                                       No. 109,005

            IN THE COURT OF APPEALS OF THE STATE OF KANSAS


                                    STATE OF KANSAS,
                                        Appellee,

                                            v.

                             MAGDALENO GARCIA-BARRON,
                                    Appellant.


                             SYLLABUS BY THE COURT


1.
       When reviewing a denial of a defendant's motion to suppress evidence, the
appellate court engages in a two-step analysis. First, the appellate court must determine
whether the district court's findings are supported by substantial competent evidence.
Then, the appellate court reviews the district court's legal conclusion applying a de novo
standard.


2.
       Whether a defendant's statement to law enforcement is voluntary is a question of
law over which the appellate court exercises unlimited review.


3.
       When a word is not defined in a statute, the word should be given its common and
ordinary meaning.


4.
       The word "interpreter," as used in K.S.A. 75-4351 et seq., means a person who
serves as a conduit for communication between an English speaking person and a non-
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English speaking person by accurately repeating and translating the words spoken by one
of the persons into the language spoken by the other person.


5.
       A Spanish speaking police officer questioning a Spanish speaking criminal suspect
in Spanish is not acting as an interpreter within the meaning of that word as used in
K.S.A. 75-4351 et seq.


6.
       The State's failure to appoint an interpreter pursuant to K.S.A. 75-4351 et seq.
does not, standing alone, render a defendant's statement involuntary. It is one factor that a
court should consider when determining, from the totality of the circumstances, whether a
defendant's statement to law enforcement was freely, voluntarily, and knowingly given.


7.
       Even when the State has failed to comply with the mandates of K.S.A. 75-4351 et
seq., suppression of a defendant's confession is not available as a remedy if that
confession was freely, knowingly, and voluntarily made after a valid waiver of the
defendant's Miranda rights.


8.
       A defendant's Miranda waiver is not rendered involuntary simply because law
enforcement refuses to disclose the reason for the investigation until after the defendant
waives his or her Miranda rights.


       Appeal from Sedgwick District Court; CLARK V.OWENS II, judge. Opinion filed July 03, 2014.
Affirmed.




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        Rick Kittel, of Kansas Appellate Defender Office, for appellant.


        Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and
Derek Schmidt, attorney general, for appellee.




Before MALONE, C.J., ATCHESON and STEGALL, JJ.


        STEGALL, J.: In November 2009, Sergeant Clay Germany of the Wichita Police
Department received a call from a local high school indicating that a student had reported
a sexual assault. Germany interviewed the victim, T.M.G., who told the officer she was
sexually assaulted at her neighbors' home by a man who was staying there. Germany
contacted the homeowners, who identified the suspect as Magdaleno Garcia-Barron.


        After making contact with the suspect at the neighbors' residence, Germany
discovered that Garcia-Barron spoke only Spanish. Germany requested assistance from
Sergeant Jose Salcido, a Spanish speaking police officer. Salcido arrived at the residence
and introduced himself and Germany to Garcia-Barron. Salcido told Garcia-Barron, who
was "[v]ery cooperative, very friendly," that there was an incident the police needed to
discuss with him. Salcido informed Garcia-Barron that they would need to have the
conversation at the state office building and Garcia-Barron agreed to go with the police.
Once at the state office building, the officers placed Garcia-Barron in an interview room.
Prior to the interview, Germany and Salcido discussed the facts of the case between
themselves. Salcido asked to conduct the interview alone, reasoning that it would be
easier to "directly ask the questions and get the answers [himself]."


        Salcido then presented Garcia-Barron with a Spanish-language Miranda warning
and waiver form. Salcido went through each section of the Miranda waiver with Garcia-
Barron in Spanish and Garcia-Barron initialed each section, indicating that he


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understood. As this was happening, Garcia-Barron told Salcido several times that he did
not know why he was there. Salcido told Garcia-Barron that he could not discuss the
details of the case with Garcia-Barron until the Miranda waiver form was signed. Garcia-
Barron then signed the waiver form. Salcido proceeded with questioning and Garcia-
Barron confessed to having had sexual intercourse with T.M.G., stating that he believed
her to be 16 or 17 years old. T.M.G. was, in fact, 15 years old at the time of the incident.


       The State charged Garcia-Barron with one count of rape and, in the alternative,
one count of aggravated indecent liberties with a child older than 14 but less than 16.
Garcia-Barron filed a motion to suppress the statements he had made to Salcido. Garcia-
Barron argued that because the State had failed to appoint an interpreter prior to
questioning, his confession was involuntary and should be suppressed. Following an
evidentiary hearing, the district court ruled that Salcido "clearly meets the qualifications
[to be an interpreter] set out by the statute" and "is qualified to act as an interpreter for
this case." The district court denied the motion to suppress, finding Garcia-Barron's
waiver of his Miranda rights and his confession to have been knowingly and voluntarily
made. The State then dismissed the rape charge and Garcia-Barron was found guilty of
aggravated indecent liberties with a child based upon stipulated facts. He was sentenced
to a controlling term of 59 months in prison. Garcia-Barron now appeals.


