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State v. Mendez-Ulloa

Court of Appeals of Missouri, Eastern District, First Division

August 15, 2017

STATE OF MISSOURI, Respondent,
v.
ESTEBAN MENDEZ-ULLOA, Appellant.

         Appeal from the Circuit Court of St. Louis County Honorable Colleen Dolan Judge

          KURT S. ODENWALD, Judge

         Introduction

         Esteban Mendez-Ulloa ("Mendez-Ulloa")[1] appeals from the trial court's judgment that was entered after a jury trial. A jury convicted Mendez-Ulloa on two counts of first-degree child molestation. Mendez-Ulloa raises two points on appeal: First, the trial court erred in admitting a video recording of his pretrial statements to police detectives because he did not validly waive his right to remain silent. Second, the trial court erred in allowing the jury to read a transcript of the video recording, which translated Spanish-spoken statements to English, because the transcript was not admitted into evidence. Mendez-Ulloa, however, failed to preserve both points for our review. Finding no plain error, we affirm.

         Factual and Procedural History

         Mendez-Ulloa lived with his significant other, their son, and her daughter ("Victim") from another relationship. Victim reported that Mendez-Ulloa had touched her inappropriately. Eventually, Victim was interviewed at the Children's Advocacy Center ("CAC"). Victim told the CAC interviewer that, during the previous summer, Mendez-Ulloa had talked to her about sex and demonstrated how to kiss with the tongue. Victim also accused Mendez-Ulloa of touching her breasts and vaginal area over her clothes, and forcing her to touch his penis over his underwear.

         Detective Kendra House ("House"), who was in charge of the investigation, asked Detective Juan Gomez ("Gomez") to interpret for her when she questioned Mendez-Ulloa. Gomez had lived in Argentina until he was eight-years old and spoke an Argentine dialect of Spanish. (Mendez-Ulloa spoke a Mexican dialect of Spanish.) House and Gomez located Mendez-Ulloa at his work one day and asked if he would accompany them to the police station. Mendez-Ulloa agreed.

         At the police station, House began interrogating Mendez-Ulloa, with Gomez interpreting for her. When the interrogation started, Gomez asked Mendez-Ulloa in Spanish if he understood what Gomez was saying; Mendez-Ulloa said he did. Gomez then cautioned Mendez-Ulloa to speak up if he did not understand any question. Again, Mendez-Ulloa indicated that he understood.

         Gomez read Mendez-Ulloa his Miranda[2] rights in Spanish. The Miranda rights were also printed in Spanish on a warning-and-waiver form. After Gomez read each individual right (for example, the right to remain silent), Mendez-Ulloa stated that he understood. Gomez then read the waiver provision from the form, which indicated that Mendez-Ulloa understood his rights and was willing to talk to the detectives, and again asked Mendez-Ulloa if he understood. At this point, Mendez-Ulloa inquired, "One question, how is, how do I say? How is the problem?" Gomez replied, "Well, before touching that subject, we would like you to sign. At any time, you can stop talking. Okay? If you want to speak with us and you want to speak about the subject... [w]rite your name in uppercase."[3] Mendez-Ulloa signed the waiver.

         After the Miranda warnings, House questioned Mendez-Ulloa, with Gomez translating. Throughout the interview, Mendez-Ulloa continuously denied committing any crime. He acknowledged kissing Victim, but claimed that those kisses were innocent pecks, often before leaving the house when saying goodbye. These kisses, according to Mendez-Ulloa, did not involve the tongue. Mendez-Ulloa categorically denied touching Victim inappropriately, despite many questions to that effect. Eventually, without confessing, Mendez-Ulloa grew frustrated with the repeated questioning and declared that he was finished answering questions.

         The State charged Mendez-Ulloa with three counts of first-degree child molestation, one each for touching Victim's breasts, touching Victim's vaginal area, and forcing Victim to touch his penis. The case proceeded to a jury trial.

         Before trial, Mendez-Ulloa filed a motion to suppress the statements that he made to the detectives, arguing that his statements were involuntary and that he did not knowingly and intentionally waive his Miranda rights. At the suppression hearing, Gomez testified that he specifically asked if Mendez-Ulloa understood Gomez's Spanish, and Mendez-Ulloa indicated that he did. Gomez, however, acknowledged that Argentine Spanish is a little different from Mexican Spanish and that meaning could theoretically get lost in translation. Nevertheless, Gomez did not perceive any significant language barrier between himself and Mendez-Ulloa. Mendez-Ulloa also testified at the suppression hearing. This interrogation was the first time Mendez-Ulloa had been contacted by police in the United States since he arrived from Mexico in 1997. In Mexico, Mendez-Ulloa testified, if you did not talk to police, they would beat you up. To him, the Miranda warning's statement, "Tiene derecho a permanecer en silenco, " meant to stay quiet, to not become rebellious, profane, or disrespectful. Mendez-Ulloa did not feel threatened, but he felt obligated to sign the warning-and-waiver form. After the hearing, the trial court overruled Mendez-Ulloa's motion to suppress.

         During trial, a video recording of Mendez-Ulloa's statements to police was marked as State's Exhibit 3-A, and a corresponding transcript was marked as State's Exhibit 3-B. The transcript contained two columns. The left column was a verbatim transcription; everything spoken in English was transcribed in English, and everything spoken in Spanish was transcribed in Spanish. The right column contained a Spanish-to-English translation of everything that was shown in Spanish on the left side. The State asked the trial court to provide this transcript to the jury while the video recording was played.

         Before the video recording was introduced into evidence, the trial court informed counsel that it had reviewed the video recording inside the courtroom and determined that the transcript would assist the jury in understanding and listening to the video recording. Defense counsel objected, contending that it was difficult to keep up with the transcript because of the three individuals speaking and the two columns of text. Further, defense counsel objected that there were short conversations between Gomez and Mendez-Ulloa that were not transcribed. Defense counsel did not identify any specific conversations. These two problems, in defense counsel's view, made the transcript confusing. As such, defense counsel requested that the jury not see the transcript. The trial court asked if a dispute existed as to the translation's accuracy; defense counsel responded:

I'm not disputing the translation itself, but there are portions where it's either inaudible or there's conversation between Detective Gomez and the client that aren't transcribed here, small differences, and that's why we're opposed to the transcript. The transcript in and of itself is already confusing and will be further confusing if the jury is just trying to read through it to try and keep up.

         The court overruled the objection and allowed the jury to read the transcript while the video recording played. The trial court instructed the jury that the video recording, not the transcript, was the evidence, and that the jury should believe the video recording in the event that there was a discrepancy between the two.

         After the evidence concluded, the jury found Mendez-Ulloa guilty on two counts of first-degree child molestation-one count for touching Victim's vagina and one count for making Victim touch his penis. The jury, however, acquitted Mendez-Ulloa on the count for touching Victim's breasts. The trial court sentenced Mendez-Ulloa to a total of five years in prison. Mendez-Ulloa appeals.

         Points on Appeal

         Mendez-Ulloa raises two points on appeal. In Point One, Mendez-Ulloa argues that the trial court plainly erred in denying his motion to suppress, because the dissimilarity between Mexican Spanish (his dialect) and Argentine Spanish (Gomez's dialect) resulted in Mendez-Ulloa not fully understanding that he had a right to remain silent. In Point Two, Mendez-Ulloa contends that the trial court abused its discretion by allowing the jury to read the transcript while the video recording played. This transcript, Mendez-Ulloa asserts, contained a translation ...


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