ABUKAR (MOHAMUD) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 27, 2014; 10:00 A.M. TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2012-CA-001527-MR MOHAMUD ABUKAR v. APPELLANT APPEAL FROM KENTON CIRCUIT COURT HONORABLE MARTIN J. SHEEHAN, JUDGE ACTION NO. 10-CR-00831 COMMONWEALTH OF KENTUCKY APPELLEE OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: CAPERTON, COMBS, AND THOMPSON, JUDGES. CAPERTON, JUDGE: The Appellant, Mohamud Abukar, appeals as a matter of right his conviction for first-degree rape, for which he was sentenced to twelve years’ imprisonment. On appeal, Abukar argues that the court below erred by denying his request for an interpreter at trial, that the court erred in denying his motion to suppress, and that the selection of his jury was unconstitutional. Upon review of the record, the arguments of the parties, and the applicable law, we reverse and remand. On October 10, 2010, Andrea Kendall reported to the Erlanger Police Department that after she and her boyfriend, Andrew Burchett, had both passed out in a cab the night before, she woke up early that morning in the back seat of the cab with the driver, Abukar, raping her. Kendall states that upon waking, the driver jumped off of her, and got into the driver’s seat. She stated that she saw a Circle K store that she was familiar with, and asked the driver to stop there so she could buy cigarettes. Although she did buy cigarettes, Kendall states that this was simply a ruse to exit the cab. Burchett entered the Circle K right after Kendall, spoke with her, then exited the Circle K with Kendall and had a conversation in front of the store and next to the cab which had pulled up in front. The cab driver waited outside of Circle K for slightly more than three minutes, then drove away. At some point Kendall told Burchett that the cab driver had raped her. Burchett knew the driver from his work (a sandwich shop which cab drivers frequented), but did not know his name at the time. After going home, then to the Newport Police Department, Kendall was brought to Saint Elizabeth Hospital for a rape kit. The Erlanger Police Department was notified and Detective Kim Klare was assigned to the case. She interviewed both Kendall and Burchett, taping their statements on her cell phone. Klare also interviewed Kendall’s mother and stepfather, who were also at the hospital, and had previously been at the Circle K where they reviewed the store security camera footage. Klare took possession of -2- the Circe K security tapes. Upon viewing the tapes, Klare could identify the cab company, but not the cab driver himself. Thereafter, on October 12, 2010, Burchett contacted the police and advised that the cab driver who had allegedly raped his girlfriend was in the sandwich shop in Erlanger where he worked. The driver was Abukar, who was stopped by police and brought to the police department, where he was questioned by Detective Dan Fern. Abukar admitted knowing Burchett and stated that he had picked Burchett and Kendall up in Newport outside of a nightclub. Abukar stated that both Kendall and Burchett were very drunk, and that Burchett threw up in his cab and had to be moved from the back seat to the front passenger seat, after which time both Burchett and Kendall passed out without giving Abukar an exact address. Abukar denied having sexual contact with either one of them. He admitted that they had been in his cab for several hours (from approximately 1:30 to 6:30 a.m.) and stated that he did not throw them out of the cab or report them to the police because Burchett was his friend. Abukar’s cab was searched and a DNA buccal swab was obtained from Abukar before he was released. Three days later, Abukar was arrested and charged with first-degree rape. Following Abukar’s initial arraignment, a preliminary hearing was held in the Kenton County District Court. Abukar was arraigned in Kenton County Circuit Court on January 4, 2011. He entered a plea of not guilty, moved for discovery, and requested a pretrial conference date. Abukar remained incarcerated until May 2011, when his family was able to pay his cash bond. -3- Because of what he asserts were issues with the DNA lab report as well as the initial stop, interrogation, search, and seizure, Abukar filed a motion to exclude and requested a suppression hearing on same. An interpreter was ordered for that proceeding, which was held on October 4, 2011. During the course of that hearing, the Commonwealth presented one witness, Detective Fern, who interviewed Abukar after his initial stop by police on October 12, 2010. Abukar offered no proof. The court ultimately denied Abukar’s motion to suppress and Abukar then moved for findings of fact and conclusions of law on October 12, 2011. Those facts were entered on May 22, 2012, which was the first day of Abukar’s