State v. Orozco

1

NOT DESIGNATED FOR PUBLICATION

No. 114,439

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

OSIEL OROZCO,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA and JEFFREY E. GOERING,
judge. Opinion filed December 23, 2016. Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, C.J., STANDRIDGE, J., and HEBERT, S.J.

Per Curiam: Osiel Orozco appeals from his conviction of rape after a bench trial.
He argues that his confession should have been suppressed because he was not provided a
statutorily certified interpreter during the police interview. He further argues that there
was insufficient evidence upon which to base his conviction because his confession was
uncorroborated and untrustworthy.

We find no reversible error and affirm Orozco's conviction.

2

Factual and Procedural Background

In April 2014, 12-year-old J.G.C. gave a note to her friend, Q.W., in the hallway at
school. In the note, J.G.C. said she had been raped 3 days ago "on Friday." She wrote that
the assault had occurred when a man came up in front of her house and dragged her into
an abandoned house next door. Q.W. gave the note to a teacher who, in turn, directed the
note to school administrators who called the Wichita Police Department.

Detective David Wertz, who was assigned to the Missing or Exploited Children's
Unit, interviewed J.G.C. at school. J.G.C. at first gave Detective Wertz confusing
information, but Detective Wertz testified both at a motion to suppress hearing and the
subsequent bench trial that eventually J.G.C. told him that it was another friend's father
with whom she had sex. From school records, Detective Wertz determined that Orozco
was that friend's father. Based on his interview with J.G.C., Detective Wertz alerted other
officers that he wanted to speak with Orozco.

Orozco was picked up by Wichita Police Department Officer Michael Linnehan in
front of his house and was transported to meet Detective Wertz at a Wichita Police
Department office referred to as the EMCU. Detective Wertz, who was not in full street
uniform, took Orozco's personal history and thought there might be an issue with
communication. In response to Detective Wertz's inquiry, Orozco, a native of Guatemala,
indicated that he would like to have someone present who spoke Spanish. Detective
Wertz requested Officer Linnehan, who was a Wichita Police Department Spanish
translator, remain and assist with the interview. Officer Linnehan read Orozco his
Miranda rights in Spanish, referring to a standard Wichita Police Department form which
he had on his phone. Orozco acknowledged his understanding of those rights.

The 2-hour interview with Orozco was recorded and ultimately transcribed,
including Officer Linnehan's Spanish translations. Orozco initially denied that he had sex
3

with J.G.C. and expressed concerns regarding his immigration status and for the potential
reaction of his wife. He eventually admitted that he did have sex with J.G.C. on the back
porch of an abandoned apartment between his apartment and the apartment where J.G.C.
resided with her family. Orozco claimed that 12-year-old J.G.C. had initiated the sexual
encounter, but he provided a fairly graphic description of the events which led to his
penis entering J.G.C. Based on his admissions, Orozco was charged with rape.

Prior to his trial, Orozco filed approximately 14-15 pro se motions, some
accompanied by elaborate and lengthy legal memoranda. The court referred these filings
to the attention of Orozco's appointed defense counsel. Pertinent to this appeal, in
December 2014, counsel filed two motions. One motion sought to suppress any evidence
obtained from the police interview, alleging that Orozco had not been provided with a
statutorily certified interpreter and, thus, there was no assurance of the accuracy of the
translations. The second motion requested the district court make a determination of
admissibility of any statements "pursuant to the principles set forth in Jackson v. Denno,
378 U.S. 368[, 84 S. Ct. 1774, 12 L. Ed. 2d 908] (1964)."

In January 2015, a hearing was held at which the district court considered both
motions. At that hearing, Officer Linnehan testified he had taken Spanish every year from
middle school through high school and he had spoken conversational Spanish while
supervising 65-70 employees from various Spanish-speaking countries in his previous
employment with a hotel company. He further testified that during his police training he
was tested and certified by the Wichita Police Department as a Spanish language speaker
and he spoke Spanish on a daily basis while on his patrol beat.

