Gomes v. State

¶1dissenting.

¶2We are presented with one of the law’s greatest promises. The premise of this great promise, is the principle of both the *382United States and Texas law, that government is limited. Within the principle of governmental limits, resides one of the greatest explicit promises any government can covenant with its people. Our law covenants no person may be compelled to witness or give evidence against themselves. No one may be intimidated or threatened to testify against themselves except they may only do so freely and self determinedly. This ultimate query, whether a statement to police is free and self determined, that is voluntary, is a legal question. See Arizona v. Fulminante, 499 U.S. 279, 287, 111 S.Ct. 1246, 113 L.Ed.2d 802 (1991). So today, we are duty bound to determine whether our law has kept this great promise.

¶3During the early morning hours of June 14, 1996 appellant, for the promise of money, went to the home of the deceased, El Cubano, where she was raped and sodomized. Sometime later that day, El Cubano was killed when he returned to club Mexico Lindo. At 8:00 a.m., the day before Independence Day, 1996, two Houston police officers knocked on the door of the home of appellant, unannounced. Half asleep from her 2:00 a.m. arrival home, this twenty-four year old young Hispanic mother was requested to accompany police to the station for follow-up questioning. Afforded only a fourth grade education, illiterate in English, and a foreign national, appellant avers she was not informed she was free to refuse this invitation. Appellant had only arrived home a few hours before, and had not eaten. The police did graciously feed her nachos and V-8 juice, her last and only reported meal for the day long questioning. Appellant’s three young children were left behind with a hastily arranged baby sitter.

¶4Appellant was transported by an unmarked police vehicle to police headquarters for a polygraph and questioning. Police, unbeknownst to appellant, had previously scheduled the 9:00 a.m. polygraph session. Around 9:40, Officer Val-verde, the polygraph operator, briefly spoke with appellant then left her incommunicado somewhere between one and one half hours and three hours. Although the first polygraph test was administered between 12:11 and 12:57 p.m., appellant remained at the downtown police headquarters until 3:30 or 4:00 p.m. without a meal, drink or using the bathroom. Valverde stated appellant was given such opportunity but there is no positive testimony or circumstantial evidence that sustenance was provided until after a third, confession was obtained later that evening.

¶5Valverde, who interviewed appellant in her native Spanish, testified she knew by 10:30 a.m. that appellant had killed El Cubano. She already knew appellant to be the only and prime suspect, that a witness placed appellant with the deceased hours before the homicide and that appellant had tried to sell a pistol two or three days after the shooting. The officer freely admitted she never warned appellant in any manner. Valverde gave the singular impression and even testified that a Houston Police Officer, who happens to be a polygraph operator, is not in charge of a suspect under her direction, and therefore does not (ever) have to advise a suspect of their Constitutional or statutory rights. Valverde candidly admitted her express purpose was to obtain not only the truth but also a confession. (Homicide had already focused their investigation on appellant before this day.) Eventually, appellant, trusting her new confidant, Valverde, made her first “confession.” Valverde successfully employed the “new friend” technique of interrogation. Even after appellant “confessed to murder” appellant was “free to go” claimed this government witness. Appellant understandably stated she was not free to go. Officer Martinez however, gave a more candid response that after the polygraph confession appellant was not free to go.

¶6After the second polygraph of the day, and multiple prior statements from appellant, the police had a dead body and the *383person in their building who just admitted she did the killing; a witness had placed her with the deceased, appellant had tried to get rid of the gun, and there were no other suspects. The trial judge duly noted the availability of judges in the very police station where the polygraph operation occurred, 61 Reisner, near downtown Houston. Nearby was 1400 Lubbock, or 49 San Jacinto where magistrates are also available 24 hours a day for issuing warrants or warnings.

¶7According to the only believable witness,1 Valverde, she told appellant, again without warnings, to repeat her confession to officer Martinez. Miranda warnings were not necessary according to police and the majority, because this confessed “killer” was free to go, not in custody. At this juncture, the young foreigner, had been the social invitee of the State for some nine hours She had yet to be afforded any warnings.

¶8According to Valverde, appellant did indicate she would go with Martinez for yet further interrogation at the Mykawa police station “but she needed to take care of the children first.” Martinez said “fine.” The record shows this attempt to either leave or check on her children was denied appellant. Appellant even indicated she gave Martinez some jewelry, her ring, to let her check on her children. Martinez never allowed the promised check on appellant’s young children or any other outside contact.

¶9After the second confession, appellant was then taken by police, to the distant Mykawa street police station, for further interrogation. The requirement to take appellant before a magistrate was ignored. Now after 5:00 in the evening, without sustenance to eat or drink, crying with concern for her child, appellant was yet to be afforded a single affirmative protection of our laws.2 The majority incorrectly refuses to consider this illegal arrest under the totality of circumstances test, even though the trial judge himself was clearly disturbed by this misconduct.