jury trial. During voir dire, Abukar had challenged the Commonwealth’s strikes wherein a potential juror, who, like Abukar, was a person of color and a Muslim, had been struck. Abukar asserts that the potential juror had been qualified and had stated that she could render an impartial verdict.1 The judge found the strike to be race-neutral. The matter was again brought to the court’s attention, and the court found that one person of color remained on the jury, an African-American female.2 As noted, following the jury trial Abukar was convicted of rape in the first degree 11 The Commonwealth stated that they struck this particular juror and another juror because they stated that they did not drink alcohol. While keeping a third juror who also did not drink, the Commonwealth stated that this was because the juror in question was allergic and had children who did drink. 2 Abukar notes that following closing arguments, however, the court elected to choose the alternates by shuffling the juror cards and picking two. The African-American juror was selected as an alternate, leaving the jury composed entirely of Caucasians. -4- for which he was sentenced to twelve years in prison. It is from that conviction and sentence that Abukar now appeals to this Court. On appeal, Abukar raises three arguments: (1) That the trial court committed reversible error by denying Abukar an interpreter during trial; (2) That his Fourth Amendment rights were violated, and that the court erred in denying his suppression motion; and (3) That the jury selection for his trial was in violation of Abukar’s right to due process. We address these arguments in turn. As his first basis for appeal, Abukar argues that the trial court erred in declining to provide him with an interpreter during trial. Abukar, who is originally from Somalia, repeatedly requested an interpreter over the course of sixteen hearings held before the court leading up to trial. The court discussed this issue with Abukar and his counsel on multiple occasions and ultimately appointed an interpreter for the suppression hearing in this matter October 2011. During the course of that hearing, however, the court viewed a videotape of the police interviewing Abukar and thereafter concluded that Abukar had a sufficient grasp of the English language to proceed to trial without an interpreter. Abukar disagreed and objected, asserting that the video clip itself revealed significant communicatory challenges and was not an adequate basis upon which to make a determination that Abukar had a sufficient mastery of the English language to comprehend the complexities of a trial. Accordingly, Abukar argues that in denying his request for an interpreter, the court violated his constitutional rights. -5- In response, the Commonwealth argues that the court correctly refused to appoint an interpreter for Abukar during the trial. The Commonwealth asserts that the court adequately considered and addressed this issue on several occasions which included speaking with Abukar’s attorney, reviewing a police videotape of Abukar interacting with police in English, and observing him in court on multiple occasions during as many as sixteen hearings. The Commonwealth argues that the court was within its discretion in concluding that an interpreter was not necessary and urges this Court to affirm. In reviewing this issue, we note that a trial court’s decision as to whether to appoint an interpreter is reviewed for abuse of discretion. “[T]he test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky. 2004), quoting Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (2000). Further, we note that Kentucky Revised Statutes (KRS) 30A.410 states as follows: (1) The court in any matter, criminal or civil, shall appoint a qualified interpreter or interpreters, to be paid out of the State Treasury, for the following categories of persons, whether they are parties, jurors, or witnesses: (a) Persons who because of deafness or hard of hearing: 1. Use sign language, such as pidgin, signed English, American Sign Language, or gestures; or 2. Are oral/aural and use interpreters and assistive technology, as their primary mode of communication; -6- (b) Persons who cannot communicate in English; and (c) Any other person who has, in the opinion of the court, another type of disability which will prevent him from properly understanding the nature of the proceedings or substantially prejudice his rights. (2) Upon request of the person for whom the interpreter is appointed, or on the court's own motion, an interpreter may be removed for inability to communicate with the person, or if for reasonable cause another interpreter is so desired by the person for whom the interpreter is appointed, or because the services of an interpreter are not desired by the person. Upon review of the