The district court admitted and reviewed the transcript of the interview and heard
testimony from Detective Wertz and Officer Linnehan regarding the conduct of the
interview. At the conclusion of the hearing, the district court first differentiated between
the Jackson v. Denno issues and the failure to provide a certified interpreter. The court
4

then made specific findings and a detailed analysis in which it noted the "fairness of the
officers," and concluded: "[O]verall, the [Jackson v. Denno] factors as applied in this
case indicate the statement was freely and voluntarily given under the circumstances."

Shifting gears to the suppression question, the court reviewed Officer Linnehan's
background and experiences and noted he was not a court-certified interpreter. The court
opined the failure to provide a court-certified interpreter "in itself is not fatal to the
question of voluntariness or involuntariness" and concluded that, under the totality of
circumstances, there was no basis to suppress the confession made during the interview.

Orozco proceeded to a bench trial before a different district court judge in April
2015. (We note that one of Orozco's pro se motions had requested a bench trial.) Orozco's
counsel renewed his objection to the admission of any evidence derived from the
interview. The trial judge heard much of the same testimony regarding Officer Lennihan's
background, experience, and participation in the interview as had been presented to the
motion judge. The trial court again denied the objection, adopting the pretrial rulings, and
finding that Officer Linnehan was fluent enough in Spanish to communicate in a reliable
manner. The trial judge concluded that he "could not find that the statement was given in
a manner that was unreliable or in a manner that would raise questions as to whether or
not Mr. Orozco was coerced into saying something he really didn't want to say."

Based on the testimony and exhibits presented at the bench trial, the trial court
found Orozco guilty of rape and, after the presentence investigation and report, imposed
the presumptive sentence of lifetime imprisonment. Orozco timely appealed the
conviction.




5

The Court Did Not Err By Denying the Motion to Suppress

In his first issue on appeal, Orozco argues that because he was not provided with a
statutorily required interpreter during his interrogation, his confession should have been
suppressed.

In reviewing the decision or ruling on a motion to suppress a confession, the
appellate court first reviews the factual findings under a substantial competent evidence
standard, then reviews the ultimate legal conclusion de novo. In so doing, the appellate
court does not reweigh the evidence, assess the credibility of witnesses, or resolve
conflicting evidence. State v. Dern, 303 Kan. 384, 392, 362 P.3d 566 (2015).

Orozco focuses his appellate argument solely upon K.S.A. 75-4351, which
provides:

"A qualified interpreter shall be appointed . . . for persons whose primary
language is on other than English . . . ;
. . . .
"(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."

The statutory requirements for appointment and certification are set forth in K.S.A. 75-
4352 and K.S.A. 75-4353. K.S.A. 75-4354(a) requires that before acting as an interpreter
the interpreter must take an oath.

In the instant case, the district court properly determined that, despite his
background and fluency in Spanish, Officer Linnehan was not a statutorily qualified
interpreter. However, this finding does not end our inquiry. Orozco acknowledges
caselaw holding that the failure to provide an interpreter is not, of itself, a reason for
suppressing a confession if the statement was otherwise given freely, knowingly, and
6

voluntarily in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694, reh. denied 385 U.S. 890 (1966).

In State v. Zuniga, 237 Kan. 788, 791-92, 703 P.2d 805 (1985), it was clear that
the State did not comply with K.S.A. 75-4351(e), but the Kansas Supreme Court refused
to use that as a reason to suppress the defendant's statements. The court held that K.S.A.
75-4351(e) was not a rule of evidence and "[w]hether 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
Miranda rights. That determination is based upon the totality of the circumstances." 237
Kan. at 791-92. Thus, the Kansas Supreme Court made clear that a violation of K.S.A.
75-4351 is merely a factor to consider when judging whether a defendant understood
what was happening. 237 Kan. at 791-92; see State v. Garcia, 243 Kan. 662, Syl. ¶ 9,
763 P.2d 585 (1988) (holding that failure of "officers to have an interpreter in attendance
pursuant to K.S.A. 75-4351[e] does not vitiate the statement if it was freely, voluntarily,
knowingly, and understandingly made with full knowledge of the Miranda rights"); State
v. Garcia-Barron, 50 Kan. App. 2d 500, 505, 329 P.3d 1247 (2014) (holding that, while
the defendant was "entitled to have a qualified third-party interpreter present . . . 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"), rev. denied 302
Kan. 1014 (2015).

