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State v. Montano

February 20, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
SALVADOR G. MONTANO, APPELLANT.



Appeal from Superior Court of Grant County. Docket No: 94-1-00003-1. Date filed: 08/01/94. Judge signing: Hon. Evan E. Sperline.

Rehearing Denied July 8, 1997,

Authored by Dennis J. Sweeney. Concurring: John A. Schultheis, Frank L. Kurtz.

The opinion of the court was delivered by: Sweeney

SWEENEY, C.J. Salvador G. Montano told a Quincy police officer he shot a man who had been honking a car horn outside his home. Mr. Montano was arrested and given his Miranda *fn1 rights in Spanish. At a CrR 3.5 hearing, the court determined Mr. Montano's post-Miranda statements were knowingly and voluntarily made. A jury convicted Mr. Montano of first degree assault. On appeal, he contends (1) the record does not show that "good cause" existed for proceeding with a noncertified interpreter; (2) the court erred in ruling he made a knowing and intelligent waiver of his Miranda rights; (3) multiple instances of prosecutorial misconduct denied him a fair trial; (4) the court erred in admitting a prior misdemeanor conviction for domestic violence; (5) the court erred in allowing the State to introduce a police officer's personal opinion concerning the victim's reputation for peacefulness; (6) he received ineffective assistance of counsel at trial; and (7) the court erred in not imposing a sentence below the standard range. We affirm.

RIGHT TO CERTIFIED INTERPRETER

Mr. Montano first contends the court did not articulate, on the record, whether "good cause" existed for the use of a noncertified interpreter. He asserts he is entitled to a new trial because the court did not discuss whether the noncertified interpreter was able to accurately interpret the proceedings.

A defendant does not have a constitutional right to a certified interpreter. State v. Pham, 75 Wash. App. 626, 633, 879 P.2d 321 (1994) (citing People v. Estrada, 176 Cal. App. 3d 410, 221 Cal. Rptr. 922, 924 (1986)), review denied, 126 Wash. 2d 1002 (1995); see also United States v. Paz, 981 F.2d 199 (5th Cir. 1992). A trial court may use the services of a noncertified interpreter if "good cause is found and noted on the record . . . ." RCW 2.43.030(1)(b). *fn2 If good cause exists, the court then makes a preliminary determination that the proposed interpreter accurately and effectively communicates. RCW 2.43.030(2).

Prior to appointing Phil Godinez as Mr. Montano's interpreter, the trial court did not indicate on the record the "good cause" reason for using a qualified, rather than a certified, interpreter. It did, however, inquire into Mr. Godinez's qualifications. Mr. Godinez said he was born in Mexico City and lived there for 16 years. Spanish is his first language. He passed the written certification examination and was waiting to take the oral portion. Mr. Godinez said he was qualified as an interpreter in Chelan and Douglas counties. He also told the court he had no trouble conversing with Mr. Montano in prior conversations. Mr. Montano does not claim he was prejudicied in any way. Mr. Godinez accurately and effectively interpreted the proceedings. The failure of the court to find good cause is harmless error. See State v. Smith, 106 Wash. 2d 772, 780, 725 P.2d 951 (1986) (error is not prejudicial unless within reasonable probabilities there is a substantial likelihood that the outcome of the trial was materially affected). Mr. Montano is not entitled to a new trial.

SUPPRESSION OF POST-MIRANDA STATEMENTS

Mr. Montano next contends the trial court erred in ruling that he knowingly and intelligently waived his Miranda rights. He asserts that because he did not understand the Texas-style Spanish used in the warnings, his waiver was not made with a full awareness of his rights.

On review, we make an independent evaluation of the evidence. State v. Mennegar, 114 Wash. 2d 304, 309-10, 787 P.2d 1347 (1990); State v. Hill, 68 Wash. App. 300, 304, 842 P.2d 996, review denied, 121 Wash. 2d 1020, 854 P.2d 42 (1993). We give great significance and great weight to a trial court's findings following a suppression hearing. 68 Wash. App. at 304.

A suspect may waive his or her Miranda rights if the waiver is knowingly and intelligently made. State v. Teran, 71 Wash. App. 668, 672, 862 P.2d 137 (1993), review denied, 123 Wash. 2d 1021, 875 P.2d 636 (1994); see United States v. Glover, 596 F.2d 857, 865 (9th Cir. 1979). Whether statements are voluntary depends on the totality of the circumstances. State v. Wolfer, 39 Wash. App. 287, 290, 693 P.2d 154 (1984), review denied, 103 Wash. 2d 1028 (1985).

Language barriers may inhibit a defendant from making a knowing and intelligent waiver. Teran, 71 Wash. App. at 672. A valid waiver is effected if a defendant is given the Miranda rights in his or her "native tongue and claims to understand such rights." Teran, 71 Wash. App. at 672. The translation need not be perfect "it is sufficient that the defendant 'understands that he does not need to speak to police and that any statement he makes may be used against him.'" Teran, 71 Wash. App. at 672-73 (quoting United States v. Hernandez, 913 F.2d 1506, 1510 (10th Cir. 1990)); see United States v. Martinez, 588 F.2d 1227, 1235 (9th Cir. 1978) (defendant who understood Cuban-accented Spanish given Miranda rights in Mexican-accented Spanish; court holds knowing waiver made in light of record establishing defendant appeared to understand the rights as they were read, signed a written Spanish language waiver form, and answered questions put to him in the Mexican-accented Spanish); see also United States v. Gonzales, 749 F.2d 1329, 1336 (9th Cir. 1984) (defendant was orally read his rights in Spanish and English and conversed in both languages; court held record sufficient to indicate defendant and police officer understood each other, even if the officer spoke poor Spanish and the defendant spoke poor English).

Mr. Montano appeared to understand the Miranda warnings given in Texas-style Spanish. After each warning, Officer Felix Arredondo asked Mr. Montano if he understood. Mr. Montano said he did. Before Officer Arnold Gonzales spoke to Mr. Montano, he asked if he understood the Miranda rights he had been given. Mr. Montano said yes. Mr. Montano signed a warning card. He did not act confused about his rights. His statements were not the result of ...


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