People v. Al-Yousif

Justice KOURLIS

delivered the Opinion of the Court.

In this case, we must determine whether to uphold a trial court order suppressing the defendant's statement. The defendant, a native of Saudi Arabia who had lived in the United States for four years, gave the statement after hearing the Miranda rights read to him in English and after agreeing that he understood. The trial court ruled that the defendant did not make a valid waiver of his rights. We conclude that the trial court required a deeper appreciation of the implications and consequences of a waiver than does our case law. Because the question of whether the defendant sufficiently understood his rights to waive them is essentially a conclusion of law, we review it de novo. Based upon that review, including a thorough review of the videotaped interview with the defendant, we now conclude that the defendant did sufficiently understand his rights and that the waiver was, therefore,. valid. Accordingly, we reverse the trial court order.

L.. Facts

Denver police arrested the defendant, Naif Al-Yousif, a native of Saudi Arabia, in connection with the murder of Abdulaziz Al-Kohaji. At the time of the arrest, the twenty-two-year-old defendant had resided in the United States for four years and had intermittently attended school including English language classes. The arrest took place at the Denver bus station and during the ride to the police station, the defendant told detectives, "I know all about it." Detective Guigli, who was heading the investigation and who was sitting behind Al-Yousif in the car, gave the defendant a brief oral advisement of. his rights and then told him to be quiet until they reached the station.

Onee at the station, two detectives, Guigli and another named Martinez, began questioning the defendant in a video interview room. They informed Al-Yousif that the interview would be video- and audiotaped. Detective Martinez told Al Yousif that they "needed to get some paperwork out of the way," and then proceeded to ask him several routine intake questions. After that, Martinez said that he was going to tell Al-Yousif about his rights. Martinez read the traditional Miranda warnings ¹ from a preprinted form. The detective instructed Al-Yousif to sign the form in two places; Al-Yousif complied. When the detectives asked the defendant whether they had coerced him or threatened him to make a statement, Al-Yousif looked confused and replied, "What statement?" The detectives clarified they meant the statement the defendant was about to make, and Al-Yousif then responded that no coercion had taken place.

Initially, Al-Yousif denied any knowledge of the murder. When Guigli reminded him that he had already said he "knew all about it," Al-Yousif indicated that he wanted to speak to the victim's uncle before talking to police. The detectives denied this request. As the interview continued, Al-Yousif began making incriminating statements and little by little revealed his role in the murder. The ninety-minute interview ended with Al-Yousif agreeing to take the detectives to a dumpster where he and his cohorts had dumped the victim's body.

When the officers and Al-Yousif returned to the police station from visiting the dumpster, two new officers began to interview Al-Yousif, Detective Vigil and Detective Schneider. Vigil re-advised the defendant of his rights under Miranda, and Al-Yousif said he wanted a@lawyer. The officers terminated the interview.

In a pretrial hearing, the trial judge suppressed Al Yousif's statement to police as being obtained in violation of the Fifth Amendment. After finding that the statement was voluntarily given, the judge concluded that "the People have failed to sustain their burden of proving by a preponderance of the evidence that defendant made a knowing and intelligent waiver of his Miranda rights." The court found the evidence insufficient to support a conclusion that Al-Yousif was "fully aware of the nature of the right to remain silent ... and the consequences of abandoning that right," as required under People v. Kaiser, 32 P.3d 480 (Colo.2001). The People took this interlocutory appeal pursuant to C.A.R. 4.1 and section 16-12-102(2), 6 C.R.S. (2001).

II. Trial Court's Findings

The trial court's order is thorough and thoughtful. It begins with a narrative of "undisputed facts" accompanied thereafter by the court's resolution of the following "disputed facts": (1) the defendant's background and fluency in English; and (2) the defendant's understanding of his Miranda rights and the waiver.² The judge examined each in turn, weighing the credibility of the various witnesses and explaining his perspective on those questions in detail.

In the "conclusions of law" section of the order, the trial judge examined, again in substantial detail, the factors set forth by this court in Kaiser. One by one, the court rendered determinations on the evidence as it related to each factor.

