State v. Fernandez-Torres – (

MODIFIED

No. 110,645

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

JOSE FERNANDEZ-TORRES,
Appellee.

SYLLABUS BY THE COURT

1.
To assess the voluntariness of a defendant's statements to government agents, the
district court considers all of the facts bearing on the interaction leading up to and
resulting in those communications. The ultimate issue is whether the statements reflect
the product of a free and independent will, i.e., did the individual act voluntarily? The
district court must examine the totality of the circumstances surrounding the making of
the statements.

2.
A government agent may induce an involuntary statement through improper
threats of harm, promises of benefit, a combination of the two, or other undue influence
over the suspect.

3.
The State must prove the voluntariness of a defendant's statements by a
preponderance of the evidence.

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4.
A court must determine the voluntariness of a defendant's statement without
regard to its truth or falsity because the determination implicates due process rights and
the protection against self-incrimination.

5.
Under K.S.A. 2013 Supp. 60-460(f), an out-of-court statement of the accused
offered by the government in a criminal prosecution will be treated as inadmissible
hearsay unless: (1) the statement was knowingly and understandingly made in the
absence of threats or coercion rendering it involuntary and (2) the statement was made in
the absence of threats or promises by a public official that would likely induce a false
admission.

6.
Under the facts of this case, the district court correctly suppressed the defendant's
statements to law enforcement officers as involuntary when the record showed the
principal questioner lied about biological evidence implicating the defendant and misled
the defendant about the legal consequences of admitting to certain inculpatory conduct,
especially in combination with defendant's low to average intellectual capacity and the
subpar English-Spanish translation made during the interrogation.

Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Original opinion filed
September 26, 2014; modified opinion filed October 24, 2014. Affirmed.

Mark A. Simpson, assistant district attorney, Charles E. Branson, district attorney, and
Derek Schmidt, attorney general, for appellant.

Branden A. Bell and Sarah G. Hess, of Brown & Ruprecht, PC, of Kansas City, Missouri,
for appellee.

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Before LEBEN, P.J., ATCHESON and SCHROEDER, JJ.

ATCHESON, J.: The State has sought interlocutory review of an order of the
Douglas County District Court suppressing inculpatory statements Defendant Jose
Fernandez-Torres made to a police officer questioning him about improper physical
contact he may have had with his girlfriend's young daughter. The district court found the
circumstances of the interrogation rendered the statements involuntary, including
problems with the Spanish-language translation, the officer's false representations about
evidence supposedly implicating Fernandez, and the officer's poorly translated suggestion
that some sort of momentary though improper touching of the girl could be dealt with.
The record evidence supports the district court's factual findings, and we see no error in
the legal determination to suppress the statements. We, therefore, affirm the district
court's order.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In September 2010, the Douglas County District Attorney charged Fernandez with
aggravated indecent liberties with a child for the lewd touching of A.L.G., who was 7
years old at the time. The offense was then codified in K.S.A. 2010 Supp. 21-3504 and
carried a life sentence with no parole eligibility for 25 years, as provided in K.S.A. 2010
Supp. 21-4643(a)(1)(C).

During the investigation of the offense, Fernandez accompanied Lawrence police
officer Anthony Brixius to the law enforcement center to be questioned about his
interaction with A.L.G. Brixius had been a police officer for about 7 years and then
worked as a plainclothes investigator primarily assigned to juvenile sex crimes.
Fernandez was 23 years old and had moved with his family from Mexico to the United
States about 8 years earlier. Fernandez attended school in Mexico until he was 14 years
old. He speaks Spanish and apparently reads with some limitations. He cannot read

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English but speaks the language conversationally. In 2010, Fernandez worked as a waiter
at a Mexican restaurant.

At the suppression hearing, Brixius testified that he and Fernandez talked in
English on the ride to the law enforcement center. Brixius speaks very little Spanish.
Another police officer accompanied them. No one spoke in Spanish during the brief trip.
Once at the law enforcement center, Fernandez was placed in an interrogation room.
Brixius testified that he had concerns about Fernandez' fluency in English and sought out
a Spanish-speaking translator to participate in the interrogation. Brixius pressed Oscar
Marino, a bilingual probation officer, into service. Marino was born in Venezuela and
grew up speaking Spanish; he came to the United States in his teens about 30 years ago
and has become fluent in English. Marino has no training in real-time translation and has
never been certified as a Spanish-English translator. At the suppression hearing, Marino
testified that he has translated for police officers conducting interviews or interrogations
"[a] handful" of times. The interrogation was videotaped.

Fernandez does not contend he was actually or functionally under arrest or
physically restrained during the 2-hour interrogation. By all accounts, he voluntarily
accompanied Brixius to the law enforcement center. Fernandez was not handcuffed
during the car ride or at the law enforcement center. During the interrogation, Fernandez
placed and completed a couple of calls on his cell phone.

After getting general background information from Fernandez in English, Brixius
relied on Marino to translate as he informed Fernandez of his Miranda rights and secured
a waiver of them. Although the exchange is hardly a model of clarity or sound police
procedure based on the translation, the district court found a valid Miranda waiver, a
point Fernandez does not dispute on appeal. The evidence fairly suggests the
interrogation was not custodial, so an imperfectly rendered waiver would have no
material legal consequences. See J.D.B. v. North Carolina, 564 U.S. ___, 131 S. Ct.

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2394, 2401-02, 180 L. Ed. 2d 310 (2011); State v. Warrior, 294 Kan. 484, 496, 277 P.3d
1111 (2012); State v. Morton, 286 Kan. 632, 646-47, 649, 186 P.3d 785 (2008). But see
State v. Bridges, 297 Kan. 989, 1010-11, 306 P.3d 244 (2013) (noting a split of case
authority on whether reading of Miranda warnings amounts to a circumstance leading a
reasonable person to consider police questioning custodial).

