-: SJC-13351, Commonwealth v. Oscar de Los Santos.
-: Okay, Attorney Sperlock, whenever you're ready.
Take your time.
-: Thank you.
May it please the court,
Matt Sperlock for Oscar de Los Santos.
The central issue in this case is straightforward.
Competent testimony requires comprehension,
and the testimony of uncomprehending witnesses
cannot satisfy the Commonwealth's burden
to establish a valid warning was given
before questioning began.
-: I think it's a little more complicated than that.
So...
And, the motion to suppress,
the way it's raised,
it's raised as if there's no warnings given in Spanish.
It's not raised as if the warnings
weren't complete or accurate.
-: I agree with...
I agree with that, your Honor.
And, that is our position
that no warnings were given in Spanish
and that's been our position consistently.
-: Right, but that's a little hard to believe,
when we know that the very purpose
for which the Spanish speaking officer is brought there
is to give that.
And, although the officers can't testify
whether he properly instructed under Miranda,
they probably can tell whether he's speaking Spanish or not.
-: They might be able to tell whether--
-: And, they certainly know that they called him there
to give the warnings in Spanish,
and he came,
he needs a Spanish speaker,
and he's speaking in a foreign language.
I mean, I...
-: I agree with all of that,
but, Justice Kafker,
you're describing an assumption
and that is an assumption that...
-: I'm not...
I'm describing a reasonable inference
that when police officers call a Spanish speaking officer
to give Miranda warnings,
'cause they can't give it to someone
they're not sure speaks English well enough,
is it a reasonable inference to believe that that...
He actually did what he was asked to do?
Again, had you brought a claim that says, oh,
he didn't give the Miranda warnings properly in Spanish.
We have other cases like that.
I totally am with you.
These guys are certainly incapable of doing that.
But, this,
this is a different case,
and it's...
And, had you actually brought that argument,
they could have brought the Spanish speaking officer
to the hearing to testify,
but you don't do that probably brilliantly,
because you're at least here,
and otherwise you probably would've lost down below.
-: I have a couple responses.
The claim that the warning
was not given accurately and completely
is bought in the new trial motion
and that was a deficiency in trial counsel's part
to not press that,
that it was accurate and complete.
-: Had he raised that issue,
now believe me, I have some issues,
and I'll stop interrupting you.
I'm not giving you a fair shot here,
but I want you to confront
sort of the harder part of this case,
which is you brought a claim
that they didn't give the warnings in Spanish,
not that they didn't give them accurately.
-: Absolutely.
I don't...
I disagree that that's a hard part of this case.
I think that resting the finding
beyond the reasonable doubt
that the warning was given in a language
that the witnesses, by their own admission,
do not comprehend and cannot understand,
can never meet the Commonwealth's burden
to establish beyond a reasonable doubt
that that warning was given,
just like they can't testify
about words that they heard that...
-: I guess, Counsel, the...
I still have the same concern as Justice Kafker.
The reason why I think this is important is,
when you file your motion to suppress
and you get this bare bones affidavit,
the Commonwealth is to look at that affidavit
and determine what witnesses they need to call.
And, if the...
If the the motion is pressed on the premise
that no Miranda warnings were given,
the Commonwealth could reasonably do as they did hear
and call the two officers
who were on the scene to testify to,
we called Officer Guillermo to the stand,
I mean, to the scene,
to give these warnings.
That's a very different case than saying the warrant...
The affidavit saying whatever warnings
were given to the defendant were inadequate
to voluntarily waive these rights.
-: So....
The inadequacy of the warnings,
the accuracy and completeness,
that's a subsidiary issue
that's necessarily contained within the larger issue
of whether they were given at all.
-: I don't know that I agree with you on that.
-: This is...
This is sandbagging.
I mean, you can't give the Commonwealth notice.
The Commonwealth doesn't call the Spanish interpreter,
because the substance of the Spanish rights aren't at issue,
and then later on you say, oh,
you didn't prove it.
I mean, Rule 13, as Justice Georges points out,
is meant to inform the government who the witnesses are
so they can bring the witnesses to the witness stand.
