Fernandez v. Rodriguez

¶6WILLIAM E. DOYLE, Circuit Judge.

¶7After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.

¶8Involved herein is an appeal from the denial of a writ of habeas corpus by the United States District Court for the District of New Mexico. The allegation was and continues to be that the defendant was deprived of his constitutional right against self-in crimination in the state court of New Mexico.

¶9Appellant Claudio Fernandez was convicted and sentenced of second-degree murder with enhancement for use of a firearm in the New Mexico state courts. This conviction was affirmed by the New Mexico Court of Appeals and further review (both on appeal and by post-conviction writ) was denied by the New Mexico Supreme Court.

¶10A writ of habeas corpus was filed in the United States District Court. The writ of habeas corpus was there denied after a review by the United States Magistrate and the United States District Court. Review of this ruling is sought by review in accordance with 28 U.S.C. § 2253.

¶11The facts of the case are as follows. This defendant was initially charged with voluntary manslaughter in connection with the death of his wife, Patsy Fernandez. On June 23, 1978 he entered into a stipulation with the state. Contained in the stipulation was a provision which called for the defendant to submit to a polygraph examination administered by the state. The defendant was unaware of the significance of this device. The defendant had been charged with manslaughter and this same agreement provided for the administration of the polygraph test and for its admission at his trial on the manslaughter charge.1

¶12*560The defendant testified that his attorney, Mr. Natelson, had met with him only briefly before the test and had failed to explain that the polygraph test could be used against him. On the contrary, he testified that Natelson led him to believe that he was required to take the test; that the test was routine. It is important to note that this original attorney failed to explain the mechanics of the test and its consequences. Indeed the attorney was not present when it was taken. The defendant also testified that he did not understand either the stipulation or the polygraph test itself. The evidence also showed that the defendant’s knowledge of English was limited.

¶13Mr. Natelson also testified at the trial at the behest of the state. He said he had not explained the mechanics of the polygraph examination. He also testified that he had limited knowledge of this polygraph process; that he had seen only one such proceeding at a prior time. The polygraph examiner had been hired by the state. Also, he operated it on the state’s behalf.

¶14The polygraph test resulted in the.filing of a more serious offense. On June 29, 1978, the defendant was charged and was arraigned on a more serious charge of murder with firearm enhancement. Mr. Natel-son withdrew from the case shortly after the arraignment on the murder charge. The public defenders were appointed by the court. They at once moved to suppress the results of the polygraph examination. This was grounded on the basis that defendant had not understood the polygraph stipulation or the questions which had been asked. The defendant had such a poor grasp of English that he was unable to understand the polygraph questions. But the trial court held a hearing on this motion and admitted the polygraph testimony. Its ruling was that the defendant’s English was adequate to understand the meaning of the stipulation and the questions asked during the polygraph examination. The record is replete with evidence as to the defendant’s lack of understanding.

¶15During pretrial, counsel for the defendant and for the state had entered into a stipulation which provided for disclosure and discovery.2 One of the provisions stipulated that each party be given notice of all witnesses who would testify. The state broke this agreement because it called two witnesses not on its endorsed list.

¶16The state failed to identify Tom Cruz and Tina Martinez. Cruz was called the second day of the trial. The defendant objected, claiming that he was unable to investigate the witness or his testimony. The state advised the court that it intended to also call Martinez. The state advised the court that it would turn its report on the testimony of both Cruz and Martinez over to defense counsel. The court allowed both witnesses to testify and ruled that defense counsel would have an opportunity to interview both witnesses before they testified. Both witnesses testified that they had seen the defendant on a road on June 4, 1978. This testimony was pertinent to the question of whether the defendant had told the truth as to his whereabouts to the investigating officers.

¶17*561On March 17, 1978, the defendant was convicted of second-degree murder by a jury. He was sentenced to a term of not less than 15 nor more than 55 years.

¶18After exhausting his New Mexico state remedies, the defendant sought but was denied habeas corpus relief in the United States District Court.

