be admissible.
DECISION
Alpizar-Galvez does not assign error to any of the findings of fact, and therefore we treat them as verities on appeal. He does, however, assign error to the trial court's denial of his suppression motion, which we review for legal error.
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Although Alpizar-Galvez does not assign error to any particular conclusion of law, this omission does not preclude review because the thrust of his brief sufficiently articulates his challenge to the trial court's ultimate "conclusion" that the statement was admissible. See Johnson v. County of Kittitas, 103 Wn. App. 212, 216, 11 P.3d 862 (2000).
Alpizar-Galvez has abandoned the argument he made to the trial court in support of his motion, which was that he did not knowingly or voluntarily waive his Miranda rights. Instead, Alpizar-Galvez raises a new argument that the police violated his due process rights when a police officer acted as a translator to advise him of his constitutional rights, to obtain his waiver of those rights, and to assist the interrogating officer. As a general rule, we will not consider issues raised for the first time on appeal. We will, however, review a claim of a `manifest error affecting a constitutional right.'
RAP 2.5(a).
RAP 2.5(a)(3).
The error that Alpizar-Galvez asserts undoubtedly would affect his Fourteenth Amendment right to due process. But to mandate appellate review of his new argument, Alpizar-Galvez must also show that the claimed error was `manifest,' that is, he must show that the claimed error actually deprived him of his right to due process. `[I]t is this showing of actual prejudice that makes the error `manifest', allowing appellate review.'
State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
McFarland, 127 Wn.2d at 333.
The basis of Alpizar-Galvez's due process argument is that Lieutenant Leddy, and not a `neutral' interpreter, advised him of his rights, obtained a waiver of those rights, and translated his interview with Detective Wilcox. Alpizar-Galvez's argument proposes that Lieutenant Leddy was biased against him, and that the use of a biased interpreter to explain Alpizar-Galvez's rights and to translate his statement was fundamentally unfair and violated his right to due process.
To support his argument, Alpizar-Galvez relies on State v. Cervantes, in which the police used a potential codefendant as an interpreter to advise an arrestee of his rights, determine that he understood them and voluntarily waived them, and then conduct a custodial translated interrogation at the scene of the crime. The court of appeals in Cervantes held that this procedure was fundamentally unfair and a violation of due process.
State v. Cervantes, 62 Wn. App. 695, 814 P.2d 1232 (1991).
Cervantes, 62 Wn. App. at 696-99.
Cervantes, 62 Wn. App. at 701.
But Alpizar-Galvez fails to show how Lieutenant Leddy was actually biased against Alpizar-Galvez like the potential codefendant was biased against Cervantes. In Cervantes, the codefendant had a strong motive to fabricate a `confession' by Cervantes that drugs discovered by the police were his. Here, however, Alpizar-Galvez points to nothing in the record suggesting that Leddy had any reason to incriminate Alpizar-Galvez. Thus, we are not persuaded by his analogy to Cervantes.
Cervantes, 62 Wn. App. at 700.
We are likewise not persuaded by Alpizar-Galvez's reliance on irrelevant authority governing court-appointed interpreters in legal proceedings, e.g., ch. 2.43 RCW. Alpizar-Galvez provides no authority for the proposition that the State must provide someone other than a police officer to translate a police interrogation. Nor are we inclined to hold that such a rule is necessary to secure the due process rights of non-English-speaking persons.
In sum, Alpizar-Galvez fails to show how Lieutenant Leddy's role in this case caused him actual prejudice, and thus he fails to show how the error he claims is `manifest.' We therefore refuse to consider his new argument.
Alpizar-Galvez argues no other basis to support his claim of error. The unchallenged findings of fact support the unchallenged conclusions of law that Alpizar-Galvez made his statement freely and voluntarily, that he was not in custody when he did so, and that even if he was in custody, he knowingly and intelligently waived his Miranda rights before he gave his statement. The trial court did not err in denying the motion to suppress. We affirm.
KENNEDY and COX, JJ., concur.