-: There was no question here
that the warning had to be in Spanish
and this was from testimony
from the Commonwealth's own witnesses
that the warning had to be in Spanish.
This isn't...
No one was hiding the ball here.
Everyone at the motion for new trial was on the same...
At the motion to suppress.
-: Where in the motion does it say
that the warnings were inadequate in Spanish?
Said they weren't...
The warnings weren't given properly in Spanish?
-: That would be helpful.
Is the affidavit in support of the motion to suppress?
Can you just tell us what the record citation is for that?
-: Yes, your Honor.
Let me grab it here.
Record appendix 24 and 26.
-: 24 And 26, thank you. -: Yes.
So...
And, it does not say it in Spanish in there,
but I would rely on MUBDI
for the proposition that the purposes of Rule 13
is to put the Commonwealth on notice.
These were the Commonwealth's own witnesses.
And, the first thing right outta the gate,
they said we knew that this guy needed a warning in Spanish,
'cause he didn't understand English.
And, so that's why we called the Spanish speaking officer.
Now, it's not too much as the Commonwealth
to talk to their witnesses and figure it out.
That was also in the police reports,
which are cited at transcript one--
-: I agree with you that MUBDI could be a lot clearer
what you're supposed to do
and we probably should clarify it,
but isn't this proof of the problem?
Because, they really don't know what you're gonna be arguing
and they are, in Justice Gaziano's words,
sandbagged by that,
because they just think it's an issue
of whether you actually brought someone there
to give the warnings in Spanish.
-: I don't...
I don't think it's sandbagging.
The basic...
The fundamental thing that needs to be established here.
In addition,
it needs to be established that are accurate and complete,
and there's all sorts of problems with that,
with translation that we all know about from back--
-: It totally, totally...
-: The really easy case,
if it's raised properly,
because of course someone needs to have their rights
understood beyond a reasonable doubt
in a language that...
That they speak.
We're more concerned about the procedural part of this case,
not the substantive part.
You win on the substantive part if you get there.
-: I'm...
I guess I don't--
-: So, what the waiver issue is bothersome.
-: I see.
The waiver.
So, okay, so the question unwavered then is whether...
Whether everybody at the hearing was aware
of what needed to happen.
Justice Kafker: Well, but that's the...
-: Could there not have been an request at the hearing
for an additional witness or an interpreter
or couldn't have been raised orally by defense counsel?
-: Defense counsel certainly could.
It may have been better practice
to stand up and object to the lack of foundation there
of the warning.
But, in these circumstances, that is not waiver.
It was still clear error to rely on testimony
from a witness who cannot possibly understand
by her own admission what was being said.
-: That would require...
That would require an objection, right?
-: Maybe, I mean an objection would've helped,
but it doesn't save that testimony
from the clear error standard.
It was clear error to rely on...
It could have been in Aramaic, Arabic, Tagala,
doesn't matter.
There was no comprehension of what was said.
-: Right, we understand what you're saying
with regards to the language
and all we're saying is that if you can reach the issue,
you would win.
But, we are still stumbling over getting to the issue
-: [Attorney Sperlock] Sure.
-: Because it wasn't properly raised below.
-: [Attorney Sperlock] Sure, so...
-: That's our view.
At least my view at the moment,
is that it doesn't look like it was raised properly
and there was an opportunity,
even at the hearing,
to go a little further, and object,
and do something even then.
-: Sure.
So, there...
If waiver is an issue,
if it...
If trial counsel wasn't effective
and the ineffectiveness there
would be not standing up and objecting,
then of course I have my new trial motion,
and the new trial motion was based
in part on that failure to object.
-: Yeah, but if he did,
then you lose,
because then we know what Guillermo would testify to,
'cause we saw what he testifies at trial.
If he stands up and objects,
saying, these guys don't speak Spanish.
The prosecutor goes,
well, judge, if we're gonna go there,
we need a continuance.
We'll bring in Officer Guillermo
and then you...
Then you're gonna lose, right?