¶19The strange proceedings described above brought about the equivalent of a detailed confession.

¶20The waiver of the accused’s right against self-incrimination and the conviction were carried out without the slightest warning to the accused. It also brought out a new charge — one which was grossly more serious than the original manslaughter case. But beyond that it brought about a sentence of great magnitude — 15 to 55 years. In addition he was forced to take a polygraph test — a procedure about which he had no understanding and which introduced evidence which had not been possible.

¶21The defendant raises two issues on appeal. The important contention is whether the trial court erred in admitting the polygraph testimony.3

¶22This polygraph examination led to the filing of the murder charge and it brought about the grossly more serious sentence mentioned above. The defendant argues that his inability to comprehend English prevented him from understanding the polygraph stipulation, and that therefore the stipulation was not a valid waiver of his right against self-incrimination.

¶23Defendant argues that his decision to sign the polygraph stipulation was essentially a decision not to object to inadmissible evidence. But worse than that it amounted to a waiver of consent to waive his right against self-incrimination. Unquestionably the defendant made his decision to sign the polygraph stipulation without knowing that he was thereby convicting himself; with the advice of his then counsel. He did not have “sufficient awareness of relevant circumstances and likely consequences,” Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970), all of which is required for a valid waiver of a constitutional right. Our reading of the record convinces us that the defendant was unable to understand either the polygraph stipulation or its consequences. There is ample evidence which supports his meagre grasp of English. His lack of understanding of English is apparent from the attached appendix. Had he understood the workings of the polygraph test he would not have participated. This coupled with his language problem resulted in his conviction.

¶24Because the defendant was unable to speak and understand the English language fluently, it was imperative that his attorney explain to him the possible consequences of taking the polygraph test. This was not done here. We do not dwell on the issue of the adequacy of counsel. Rather, we view the failure of counsel to apprise the defendant of the implications of the polygraph as another indication that the defendant’s waiver lacked an intelligent conclusion, if not from him, from his attorney.

¶25The trial judge held a hearing on the motion to suppress the polygraph and determined that the defendant’s familiarity with English was sufficient for him to understand the stipulation. Factual issues such as the claimed inability to understand English are properly decided by the trier of facts. State v. Ramirez, 89 N.M. 635, 556 P.2d 43 (1976). But whether there was an intelligent waiver of his constitutional rights against self-incrimination at the time he stipulated to the polygraph examination is a question of law and fact which requires a full examination of all the circumstances involved. When such mixed questions of fact and law are presented to federal habe-as corpus courts, the federal judge need not defer to the legal determinations of a *562state trial judge. Rather, “ … the (Federal) Judge must exercise his own judgment on this blend of facts and their legal values. Thus, so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication to the federal judge.” Hance v. Zant, 696 F.2d 940, 947 (11th Cir.1983), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983), quoting Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.). Our reading of the record indicates that the federal district court’s legal conclusion that the defendant’s waiver of his right to self-incrimination was made knowingly and intelligently was clearly erroneous. The totality of the circumstances indicate that the defendant did not understand English well enough to comprehend the consequences of the stipulation.

¶26The Supreme Court has clearly ruled that the violation of fundamental constitutional rights is a highly sensitive matter which is not readily waived. This has been emphasized on numerous occasions. The leading case is Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In a stellar opinion by Justice Black the high importance was brought out. The Court said: “ ‘[Cjourts indulge every presumption against waiver of fundamental rights,’ and ... ‘do not presume acquiescence in the loss of fundamental rights.’ ” Id. at 464, 58 S.Ct. at 1023 (citations omitted). In deciding whether the defendant did validly waive his right against self-incrimination, Zerbst directs us to evaluate “... the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused.” Id.We may find a waiver of the defendant’s fundamental right against self-incrimination only if the record clearly demonstrates “an intentional relinquishment or abandonment of a known right or privilege.” Id.; see also North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1757-58, 60 L.Ed.2d 286 (1979).