record, we note that the trial court raised the question of a need for an interpreter at the March 21, 2011 hearing. The following exchange occurred: Court: Something that has never been addressed, but I don’t know if I’ve heard him speak a word. Do we have any kind of language barrier here, or is there a need for an interpreter? Abukar’s Counsel: We will be asking for an interpreter with any type of proceedings due to the complexity of it. He is a U.S. citizen so his English is adequate for brief appearances, but if we go to trial we will need interpreters … Court: Are you able to understand, Mr. Abukar, the essence of what is going on in court? Abukar: Yes, I understand. Approximately one month later at an April 18, 2011 hearing, the Court again raised the issue of whether an interpreter would be necessary: Court: Are we going to need an interpreter of any kind? Abukar’s Counsel: For trial we will need an interpreter. Court: What language? Abukar’s Counsel: Somali language. -7- Subsequently, on July 18, 2011, the Court inquired into whether any progress had been made in obtaining a Somali interpreter. The clerk stated that someone had been contacted and further arrangements would take place as the trial date approached. During a discussion of DNA at the August 2, 2011 hearing, Abukar’s counsel remarked that she would be using an interpreter to discuss those issues with Abukar. As noted, the court did subsequently require the presence of an interpreter during the October 4, 2011 suppression hearing in order to “err on the side of caution,” in light of the fact that it was a substantive hearing. At the conclusion of the October 4, 2011 suppression hearing, the court changed its opinion on the need for an interpreter based upon its viewing of almost ten minutes of Abukar’s interview with the police on October 12, 2010. At the conclusion of the suppression hearing, the Court stated as follows: Court: It’s clear throughout the conversation that he understands English as well as I do. I don’t even know why we spent the money bringing this interpreter up here today, delaying this hearing for two or three hours. Able to point out to the cop what’s inaccurate on them, gives the exact correct information. Talks about the weather. Responds appropriately. Talks about his inaccurate address. Every other conversation that takes place. Talks about this nickname. Every other conversation that takes place, whatever is asked the responses are appropriate to what’s being asked. He understands English. To the extent he knows derogatory terms for intercourse. Abukar’s Counsel: Are you not going to ask for an interpreter for the trial, your honor? Court: I don’t think we need one. Looks to me he understands English as well as you and me. Abukar’s Counsel: Maybe it would help with your decision if you watched the entire tape from the -8- interview. I saw a lot of problems in it and that may give some insight as to his grasp of specific English … Court: We’ll err on the side of safety and have a Somali interpreter. Despite this initial assurance at the suppression hearing that an interpreter would be made available for Abukar at trial, the court, upon further consideration, subsequently reiterated its oral remarks concerning Abukar’s clear understanding of the English language in its Findings of Fact and Conclusions of Law, which Abukar’s counsel received on the morning of trial. Therein, the Court noted: Abukar clearly understands English, so much that this Court now questions the continuing need of a Somali interpreter in the herein proceedings. The Court notes that Abukar has appeared in Court on this case on January 4, 2011 (arraignment), February 8, 2011 (pretrial), March 14, 2011 (pretrial), March 21, 2011 (pretrial), April 18, 2011 (pretrial), July 18, 2011 (pretrial), August 2, 2011 (pretrial), August 8, 2011 (pretrial), and August 29, 2011 (pretrial). Abukar appeared at each of these scheduled events without the benefit of a Somali interpreter. At no time did Abukar or his counsel indicate that an interpreter was needed for these events.[3] Abukar appeared to fully understand what transpired at each of these Court appearances. It was not until the suppression hearing raised its head did the need for a Somali interpreter surface for the first time. This Court is confident that Abukar has an adequate understanding of the English language. When the morning of trial arrived, Abukar’s counsel raised an objection to not having a Somali interpreter. The court stated that it had “an adequate record on this and I assume you’re just preserving your objection.” The 3 Our review of the record indicates that Abukar had in fact requested an interpreter for hearings on March 21, 2011, April 18, 2011, and again on August 29, 2011. -9- court noted that there had been no interpreter at any