The remainder of the interrogation was conducted with Marino translating except
for a few, limited exchanges.

At the suppression hearing, the State called Isabel Ferrandis-Edwards, a court
certified translator, as an expert witness on the quality of Marino's translation during
Brixius' questioning of Fernandez. Fernandez called Sara Gardner, also a court certified
translator, for the same purpose. Both experts agreed that Marino sometimes translated
incompletely or inaccurately the questions Brixius posed and the answers Fernandez
gave. In a few instances, he asked his own questions of Fernandez.

At the start of the interrogation, Brixius questioned Fernandez generally about his
relationship with A.L.G., A.L.G.'s mother, and A.L.G.'s younger half-brothers and the
sort of things he did around the house and with the children. Fernandez is the natural
father of the boys but not of A.L.G. Brixius then began more pointedly asking Fernandez
about touching A.L.G.'s pubic area or vagina with his hand. During the bulk of the
interrogation, Fernandez denied touching A.L.G. inappropriately. Fernandez told Brixius
that he occasionally checked on the children while they were sleeping. He recalled
recently pulling the covers back over his son. He then noticed A.L.G. was very close to
the edge of her bed and seemed on the verge of falling. Fernandez said he grabbed A.L.G.
and slid her back into bed. He said he could have inadvertently brushed his hand against
A.L.G.'s pubic area, but he didn't think that happened.

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 Later in the interrogation, Brixius falsely told Fernandez that a doctor had found
Fernandez' skin cells on A.L.G.'s vagina. Brixius then informed Fernandez the medical
examination of A.L.G. meant he had touched her for a minute or two. Brixius began
insisting that he knew Fernandez had inappropriately touched A.L.G. But he said he also
knew Fernandez was not a bad person and "what happened, in part, was a mistake."
Brixius then told Fernandez that if he had the intention of touching A.L.G. "just for a
second . . . that's okay and we can deal with that because you didn't do more." In
translating that statement, Marino used the Spanish word "negociar" for "deal with."

At the suppression hearing, both experts on translation questioned Marino's choice
in phrasing the Spanish because "negociar" conveys a sense of negotiating or doing
business. Ferrandis-Edwards, the State's expert, testified that in context, negociar
"[d]efinitely is not the best choice." Gardner, Fernandez' expert, agreed that "negociar"
commonly referred to business transactions and suggested a negotiated exchange. She,
too, thought it inappropriately used and could convey the idea that Brixius would
negotiate some arrangement with Fernandez if he admitted touching A.L.G. As we have
said, the experts also agreed that Marino frequently failed to translate fully or entirely
accurately questions and answers, inhibiting precise communication between Brixius and
Fernandez.

Brixius continued to say he knew Fernandez had inappropriately touched A.L.G.
and simply wanted to know why it happened. Fernandez responded he didn't know why.
That sort of refrain recurred during the later stages of the interrogation. Several times
during the interrogation, Brixius assured Fernandez that because he touched A.L.G.'s
vagina only once he was a good person who had a momentary lapse in judgment rather
than a child molester. At one point, Brixius suggested that Fernandez had too much to
drink as a reason. Fernandez replied: "I am confused, because that had never happened
and I don't know." Still later in the questioning, Brixius told Fernandez that "to touch her
vagina, you had to have moved your hand there on purpose." But he quickly added, "And

6
it's ok because you didn't keep on touching her." Fernandez answered: "No, and with
that, how I continued to touch her, that is why I am confused, because that had never
happened." Brixius, however, continued to disregard those denials. Brixius then asked
Fernandez when he realized what he had done was wrong. Fernandez said he realized it
when he brushed his teeth a little while later. Asked again if that was when he realized he
had done something wrong, Fernandez told Brixius, "Yes, kind of." But still later in the
interview, Fernandez specifically denied touching A.L.G.'s vagina.

Brixius persisted in assuming Fernandez had touched A.L.G.'s pubic area and
continued to press for an explanation. Toward the end of the interrogation, Brixius asked
Fernandez, "Why [do] you think . . . you had a lapse in judgment and put your hand on
her crotch?" Marino translated this question as, "Why do you think you had . . . that
problem?" Fernandez replied, "I don't know why, because like I told you, maybe it was
because I had been drinking . . . ." Brixius later asked why, at the start of the questioning,
Fernandez hadn't admitted to touching A.L.G. Fernandez said he thought "it was an
accident." Finally, Brixius asked, "But you knew that it had been done on purpose for [a]
second because you felt bad about it afterwards?" Marino translated the question as: "So
you think, you know that you did it on purpose[?]" Fernandez answered, "For a second[,]
yes."

At the end of the interrogation, Brixius arrested Fernandez.[1]

[1]The interrogation lasted about 2 hours and contains considerably more detail
than we have recounted here. We have relied, in part, on a translation and transcription of
the interrogation that Ferrandis-Edwards reviewed and edited. The district court admitted
the document as an exhibit at the suppression hearing. The 64-page document includes
the translations Marino made during the interrogation and what Ferrandis-Edwards
considered to be appropriate translations of what was actually said. Unless we have
indicated otherwise, we have quoted the English translations of what Marino said to
Fernandez in Spanish and the English translations Marino attributed to Fernandez.

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 At the suppression hearing, Brixius, Marino, and the expert translators testified.
Fernandez did not. The district court also considered the testimony and report of Dr.
Robert Barnett, a clinical psychologist, originally admitted during an earlier hearing in
the case on a different issue. Based on a clinical examination, Dr. Barnett testified at the
earlier hearing that Fernandez had "mild cognitive difficulty" that impaired his ability to
fully understand and respond to questions during the psychological testing. Dr. Barnett
also suspected Fernandez had a learning disability. In his report, Dr. Barnett
characterized Fernandez as "functioning [intellectually] in the low average range." The
parties do not challenge the district court's consideration of Dr. Barnett's evidence.