First, addressing the "time interval" factor, the judge found that a "very brief" time had passed between the advisement and the subsequent interrogation.

Second, concerning who initiated the interview, the judge found that the detectives had initiated it, although Al-Yousif had earlier demonstrated "some eagerness to talk with the detectives."

Third, on efforts made to remind the defendant of his rights, the court found "no effort [was made] to remind defendant of his rights or give a fuller explanation of them during the course of the interrogation."

Fourth, the court found, "Defendant's acknowledgment of the rights and his waiver were so perfunctory as to be meaningless for a person with defendant's background. The advisement was cursory at best."

Fifth, the trial judge ruled that Al-Yousif "did not understand that he had the right to remain silent" as evidenced by his request to speak to the victim's uncle first, which the detectives denied.

Sixth, the court viewed the defendant's immediate request for an attorney the second time he was read the Miranda warnings as demonstrating definitively that the defendant had not understood his rights during the first advisement.

Seventh, the court concluded, based upon the testimony of Al-Yousif's peers and expert witnesses, that the defendant's English abilities were "limited."

Eighth, the court determined that the "defendant's cultural background as a citizen of Saudi Arabia made it impossible for him to understand and absorb the Miranda warnings without further explanation or elaboration."

Finally, the court concluded that Al-Yousif "displayed no lack of intelligence that would have impeded his understanding of an effective explanation of his rights."

Ultimately, the trial court ruled that, when all these factors were considered together, Al-Yousif had not knowingly and intelligently waived his constitutional rights.

III Standard of Review

We first note that the trial judge held the prosecution to the appropriate burden of proof. People v. Gennings, 808 P.2d 889, 848 (Colo.1991) (noting that the prosecution must prove the validity of the waiver by a preponderance of the evidence). Examining whether the prosecution has met this burden, courts apply a "totality of the cireumstances" test. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (holding waivers valid "only if the 'totality of the cireumstances surrounding the interrogation' reveals both an uncoerced choice and the requisite level of comprehension" on behalf of the suspect) (citing Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)).

The courts must necessarily examine the objective cireumstances surrounding the waiver in an effort to determine the suspect's level of understanding. See Colorado v. Connelly, 479 U.S. 157, 166-68, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); United States v. Yunis, 859 F.2d 953, 965 (D.C.Cir.1988). In that context, it falls to the trial courts to resolve "disputed facts," and, as a reviewing court, we defer to the trial court's resolution of those disputed facts when the resolution is supported by competent evidence in the record. People v. Miranda-Olivas, 41 P.3d 658, 661 (Colo.2001); Gennings, 808 P.2d at 844. However, as we recently clarified in People v. Matheny, 46 P.3d 453 (Colo.2002), the appellate courts have an enhanced role in examining a trial court's application of law to fact, particularly in the arena of constitutional rights. Id. at 461-62. After acknowledging the traditional deference afforded a trial court on purely factual issues, see People v. Quezada, 731 P.2d 730, 732 (Colo.1987), we ruled in Matheny that the application of the legal standard to the facts, an exercise that resolves the "ultimate constitutional question," merits de novo review. Matheny, 46 P.3d at 462. Thus, where the historical facts are supported by competent evidence in the record, we will not disturb them. But interpreting the significance of those facts to resolve the constitutional question at hand we undertake as if for the first time. See id.

In this context, we accept those trial court findings that have support in the ree-ord, but the question of whether Al Yousif understood the Miranda warnings to the extent that his waiver was "knowing and intelligent," is a legal question that we review "de novo."

IV. The Test for Constitutional Sufficiency

As noted in 2 Wayne R. LaFave et al., Criminal Procedure § 6.9(b), at 586 (2d ed.1999),

[a] waiver may be knowing and intelligent in the sense that there was awareness of the right to remain silent and a decision to forego that right, but yet not knowing and intelligent in the sense that the tactical error of that decision was not perceived. But this is no bar to an effective waiver for Miranda purposes, for it "is not in the sense of shrewdness that Miranda speaks of 'intelligent' waiver," and thus in "this context intelligence is not equated with wisdom."