Orozco, however, argues that such interpretation "strips any meaning from K.S.A.
75-[4351], rendering it surplusage," and further argues: "If violation of K.S.A. 75-4351
does not have a remedy, it is meaningless." Orozco is essentially suggesting that this
court abandon precedent and offer our own interpretation of the statute and its effect.
This, of course, we cannot do. We are duty bound to follow established Kansas Supreme
Court precedent. State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015).

7

Accordingly, we reject Orozco's contention that the failure to provide a statutorily
certified interpreter, standing alone, should require suppression. In focusing his argument
solely upon the statute, Orozco does not address or contest the district court's analysis and
rulings on his Jackson v. Denno motion finding that, under the totality of the
circumstances, Orozco's statement was freely, knowingly, and voluntarily given. As such,
he has waived or abandoned any argument that any other factor would weigh in favor of a
finding that his confession should be suppressed. See State v. Williams, 303 Kan. 750,
758, 368 P.3d 1065 (2016).

The district court's ruling denying suppression of the confession is affirmed.

The Evidence is Sufficient to Support the District Court's Verdict

In his second issue on appeal, Orozco argues that since the district court relied
solely upon his uncorroborated and unreliable confession, the record contains insufficient
evidence to sustain the rape conviction. Orozco cites the rule of corpus delecti.

The evolution of the rule of corpus delecti is discussed in Dern, 303 Kan. 362.
Most commonly, the corpus delecti rule was applied to prevent the conviction of
someone solely on the basis of a confession, and courts have traditionally required some
evidence, even if circumstantial, corroborating the confession of a defendant. 303 Kan. at
401-02. In Kansas, the traditional rule of corpus delecti may be bypassed by finding the
confession to be trustworthy. 303 Kan. at 410. The trustworthiness of the confession will
depend on the totality of circumstances, including, inter alia, a consideration of
independent corroboration of the details or facts contained in the confession and the
overall fairness of the exchange with law enforcement when the confession was made.
303 Kan. at 410-11.

8

Here, the district court, in ruling on Orozco's Jackson v. Denno motion and finding
the confession to be freely, voluntarily, and knowingly made, specifically noted the
"fairness of the officers." As noted above, these findings have not been challenged on
appeal.

Orozco's appellate brief and argument would apparently have us understand that
the bench trial was a fairly perfunctory proceeding in which, over the objection from
Orozco, the district court merely admitted the proffered transcript of the interrogation
containing the confession and then summarily found Orozco guilty. In fact, Orozco
boldly asserts in his brief that the "[S]tate did not present any other physical or
testimonial evidence regarding the alleged offense." The record clearly establishes that
this simply is not correct.

At the time of the trial, the young victim, J.G.C., was residing out of state with her
father's side of the family and, thus, was not called by the State to testify. However, the
State did call her friend, Q.W., to identify the note J.G.C. gave him in which she stated
that she was raped in an abandoned house 3 days prior. This note was received into
evidence without any objection or limitation being raised by Orozco. The State also
presented the testimony of Bart Flickinger, the teacher who had discovered the note, and
discussed its origin with Q.W. before turning it over to school administrators. Thus, the
fact of a criminal injury—rape—and the location and time were admitted into evidence
independently of Orozco's confession.

