Coercive tactics and failure to provide translator render statements involuntary

Christopher M. Brennan and Megan L. Harrington won in State v. Prieto-Hernandez, No. 109,696 (Kan. App. July 25, 2014)(unpublished) obtaining a new trial in a Wyandotte County statutory rape case.  The primary issue requiring reversal was introduction of several inculpatory statements.  Mr. Prieto-Hernandez had not claimed a Miranda violation.  But he did claim the statements were involuntary because of lack of English proficiency and "misleading and coercive" police tactics.

The COA noted that, pursuant to K.S.A. 75-4351(e) requires provision of a translator "prior to any attempt to interrogate or take a statement from a person who is arrested for an alleged violation of a criminal law of the state or any city ordinance," and while not dispositive, the failure to provide a translator in light of limited understanding, was part of the circumstances of the case.

The COA observed several coercive tactics on the videotaped interview:

The interview was continued past midnight, and the entire interrogation consisted of leading and suggestive questioning by Glaspie. For much of the interrogation, Prieto–Hernandez repeatedly denied any inappropriate contact with E.V. It was Glaspie who initially suggested that Prieto–Hernandez penetrated E.V. with his fingers during the spanking. Glaspie suggested that Prieto–Hernandez was lying many times during the interview. He also told him that E.V. would not lie and she was not trying to get him into trouble. On three different occasions, Glaspie suggested to Prieto–Hernandez that as a Christian, he needed to tell the truth. Glaspie told Prieto–Hernandez that if he continued to deny the allegations, E.V. would have to undergo expensive tests in order to find out why she was bleeding.

At least a dozen times during the interview, Glaspie told Prieto–Hernandez that the doctors would know exactly what happened once they examined E.V., so the interview was his one chance to tell the truth. He told him that if no sex occurred, it was not a “big deal.” Glaspie explained to him that “sex” meant putting his penis into E.V.'s private parts, and he repeatedly assured him that he knew that no sex had occurred. Glaspie informed Prieto–Hernandez that it would be “better” if he only used his finger and not his penis. He suggested to Prieto–Hernandez that he probably did not mean to do it and as long as he said it would not happen again, “we're good.”

The COA reviewed this record and concluded that the record did not support a finding of voluntariness:

Here, when you combine the issue about Prieto–Hernandez' lack of proficiency with the English language and the overall leading and suggestive nature in which the interview was conducted, we have grave concerns about the voluntary nature of his statement. Glaspie's most misleading tactic was repeatedly informing Prieto–Hernandez that no sex was involved if he only used his fingers and not his penis. Glaspie told Prieto–Hernandez that if no sex occurred, it was not a “big deal,” and that if he said it would not happen again, “we're good.” A close examination of the interrogation reveals that Prieto–Hernandez did not volunteer facts, but rather he adopted facts as they were suggested to him by Glaspie. Prieto–Hernandez ultimately relented to Glaspie's version of what took place during the spanking after Glaspie made it clear that was the only version he would accept.

The COA held the statements were not harmless and therefore reversed.  The COA also noted some errors with application of the rape-shield statute that had excluded some defense testimony, but left that question more for the district court on remand.

[Update: the state did not file a PR and the mandate issued on August 28, 2014.]