¶27It is impossible, on the basis of the record before us, to find an intentional and intelligent waiver of these all important rights, particularly a knowing intent to waive his right against self-incrimination. Defendant’s English is known to be too limited for us to presume that he could fully understand the terms of the stipulation he signed. Moreover, the record establishes that defendant’s original counsel never provided him with enough of an explanation of the mechanics and implications of the polygraph examination to permit him to make an intelligent decision as to whether to sign the stipulation. Under these circumstances, we hold that the district court’s finding of an intelligent and knowing waiver is clearly erroneous, and that defendant did not validly waive his constitutional right against self-incrimination.

¶28We reverse the district court’s decision and remand this cause to that court with directions to issue a writ of habeas corpus unless the defendant is provided with a new trial.

¶29APPENDIX

¶30The following passages from the record reflect Mr. Fernandez’ limited proficiency in English.

¶31DIRECT EXAMINATION

¶32BY MR. GALLEGOS:

¶33Q Could you please state your name?

¶34A Claudio Fernandez.

¶35Q (By Mr. Gallegos) Where have you been living?

¶36A New Mexico and Colorado.

¶37Q Where were you raised, Mr. Fernandez?

¶38A In Taos.

¶39Q Where exactly in Taos were you raised?

¶40A In Valdez.

¶41Q Is that a big city or a small city?

¶42A It’s a little town.

¶43Q Do you live on something that might be classified as a ranch?

¶44*563A Well, just about everything is ranches, small ranches there.

¶45Q Did you go to school?

¶46A I did go; but the little I went, I didn’t learn anything.

¶47Q What school did you go to?

¶48A I went to Valdez and Arroyo Seco and here in Taos.

¶49Q Okay. What language, when you were living and growing up here in Valdez, was spoken when you were growing up at home?

¶50A Spanish.

¶51Q Did anybody at your home ever speak in English?

¶52A No, except my brother, but that’s after he finished school now.

¶53Q Do you speak any English?

¶54A A little bit, not much.

¶55Q How much English do you figure that you can speak?

¶56A Well, very little. I don’t understand much.

¶57Q Do you understand simple things?

¶58A Not all of them because I didn’t go to school.

¶59Q Do you understand what a polygraph examination is?

¶60A No, I have never understood.

¶61Q Did you take a polygraph examination just recently?

¶62A Yes. But they didn’t tell me anything whether I had to take it or not; like, I had never taken an examination like that before.

¶63Q Who told you to take it?

¶64A Stephen Natelson.

¶65Q When did he tell you to take it?

¶66A About two weeks after I had been incarcerated.

¶67Q Was he your lawyer?

¶68A Yes.

¶69Q Exactly what did he tell you about the examination?

¶70A That I had to take it.

¶71Q For how long a time did you talk to him at that time that he told you that you had to take the examination?

¶72A About three or four minutes.

¶73Q Now, are you certain that you understood when he told you — when you claim he told you that you had to take that examination?

¶74A Well, I didn’t understand because I had never taken an examination like that before; and I didn’t understand what he wanted.

¶75Q Is it possible that he could have been saying that you could take it or not if you wanted to?

¶76A Well, he didn’t tell me none of that. He just told me to take the test and sign the paper.

¶77Q How many times did you talk to Mr. Natelson during the time that you were expecting — that you were in jail?

¶78A Two times.

¶79Q Did you talk to Mr. Natelson prior to taking the polygraph examination?

¶80A Yes, because he wanted me to pay $300.00 for the test.

¶81Q How soon prior to the time that you took the polygraph test did you talk to him?

¶82A He just called me in the afternoon and he asked me if I had $300.00; and I told him no.

¶83Q Did you have a conference with Mr. Natelson in regard to the taking of the polygraph test?

¶84A No.

¶85Q Did you have a conference with anybody prior to having taken the polygraph test?

¶86A No.

¶87Q Did you know Mr. Galbreth?

¶88A No.