After the hearing, the district court issued a detailed memorandum decision
granting Fernandez' motion and suppressing the statements he made to Brixius during the
interrogation. The district court found that the full circumstances of the interrogation
demonstrated that Fernandez' inculpatory statements were not the product of his free and
independent will. The State has exercised its prerogative under K.S.A. 2013 Supp. 22-
3603 to take an interlocutory appeal from a district court ruling suppressing a defendant's
statements.

II. ANALYSIS

Standard of Review and Legal Test for Voluntariness

To assess the voluntariness of a defendant's statements to government agents, the
district court considers all of the facts bearing on the interaction leading up to and
resulting in those communications. The ultimate issue is whether the statements reflect
the product of a free and independent will, i.e., did the individual act voluntarily? See
State v. Gilliland, 294 Kan. 519, Syl. ¶¶ 3, 4, 276 P.3d 165 (2012); State v. Stone, 291
Kan. 13, 21, 237 P.3d 1229 (2010); State v. Shumway, 30 Kan. App. 2d 836, 841-42, 50
P.3d 89, rev. denied 274 Kan. 1117 (2002). In short, the district court must examine the

8
totality of the circumstances surrounding the making of the statements. Among the
factors to be considered in assessing voluntariness are: "(1) the accused's mental
condition; (2) the duration and manner of the interrogation; (3) the ability of the accused
on request to communicate 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." Gilliland, 294 Kan. 519, Syl. ¶ 3; see
Stone, 291 Kan. at 21. A government agent may induce an involuntary statement through
improper threats of harm, promises of benefit, a combination of the two, or other undue
influence over the suspect. Hutto v. Ross, 429 U.S. 28, 30, 97 S. Ct. 202, 50 L. Ed. 2d
194 (1976); State v. Brown, 286 Kan. 170, 174, 182 P.3d 1205 (2008). The State must
prove the voluntariness of the defendant's statements by a preponderance of the evidence.
State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013).

Voluntariness ultimately must be determined holistically. So a consideration or
factor favoring the State does not directly negate another one favoring the defendant and
vice versa—the outcome does not depend on a tally of factors for each side. Each
relevant factor, likewise, should not be assessed in isolation. The collective effect of the
circumstances drives the assessment. See Randolph, 297 Kan. at 326; Stone, 291 Kan. at
25.

An appellate court reviews the district court ruling using the well-known
bifurcated standard under which factual findings must be supported by substantial
evidence but the controlling legal conclusion is subject to unlimited review. An appellate
court may not reweigh the evidence generally or make independent credibility
determinations. Gilliland, 294 Kan. 519, Syl. ¶ 1; Stone, 291 Kan. at 21.

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The Rights at Stake

A practical vice of an involuntary confession or admission is its inherent
unreliability. Jackson v. Denno, 378 U.S. 368, 385-86, 84 S. Ct. 1774, 12 L. Ed. 2d 908
(1964) (noting the "probable unreliability" of involuntary confessions). A statement given
under physical or mental duress or in exchange for the promise of a substantial benefit
necessarily comes with a questionable provenance. See Dickerson v. United States, 530
U.S. 428, 432-33, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000). If the statement is a
criminal defendant's own and the pressure brought to bear by government agents is
sufficient to show involuntariness, the circumstances contravene the individual's due
process rights and the protection against self-incrimination guaranteed through the Fifth
and Fourteenth Amendments to the United States Constitution. Kansas v. Ventris, 556
U.S. 586, 590, 129 S. Ct. 1841, 173 L. Ed. 2d 801 (2009); Dickerson, 530 U.S. at 433;
State v. Schultz, 289 Kan. 334, 342-43, 212 P.3d 150 (2009). As a remedy, courts prohibit
the government from using the statement against the defendant in any criminal
prosecution. Dickerson, 530 U.S. at 433-34; Stone, 291 Kan. at 32-33; Morton, 286 Kan.
at 649.

Because of those constitutional considerations, a court must determine the
voluntariness of a defendant's statement without regard to its truth or falsity. Rogers v.
Richmond, 365 U.S. 534, 543-44, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961); United States v.
Preston, 751 F.3d 1008, 1018 (9th Cir. 2014) (en banc); Parker v. Allen, 565 F.3d 1258,
1280 (11th Cir. 2009). The Framers of the United States Constitution intended due
process rights and protections against self-incrimination to prohibit inquisitorial judicial
proceedings in which defendants could be compelled to speak against their own interests.
Preston, 751 F.3d at 1015. Inquisitions historically relied on physical torture or
impressed punishment on the accused for refusing to speak—procedures the Framers
considered fundamentally unfair. See Michigan v. Tucker, 417 U.S. 433, 440, 94 S. Ct.

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2357, 41 L. Ed. 2d 182 (1974); Malloy v. Hogan, 378 U.S. 1, 7-8, 84 S. Ct. 1489, 12 L.
Ed. 2d 653 (1964); Rogers, 365 U.S. at 540-41; Preston, 751 F.3d at 1015.

In addition to the constitutional provisions bearing on the use of a defendant's
confession to government agents, the district court relied on the hearsay exception in
K.S.A. 2013 Supp. 60-460(f) to bar admission of Fernandez' statements. Under the
statute, an out-of-court statement of the accused offered by the government in a criminal
prosecution will be treated as inadmissible hearsay unless the circumstances show the
statement to have been knowingly and understandingly made in the absence of threats or
coercion that would render it involuntary and in the absence of threats or promises by a
public official that would likely induce a false admission. K.S.A. 2013 Supp. 60-460(f).
In most cases, a statement found to be constitutionally involuntary would also be
excluded under K.S.A. 2013 Supp. 60-460(f). But in at least a couple of respects, K.S.A.
2013 Supp. 60-460(f) applies more broadly than the constitutional protections. Under
K.S.A. 2013 Supp. 60-460(f)(2)(B), a court may exclude a statement as hearsay if threats
or promises from a public official related to the charged offense were "likely to cause the
accused to make such a statement falsely." The apparent falsity of a statement is a
relevant consideration favoring statutory exclusion. The district court relied on that
subsection. In other situations, K.S.A. 2013 Supp. 60-460(f) excludes not only statements
a criminal defendant has given to government agents but those made to private
individuals, as well.