The defendant need not understand every consequence of his decision to waive. Colorado v. Spring, 479 U.S. 564, 574, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987).

In United States v. Yunis, the D.C. Circuit Court of Appeals examined whether a statement made by a suspected airline hijacker, who had been arrested on a boat in international waters, was permissible under the Fifth Amendment. Yunis, 859 F.2d at 954-55. Yunis spoke "very little English" but was given an Arabic copy of the Miranda warnings, and an interpreter translated into Arabic the warnings as an FBI agent read them to Yunis aloud. Id. at 955-56. Yunis stated repeatedly that he understood the warnings, id., but the trial judge nevertheless suppressed his statement after finding that Yunis was seasick at the time the FBI read the Miranda warnings and that there existed typographical errors in the Arabic copy. Id. at 957. Reversing, the court of appeals serutinized the record and found several of the trial judge's "factual findings" were without support. Id. at 958-60. The court then applied the "knowing and intelligent" standard to the remaining facts under a totality analysis and found the statement was not taken in violation of the Fifth Amendment. Addressing the defendant's culture and background, the court observed:

Clearly, a defendant's alienage and unfamiliarity with the American legal system should be included among these objective factors. However, the significance of these factors will be limited to determining whether a defendant knew and understood the warnings that were read to him. The fact that a defendant's alien status may have prevented him from understanding the full, tactical significance of his decision to confess will not invalidate his waiver.

Id. at 965 (emphasis added).

We agree with D.C. Cireuit Court of Appeals that the defendant's cultural background as it bears upon his understanding has limited relevance: it goes only to whether he understood his basic choices-not whether he understood the tactical advantages of each or the constitutional premises upon which they are based. Rather, the state must present evidence sufficient merely to "demonstrate that the accused understood that he did not have to speak, that he had the right to the presence of counsel, and that the state could use what he said in a later trial against him." People v. Daoud, 462 Mich. 621, 614 N.W.2d 152, 159 (2000). We also agree with the Michigan Supreme Court that one of the reasons for requiring only the most basic of understandings relates to the underlying purposes of Miranda, to wit: "Excluding otherwise validly obtained confessions on the basis that the defendant subjectively did not understand his rights, although there were no signs indicating any degree of confusion" serves no purpose because "Itlhere is nothing more the police could do, nor is there any objectionable police behavior." People v. Cheatham, 453 Mich. 1, 551 N.W.2d 355, 364 (1996).

V. Analysis

With that test in mind, we turn to the facts of this case.

A. Al-Yousif's English Abilities

After examining the evidence, the trial court concluded:

Although [the defendant] did frequently respond "Huh?" to questions and had trouble with certain words (e.g., "statement," "hollering," "forged," "sacrilege," "voluntary"), he responded appropriately to most of the questions posed to him. His spoken English is somewhat broken and difficult to understand but, as the witnesses testified, adequate for casual conversation.

We disagree that Al-Yousif misunderstood the word "statement." When asked whether his "statement was voluntarily given," Al-Yousif looked confused and said, "What statement?" (not, "What is a statement?"). The tape demonstrates he knew the word "statement," but thought the detectives were talking about a statement he had already made. With that exception, we find support in the record for the trial court's determination that Al-Yousif had English abilities adequate for casual conversation.

B. Al-Yousif's Understanding of the Miranda Warnings

Whether the defendant's grasp of "casual" English includes comprehension of the Miranda warning's content was the subject of the trial court's resolution of the second "disputed fact." Describing this critical point as a "disputed fact," however, is something of a mischaracterization. In this particular case, whether Al-Yousif understood the Miranda warnings is a question inseparable from the constitutional question of whether his waiver was knowing and intelligent. Resolution of one necessarily resolves the other, ie., if he understood, his waiver was unquestioningly valid, and if he did not understand, the waiver was invalid. Thus, Al-Yousifs understanding of the Miranda waiver is not a question of historical fact to which we might otherwise owe deference. Rather, it resolves the ultimate legal question, and we review the conclusion de novo.