¶89Q Do you know the person that conducted the polygraph test?

¶90A No, I had never seen him before. Well, I had never seen him.

¶91*564Q What was the nature of your conversation with the person that gave you the polygraph test?

¶92A He asked me some questions which were eleven; and then he mentioned the fan, which I didn’t understand.

¶93Q Did you understand anything that went on in that room when you took the polygraph examination?

¶94A No, not.everything.

¶95Q What did you understand?

¶96A Well, only that he was going to ask me some questions.

¶97Q Did he tell you the nature of those questions?

¶98A He told me that the machine was used for — so he could tell whether he was telling — whether the Defendant was telling the truth or lies.

¶99Q Okay. Did you talk to him at all in Spanish?

¶100A I spoke partly in Spanish and partly in English, a few English words that I knew.

¶101Q Have you ever taken any other schools in regard to learning how to speak English?

¶102A Yes. I went to one in Denver for— an opportunity school for three months.

¶103THE WITNESS: (In English) Three weeks.

¶104THE INTERPRETER: Three weeks, sorry-

¶105Q (By Mr. Gallegos) And did you learn anything from there?

¶106A No.

¶107Q What kind of work do you do?

¶108A I’m a rancher, or I work on a ranch.

¶109Q Do you work out of town sometimes?

¶110A Yes.

¶111Q And what do you do when you work out of town?

¶112A I wash dishes in a few restaurants here in Taos.

¶113Q do you work in Wyoming?

¶114A Yes. I’ve worked on ranches over there and sheepherding.

¶115... And this motion can be heard with the same witnesses. So, I’m asking the Court to allow me to present evidence on both these issues by the same witnesses. Some are going to testify as to both issues; some as to only one.

¶116THE COURT: Okay. Call your witnesses.

¶117MR. GALLEGOS: Yes, sir. I call Erac-lio—

¶118THE COURT: You’ll have to get them yourself; we don’t have a bailiff.

¶119MR. GALLEGOS: Okay.

¶120THE COURT: Will you raise your right hand?

¶121(The witness was sworn by the Court.)

¶122THE COURT: Have a seat, sir. Get just as close as you can to this microphone.

¶123THE WITNESS: Thank you.

¶124MR. ERACLIO MARTINEZ,

¶125called as a witness by and on behalf of the Defendant herein, having been duly sworn, was examined and testified as follows:

¶126DIRECT EXAMINATION

¶127BY MR. GALLEGOS:

¶128Q Could you please state your name?

¶129A Eraclio Martinez.

¶130Q And what is your present address?

¶131A Arroyo Seco.

¶132Q And how long have you lived in Arroyo Seco?

¶133A I’d say 43 years — 44 years, about.

¶134Q Have you lived there all your life?

¶135A Forty-four years of it.

¶136Q What is your occupation?

¶137A I’m a small farmer.

¶138Q How big of a place is Arroyo Seco?

¶139A I’d say the population is about 500 voters.

¶140*565Q Okay. Now, do you know or have you come in contact closely with other people throughout the county?

¶141A Prom where?

¶142Q From the County of Taos.

¶143A Yes.

¶144Q Okay. Are you acquainted with Mr. Claudio Fernandez?

¶145A Yes, sir.

¶146Q And what is the nature of the acquaintanceship you have with Mr. Fernandez?

¶147A The nature?

¶148Q Yes.

¶149A Well, I’d think I’ve known him as a fairly good citizen, good behavior, was an alcoholic. And he used to work for me off and on and was a good worker. And that’s about all I can say.

¶150Q Okay.

¶151A Come from good, decent people.

¶152Q In your relationship with him and your work — he worked for you; is that correct?

¶153A Right.

¶154Q Now, did you converse with him and give him orders and have him do work for you and different tasks and chores that he had to do for you?

¶155A Tell me again, sir.

¶156Q Okay. You ordered him to do different things for you; is that correct?

¶157A Right.

¶158Q Now, what language did you talk to him in?