Assessing Voluntariness in This Case

In its written decision, the district court carefully addressed each of the six factors
that have been outlined in the caselaw and looked at the totality of the circumstances,
particularly as those circumstances bore on the enumerated factors. The district court's
factual determinations have support in the record evidence. We review those factors in

11
assessing the district court's legal conclusion to suppress the statements Fernandez made
to Brixius during the interrogation.

The factor bearing on a defendant's mental condition primarily looks at something
that would impair the individual's ability to understand and respond to a law enforcement
officer's questions. A diagnosable and uncontrolled mental illness, such as active
schizophrenia or another condition causing detachment from reality, would fall in that
category. Less dramatic and more transient circumstances could impact a defendant's
mental condition—extreme intoxication or fatigue would be examples. Here, the district
court found no particular indicators that Fernandez' mental condition contaminated the
interrogation. As the district court pointed out, Fernandez appeared comparatively
relaxed during the interrogation, and he made no complaints about being tired,
uncomfortable, or otherwise in distress.

The district court similarly found nothing in the physical attributes of the
interrogation—the surroundings and its duration—to be coercive. We put to one side
Brixius' interrogation technique for consideration as part of the fairness of the law
enforcement officers conducting the questioning, as did the district court. The various
factors, however, are not wholly exclusive of each other. They tend to overlap, thus
underscoring the appropriateness of a collective review of those factors and any other
relevant circumstances.

In this case, as we have noted, Fernandez was neither told he was under arrest nor
treated as an arrestee during the interrogation, with the exception of the reading of
Miranda warnings. He was not handcuffed or restrained during the trip to the law
enforcement center or during the questioning. During the interrogation, neither Brixius
nor Marino raised his voice to Fernandez or engaged in physically intimidating conduct.
The questioning was comparatively brief at about 2 hours, especially considering the
translation of questions and answers necessarily extended the length of the examination.

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Fernandez did not ask for a break in the interrogation to use the restroom or for some
other reason. The district court found nothing coercive about those aspects of the
interrogation.

A closely related factor considers the defendant's perceived ability to communicate
with the outside world. Interrogation rooms, by design, tend to be cloistered, thereby
imparting a sense of isolation that itself can be coercive. See Berkemer v. McCarty, 468
U.S. 420, 437-40, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) (recognizing that a public
traffic stop typically lacks the coercive atmosphere of a station house detention); Smith v.
Kansas Dept. of Revenue, 291 Kan. 510, 516-18, 242 P.3d 1179 (2010) (citing Berkemer
with favor). Commonly, courts consider whether the individual was free to leave or, more
precisely, understood that he or she could leave. Schultz, 289 Kan. at 341 (whether
interrogation custodial); State v. Nguyen, No. 96,430, 2008 WL 360635, at *6 (Kan.
2008) (unpublished opinion). That didn't come up in this case, since Fernandez didn't ask
or attempt to leave. But Fernandez made a couple of cell phone calls while he was at the
law enforcement center. The district court found that tended to dispel any notion that
Fernandez would have felt cut off or intimidated by the environment.

In weighing Fernandez' age, intellect, and background, the district court relied, in
part, on the clinical assessment of Dr. Barnett. Dr. Barnett's expert opinion that
Fernandez functioned intellectually in the "low average" range and likely had some form
of learning disability was unrebutted. Dr. Barnett also testified Fernandez had difficulty
readily understanding and responding to questions posed to him. Again, that clinical
observation went unchallenged in the sense the State offered no countering expert. The
intellectual limitations Dr. Barnett suggested at least square with Fernandez' abbreviated
education and his partial literacy, especially in English. The district court found
Fernandez' intellect played a part in rendering his statements involuntary.

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 Although Fernandez did not overtly display difficulty in understanding Brixius'
examination or give facially unresponsive answers indicating a lack of comprehension,
the district court had substantial evidence to support that finding of fact. The State
counters that Brixius could not have deliberately exploited any hidden intellectual
deficiency Fernandez might have had. But that bears more on officer fairness, not the
extent to which a defendant's intellectual capacity actually affected the voluntariness of
any incriminating statements.

The district court was particularly troubled by the last two enumerated factors: the
fairness of the interrogation and Fernandez' fluency in English. We share that concern. In
this case, the two factors are closely related, so we discuss them together.

Fluency in English typically comes into play when a suspect is literate in some
other language but is interrogated in English. See State v. Rodarte, No. 102,132, 2011
WL 1814709, at *2 (Kan. App. 2011) (unpublished opinion). Illustrating the
seamlessness of the generically labeled factors, fluency would also be implicated if a
suspect knew only English but his or her mental incapacity substantially impaired his or
her ability to communicate. That situation might also bear on mental condition and,
possibly, intellect. This case presents a variant because Brixius sought out a translator, so
the interrogation could be conducted in Spanish—Fernandez' primary language, although
Fernandez understands some spoken English.

To be plain about it, Marino lacked the bilingual capacity and the training to
function effectively as a translator in an extended interrogation about a sex crime against
a child. The two experts agreed that Marino mistranslated both questions and answers and
sometimes substantially paraphrased what was being said. The district court's expressed
concern about whether Brixius and Fernandez were fully communicating in an effective
way finds sufficient support in the record evidence.