¶10During the late afternoon, going to My-kawa, police refused to discuss her situation with her. Finally there, she was given warnings, after a fashion. She was twice asked if she understood her right to remain silent. Twice, she did not respond, indicating neither understanding nor waiver. Twice she was asked whether she understood her statement could be used against her. Again she did not respond with any indication of comprehension or waiver. When appellant specifically asked about her right to terminate the questioning, Officer Martinez either purposefully or inadvertently misstated appellant’s right to terminate. He equivocated “Interview, here .. uh ... this interview, which we are here ... you and 1, talking ...” As the majority focused, appellant was made to read back in Spanish, the same term “terminate ” in the same language that she indicated she did not understand. Police then obtained, in appellant’s tenth hour with them, a third confession, the last one videotaped and the only one with even an attempt at proper warnings.

¶11The appellant’s version was more alarming. She says police did not tell her she would have to take a polygraph. She maintains she was initially isolated incommunicado at the police station for over three hours. She was afraid of the poly*384graph and believed it would electrocute her. She states she would be jailed, even if innocent, if she did not admit to killing El Cubano. She always averred she felt captive to the day long interrogations. Appellant claims not only did she not receive food, water or bathroom break, she was refused that opportunity. She thought she had no right to refuse interrogation, felt under arrest, and was intimidated not only with treats of jail but a harangue of “You are the one! You are the one! Even if you are not, you are going to jail!” She was never allowed to check on her children, was not told where she was to be taken, and under the circumstances thought she had no right to refuse to talk with investigators. “They told me I had to. They forced me!”

¶12Analysis

¶13Relevant circumstances to determine if a defendant’s will has been overborne have included length of detention, incommunicado or prolonged interrogation, denying a family access to a defendant, refusing a defendant’s request to telephone a lawyer or family, and physical brutality. See Armstrong v. State 718 S.W.2d 686, 693 (Tex.Crim.App.1985) quoting 1 W. LaFave & J. Israel, Criminal Procedure, Sec. 6.2 at p. 445 (West 1984); Pace v. State, 986 S.W.2d 740, 747 (Tex.App.-El Paso 1999, pet. ref'd) A defendant’s characteristics and status, as well as the conduct of the police, are important concerns. Turner v. Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810 (1949); Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); “To meet constitutional standards, a confession must be both voluntary and taken in compliance with Miranda and Article 38.22 of the Code of Criminal Procedure.” See Pace, 986 S.W.2d at 747.

¶14Clearly the questioning of appellant was interrogation. “Interrogation connotes a ‘calculated’ practice on the part of a government official in an attempt to evoke an incriminating response.” See Cooks v. State, 844 S.W.2d 697, 734 (Tex.Crim.App.1992); McCrory v. State, 643 S.W.2d 725, 734 (Tex.Crim.App.1983). Further, interrogation is “questioning initiated by law enforcement officers.” Wicker v. State, 740 S.W.2d 779, 785 (Tex.Crim.App.1987) One pertinent inquiry here is the custodial nature of the questioning. The mere fact that an interrogation begins as noncustodial does not prevent custody from arising later; police conduct during the encounter may cause a consensual inquiry to escalate into custodial interrogation. See Ussery v. State, 651 S.W.2d 767, 770 (Tex.Crim.App.1983). Our sister court was confronted with a similar situation which started as non-custodial interrogation but evolved into custodial interrogation. “At the time he made oral statements which implicated himself, the inquiry turned into a custodial interrogation. This is because at that point and time there was probable cause to arrest Blanks, and he was certainly a focus of the investigation.” See Blanks v. State, 968 S.W.2d 414, 419 (Tex.App.—Texarkana 1998, pet. ref'd). So too here, at a minimum, with the investigation focused on the only suspect, the appellant, the gun evidence, the witnesses’ placement of appellant, the dead body coupled with appellant’s admission, unequivocally ended any police pretense of non-custodial interrogation. Dowthitt v. State 931 S.W.2d 244 (Tex.Crim.App.1996).

¶15In Texas a person is arrested when under restraint or taken into custody by an officer. Tex.Code CRiM. Proc. Ann. Art. 15.22. “An arrest is complete when a person’s liberty or movement is restricted or restrained.” See Livingston v. State 739 S.W.2d 311, 327 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988). Yet at this point (at least by mid-day) both Valverde and Martinez continued custodial interrogation without interruption, warrant or warning. Valverde obtained a second polygraph. Sobbing on the floor, scared and crying for contact with her children, the police persisted. Still no warnings were given. A *385second confession was given Martinez before he physically removed appellant to Mykawa, bypassing both the magistrate in the same police building at 61 Reisner, and Texas law.