¶159A Huh?

¶160Q What language did you use?

¶161A Spanish.

¶162Q Okay. Do you mostly speak in Spanish to most of the people?

¶163A Most of the time, yes, sir.

¶164Q Okay. How far away from you did Mr. Fernandez live?

¶165A I’d say that’s between four or five miles, I’d say.

¶166Q Okay. Now, did you ever attempt, at any time, to talk to him in English?

¶167A No, only in Spanish.

¶168Q Okay. Why is that?

¶169A Well, that’s my language. And I know pretty well that I’m not a very good English talker. Besides, he was worse. He couldn’t understand very well to me. I knew that. So, there was no use for me to talk in English to him.

¶170Q Okay. Do you have an opinion as to whether or not he understood when anybody talked to him in English?

¶171A What?

¶172Q Do you think he understood when somebody spoke to him in English?

¶173A Hardly any. Hardly any to me. I don’t think there was much of that. The only time he’d talk to get a little vodka at work when he was a little half drunk. But he wasn’t that much to understand. I couldn’t even understand him very well, either, myself. I didn’t want to talk to him in English because I knew I couldn’t get along with him that way. I couldn’t understand his English.

¶174Q Okay. Do you know where he worked other than when he worked at your place?

¶175A What?

¶176Q Do you know where else he worked?

¶177A Well, yeah. I guess he worked several places here and there with some of the Spanish people, chopping wood and a little bit of work like sometimes he’d help me like bring me wood, sometimes chopping wood, sometimes farm, work like that, irrigating. That’s about all he’d do with me and several other people that I know around the vicinity.

¶178Q Okay. Are you aware of him having worked out of the state?

¶179A Huh?

¶180Q Do you know that he worked out of New Mexico?

¶181A Out of New Mexico?

¶182Q Pardon?

¶183A Out of New Mexico?

¶184*566Q Yes, sir.

¶185A Yeah. Well, I understand that he used to work in Wyoming and Craig, I think, herding sheep.

¶186Q Okay. Now, in your occupation there and your work that you do, do you have any contact with a number of people? About how many people do you happen to contact on a daily basis?

¶187A I guess — the people he used to work for?

¶188Q No. No. I’m sorry. About how many people do you think you talk to during a day’s work, let’s say?

¶189A I don’t think, sir, I’d be able to tell you that because—

¶190Q But do you talk to many of the people that live around Arroyo Seco?

¶191A Yes, sir.

¶192Q Okay. Do you ever talk about the case against Mr. Fernandez at this time?

¶193A No, sir.

¶194Q Pardon?

¶195Q Is that the Taos paper here?

¶196A Right. Taos News.

¶197MR. GALLEGOS: Okay. Thank you very much.

¶198THE WITNESS: You’re welcome.

¶199THE COURT: Wait just a minute, senior. Any cross?

¶200MS. LAMB: No questions.

¶201THE COURT: You may step down.

¶202THE WITNESS: Thank you, sir.

¶203THE COURT: Can this man go home?

¶204MR. GALLEGOS: Yes, sir.

¶205THE COURT: You may go home, sir.

¶206THE WITNESS: Thank you, Your Hon- or.

¶207THE COURT: Call your next witness.

¶208Will you raise your right hand and be sworn?

¶209(The witness was sworn by the Court.)

¶210THE COURT: Be seated, sir. Get real close to the microphone, like that.

¶211MR. RAYMOND TRUJILLO,

¶212called as a witness by and on behalf of the Defendant herein, having been duly sworn, was examined and testified as follows:

¶213DIRECT EXAMINATION

¶214BY MR. GALLEGOS:

¶215Q Could you please state your name?

¶216A Raymond Trujillo.

¶217Q Mr. Trujillo, what is your present address?

¶218A Box 2264, Taos.

¶219Q And what is your present occupation?

¶220A I’m unemployed now.

¶221Q What was your occupation before you became unemployed?

¶222A I was a counselor for the Pre-trial Diversion First Offenders, alcohol related and drugs.