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 The district court was particularly troubled by Marino's use of "negociar" in
conveying Brixius' assertion that "we can deal with" the situation if Fernandez had
touched A.L.G. inappropriately for just a second. Both experts considered the translation
to be misleading and suggestive of an accommodation in which Brixius could handle or
negotiate any offense if Fernandez admitted to briefly touching A.L.G.'s pubic area or
vagina. As translated for Fernandez, the statement might be construed as a promise of
lenient treatment or an outright deal, thereby affecting the truthfulness of any inculpatory
admissions on the theory a suspect might falsely confess if he or she understood no
charges or only minor charges would result. See State v. Brown, 285 Kan. 261, 276-77,
173 P.3d 612 (2007). The State contends the maladroit "negociar" was one word—a
blip—in an extended interrogation and couldn't have induced Fernandez' admissions.

The emphasis Marino imparted with his use of "negociar" may not have been what
Brixius specifically wanted or intended. But the deviation was one of degree given
Brixius' interrogation technique that combined false representations about supposedly
incriminating evidence with suggestions that inaccurately tended to minimize the legal
consequences of some unlawful behavior. The result of those techniques over the course
of the interrogation combined with communications issues resulting from subpar
translation and Fernandez' limited intellectual capacity caused the district court to find
the resulting statements to be involuntary and, thus, constitutionally suspect. Fernandez'
limited fluency in English ties into the fairness of the interrogation. So we turn to that
factor.

In the face of Fernandez' denials that he inappropriately touched A.L.G. and his
limited admission that he might have accidently brushed her pubic area in trying to get
her back into bed, Brixius falsely stated skin cell evidence conclusively proved otherwise.
There was no such evidence. Brixius, however, insisted the phantom scientific evidence
meant Fernandez intentionally touched A.L.G.'s vagina. Brixius then repeatedly
challenged Fernandez to offer some explanation for that conduct. Brixius suggested

15
Fernandez wasn't a bad person and merely had a momentary lapse in judgment, perhaps
because he was upset or had drunk too much or for some other reason, in contrast to
being a degenerate regularly preying on children for sexual gratification. Brixius then
told Fernandez if he had touched A.L.G. for a second, they could "deal with that"—the
representation that Marino translated to "negociar." Later in the interrogation, Brixius
again told Fernandez that it was "okay" because he didn't keep on touching A.L.G. Those
representations falsely minimized the legal consequences of the action—brief, intentional
physical contact with A.L.G.'s genitals actually would legally support a charge of
aggravated indecent liberties with a child and a life sentence upon conviction.

Brixius' interrogation approach effectively informed Fernandez both that the
police had irrefutable scientific evidence that he had touched A.L.G.'s vagina and that if
he had done so only for a second his actions were "okay" and could be dealt with. The
underlying message to Fernandez was this: We have overwhelming evidence against
you, but if you tell us you did it just briefly, nothing much will happen to you. Brixius
maneuvered Fernandez into a situation in which yielding to the suggestion would seem to
carry a material benefit, though quite the reverse was true. An unwary or pliable
subject—Fernandez, based on the district court's findings, fit that bill—could be induced
to accede to the suggested version of events because it looked to be convenient,
compliant, and advantageous. In that situation, a suspect may no longer be especially
concerned about falsity of the statement. The interrogation strategy lures the subject in,
snares him or her with representations about the strength of the evidence (that may or
may not have any basis in fact), and then offers what appears to be a way out through
admissions deliberately and incorrectly cast as significantly less legally and morally
blameworthy than alternative explanations of the evidence.

Although Marino poorly translated some of the specific questions and answers and
occasionally injected himself into the exchange between Brixius and Fernandez, his
actions did not materially blunt the overall interrogation techniques. The key components

16
of Brixius' effort to enhance the inculpatory evidence and to minimize the consequences
of an admission to certain conduct came through. Marino actually upped the impact of
that effort with his maladroit translation suggesting Brixius could work out a deal with
Fernandez.

In this case, looking at the whole of the circumstances, we conclude, as did the
district court, that the inculpatory statements Fernandez made to Brixius were sufficiently
tainted by the interrogation process and Fernandez' vulnerability to be something less
than freely given. The State has failed to show they were the product of an independent
will rather than of the false evidence and phony inducement implied by the interrogator.
A statement rendered under those circumstances must be treated as constitutionally
infirm and necessarily involuntary. Accordingly, the district court reached the right legal
conclusion in excluding the interrogation of Fernandez as evidence against him in this
case. The interrogation violated Fernandez' Fifth and Fourteenth Amendment rights.

We also agree with the district court that Fernandez' statements were inadmissible
hearsay under K.S.A. 2013 Supp. 60-460(f)(2)(B). Based on the evidence at the
suppression hearing, the district court could fairly conclude the inculpatory statements
Fernandez made to Brixius were likely false. The State offered no evidence to the
contrary at the hearing. The translation using "negociar" supports the district court's
finding that Fernandez reasonably may have believed Brixius had the authority to act on
any criminal charges in exchange for an admission of some degree of culpability, the
other statutory requirement in K.S.A. 2013 Supp. 60-460(f)(2)(B).

Analogous Case Authority—Old and New

The conclusion we reach is consistent with the analysis the Kansas Supreme Court
applied in Stone to find a confession involuntary. 291 Kan. at 32-33. Although the facts
in Stone and here differ in some respects, as they commonly do across cases, the court
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emphasized the importance of assessing all aspects of a police interrogation collectively
in making a voluntariness determination. 291 Kan. at 29. Both cases involved the
investigation and prosecution of sex offenses against young children. In that case, as here,
the detective conducting the interrogation lied about having biological evidence
establishing that Stone committed the offense. The detective questioning Stone combined
those representations with a "tactic . . . minimizing the seriousness of the accusations"
and suggesting that "only confessing could keep him out of jail or affect the length of his
[sentence]." 291 Kan. at 29-30. The court concluded the overall impact of that method of
interrogation "made the circumstances unduly coercive." 291 Kan. at 29.

