This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-113

State of Minnesota,

Respondent,

vs.

Jacinto Hernandez Azuara,

Appellant.

Filed December 10, 1996

Affirmed

Harten, Judge

Watonwan County District Court

File No. K5-94-462

Hubert H. Humphrey, III, Attorney General, Paul R. Kempainen, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Daniel A. Birkholz, Watonwan County Attorney, 101 South Seventh St., P.O. Box 461, St. James, MN 56081 (for Respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2829 University Avenue S.E., #600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Crippen, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Appellant Jacinto Hernandez Azuara challenges his conviction for second-degree felony murder, arguing that the trial court committed reversible error when it failed to suppress his custodial statement. We affirm.

FACTS

On the evening of December 2, 1994, while visiting a bar in Madelia, Azuara argued so vehemently with another patron, Jesus Villarreal, that friends intervened and separated them. Azuara then left the bar with his friend, Juvenal Rodriguez, and the two stood and talked in the parking lot near Rodriguez's truck. Rodriguez saw Villarreal approaching and ran out of the parking lot. From across the street, Rodriguez saw Azuara and Villarreal "bump each other"; when he looked again, he saw Villarreal walking towards the bar. As Rodriguez returned to the parking lot, Azuara drove away.

Villarreal entered the bar and collapsed on the floor, bleeding profusely from a stab wound to his chest. He died approximately one-half hour later. The police were called to the bar and found a trail of blood from Villarreal to near Rodriguez's parked truck. The police also found a gold chain and cross, later identified as belonging to Azuara. The police questioned Rodriguez at the Madelia police station and then located and stopped Azuara at his home. When asked if he carried any weapons, Azuara revealed a folding knife with a dried red substance on the blade. Azuara remarked that his gold chain and cross were missing. The police took Azuara to the Madelia police station for questioning.

Lt. Larry Schickling performed the interrogation, which began at approximately 3:25 a.m. on December 3. Azuara received the assistance of Tina Cantu, a Spanish language interpreter previously used by the Madelia police on approximately 75 occasions. The interview was tape recorded and videotaped and later transcribed by a federally-certified Spanish language interpreter. Azuara said that when Villarreal approached, he pulled out his knife. Villarreal then lunged at Azuara and impaled himself on the knife. Azuara said that he may have stabbed Villarreal a second time, when he moved his hand toward Villarreal. Azuara was charged with second-degree felony murder, in violation of Minn. Stat. § 609.19(2) (1994). A jury convicted Azuara as charged and the trial court sentenced him to serve 150 months. Azuara appeals.

D E C I S I O N

1. Azuara argues that the trial court committed reversible error by not suppressing his statement because he did not knowingly, voluntarily, and intelligently waive his Miranda rights. The state must prove that the accused knowingly, intelligently, and voluntarily waived his rights before making a statement. Miranda v. Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602, 1628 (1966). Here, the interpreter did not precisely translate Officer Schickling's statements and Azuara's responses. Further, Azuara interrupted the interpreter on several occasions while she relayed the officer's statements. The trial court ruled that Azuara's waiver was valid, finding that "the interpreter substantially accurately interpreted the meaning if not the exact words" of the officer's statements to Azuara.

On review, a trial court's finding that an accused validly waived his Miranda rights will be affirmed unless it is clearly erroneous. Wold v. State, 430 N.W.2d 171, 176 (Minn. 1988). Azuara concedes that he understood he had the right to remain silent and any statements he made could be used against him in court. Azuara claims that the interpreter failed to inform him that (1) he had the right to talk to an attorney before being questioned and to have the attorney present during police questioning, and (2) if unable to afford to hire an attorney, one would be appointed at no cost to him and before any questioning if he so desired. State v. Crisler, 438 N.W.2d 670, 672 (Minn. 1989). Because Azuara contends that credible evidence supports his claim that his waiver was invalid, this court must "employ a subjective factual inquiry to determine whether under the totality of the circumstances the waiver was valid." Wold, 430 N.W.2d at 176.