¶223Q Okay. And when did you work there? When was the last time you worked at that?

¶224A Last June. This June was the last. I worked there for a whole year as full-time counselor. And now I’m just a volunteer alcoholism.

¶225Q Do you work for La Tuatah?

¶226A Yes.

¶227Q Okay. And you work for that organization. Have you ever come in contact with a Mr. Claudio Fernandez?

¶228A Yes, I did.

¶229Q And what was the nature of that contact that you had with him?

¶230A I was his counselor and — because he had a drinking problem.

¶231Q Okay. Now, in your activities as his counselor, did you ever ascertain whether or not he understood any at all or any portion of the English language?

¶232Q Do you have any — in your activities as his counselor, did you talk to him in Spanish or in English?

¶233A Spanish.

¶234Q And why was that?

¶235*567A Because he had difficulty understanding English.

¶236Q Okay. Now, did you ever try to talk to him in English?

¶237A At times I did; but he — he usually used to ask me what I had told him.

¶238Q Okay. What about forms and papers? Did you ever have him read and did he ever have to fill in any forms?

¶239A I used to ask him and he used to give me information.

¶240Q Did you ask him in English or in Spanish?

¶241A I asked him in English, but I had to repeat in Spanish also.

¶242Q Okay. As far as you’re concerned, could he really understand what was being told if asked of him in English?

¶243A Not really.

¶244Q Okay. Do you believe he might have understood simple things like—

¶245A Simple English, maybe; but not big words.

¶246Q Okay. Now, in your capacity as a volunteer alcoholism worker, do you come in contact with a number of people during—

¶247A Yes, I do.

¶248Q And can you hazard an estimate as to how many people you might come in contact on a daily basis?

¶249A Well, I — all the people that I contact are people — Spanish speaking people. And they, themselves, have difficulty of expressing themselves in English.

¶250DIRECT EXAMINATION

¶251BY MR. GALLEGOS:

¶252Q Can you state your name, please?

¶253A Alex Coca.

¶254Q Mr. Coca, what is your present occupation?

¶255A Alcoholism counselor.

¶256Q And where do you work?

¶257A At Taos County Mental Health Counsel Alcoholism Program.

¶258Q Okay. Now, are you familiar with Mr. Fernandez, Claudio Fernandez?

¶259A I know him, yes.

¶260Q Now, have you been his counselor?

¶261A Yes.

¶262Q Now, in regard to your job — is your job specifically at working with people who were Spanish speaking and unable to speak English?

¶263A My job descriptions call for Spanish speaking person, yes.

¶264Q Okay. Now, in your experience with counseling Mr. Fernandez, did you ever ascertain whether or not he could speak English?

¶265A Never. Never occurred to me.

¶266Q Did you ever speak to him in English?

¶267A At some — sometimes, yes.

¶268Q. But whenever you spoke to him in English, did you ever have to repeat yourself in Spanish?

¶269A Definitely, yes, to get the message across.

¶274LOGAN, Circuit Judge,

¶275concurring.

¶276Although I agree with Judge McKay’s concurring opinion I file a separate concurrence because I believe it does not go far enough in addressing the issues presented in this appeal. I agree with Judge McKay that Fernandez’ ability to understand English is a factual finding with fair support in the record. While I also agree with Judge McKay that the question of whether petitioner knowingly and intelligently waived his Fifth Amendment right against incrimination is a mixed question of fact and law reviewable by this court, I would comply with the Court’s dictates in Sumner v. Mata, 449 U.S. 539, 551-52, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981), tying the generalities of 28 U.S.C. § 2254(d) to the specific facts of our case. We should acknowledge that although the state courts here appeared to apply the correct legal standard for determining waiver of Fifth Amendment rights, after consideration of the *568record as a whole we are convinced that their factual determination that the waiver was voluntary is not fairly supported by the record and therefore does not warrant our deference. The facts supporting such determination are ably set out in Judge McKay’s analysis of the language of the stipulation.

