State v. Castillo-Sanchez

BOSSON, Judge

(concurring).

{34} I agree with the opinion of the majority and its discussion of this case in light of United States Supreme Court precedent which binds this Court with respect to the federal constitution. It is unfortunate a better record was not made below on which we could consider a different standard under our state constitution. I find Justice Souter’s concurrence in Davis v. United States, 512 U.S. 452, 466, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), joined by three of his colleagues, more persuasive than the majority opinion in terms of obliging a reasonable, fair-minded interrogator at least to clarify whether the suspect is requesting an attorney when confronted with an ambiguous statement to that effect. To their credit, the law enforcement officials did so in Davis, but I am not confident the police did so in this instance. Law enforcement should do so in every case as a matter of constitutional law and common sense. Given the linguistic and cultural differences our state enjoys, not to mention our border with Mexico, our citizens should demand no less as part of intelligent, responsible law enforcement.

{35} I also note my reservation about why the Miranda warnings and the Miranda waiver form were not read to Defendant on the record and his consent similarly captured on the record. Far too much of what may or may not have occurred was left off the record and depended upon the officer’s recollection. There is no excuse for such sloppy police practice in today’s world, particularly when it was known that Defendant was coming from Mexico and in all probability spoke little or no English. Proof of Defendant’s comprehension and waiver of his Miranda rights should have been visible, and audible, from a clear record without subjecting Defendant, and this Court, to the vicissitudes of imperfect memory, potentially colored by an overweening ambition to convict.