-: I don't agree, Justice Kafker,
and I don't think it's a foregone conclusion,
because, as you noted earlier,
it's not just that it was given at all.
That's one issue.
And, then the second issue is whether it was accurate
and complete.
We don't have the card that was used.
There's many cases from Vasquez going back
to talk about the--
-: And, I know we're not supposed to take
the testimony from trial
and say it would've been given it,
the motion to suppress,
but that's sort of the best equivalent right now.
And, we know that Officer Guillermo is fluent in Spanish
and he testifies to all of this at trial, right?
-: We do not have the card that was in...
That he read from
and we do not have his actual translations.
It was, according to him, an English language card.
-: But, think about the big picture.
There's...
There's nothing in any way in the affidavit
that says that the Spanish presentation of the Miranda
was defective.
The motion to suppress this is about to start.
Judge is gonna take out the affidavit, look at it, read it,
see if there's any issues.
Defense attorney can...
Doesn't need a continuance.
They can just request a second call
and add to the affidavit
before the motion to suppress starts.
They could even add to the affidavit this issue during it,
but it doesn't come up until the supplemental briefing.
Is that right?
-: So, I...
I don't think the issue is different.
I don't think it's a different issue,
whether the warning needed to be in Spanish at all
or accurate and complete,
I think if we're all on the same page
that Miranda was raised right at the beginning,
which it was,
that's almost the first thing they start discussing
at the motion to suppress.
It was no secret.
So, I don't think the...
The Miranda gets a little more specific,
because it can address the trial testimony,
but it doesn't add anything.
Miranda was clearly at issue and if there's any question...
-: Not because there was a suggestion that the...
That it was defective,
that what was...
-: Our position has always been that there's,
from then until now,
that there was no competent testimony
that the Miranda warning was given at all.
That's...
(crosstalk)
-: Which is completely different than defective.
So, the...
It's not a game.
It's not a game, okay?
The motion to suppress is about to start.
The DA presumably has looked at the affidavit,
figured out who he or she is going to call to testify.
There's no suggestion that what was given was defective.
-: That part was ineffectiveness.
And, that's the ineffectiveness that I bought
that trial counsel didn't press on that.
But, what is...
And, that's all...
That's why we need an evidentiary hearing
on that particular issue,
but what is preserved for direct review
is the notion that there was no competent testimony
that it was ever given at all.
And, that...
-: So, let me ask you, in your motion for new trial,
when you raised this,
did you present any evidence
as to what the Miranda warning was deficient in?
-: We don't know,
because as far as we're concerned,
there's no evidence...
-: Client didn't know what he was told--
-: My client's position
is that he never got to Miranda warning.
The Spanish speaking officers showed up
and started asking him questions
and talking to him.
That's been his position from the beginning.
There's no warning.
And, there's...
And, these officers,
just to be clear,
these officers that testified do not understand Spanish.
So, they cannot competently testify any different.
They assume that some words were going back and forth
between in Spanish,
it could have been Arabic,
it could have been French,
nobody knows.
I take it that it's Spanish,
but what was said is just not in the record.
And, so that would have to be established
at an evidentiary hearing on the new trial motion.
But, I don't think this is much different
than a case where we have two bicycle patrol officers
that make an arrest,
call the officer and cruiser to come pick him up
and say, Mirandize him on the way to the station
and we'll interview him there.
Without the motion of suppress,
the only testimony we have is from the two bicycle officers.
We don't have any competent evidence
that the warning was given.
This, and it's not hiding the ball,
the motion of suppress,
it wasn't a game.
Everybody knew it had to be in Spanish.
The problem was the...
The correct witness wasn't there.
That's the real problem.
But, the...
And, this isn't unfair to the Commonwealth,
to read the police reports,
which again are mentioned on transcript one, page 18-19,
Noyes put it in his police report that
he had to bring the Spanish speaking officer over
to give the warning,
because he couldn't do it himself.
The prosecutor knew that this was an issue,
because her own witnesses brought it up.
They introduced it--
-: Right,
but when you combine that statement in the report,
which is I can't give the warnings in Spanish,
so I called a Spanish speaking officer to give the warnings,
and then the Spanish speaking officer shows up.