¶277I also believe Judge McKay’s concurring opinion falls short by failing to analyze two issues: first, whether polygraph test results are testimonial communications; and second, whether the admission of the petitioner’s polygraph test results constituted harmless error in his criminal trial.

¶278The Fifth Amendment privilege against self-incrimination applies only to testimonial communications; criminal defendants normally have no Fifth Amendment right against being compelled to provide physical evidence. Therefore, a criminal defendant may be required to give a blood sample to determine alcohol content, Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966), participate in a lineup, United States v. Wade, 388 U.S. 218, 221-22, 87 S.Ct. 1926, 1929, 18 L.Ed.2d 1149 (1967), and provide handwriting exemplars, Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967). But I agree with the Eighth Circuit that evidence derived from a polygraph examination is more accurately categorized as testimonial than physical. See United States v. Oliver, 525 F.2d 731, 734-36 (8th Cir.1975) (presumes testimonial nature of polygraph exam results), cert. denied, 424 U.S. 973, 96 S.Ct. 1477, 47 L.Ed.2d 743 (1976). See also Bowen v. Eyman, 324 F.Supp. 339, 341 (D.Ariz. 1970); contra United States v. Ridling, 350 F.Supp. 90, 98 (E.D.Mich.1972).1

¶279Even though Fifth Amendment guarantees apply to the polygraph examination in question here, we still must consider whether the use of this evidence constituted harmless error in petitioner’s state court trial. In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Court held that “there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” Id. at 22, 87 S.Ct. at 827. The Court in Chapman articulated the rule, however, that before a constitutional error may be characterized as harmless, the reviewing court must be able to declare that it was harmless beyond a reasonable doubt. Id. at 24, 87 S.Ct. at 828.

¶280Nevertheless, some constitutional rights are so basic to a fair trial that their infraction may never be treated as harmless error. These rights include the right to be free from coerced or otherwise involuntary confessions. See Chapman, 386 U.S. at 23, n. 8, 87 S.Ct. at 828 n. 8. See also Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978) (“any criminal trial use against a defendant of his involuntary statement is a denial of due process of law ‘even though there is ample evidence aside from the confession to support the conviction.’ ” (emphasis in original)). The Supreme Court has emphasized that a confession may be rendered involuntary if it is extracted by any sort of threats or violence, or obtained by any direct or implied promises, however slight, or by the exertion of any improper influence. Hutto v. Ross, 429 U.S. 28, 31, 97 S.Ct. 202, 204, 50 L.Ed.2d 194 (1976) (per curiam).

¶281I agree with Judge McKay that in petitioner’s stipulation the prosecution appeared to promise to limit the use of the *569evidence obtained from the polygraph to the manslaughter charge filed at the time of the exam. I cannot conclude that the state has established that petitioner volunteered to undergo the exam with the prospect that such evidence would be used in a subsequent murder trial. Therefore, the admission of this evidence cannot be harmless error. Rogers v. Richmond, 365 U.S. 534, 540-41, 81 S.Ct. 735, 739, 5 L.Ed.2d 760 (1961). But even if petitioner’s consent to the polygraph test should be characterized as voluntary for Fifth Amendment purposes, I still cannot conclude that the use of this evidence was harmless beyond a reasonable doubt. The prosecution’s case was largely circumstantial; the dispositive issue was whether petitioner’s wife committed suicide or was murdered by petitioner. The polygraph examiner was the final state witness, and he testified, among other things, in response to direct questions regarding petitioner’s guilt, that petitioner had the highest flunking score he ever observed.

¶282For these reasons I agree that the judgment must be reversed.