¶16Finally, sometime in the evening, at the Mykawa station, an infirmed attempt at warnings was made. No written warnings were ever signed by appellant. She did not respond to the first two Miranda warnings though they were repeated twice. When she asked what “terminate the interview” meant, the police eschewed the query “terminate” and instead focused on “the interview”.3 Our situation is in stark contrast to Dunn v. State, 951 S.W.2d 478 (Tex.Crim.App.1997) where the officer carefully explained the terms to that appellant. Id. at 481.

¶17As noted, appellant has provided ample evidence her confessions were involuntary, whether custodial or not. Much of the strongest evidence of involuntariness came via appellant’s uncontroverted testimony or from law enforcement officers themselves.

¶18The majority choose to overlook much of this evidence in its opinion. Rather, it isolates six factors summarized by appellant as evidence her confessions were involuntary. Each is, in turn, parsed, minimized or dismissed.

¶19For instance, though the majority appears to acknowledge a person’s characteristics and status are important concerns in determining voluntariness of a confession, it fails to say anything about appellant’s characteristics other than she had “limited intelligence.” The majority failed to give any meaningful consideration to these undisputed characteristics of appellant:

— she is a foreign national, who speaks no English;

— she had no prior experience with the police, at least in this country;

— she had only a fourth grade education;

— she worked in a bar as a prostitute to support her young children;

— she did not understand the law;

— she was so unsophisticated as to the interrogation procedure such that she feared the polygraph she was hooked up to might electrocute her.

¶20In discussing the coerciveness factor, citing that the there was no violence or threats or promises made by police, the majority holds, “the police did nothing that could remotely be characterized as coercive.” In so asserting.the majority, again, completely ignores contrary evidence of (among other things):

— appellant’s hours of incommunicado isolation in a police station, miles from home, away from her dependent young children;

— the repeated failure of the police to give appellant Miranda warnings or take her to a magistrate, despite clear probable cause;

— the manipulation and deceit of the police, for the admitted purpose “obtain a confession.”

¶21The majority also explicitly refuses to consider the absence of Miranda warnings as a factor in determining the voluntariness of appellant’s confessions. The reason: the absence of warnings is relevant only to a custodial inquiry. The proposition that a suspect must have been in a technical state of “custody for a court to consider whether the absence of Miranda warnings was a factor contributing to the involuntariness of a confession is incorrect. “Custody” or not, the concrete difference between appellant receiving no warnings and her being informed of and understanding her right to remain silent — i.e., not confess — should not be ignored, especially under the facts of this case. Without proper warnings it is significantly more *386likely appellant’s confession was involuntary.

¶22The majority acknowledges that the law dictates the relevant factors be viewed not individually, but by the totality of the circumstances, and ends the discussion of each factor with the promise, “we will consider this factor along with the other factors in viewing the totality of the circumstances.” However, at the end of the discussion, without a single word of analysis as to how these factors, taken together, had a cumulative effect on appellant, the majority suddenly shuts down its analytic engine, and summarily holds, “[h]av-ing considered all the [] factors together with all other circumstances, we find appellant’s will was not overborne.”4

¶23No isolated piece of evidence presented may demand a holding that appellant’s confessions were involuntary. But over the day long ordeal, the isolation, intimidation, manipulation, the police movement of her, hunger, the police disregard of the law to take her before a magistrate, the police refusal to warn, the police refusal to explain she could terminate the interrogation, the police refusal to allow family communication and the day long interrogation wore on this young, uneducated mother. Because the myriad factors, taken as a whole, are so overwhelming, appellant’s confessions were not proven to be voluntary.

¶24The trial court abused his discretion in denying the motion to suppress. The State failed to meet its burden to show appellant’s statements were “freely and voluntarily made without compulsion or persuasion.” See Tex.Code CRim. PRoc. art. 38.21; Jordan v. State, 939 S.W.2d 222, 223 (Tex.App.-Houston [1st Dist.] 1997, no pet.).

¶25Similarly, under the totality of the circumstances appellant did not knowingly, intelligently and voluntarily waive her Miranda rights in violation of State and Federal Constitutional standards as well as Tex Code Crim. Proc. art 38.22, § 3a. once custodial interrogation began.

¶26We are then charged to reverse this conviction unless we determine beyond a reasonable doubt the above errors did not contribute to the conviction or punishment. See Tex .R.App. Proc. 44.2(a). None of appellant’s self-incriminating statements could properly be used against her.5 Undoubtedly, their use created or contributed to the State’s leverage in the plea bargain process. If the statements had been admitted at a trial, they could only have contributed to a guilty verdict and increased the likelihood of a more severe punishment. The error therefore manifestly contributed to appellant’s conviction and punishment beyond a reasonable doubt and the conviction should be reversed and the case remanded for a new trial. On the day before Independence Day, 1996, the law breeched its solemn covenant.