A waiver is only valid if it was the product of a free and deliberate choice and was made with a full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it.

Id. (citing Colorado v. Spring, 479 U.S. 564, 573, 107 S. Ct. 851, 857 (1987)). A review of the transcript reveals that the officer properly asked the interpreter to relay these warnings to Azuara. The interpreter had no chance to complete the warnings because of Azuara's constant interruptions. Nevertheless, Azuara indicated his understanding of the warnings by his questions to the interpreter and by completing the sentences himself.

Azuara cites State v. Marin, 541 N.W.2d 370 (Minn. App. 1996), review denied (Minn. Mar. 27, 1996), for support. In that case, although the officers realized that Marin had difficulty speaking and understanding English, they did not utilize the aid of a staff interpreter. Id. at 373-74. Marin eventually waived his rights although he stated several times that he did not understand them. Id. at 373. This court held that Marin did not voluntarily, knowingly, and intelligently waive his constitutional rights. Id. at 374. By contrast, here the officer utilized the aid of an interpreter, at times Azuara voluntarily completed the warnings himself, and Azuara stated that he understood his rights although he did not understand why he was in custody. Under the totality of the circumstances, Azuara indicated a full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it. See Wold, 430 N.W.2d at 176 (setting forth these requirements for a valid waiver). We conclude that the trial court did not commit reversible error in finding that Azuara knowingly, voluntarily, and intelligently waived his constitutional rights.

2. Azuara argues that the trial court committed reversible error by not suppressing his custodial statement after he invoked his constitutional rights to silence and counsel. First, Azuara asserts that on three occasions he asserted his right to counsel, though equivocally.[1] The request for counsel must be clear and unequivocal. State v. Robinson, 427 N.W.2d 217, 222 (Minn. 1988) (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85 (1981)). When a suspect makes an equivocal or ambiguous statement which arguably could be construed as a request for counsel, all further questioning must stop except for narrow questions designed to clarify the accused's true desires. Id. at 223. Here, Azuara's remarks cannot even be considered equivocal requests for counsel. As the supreme court explained, not every mention of the word "lawyer" or "counsel" or "attorney" by a suspect "arguably" suggests that the suspect wants a lawyer before further questioning. State v. Hale, 453 N.W.2d 704, 708 (Minn. 1990).

Azuara claims that he asserted his right to silence.[2] An accused's invocation of the right to remain silent must be unambiguous or unequivocal. State v. Williams, 535 N.W.2d 277, 285 (Minn. 1995). If the suspect unambiguously or unequivocally invokes the right to remain silent, custodial interrogation must cease. Id. at 282. When informed that Azuara did not want to talk, the officer told the interpreter to relay that he wanted Azuara to listen to him. The trial court concluded that even if Azuara invoked his right to remain silent, "he voluntarily changed his mind and decided to make a statement after the officer gave him more information." Once the officer was informed that Azuara did not want to talk, it was improper for the officer to continue the investigatory discussion, even if he did not ask Azuara any questions. See State v. King, 513 N.W.2d 245, 248 (Minn. 1994) (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689 (1980) (footnotes omitted)) (interrogation includes any words or actions, besides express questioning, reasonably likely to elicit an incriminating response). We believe that Azuara invoked his right to silence and that the custodial interrogation should have ended. By continuing the discussion, the officer ignored Azuara's invocation of his right to silence. We therefore disagree with the trial court ruling that Azuara voluntarily decided to make a statement.

Nevertheless, we hold that the error was harmless beyond a reasonable doubt. Under the harmless error standard, a conviction will not be reversed for a constitutional error provided the state shows beyond a reasonable doubt that the error did not contribute to the guilty verdict. State v. Patrick, 512 N.W.2d 344, 347 (Minn. App. 1994), review denied (Minn. Apr. 19, 1994). The United States Supreme Court explained that review under the harmless error standard inquires

not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.

Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081 (1993); Patrick, 512 N.W.2d at 347.