¶284McKAY, Circuit Judge,

¶285concurring:

¶286I agree with the result reached by the court but for different reasons. Petitioner in this case was originally charged with voluntary manslaughter. On the advice of his attorney, he agreed to take a polygraph examination and stipulated that the results of the test could be used “in the trial of the above action by either the District Attorney or by counsel for the defendant.” Several days after the exam, petitioner was charged and indicted on the more serious offense of murder. Petitioner moved to suppress the evidence obtained from the polygraph on the ground that, due to petitioner’s inability to understand English, he did not understand the stipulation he signed or the questions asked during the polygraph exam. The trial court denied the motion, finding that petitioner’s knowledge of English was adequate to understand the stipulation and the questions asked during the exam. Petitioner was convicted of murder.

¶287The New Mexico Court of Appeals affirmed, and the New Mexico Supreme Court denied certiorari. Petitioner moved for post-conviction relief, including an allegation that, even if the stipulation was valid, it pertained only to the manslaughter charge and did not constitute waiver of his rights in the trial on the subsequent murder charge. The New Mexico Supreme Court denied relief. Petitioner then filed this petition for habeas corpus relief, which the district court denied. This court reverses the district court, and in its opinion holds that the district court’s finding that the petitioner knowingly and intelligently waived his fifth amendment rights was clearly erroneous. The court bases its decision on a determination, contrary to the finding of the state trial court, that defendant did not understand English.

¶288The question of petitioner’s ability to understand English is a question of historical fact. See Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983) (substance of ex parte communications and effect of those communications on juror impartiality are questions of historical fact); Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 848-49, 74 L.Ed.2d 646 (1983) (in determining validity of guilty plea, finding that respondent was “an intelligent individual, well versed in the criminal processes and well represented in all stages of the proceedings by competent and capable counsel,” and the inferences fairly deducible from these facts are entitled to presumption of correctness). Such fact findings are to be accorded a “high measure of deference.” Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982); 28 U.S.C. § 2254(d) (1982). This deference “requires that a federal habeas court more than simply disagree with the factual determinations. Instead, it must conclude that the state court findings lacked even ‘fair support’ in the record.” Marshall, 103 S.Ct. at 850. Since there appears to be fair support in the record for the trial court’s finding, we cannot base our finding that petitioner did not validly waive his *570fifth amendment rights on his inability to understand English.

¶289This does not, however, mean that the district court must be affirmed. The question of whether petitioner knowingly and intelligently waived his constitutional rights is “a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case.” Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980); Hance v. Zant, 696 F.2d 940, 947 (11th Cir.1983). The trial court’s conclusion on this question is open to collateral attack on review. Cuyler, 446 U.S. at 342, 100 S.Ct. at 1714.

¶290The waiver of rights such as the right against self-incrimination “not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970); see also Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Given the ambiguities of the stipulation he signed, petitioner cannot be said to have been fully aware of the possibility that information obtained in the polygraph exam could be used against him in a subsequent murder trial, even if he understands English perfectly.

¶291The stipulation, on its face, is limited to application to the manslaughter charge. It states that:

Defendant Claudio Fernandez has been charged in this case with voluntary man-slaughter____ It is therefore agreed and stipulated between the parties as follows:

… *

7. That any results of the polygraph exam, and statements or admissions made therein, may be used at the trial of the above action by either the District Attorney or by counsel for the defendant.

¶292(emphasis added). At the time of the stipulation petitioner had not been charged with murder and had no knowledge that he would be. The stipulation cannot be said to constitute knowing and intelligent consent to use of information obtained in the polygraph exam in a later trial for murder.

¶293In addition, the stipulation creates the implication that information obtained in the polygraph exam will only be used to reduce the charges — not to increase them. The stipulation states that “... the State has agreed with counsel for Mr. Fernandez that if the testimony of Mr. Fernandez before the polygraph examiner constitutes evidence of his innocence and if his testimony can be corroborated by credible evidence, that the State will consider reduction or dismissal of the charges herein.” No mention is made anywhere in the stipulation that the information may be used to increase the charges. In light of these ambiguities, the district court erred in finding that petitioner knowingly and intelligently waived his rights against self-incrimination for purposes of his murder trial. I therefore concur in the judgment of the court that the judgment must be reversed.