Appeal from the Superior Court of the District of Columbia (F2799-00). (Hon. Judith E. Retchin, Trial Judge).
Before Wagner, Chief Judge, and Ferren and STEADMAN*fn1, Senior Judges.
The opinion of the court was delivered by: Wagner, Chief Judge
Following a jury trial, appellant, Jose Castellon, was convicted of first-degree sexual abuse while armed (D.C. Code §§ 22-4102, -3202) (1996))*fn2 and possession of a firearm during the commission of a crime of violence ("PFCV") (D.C. Code § 22-3204 (b) (1996)).*fn3 He argues for reversal on the grounds that the trial court erred:
(1) in denying his motions to suppress evidence and statements obtained without his voluntary consent and in violation of his rights under the Interpreter Act, D.C. Code § 31-2702 (1998)*fn4 (the Act); and (2) in excusing a subpoenaed witness in violation of his Constitutional rights under the Sixth Amendment. We affirm.
Officer Darrell Roberts testified that at approximately 9:30 a.m. on May 8, 2000, he went to the 1400 block of Spring Road, N.W. to investigate a report of sexual assault. After talking with other officers at the scene, he spoke with the complaining witness, M.D. M.D. reported that a man had assaulted her sexually earlier that morning, at gunpoint, in an apartment. Officer Roberts testified that M.D. described her assailant as a Hispanic male, approximately 5' 7" tall, skinny, light complexioned, with a tattoo and a gold bridge on his teeth. Officer Roberts said that she also described the car that the man was driving as a gray four-door Camry, which the officer spotted parked directly in front of 1443 Spring Road, and M.D. said that she thought that was the building where she was assaulted. She later confirmed this when she recognized a dumpster in the rear of the building, which she had seen earlier from a window while inside the building. M.D. went inside the building with the officer where she identified apartment 103 as the unit where she was assaulted. The officer knocked on the door to the apartment, heard movements inside, but no one responded. Officer Roberts testified that they went back outside because he planned to obtain a search warrant and to send M.D., who was complaining of abdominal pain, to the hospital.
About that time, M.D. spotted a man coming out of 1443 Spring Road, whom she said was the man who had put her out of the apartment building. The police spoke to the man, who identified himself as Hilario Ventura and gave his address as 1443 Spring Road, apartment 103. Mr. Ventura said that he had a brother-in-law named Jose Castellon. The police explained to Mr. Ventura that his brother-in-law might be involved in the assault they were investigating, and they requested his consent to search his apartment. After receiving an explanation of the Consent to Search form, Mr. Ventura, who spoke English and said that he understood it, signed the form giving the police his consent to search his apartment.
Mr. Ventura then took the officers inside his apartment and pointed out Castellon's bedroom door. The police knocked on the door, and Castellon, who matched M.D.'s description of the man who assaulted her, answered the door. Officer Roberts testified that he attempted to communicate with Castellon, but Castellon conveyed by word and gesture that he did not speak English very well. Officer Roberts then called for a Spanish-speaking officer, for whom they had to wait about fifteen or twenty minutes. While they were waiting, Officer Roberts motioned to Castellon not to return to the bedroom, and Castellon, who was not handcuffed or restrained, sat in the living room area and also went into the dining room area while waiting.
Officer Yamit Chaparro, who responded to Officer Roberts' request, testified that he was born in Puerto Rico and that Spanish is his native language. He testified that he communicated with Castellon in Spanish and that they had no difficulty understanding each other. He said that he told Castellon not to go into the bedroom for the safety of everyone because they thought he had a weapon in there. Officer Chaparro testified that he explained to Castellon "what was going on," that his room "needed" to be searched and that they "needed his consent and [they] were going to give him a form to sign." Officer Chaparro also testified that he told Castellon that he had the right to refuse the search. He testified that he translated the Consent to Search form into Spanish and that Castellon appeared to have no difficulty understanding it and asked no questions about it. When Officer Chaparro asked Castellon if he understood what he had read to him, Castellon said that he understood. Castellon then signed the Consent to Search form. After Castellon executed the form, Officer Roberts and another officer searched the apartment.*fn5
The police recovered from Castellon's room a silver and black air pistol.
Thereafter, Officer Chaparro informed Castellon that he was under arrest for sexual assault and transported him to the police station for questioning. Approximately sixty minutes passed between the time they arrived at the station and the commencement of the interview with Castellon. Prior to the interview, Officer Chaparro read Castellon his Miranda*fn6 rights in Spanish, and Castellon initialed and executed a form waiving those rights. Officer Roberts then asked Castellon questions which Officer Chaparro translated. At this point, Castellon made an incriminating statement. The interview lasted approximately twenty to twenty-five minutes. Officer Chaparro testified that during the interview, one of Castellon's hands was handcuffed, but otherwise, he was unrestrained. He also testified that Castellon was not ill, injured, or under the influence of drugs or alcohol.
The trial court ruled that Castellon voluntarily consented to the search, having found that Officer Chaparro had translated the Consent to Search form to Castellon and informed him that he did not have to agree to the search. The trial court rejected Castellon's argument that his consent was obtained in violation of the Interpreter Act, since Officer Chaparro had no difficulty communicating with Castellon in Spanish. The court explained further that "to the degree that there was a violation of the Interpreter Act, it was a technical violation that did not affect any substantive right."
The government conceded that the police did not comply with the Interpreter Act in obtaining Castellon's statement at the police station, and therefore, the trial court ruled that the statement could not be used in the government's case in chief. However, the court found that Castellon gave a knowing and voluntary waiver of his Miranda rights, and therefore held that the statement could be used in rebuttal.
Given the issues raised on appeal, we need recount only briefly the evidence at trial. According to the testimony of the complainant, M.D., she was walking home from a friend's house at about 3:00 a.m. on May 8, 2000, when it started to rain, and she stopped under some trees and looked around for a cab. A man she later identified as Castellon drove by and offered her a ride. Although she declined the offer, she said that the men in the car pursued her. Leaving the door open, a male passenger got out of the car, and urged her to get in.*fn7
The complainant said that the passenger pointed out a building where he lived, and invited her in. M.D. described her efforts to "ease" away from the men, but they continued to follow. As a part of her escape plan, M.D. said she made an effort to close the door of the vehicle, but the driver pulled her into the car and slammed the door, leaving his passenger on the street. She testified that the driver locked the automatic door locks, and he reached under the seat where she saw a black object that she thought might be a gun. She testified that Castellon groped at her breast and between her legs while she was in the car. M.D. testified that subsequently, Castellon led her inside an apartment and forced her into his room, which he opened with a key. She described how Castellon forcibly penetrated her vaginally before anally sodomizing her at gunpoint. She stated that she tried to bang her head on the wall during the assault to alert someone. Castellon fell asleep eventually, and she collected her belongings, except for her pants, which Castellon had placed under his pillow, and she left the room. When she entered the hallway, she saw a small Hispanic child, who led her to another part of the apartment and gave her some shorts to wear. M.D. called the 911 number for the police. The ...