The judge considered the rapid reading of the rights (cighteen seconds) and the fact that the position of the form did not allow Al-Yousif to read along. Also, the judge noted that the defendant did not initial each of the rights after it was read. The judge further observed that none of the detectives considered finding an Arabic interpreter or inquired into Al-Yousif's proficiency in English comprehension, even though it was apparent that his English skills were limited.

The judge then turned to the fact that the Miranda warnings given later in the afternoon were accompanied by explanation, and, "When Detective Vigil made clear that defendant could have a lawyer sitting with him in the interview, defendant immediately said, 'I want a lawyer." " This led the trial judge to believe that the defendant had not understood that specific right the first time.

Finally, the trial judge credited the testimony of three expert witnesses. The second such witness was Dr. Kholwadia, who holds a Ph.D. in Arabic language, Islamic law, and Saudi Arabian culture. The trial judge found him "thoughtful, credible and extraordinarily well credentialed." The trial judge explained:

He expressed the firm opinion that defendant did not understand the rights read to him or the concept of waiving those rights. This was based partly on defendant's difficulty with English and the manner in which the rights were read. Dr. Kholwa-dia added important explanations of the cultural background of a Saudi Arabian student.... He opined that some of the terms used in the advisement such as "right" and "evidence" could translate into two or three different meanings.... Dr. Kholwadia went over the advisement form with the defendant the day he testified, trying to explain it to him. He said that defendant now understands the words but still has trouble with the concept of the right to remain silent.

The judge also credited the testimony of a linguistics professor, Dr. Slakey, who had taught Al-Yousif at school. The professor examined the readability level of the Miranda warnings according to a standardized test and opined that the text required a seventh-grade reading level. He then compared that with the fifth-grade reading level defendant possessed when he left the school. The judge also noted that the professor testified by phone so that his credibility could not be fully evaluated, but that "his opinions made sense and his experience teaching defendant was a valuable perspective." To the above findings that are purely factual, and to the credibility determinations, we owe deference because they are supported in the ree-ord.

After examining this evidence, the trial judge rendered the legal conclusion that Al-Yousif did not "understand" the Miranda warnings, and that, therefore, the prosecution failed to meet its burden of proving a knowing and intelligent waiver. As indicated above, we review that conclusion de novo. We hold that if these facts do not achieve a valid waiver, then the trial court raised the "knowing and intelligent" constitutional bar too high.

We note at the outset that the video's existence enables us to undertake this review not just from the "cold record," but-at least in part-in precisely the same manner as the trial court. See Colo. Dep't of Pers. v. Alexander, 970 P.2d 459, 467 (Colo.1998) ("An appellate court may draw its own conclusions from operative documentary material in the record."); see also People v. Medina, 25 P.3d 1216, 1228-28 (Colo.2001) (independently reviewing and analyzing video- and audiotape evidence).

.- The tape shows that the defendant clearly understood the following terms and phrases: dates and times, addresses and numbers, days and months, and the words: "sign," "signature," "threat," "videotape," "audiotape," "understand," "student," "picked up," "kidnapped," "apartment, "relax," "sold," "caught," "arrive," "detective," "cousin," "everyday," "wealthy," "rope," "cause," "reason," "character," "garbage," "munchies," "upstairs," "downstairs," "friend," "divide," “right,” “left,” “legs,” “own,” “owner,” "clothes," "naked," "laptop," "truth," "forgive," "prison," "afraid," and "jewelry." The defendant either used these words himself, or responded appropriately when the detectives used them. On the other hand, the defendant clearly did not understand these words: "hollering," "remorse," "hardware," "forge," "motive," "bills," "bundle," "dumpster," "punishment," "suitcase," "finished basement," "desecrate," "sacrilege," and "sacrificial altar." ³

The video revealed that when the detectives spoke in lengthy sentences, the defendant was more apt to become confused, especially when those sentences were spoken rapidly. The Miranda warnings were given in unbroken, quickly read, but short sentences. Also, we witnessed the defendant ask the detectives for clarification when he did not understand a question or a certain word. Al-Yousif asked no questions during the reading of the Miranda warnings. Indeed, Al-Yousif himself stated that he understood the Miranda rights when they were read to him. Such an acknowledgement was important to our holding in Kaiser, 32 P.3d at 486, and People v. Jordan, 891 P.2d 1010, 1015-16 (Colo.1995). Based upon our review of the taped interviews, we conclude that Al-Yousif evidenced a sufficient level of understanding to permit reliance upon his waiver of Miranda rights.