hearings until the suppression hearing and stated that, from that hearing, it had concluded that Abukar had been in court for multiple proceedings and had addressed various questions. Ultimately, upon review of the record and the applicable law, we find that the court exceeded its discretion in declining to appoint an interpreter for Abukar during his trial. Though the record indicates that the court considered and addressed this issue on multiple occasions, it is also clear that throughout the proceedings Abukar repeatedly requested, and indeed had been assured, the appointment of an interpreter at trial. After having an opportunity to review a video interview in which Abukar exhibited responses and interactions with the police that indicated he had a clear grasp of the English language, the court concluded that an interpreter was not necessary. However, there is some dispute between the parties as to whether or not the video at issue does in fact indicate communication difficulties. Moreover, this Court is of the opinion that while Abukar may have had a sufficient grasp on the English language to enable him to converse with the police, a higher mastery of the language might be necessary to thoroughly understand all of the complexities of a trial. In order to ensure Abukar’s basic constitutional rights at trial, his right to take the stand in his own defense, his right to confront and examine the witnesses, and to understand the proceedings against him, this Court is of the opinion that in the interest of caution and safeguarding those rights, the appointment of an interpreter is necessary. Accordingly, we -10- reverse and remand this matter for a new trial during which an interpreter is present. Having so found, we briefly address the suppression issue raised by Abukar on appeal. We decline to address the jury selection issue, as same is moot in light our decision to remand for a second trial. Concerning his motion to suppress, Abukar argues that the trial court should have granted the motion because his car was stopped without probable cause and that he was essentially under arrest from the time his car was stopped, even if he was not formally arrested, and that, accordingly, the illegal arrest required the suppression of any subsequent statements or evidence obtained during the improper detention. The Commonwealth disagrees and asserts that the police had reasonable, articulable suspicion to stop the vehicle. Further, though the Commonwealth disputes Abukar’s assertion that an “arrest” occurred, it asserts that if one had occurred, it was with probable cause. In reviewing this issue, we note that the law in this Commonwealth is settled that a traffic stop requires only a reasonable and articulable suspicion that the suspect is engaged in unlawful activity. Taylor v. Commonwealth, 987 S.W.2d 302, 305 (Ky. 1998)(citing U.S. v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). This is a standard sufficiently lower than the probable cause standard. Baker v. Commownealth, 5 S.W.3d 142, 146 (Ky. 1999). It is more than an unparticularized suspicion or a hunch, however, and requires at least a minimal -11- level of objective justification. See Bauder v. Commonwealth, 299 S.W.3d 588, 590-91 (Ky. 2009). Upon review of the record and applicable law, we are in agreement with the Commonwealth that the police had a reasonable and articulable suspicion for stopping Abukar when they did. The record indicates that immediately after Kendall told Burchett about the rape, he confronted Abukar, who drove off. Though he did not know Abukar’s name at the time, he clearly recognized Abukar by sight, both because Abukar frequented Burchett’s sandwich shop and because Burchett had confronted Abukar on the morning of the alleged rape. It was Burchett who called police two days after the incident to report that Abukar was in the sandwich shop where he worked, and it was Burchett who identified Abukar as the cab driver in question after police pulled him over. We believe that this information certainly provided the police with more than an unparticularized suspicion or hunch and, indeed, gave an objective justification for making the stop when they did. The parties argue over whether Abukar was “in custody” within the meaning of the Fourth Amendment from the time he was stopped throughout his interview with police at the station. Below, during the course of the suppression hearing, Detective Fern testified that when the police stopped his car, an officer asked Abukar if he would come to the police department for an interview. Abukar said that he would. The officer asked Abukar if he knew where the police department was and Abukar stated that he did not. The officer then asked Abukar -12- to follow one of the police vehicles on the scene to the department, which Abukar did. At the police