       On appeal, Garcia-Barron reprises the arguments he made to the district court. He
claims that the district court erred when it declined to suppress his confession to Salcido.
Garcia-Barron argues that his statements were not voluntarily and knowingly made
because: (1) Salcido was not an appointed interpreter pursuant to K.S.A. 75-4351 et seq.;
(2) Salcido was not statutorily qualified to be an interpreter because he had an interest in
the outcome of the interview; and (3) Salcido made revealing the reason for the
interrogation contingent on Garcia-Barron signing the Miranda waiver. On review, we
engage in a two-step analysis of a denial of a defendant's motion to suppress evidence.
"Without reweighing the evidence, the appellate court reviews the district court's findings

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to determine whether they are supported by substantial competent evidence. The
appellate court then reviews the ultimate legal conclusion regarding the suppression of
evidence using a de novo standard." State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985
(2007).


       Garcia-Barron frames the bulk of his argument on appeal around the State's
alleged violation of K.S.A. 75-4351, which Garcia-Barron claims required the State to
appoint an interpreter for him. Indeed, this is the prism through which the district court
analyzed Garcia-Barron's motion to suppress. Kansas law requires the appointment of
interpreters for non-English speakers at various points in the criminal justice process,
including prior to any interrogation by law enforcement. See K.S.A. 75-4351(e) ("A
qualified interpreter shall be appointed . . . (e) 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."). Interpreters must meet specific criteria in order to be qualified to serve. See
K.S.A. 75-4353. The failure to appoint an interpreter during a police interrogation does
not, however, necessarily render a confession involuntary.


               "The purpose behind K.S.A. 75-4351(e) is to ensure that there is clear
       communication between one who is in custody and the officers who are questioning him.
       The statute does not state a rule of evidence. Whether or not an interpreter is appointed
       and is present at the taking of the statement, the trial court must still determine whether
       an in-custody statement was freely, voluntarily and knowingly given, with knowledge of
       the Miranda rights. That determination must be based upon the totality of the
       circumstances." State v. Zuniga, 237 Kan. 788, 791-92, 703 P.2d 805 (1985).


In Zuniga, despite the State's failure to appoint an interpreter under the statute, the
Kansas Supreme Court found Zuniga's confession was voluntarily given under the totality
of the circumstances. 237 Kan. at 791-92; see State v. Nguyen, 281 Kan. 702, 723, 133
P.3d 1259 (2006). Whether a confession is voluntary is a question of law over which we
exercise unlimited review. 281 Kan. 702 Syl. ¶ 15.

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       As a preliminary matter, we must determine whether Salcido was acting as an
interpreter pursuant to K.S.A. 75-4351 et seq. Statutory interpretation involves questions
of law over which we exercise unlimited review. Jeanes v. Bank of America, 296 Kan.
870, 873, 295 P.3d 1045 (2013). Because the word "interpreter" is not defined in K.S.A.
75-4351 et seq., we must give the word its ordinary meaning. See Roda v. Williams, 195
Kan. 507, Syl. ¶ 3, 407 P.2d 471 (1965) (words in common use contained within a statute
are to be given their natural and ordinary meaning); see also Perrin v. United States, 444
U.S. 37, 42, 100 S. Ct. 311, 62 L. Ed. 2d 199 (1979) (words not defined in a statute
should be given ordinary or common meaning).


       The common and ordinary meaning of "interpreter" is a "person who translates,
esp. orally, from one language to another; esp., a person who is sworn at a trial to
accurately translate the testimony of a witness who is deaf or who speaks a foreign
language." Black's Law Dictionary 895 (9th ed. 2009). Another dictionary defines an
"interpreter" as one who "translates orally for parties conversing in different tongues."
Webster's Third New International Dictionary Unabridged 1182 (1993). Finally,
"interpreter" can simply mean a person "who translates orally from one language to
another." American Heritage Dictionary 917 (5th ed. 2011). These definitions are
consistent with the statutory context. For example, in order to qualify as an interpreter
under Kansas law, a person must be able to "accurately repeat and translate the
statement" of the non-English speaker. K.S.A. 75-4353(b). Similarly, the statute
describes an interpreter as a "conduit" whose duty is to "relay a communication between
a person who can speak English and a person whose primary language is one other than
English." K.S.A. 75-4354(b).