Unlike the trial court, we do not afford much weight to the fact that, after the defendant had shown the police the location of the victim's body and returned to the station for additional questioning, he then requested an attorney following readvisement. It is certainly not inconceivable that, in the first interview, following advisement, the defendant intended to talk to the investigators and deflect suspicion from himself through his answers. After the first interview and the interlude in which he took the officers to the dumpster where the body had been located, he may well have absorbed the extent to which he had implicated himself and began having second thoughts. The fact that he asked for a lawyer after the second advisement is not, to us, evidence that he did not understand his right to do so after the first advisement given the intervening events. Again, we do not deal with the wisdom of a waiver, only its objective legitimacy.

Lastly, we turn to the evidence regarding Al-Yousifs cultural background, upon which the trial court relied. As we have indicated, the relevance of such evidence is limited. Whether a defendant had the cultural background to understand the origin or purpose of constitutional rights, or the tactical implications of waiving them, is not at issue. A particular defendant's length of time in the country, education, religion, background, age, and intelligence certainly bear on his depth of understanding. But the relevance of those factors in the totality analysis here is limited to the simple question of whether the defendant grasped three precepts: (1) he did not have to talk, (2) he could have an attorney present, and (8) if he did talk, his statements could be used against him.⁴ To broaden the inquiry beyond that simple question undermines the admissibility of confessions that are validly obtained, with no police misconduct, from a willing and adequately informed suspect. Accordingly, the testimony of Dr. Kholwadia does not, in our view, dispel the conclusion that Al-Yousif had the necessary level of rudimentary understanding.

VI. Conclusion

The trial court in this case applied a legal standard concerning the meaning of "knowing" and "intelligent" that included aspects of tactical understanding that surpass what is required for a supportable Miranda advisement and waiver. Under our de novo review of the trial court's conclusion, we look to whether the defendant minimally understood that he did not have to talk to the police, that he could request a lawyer, and that, if he spoke, what he said could be used against him to obtain a conviction. Measuring that legal standard against the trial court's findings of historical fact, and our own review of the videotape, we determine that Al-Yousif's waiver of his Miranda rights was sufficiently knowing and intelligent to pass constitutional muster. Accordingly, we reverse the trial court's order of suppression and remand the case for further proceedings consistent with this opinion.

Justice BENDER dissents, and Justice MARTINEZ joins in the dissent.

1 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 LEd.2d 694 (1966).

2 . The trial judge also considered the following two "disputed facts": (3) the defendant's request to speak to the victim's uncle; and (4) the methods of interrogation used by the detectives. However, because we believe this case turns on the first two issues, we find it unnecessary to review the latter two.

3 . Numerous additional terms used in the video were inconclusive, such as "voluntarily," » ers "coerce," "involved," and "struggle." Al-Yousif may or may not have understood their meaning....

4 . We distinguish People v. Jiminez, 863 P.2d 981, 984-85 (Colo.1993), in which we upheld a trial court's suppression of a confession of a Kickapoo Indian defendant on the grounds, not that he was culturally unable to understand his rights, but rather that his mental disability rendered him incapable of understanding them. In that case, the defendant functioned at a six-year-old level, had never attended school, had very limited language abilities, even in his native Kickapoo, and had no understanding of abstract concepts. Id. at 982-83. The sheriff's office conducting the interrogation read the Miranda warnings in Spanish further impeding the defendant's ability to comprehend the warnings because of his very limited Spanish vocabulary. Id. at 982-85. We also distinguish People v. Mejia-Mendoza, 965 P.2d 777, 781 (Colo.1998), in which we upheld the suppression of a native Spanish speaker's statement where the interpreter mistranslated the Miranda advisement.