Detective Wertz testified at the trial consistent with his testimony previously given
at the motion to suppress hearing he had obtained information from J.G.C. that another
friend's father was the perpetrator. Detective Wertz further testified that a review of
school records disclosed that friend's father was Orozco. This testimony was again
received into evidence without objection from Orozco and independently establishes the
identity of the alleged perpetrator of the criminal act.
9

Officer Linnehan testified he had picked up Orozco in front of his home, and the
evidence is uncontroverted that Orozco's home was just across the street from the
apartment where J.G.C. resided with her family. J.G.C.'s mother, B.M., was also called
by the State and, among other details, verified the age of J.G.C. and established the
location of the abandoned apartment where the rape occurred. In his confessional
interview, Orozco provided details about the neighborhood and acknowledged that his
daughter and J.G.C. were playmates. He also described the abandoned house where he
admitted to having sex with J.G.C.

The district court admitted the transcript of the interview and confession into
evidence over the objection of Orozco. Orozco's objection again centered primarily on
Officer Linnehan's lack of qualification and fluency to accurately translate the interview.
The motion judge rejected this argument, and the trial judge, in addition to making his
own detailed findings, adopted the pretrial rulings and determined that Officer Linnehan's
participation was adequate to render the confession trustworthy.

We, therefore, reject the suggestion that the trial court relied solely upon an
uncorroborated confession to convict Orozco. The court had before it sufficient
independent testimonial and documentary evidence to support its judgment that Orozco
was guilty of rape as admitted in his confession.

Affirmed.

* * *

MALONE, C.J., dissenting: I respectfully dissent from the majority's conclusion
that the district court did not err by denying Osiel Orozco's pretrial motion to suppress his
statement to the police. I would find that the State failed to meet its burden of proving
that the confession was voluntary under the totality of the circumstances.
10

Orozco's rape conviction is unusual because the alleged victim, J.G.C., never
testified either at the preliminary hearing or at the trial. The only substantial evidence
supporting Orozco's conviction and his sentence of life imprisonment was his recorded
statement to Detective David Wertz and a handwritten note from J.G.C. that was admitted
into evidence without any hearsay objection. Thus, it is important for the courts to
scrutinize whether Orozco's statement to the police was properly admitted into evidence.

Orozco's primary objection to the admission of his recorded statement was that the
police had failed to provide a certified interpreter for the interview. K.S.A. 75-4351(e)
provides that a qualified interpreter shall be appointed for persons whose primary
language is other than English "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 fulfill certain statutory requirements, and they cannot be "interested in
the outcome of the proceeding." K.S.A. 75-4353(a).

The district court properly determined that despite Officer Michael Linnehan's
background and fluency in Spanish, he was not a statutorily qualified interpreter. But as
the majority opinion points out, 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. "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 Miranda rights. That determination
is based upon the totality of the circumstances." (Emphasis added.) State v. Zuniga, 237
Kan. 788, 791-92, 703 P.2d 805 (1985); see also State v. Garcia, 243 Kan. 662, Syl. ¶ 9,
763 P.2d 585 (1988) (holding that failure of "officers to have an interpreter in attendance
pursuant to K.S.A. 75-4351[e] does not vitiate the statement if it was freely, voluntarily,
knowingly, and understandingly made with full knowledge of the Miranda rights").

11

In district court, Orozco filed a motion to suppress his statement on the ground
that it was not freely and voluntarily given pursuant to the principles set forth in Jackson
v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). On appeal, Orozco has
not reasserted his argument that his statement was involuntary under the totality of the
circumstances. As such, the majority finds that Orozco has waived or abandoned this
argument.

I would not find that this court is precluded from considering the voluntariness of
Orozco's confession. Our Supreme Court has made it clear that a violation of K.S.A. 75-
4351(e), standing alone, does not result in the suppression of a statement, but instead
courts must determine whether the statement was freely and voluntarily given under the
totality of the circumstances. See Zuniga, 237 Kan. at 791-92; Garcia, 243 Kan. 662, Syl.
¶ 9. In other words, the law requires this court to determine whether Orozco's statement
was freely and voluntarily given under the totality of the circumstances even though
Orozco has failed to address this specific issue in his appeal.