department, Abukar was taken to an interview room and was advised of his Miranda rights. The interview was videotaped and during the interview the officer told Abukar that he was free to leave. Three days after the interview, the police obtained an arrest warrant and arrested Abukar. We review the question of whether a defendant was in custody de novo. Commonwealth v. Lucas, 195 S.W.3d 403, 405 (Ky. 2006). In addressing that question, we note that “custody” does not occur until police, by some form of physical force or show of authority, have restrained the liberty of an individual. Baker v. Commonwealth, 5 S.W.3d at145. The test is whether, considering the surrounding circumstances, a reasonable person would have believed he or she was free to leave. Id. (Citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)). The United States Supreme Court has identified factors that suggest a seizure has occurred and that a suspect is in custody: the threatening presence of several officers; the display of a weapon by an officer; the physical touching of the suspect; and the use of tone of voice or language that would indicate that compliance with the officer's request would be compelled. Mendenhall, id.; Cecil v. Commonwealth, 297 S.W.3d 12 (Ky. 2009). Upon review of the record, we cannot find that Abukar was in custody or under arrest as those terms are defined by the foregoing law. Abukar voluntarily drove to the police station, freely answered questions from the police even after being read his Miranda rights and being advised that he was free to leave -13- whenever he wanted, and willingly gave the police permission to search his cab and obtain his DNA. Abukar does not argue that his Miranda rights were violated, nor does he argue that his answers or actions were coerced. Accordingly, we believe that the court below correctly overruled Abukar’s motion to suppress and we affirm. Wherefore, for the foregoing reasons, we hereby reverse the September 6, 2012 judgment and sentence on plea of guilty issued by the Kenton Circuit Court, and remand this matter for a new trial consistent with the opinion herein. COMBS, JUDGE, CONCURS. THOMPSON, JUDGE, CONCURS IN PART, DISSENTS IN PART AND FILES SEPARATE OPINION. THOMPSON, JUDGE, CONCURRING IN PART AND DISSENTING IN PART: Respectfully, I dissent from the portion of the decision reversing and remanding for a new trial for failure to provide Mohamud Abukar an interpreter. I concur in the affirmance of the denial of the motion to suppress. I do not believe the trial court abused its discretion in determining Abukar did not need an interpreter. KRS 30A.410(1) requires interpreters for (a) the deaf, (b) “[p]ersons who cannot communicate in English” and (c) “[a]ny other person who has, in the opinion of the court, another type of disability which will prevent him from properly understanding the nature of the proceedings or substantially prejudice his rights.” Section (1)(c) clarifies when an interpreter would be needed -14- for any of the three categories of persons with disabilities and the purpose of the statute. People “cannot communicate in English” for purposes of the statute if whatever ability they have to communicate in English is not sufficient for them to understand the nature of the proceedings or substantially prejudices their rights. Having reviewed the video recording of the police interview with Abukar, I agree with the trial court’s findings that “Abukar clearly understands English” and “has an adequate understanding of the English language.” Abukar conversed in a proficient manner with the police officer and had only occasional and fleeting moments of confusion in understanding the officer. In applying the similar Court Interpreters Act, 28 U.S.C. § 1827(d)(1), the federal courts have explained that an interpreter must be appointed upon a finding “that a non-primary English speaker’s skills are so deficient as to ‘inhibit’ comprehension of the proceedings.” Gonzalez v. United States, 33 F.3d 1047, 1050 (9th Cir. 1994). “Minor deviations from ideal communication therefore have been held not to render a proceeding fundamentally unfair.” United States v. Hasan, 526 F.3d 653, 667 (10th Cir. 2008). While Abukar’s English is not perfect, I believe he can communicate in English to a sufficient extent to understand the nature of the proceedings and any occasional lack of understanding did not substantially prejudice his rights. Accordingly, I dissent from the Court’s reversal for a new trial and concur with the affirmance of the denial of the motion to suppress. -15- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE: Alexandria Lubans-Otto Florence, Kentucky Jack Conway Attorney General of Kentucky David B. Abner Assistant Attorney General Frankfort, Kentucky -16-
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