In each case, the interrogation lasted roughly 2 hours. At the beginning of the
interrogation, Stone told the detective he was quite tired and had a sore throat. During the
questioning, Stone repeatedly mentioned being tired, something the court considered
significant. 291 Kan. at 32. Here, although Fernandez appeared rested, the language
barrier and his intellectual capacity affected the interrogation.

The court pointed out that Stone consistently denied any wrongdoing during the
bulk of the interrogation and then eventually admitted to the minimized version of the
offense the detective suggested. 291 Kan. at 29. The interrogation of Fernandez followed
a similar pattern. Fernandez repeatedly said he did not touch A.L.G.'s vagina or otherwise
act inappropriately. Confronted with Brixius' false representation that physical evidence
disproved his denial and Brixius' suggestion that touching A.L.G. for only a second
would be okay or could be dealt with, Fernandez admitted to that scenario. The analysis
in Stone supports suppression in this case.

The State contends Fernandez confessed to touching A.L.G.'s pubic area, if only
accidently, even before Brixius brought up the fictional skin cell evidence, meaning the
interrogation techniques didn't make any difference. That may be too generous a reading
of what Fernandez told Brixius during the first part of the interrogation. As we have

18
outlined, Fernandez denied he inappropriately touched A.L.G. But many of the questions
and answers, as translated, focused on some kind of inadvertent touching. Fernandez
conceded the hypothetical possibility he might have accidently brushed against A.L.G.'s
pubic area and explained how that could have happened as he moved the child from the
edge of the bed. In context, however, Fernandez' responses during that part of the
questioning don't include an obvious admission that he actually touched A.L.G.'s pubic
area at all. Even after Brixius had referred to the purported skin cell evidence, Fernandez
continued to deny intentionally touching A.L.G.'s pubic area.

The State's argument remains unpersuasive on its own terms, accepting the
premise that Fernandez admitted to an inadvertent or accidental touching of A.L.G.'s
vagina. The State says the difference between an admitted inadvertent touching and an
intentional touching isn't all that great. We disagree. During that stage of the
interrogation, Brixius had not yet injected the idea that a brief, intentional touching was
"okay" or could be dealt with—the technique of minimizing criminal consequences. So
early in the interrogation, an accidental touching would have seemed excusable both
morally and legally, while an intentional touching, entailing a degree of sexual
gratification on Fernandez' part, would not. Only later in the interrogation did Brixius
reframe the circumstances with the false representation of scientific evidence proving an
intentional touching and the deceptive minimalization of the legal implications of some
intentional touching. As part of a calculated strategy to coax Fernandez into admitting a
serious crime, those very tactics diminished the apparent legal differences between an
accidental touching and a brief, intentional touching. As the party bearing the burden of
proof on the voluntariness of the admissions, the State cannot show that those techniques
made no difference in this case.

More broadly, the State's premise is counterintuitive. The legal and moral gulf
between inadvertent or negligent conduct, on the one hand, and intentional conduct, on
the other, is hardly a mystery. For example, most people would say absentmindedly

19
failing to pay a bill is different from paying it with a check written on an empty account.
And most people would recognize that accidentally hitting a pedestrian with a car is far
less culpable than intentionally running someone down in a crosswalk. The difference
between accidental and intentional here is similarly pronounced.

Judicial concern about the coercive impact of interrogation techniques of the sort
used in Stone and here is neither isolated nor new. Nearly 50 years ago, the United States
Supreme Court warned of the dangers lurking in government agents' use of
psychologically debilitating interrogation techniques. Miranda v. Arizona, 384 U.S. 436,
448-49, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Those methods replaced physical
brutality with a more insidious manipulation designed to extract inculpatory statements
through mental coercion rather than the threat or infliction of bodily pain. But they may
be no less repugnant to a suspect's constitutional rights. 384 U.S. at 448 ("'[T]his Court
has recognized that coercion can be mental as well as physical, and that the blood of the
accused is not the only hallmark of an unconstitutional inquisition.'") (quoting Blackburn
v. Alabama, 361 U.S. 199, 206, 80 S. Ct. 274, 4 L. Ed. 2d 242 [1960]).

The Miranda Court went on to describe a relatively new interrogation strategy
being taught to law enforcement officers that largely parallels how Brixius questioned
Fernandez. 384 U.S. at 449-50 (outlining technique developed and taught by Fred E.
Inbau and John E. Reid). The officer first should isolate the suspect in unfamiliar
surroundings, such as a police interrogation room. Then, the guilt of the suspect "is to be
posited as a fact." The questioner should solicit reasons why the suspect might have
committed the offense, such as a bad family life or having drunk too much. The
technique then instructs the officer "to minimize the moral seriousness of the offense."
The intended effect of the technique is "to put the subject in a psychological state where
his story is but an elaboration of what the police purport to know already—that he is
guilty." To complete the strategy, the questioner must dismiss and discourage any
contrary explanation, i.e., innocence. 384 U.S. at 450. This technique, often referred to as

20
the Reid method, remains widely used. See United States v. Preston, 751 F.3d 1008, 1023
n.19 (9th Cir. 2014) (en banc); Feld, Behind Closed Doors: What Really Happens When
Cops Question Kids, 23 Cornell J.L. & Pub. Pol'y 395, 412-13 (Winter 2013) (describing
the Reid technique as "the leading training program in the United States" and as
"underl[ying] most contemporary interrogation practice").