       Because Salcido and Garcia-Barron were the only two people involved in their
conversation, it is logically impossible for Salcido to have been acting as an interpreter.
He was not a conduit for communication between Garcia-Barron and a third person and

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he was not translating words from one language to another. In fact, excepting the specific
language employed (Spanish as opposed to English), there was no material difference
between this interrogation and thousands of others that occur between law enforcement
officers and suspects. Salcido was conducting the interview directly with Garcia-Barron
in a language they both understood well. Salcido was born into a Spanish-speaking
family and spoke the language exclusively until age 9. He was himself an immigrant
from Mexico and was knowledgeable regarding cultural factors that can create nuances of
meaning in that language. Additionally, Salcido has a bachelor's degree in Spanish.
Salcido did not have to be appointed as a qualified interpreter pursuant to K.S.A. 75-4351
before he could interrogate Garcia-Barron. Because we find that Salcido was not acting
as an interpreter, we need not address Garcia-Barron's contention that Salcido was not
statutorily qualified to serve as an interpreter.


       This conclusion leaves unanswered whether Garcia-Barron was entitled to have an
interpreter appointed for his benefit prior to the interrogation. For purposes of our
analysis, we will assume that he was entitled to have a qualified third-party interpreter
present. See K.S.A. 75-4351(e). As seen above, however, the State's failure to comply
with the requirements of K.S.A. 75-4351(e), standing alone, does not necessarily render
the defendant's statements involuntary. We must still determine whether Garcia-Barron's
"statement was freely, voluntarily and knowingly given, with knowledge of [his]
Miranda rights. That determination must be based upon the totality of the
circumstances." Zuniga, 237 Kan. at 791-92.


        Upon review of the record, we are satisfied that there is ample substantial
evidence to support the district court's finding that Garcia-Barron's statements were
knowingly and voluntarily made after a full waiver of his Miranda rights.


               "When a defendant claims his or her confession was not voluntary, the
       prosecution has the burden of proving by a preponderance of the evidence that it was

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       voluntary. The essential inquiry is whether the statement was the product of an accused's
       free and independent will. The court looks at the totality of the circumstances
       surrounding the confession and determines its voluntariness by considering the following
       nonexclusive factors: (1) the accused's mental condition; (2) the manner and duration of
       the interrogation; (3) the ability of the accused to communicate on request with the
       outside world; (4) the accused's age, intellect, and background; (5) the fairness of the
       officers in conducting the interrogation; and (6) the accused's fluency with the English
       language." State v. Stone, 291 Kan. 13, Syl. ¶ 8, 237 P.3d 1229 (2010).


       The interview itself was short, lasting only 10 minutes from the Miranda waiver to
the end of the interview. Garcia-Barron was not handcuffed. He did not ask for anything
or give any indication of discomfort or duress. Salcido clearly took Garcia-Barron
through the Miranda waiver line by line, informing him of his right to remain silent, his
right to an attorney, and that he could stop the questioning at any moment. Salcido
described the defendant as easy to talk to, calling Garcia-Barron "one of the nicest
[suspects] I have ever dealt with." While Garcia-Barron did not understand English and
was from a different culture, Salcido's fluency with the language and culture bridged any
potential gaps. There is no evidence in the record that Garcia-Barron was unable to
understand Salcido or communicate fluently with him.


       Garcia-Barron argues that Salcido's refusal to tell Garcia-Barron the reason for the
interview until after a Miranda waiver was signed rendered his waiver involuntary. The
United States Supreme Court has directly addressed this argument holding that "a
suspect's awareness of all the possible subjects of questioning in advance of interrogation
is not relevant to determining whether the suspect voluntarily, knowingly, and
intelligently waived his Fifth Amendment privilege." Colorado v. Spring, 479 U.S. 564,
577, 107 S. Ct. 851, 93 L. Ed. 2d 954 (1987). This court has previously applied Spring,
affirming the denial of a motion to suppress when the defendant's sole claim was that he
was not informed of the reason for arrest before his Miranda waiver. State v. Stout, No.
99, 608, 2009 WL 1499160, at *6 (Kan. App. 2009) (unpublished opinion). The failure of

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police to inform Garcia-Barron of the reason for the investigation until after the Miranda
waiver was signed did not render Garcia-Barron's waiver involuntary.


       "K.S.A. 75-4351 and the sections that follow it . . . do not contain any sanctions
for violations thereof." Zuniga, 237 Kan. at 791. Therefore, even if the State failed to
appoint a qualified interpreter as Garcia-Barron claims, suppression of his confession is
not available as a remedy when that confession was otherwise properly obtained. In this
case, it was properly obtained. Despite the fact that the district court ruled that Salcido
was a qualified interpreter pursuant to K.S.A. 75-4351 et seq., we can and do affirm the
district court's denial of Garcia-Barron's motion to suppress as being right for the wrong
reason. See Rose v. Via Christi Health System, Inc., 279 Kan. 523, 525, 113 P.3d 241
(2005). There is substantial evidence in the record to support the district court's
conclusion that Garcia-Barron's confession was freely, knowingly, and voluntarily made
after a valid waiver of his Miranda rights.


       Affirmed.




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