In reviewing the district court's ruling on a motion to suppress a confession, the
appellate court reviews the factual underpinnings of the decision under a substantial
competent evidence standard. However, the ultimate legal conclusion drawn from those
facts is reviewed de novo. State v. Lewis, 299 Kan. 828, 835, 326 P.3d 387 (2014).
Moreover, the State bears the burden of proving by a preponderance of the evidence that
a confession was voluntary. State v. Dern, 303 Kan. 384, 392, 362 P.3d 566 (2015).

Here, the district court did not resolve any factual disputes at the hearing on the
motion to suppress Orozco's statement. Wertz and Linnehan both testified at the hearing,
but their testimony essentially was unchallenged. Orozco's statement was recorded,
transcribed, and admitted into evidence at the hearing. Thus, we review the district court's
ultimate legal conclusion that Orozco's statement was voluntary without any deference to
12

the district court's findings; we are allowed to substitute our judgment for the district
court's judgment on whether the statement was voluntary.

As previously stated, the State has the burden to prove that Orozco's statement was
voluntary, i.e., that it was the product of his free and independent will. Dern, 303 Kan. at
392. In determining whether the State has met this burden, the court looks at the totality
of the circumstances surrounding the confession and considers 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. Woods, 301 Kan. 852, 867, 348 P.3d 583 (2015).

At the hearing on the motion to suppress held by Judge Christopher Magana, both
the prosecutor and defense counsel urged the district court to review the transcript in
order to make a ruling on whether Orozco's statement was voluntary. After hearing the
testimony and the closing arguments, the district court proceeded to make a ruling from
the bench without taking any recess to read the transcript. The judge acknowledged on
the record that although he had not "reviewed every page of the transcript," he had had an
opportunity to review "a number of various pages" of the transcript, apparently while
Wertz and Linnehan were testifying.

In my view, the transcript raises concerns about the voluntariness of Orozco's
statement under the totality of the circumstances. Orozco is a native of Guatemala who
works in Kansas as a sheetrock finisher. He indicated that he had 1 year of formal
education in Guatemala and that he never attended high school. At the beginning of the
interview, Orozco requested a Spanish interpreter "'cause I don't understand everything."
Orozco initially denied having any type of improper contact with J.G.C., but Wertz
continued to press the issue saying "Come on friend, tell me the truth."
13

The most concerning part of the interview is the fact that Orozco kept bringing up
his immigration status and concerns about being deported. Midway through the
interview, Orozco stated, "I have problems with immigration." In response, Wertz stated,
"I don't want to send you back to Guatemala. . . . I don't want to deport you." Orozco
continued to express his fear of deportation and stated, "I don't want any more problems."
Linnehan responded by telling Orozco that he would not "have problems" as long as he
told the truth about his involvement with J.G.C. Linnehan, who was supposed to be
acting as the interpreter, then told Orozco, "Tell me the truth friend." It was at this point
that Orozco completely changed his story and admitted to having sex with J.G.C.

For the most part, Wertz and Linnehan treated Orozco fairly throughout the
interview which lasted about 2 hours. But upon considering the totality of the
circumstances, i.e., the language barrier, the lack of a certified translator, Orozco's lack of
education, and his concerns about deportation, I am left with the uneasy feeling that
Orozco's statement was involuntary and the result of his fear of deportation. This is a
close case, but the burden of proving that the confession is admissible is on the
prosecution. See K.S.A. 22-3215(4). In a case such as this one, I would find that the State
failed to meet its burden of proving that Orozco's confession was voluntary. Accordingly,
I conclude that the district court erred in denying Orozco's pretrial motion to suppress.