Interrogation techniques of that sort may induce individuals to give necessarily
false confessions to crimes they never committed, especially if they are guileless or
otherwise particularly susceptible to external influences. Juveniles and the intellectually
impaired, as groups, are vulnerable, since they tend to be trusting of authority figures and
lack sophistication and discernment. J.D.B. v. North Carolina, 564 U.S. ___, 131 S. Ct.
2394, 2403-04, 180 L. Ed. 2d 310 (2011); Preston, 751 F.3d at 1022; see Garrett, The
Substance of False Confessions, 62 Stan. L. Rev. 1051, 1064 & n.69 (2010); Kassin, et
al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum.
Behav. 3, 30 (2010). The susceptibility to psychologically manipulative interrogation
techniques may be more pronounced in individuals unfamiliar with the criminal justice
process. Although innocent, an individual may attribute the purported evidence against
him or her to a horrible and likely uncorrectable mistake rather than to the interrogator's
deception. And the interrogator's categorical dismissal of each protest of innocence can
cement that fear. The individual then considers the minimalized admission of guilt the
interrogator has offered to be the best way out of an exceptionally bad predicament. See
Kassin, 34 Law & Hum. Behav. at 14, 16-19; Gohara, A Lie for a Lie: False Confessions
and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques, 33
Fordham Urb. L.J. 791, 817-19 (2006); Ofshe & Leo, The Decision to Confess Falsely:
Rational Choice and Irrational Action, 74 Denv. U.L. Rev. 979, 985-86 (1997).

In Commonwealth v. DiGiambattista, 442 Mass. 423, 428, 439-40, 813 N.E.2d
516 (2004), the Massachusetts Supreme Judicial Court held that the combined effects of
law enforcement officers' false representation that a security video placed DiGiambattista

21
at the scene of a late night arson and of their suggestions that the offense was
"understandable" and called for counseling rendered his confession involuntary. The
court recognized either technique standing alone typically would not undermine a
confession but together they easily could. 442 Mass. at 433, 438-39. Even so, the court
found the individual tactics troubling. As the court observed: "If a suspect is told that he
appears on a surveillance tape, or that his fingerprints or DNA have been found, even an
innocent person would perceive that he or she is in grave danger of wrongful prosecution
and erroneous conviction." 442 Mass. at 434-35. And "such 'minimization' of the crime
by an interrogator implies leniency if the suspect will adopt that minimized version of the
crime, and that leniency can thereby be implicitly offered even if it is not expressly stated
as a quid pro quo for the confession." 442 Mass. at 436. Although Massachusetts requires
the State to prove voluntariness beyond a reasonable doubt, a higher standard than in
Kansas, the corrosive effects of the interrogation techniques are the same. The Utah
Supreme Court voiced similar concerns about those tactics resulting in overbearing and
impermissibly coercive police questioning of suspects. State v. Rettenberger, 984 P.2d
1009, 1015-18 (Utah 1999). In Rettenberger, decided on a preponderance of the evidence
standard, the court found a confession inadmissible when law enforcement officers used
those psychological ploys—false claims of incriminating evidence and deliberate
minimalization of the legal consequences of admitting incriminating conduct—with an
especially vulnerable suspect over an extended time. 984 P.2d at 1021. As reflected in
Stone, the Kansas courts should similarly assess the overall impact of those techniques in
light of the suspect's personal characteristics in determining voluntariness.

Earlier this year, two other appellate courts held that inculpatory statements
vulnerable suspects made to law enforcement officers should have been suppressed
because interrogation techniques combining false representations about incriminating
evidence with minimalization of any legal consequences for admitting circumstances
amounting to criminal offenses rendered them involuntary. Preston, 751 F.3d at 1027-28;
People v. Thomas, 22 N.Y.3d 629, 646, 985 N.Y.S.2d 193, 8 N.E.3d 308 (2014). As with

22
Stone, their reasoning is illustrative of the potential constitutional perils associated with
interrogation techniques comparable to those deployed in this case.

In Thomas, the New York Court of Appeals found officers impermissibly induced
Thomas to implicate himself in the death of his 4-month-old son. During a 9 1/2-hour
interrogation conducted in two sessions, a detective told Thomas, among other things,
either he or his wife was responsible for the child's head injuries, so they would have to
bring her in for questioning if he didn't confess. But the detective also said the injuries
appeared to be accidental and Thomas could go home after explaining what happened. At
the end of the first segment of the interrogation, Thomas essentially agreed to take the fall
for his wife because he believed she had done nothing to harm the child. Thomas
continued to say he had not hurt the baby either. At that point, Thomas was sufficiently
distraught that he was involuntarily committed to a psychiatric hospital for observation
for 15 hours between the sessions.

In the second session, detectives told Thomas they needed to know how he hurt
his son so physicians could properly treat the baby. The detectives, however, already had
been informed the child could not recover. After Thomas offered that he had dropped the
child onto his bed days earlier, the detectives insisted that version didn't match what the
doctors said happened because the injury required significant force. The detectives told
Thomas he was lying. And eventually at their insistence, he "demonstrate[d]" how he had
handled his son by forcibly throwing a clipboard to the floor of the interrogation room—a
demonstration captured on video. 22 N.Y.3d at 640. Throughout the interrogation, the
detectives repeatedly assured Thomas that the child's injuries were accidental, suggesting
the absence of any significant criminal liability.