A review of the evidence reveals that Azuara and Villarreal argued inside the bar, they were seen in close contact in the parking lot, and Azuara's necklace was found at the scene. At trial, Azuara testified that Villarreal was the aggressor, that he pulled out his knife in self-defense, and that Villarreal impaled himself on the knife when he lunged at Azuara. In order to pursue his self-defense claim, it was a practical necessity that Azuara take the stand at trial. See Robinson, 427 N.W.2d at 225 n.6 (finding it difficult to comprehend how the defendant could claim self-defense without himself taking the stand at trial). Nevertheless, Azuara focuses on his statement in response to police interrogation--that he may have stabbed Villarreal a second time--as the one piece of damning evidence. We believe that Azuara's statement to the police became of minimal importance, given his reliance on self-defense. His self-defense assertion accepts the use of reasonable force upon another without the other's consent but claims that it was authorized. See Minn. Stat. § 609.06(3) (1994) (reasonable force may be used in resisting an offense against the person).

The forensic evidence was most telling. The state's expert, who performed the original autopsy, concluded that enough force was applied so that the knife entered the body up to the hilt. The incision on the sixth rib was consistent with force being used. The state's expert opined that the damage to Villarreal's body was inconsistent with the theory that Villarreal impaled himself on the knife; a forward thrust was necessary to create the type of wound present. Although the defense expert opined that the wound and hilt bruises were consistent with either man propelling the knife and providing the force, the jury chose to believe that Azuara did not act in self-defense. We conclude that the state proved beyond a reasonable doubt that the error did not contribute to this guilty verdict.

We complete our analysis by examining whether Azuara's statement to the police was involuntary apart from constitutional considerations. Williams, 535 N.W.2d at 287; State v. Andrews, 388 N.W.2d 723, 730 (Minn. 1986). To determine whether a statement is voluntary, a court must look at the totality of the circumstances. State v. Merrill, 274 N.W.2d 99, 106 (Minn. 1978). As evidence that his statement was involuntary, Azuara points to the fact that he had not slept for almost 24 hours, he had been drinking, and he was concerned about his pregnant wife being alone. We conclude that these factors do not amount to the "coercive police activity" necessary for his statement to be involuntary. See Williams, 535 N.W.2d at 287 (quoting Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 522 (1986)) (coercive police activity is a necessary predicate to finding a confession involuntary). Moreover, Azuara's limited English skills did not make his statement involuntary.

3. Azuara claims that the trial court committed reversible error by admitting his statement with the interpreter's "translations" included. Initially, the trial court ruled the videotape of the interrogation inadmissible. The trial court also ordered that the interpreter's statements be deleted from the transcript. But after reviewing the resulting edited transcript, the trial court concluded that the interpreter's statements were necessary to connect the officer's statements and Azuara's responses. Because the interpreter did not provide a flawless translation, Azuara claims that the probative value of the interpreter's statements was outweighed by the prejudicial effect. See Minn. R. Evid. 403 (relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice).

"Rulings involving the relevancy of evidence are generally left to the sound discretion of the trial court." State v. Horning, 535 N.W.2d 296, 298 (Minn. 1995). The party claiming error must show both the error and the resulting prejudice. Id. The trial court has the discretion to balance the probative value of evidence against the prejudicial effect and its decision will not be overturned absent an abuse of discretion. State v. Gassler, 505 N.W.2d 62, 70 (Minn. 1993). The trial court gave the jury a cautionary instruction that the jury should not consider anything said by the interpreter as the words of Azuara. Azuara does not specify what prejudice occurred, only that the jury "was surely confused" by hearing the incorrect interpretations of what the officer and Azuara said to each other, even when accompanied by what they actually said. We agree with the trial court that the probative value of the interpreter's statements was not substantially outweighed by their alleged prejudicial effect. The trial court did not abuse its discretion in admitting the interpreter's statements.

Affirmed.

[ ]1 (1) "But I don't have any lawyer, nothing." (2) "But I can claim already that in defense or (unintelligible) a lawyer." (3) "But the thing is I need someone. . ."

[ ]2 "I don't want to talk about anything, I, I don't know anything."