After pointing out that not all police deception renders a suspect's inculpatory
statements involuntary and the determination rests on a case-by-case analysis dependent
on the particular psychological pressures brought to bear during the interrogation and the

23
suspect's vulnerability, the Court of Appeals found the tactics applied to Thomas to be
impermissibly overbearing. 22 N.Y.3d at 642. That coercion deprived Thomas of his
right against self-incrimination. 22 N.Y.3d at 642. The court found the deceptive tactics
overcame Thomas' free will, rendering the confession constitutionally infirm regardless
of its truth or falsity. 22 N.Y.3d at 644-45. Moreover, however, the circumstances also
raised a very real possibility the confession might be false, a statutory ground supporting
exclusion under New York law similar to K.S.A. 2013 Supp. 60-460(f)(2)(B). 22 N.Y.3d
at 646.[2]

[2]The court addressed Thomas' confession on appeal from his murder conviction.
The trial court had ruled the statement admissible. The Court of Appeals reversed the
conviction based on the erroneous admission of the confession and remanded for a new
trial. Under New York law, the State had the burden to show beyond a reasonable doubt
that Thomas' statements to law enforcement officers were voluntary, 22 N.Y.3d at 641, a
higher standard than Kansas requires. As with the DiGiambattista decision, the differing
burden does not, however, diminish the reasoning of the New York Court of Appeals in
finding the confession involuntary because of the interrogation tactics. Thomas was
acquitted in a retrial in June 2014. At trial, he called medical experts who testified that
the fatal swelling of his son's brain was the result of infection rather than physical trauma,
contradicting the State's medical witnesses. See "Scenes of a Crime," MSNBC, June 25,
2014, www.msnbc.com/documentaries/scenes-crime-subject-adrian-thomas-found-not-
guilty-retrial (accessed July 27, 2014). (A copy of the MSNBC article has been placed in
the appellate court file.)

In Preston, the Ninth Circuit emphasized many of the same considerations. The
court underscored the importance of assessing "'both the characteristics of the accused
and the details of the interrogation'" in evaluating the totality of the circumstances. 751
F.3d at 1016 (quoting Dickerson v. United States, 530 U.S. 428, 434, 120 S. Ct. 2326,
147 L. Ed. 2d 405 [2000]). In that case, two law enforcement agents questioned Preston,
an 18-year-old, about the alleged sexual molestation of a boy who lived next door to him
in the Navajo Nation in Arizona. Preston had an IQ of 65 and was considered
intellectually disabled—something that was obvious to the agents as they interviewed
him. The questioning was noncustodial and lasted about 40 minutes.

24
 The agents employed Reid-style interrogation techniques by refusing to
acknowledge Preston's denial of wrongdoing, by falsely stating that numerous witnesses
put him in the company of the boy about the time the alleged assault took place, and by
suggesting if this happened only once that would show that Preston wasn't a "monster"
who "'prey[s] on little kids,'" so they "could 'move on.'" They also told Preston they
would be "'cool'" if he admitted "'something just a little bit happened.'" 751 F.3d at 1013.
One of the officers later testified that they intended to minimize the consequences of a
confession. 751 F.3d at 1013.

Preston continued to deny the assault but often answered questions with what the
court characterized as confused and equivocal responses. The agents then asked Preston a
series of questions about how or why he assaulted the boy, assuming as a given that the
assault actually took place. Each question contained two options both of which were
legally incriminating but one of which was plainly morally more reprehensible. For
example, they asked: "'[I]s it something . . . where you forced the issue or is it something
that he wanted?'" In response, Preston always agreed he acted in the less odious way. 751
F.3d at 1014. Based on the tenor of the interrogation and expert testimony introduced at
the suppression hearing, the court concluded that because of his limited intellect, Preston
likely failed to appreciate those questions logically included an implicit third choice—
neither. 751 F.3d at 1024.

More broadly, the court pointed out the potentially deleterious impact of those
sorts of interrogation techniques, including overstating evidence and subtle or implicit
promises that a statement to limited or qualified conduct would have only marginal legal
consequences or none at all. 751 F.3d at 1026-27. The court, in turn, found that Preston's
pronounced intellectual disability substantially intensified that danger and compelled a
determination of involuntariness. 751 F.3d at 1027-28.

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 While none of the cases we have discussed dictates the outcome here because each
of them has particular facts different from what happened between Brixius and Fernandez
and only Stone is controlling authority, they are all of a type. They show how the
interrogation techniques Brixius applied to Fernandez have the potential to undermine
free will through psychological ploys crafted to induce inculpatory statements with what
amount to undue influences on some suspects in some circumstances.

Final Analysis

Here, the State argues for reversing the district court's ruling by analyzing each
problematic aspect of the interrogation individually and suggesting none of them caused
any material prejudice. But the Kansas Supreme Court has specifically rejected a divide-
and-conquer approach to assessing the involuntariness of a confession. State v. Stone, 291
Kan. 13, 29, 237 P.3d 1229 (2010). As we have already said, the circumstances
surrounding a confession must be analyzed collectively. State v. Randolph, 297 Kan. 320,
329, 334, 301 P.3d 300 (2013) (acknowledging Stone and reviewing totality of
circumstances bearing on defendant's confession to find it voluntary). So while a specific
component of an interrogation viewed in isolation might not render a suspect's statements
involuntary, the overall impact of multiple potentially coercive techniques could. 297
Kan. at 334. The Stone court made that precise point: Any one of the coercive aspects of
the interrogation might not have led to the conclusion that Stone's statements were
involuntary, but a review of all of them collectively required that result. 291 Kan. at 32-
33.

This case fits the Stone model. The interrogation of Fernandez was tainted by
several significant forms of coercion and overreaching. Any one of them alone might not
have rendered Fernandez' statements involuntary and inadmissible, as the State argues.
But that is not the correct way of looking at the issue of voluntariness. When we review
the overall character of the interrogation, we arrive at the same legal conclusion as the

26
district court. The manner of the interrogation produced statements from Fernandez that
owed more to Brixius' false representations of evidence and his concerted efforts to
minimize the consequences of the admissions he sought than to an exercise of a free,
uncoerced will. The communication gap resulting from the poor translation and
Fernandez' below average intellect only enhanced the pernicious effects of those tactics.
Accordingly, the district court properly granted the motion to suppress on the grounds
Brixius' interrogation of Fernandez produced involuntary statements inadmissible as
evidence in this case.

Affirmed.

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