Your inference is, there's no...
You don't draw any inferences from that.
-: I don't think you can draw an inference under Article 12,
which is the highest standard for fact finders
that, just based on assumption,
and that, just to be clear--
-: Well, it's not an assumption.
They were brought...
He was brought there for this purpose.
And, that's what the police officers...
And, they testified
at the motion to suppress hearing, right?
We brought him there for that purpose.
Not to question him.
-: I agree.
Well, to question him as well,
but I agree with you absolutely
that that's the purpose that he was brought there for,
but also it's an inference, an assumption,
whatever you want to call it,
but it's not...
-: Well, he was, just to...
He was brought there to give the Miranda warnings,
but that wasn't the only reason he was brought there,
because the defendant could only speak Spanish.
So, they needed to have Officer Guillermo there
in order to interrogate the defendant,
so that he was there for more than just
giving the Miranda warning.
So, at this point,
we don't know if he just went right to interrogation,
because there's no competent witness
who can say what he said.
-: I agree with all of that Justice Wendlandt,
and it...
That's my client's position.
He tells me this Spanish speaker officer showed up
and he started asking me questions.
I mean, that's, for all that we know,
that is what happened.
The testimony to the contrary
is testimony by witnesses
who just can't competently testify to that,
because, by their own admission,
it's all uncomprehending.
And, that...
That's just...
Is not admissible as evidence in the Commonwealth.
I see it that my time is up.
So, I...
I can speak to the prejudice if you'd like,
or else I can rest on my brief.
-: Let's do the second one.
-: Thank you very much.
-: Okay, Attorney Janssen.
-: Good morning.
May it please the court,
Katherine Janssen for the Commonwealth.
I think the court kind of has addressed the main issue,
which is whether or not this was properly raised
under Article 13, excuse me,
under Rule 13,
to put the Commonwealth on notice
about what the scope of the motion to suppress was.
I think it's...
-: Well, Counsel, let me...
There's no chance you're gonna go
right into your argument with us today.
-: [Attorney Janssen] Figured.
-: But, what was at issue
that the defendant was looking to suppress?
Weren't there admissions in inculpatory statements?
-: There were and I think what...
I think what...
-: Specifically, what was he looking to suppress?
-: He was looking to suppress his statement
that he was trying to hide the gun for his friend.
-: Okay, it...
Now, if you begin there and now you start working backwards.
So, the only way the Commonwealth wins
and that gets to be used against the defendant
is if the Commonwealth demonstrates
a knowing and intelligent waiver
of his Miranda rights, right?
-: Correct.
And...
-: So, if that's the case,
even if it might be improperly styled by the defendant,
you know ultimately,
the Commonwealth knows ultimately
what the defendant is looking to suppress.
And, the only way the Commonwealth can win
and prevail on that motion
is to show the adequacy of those warnings.
So, wouldn't you just by shared...
Just by knowing what is looking to be suppressed,
know that you've gotta bring in Officer Guillermo,
you have to bring him in.
-: I don't think that's necessarily true.
I think...
-: How else would you show the adequacy of the warning?
-: I think you can show the adequate...
Well, first I would point out
that I don't think it's actually clear on this record.
Everybody's assuming that the defendant
doesn't understand English
and the English warning that was given.
There was evidence in the record,
not only that he followed subtle English commands
up until the point of arrest,
which the motion to suppress judge found
that he didn't speak English only once he was arrested,
but also by the fact that the only testimony
about whether or not the defendant spoke English
or didn't speak...
He said...
The officers basically,
it was their perception that he didn't speak good English.
I think we all know there are many people
who are bilingual and...
-: Yeah, but that ship sailed.
He's raising the issue of the adequacy,
because he's trying to suppress his statement.
So, we're...
We're there.
So, if we're there,
irrespective of what's in that affidavit,
you know the burden the Commonwealth has to demonstrate.
-: Correct.
And, I think the Commonwealth can demonstrate that burden
through the fact that English warnings were given
that he necessarily understood,
because he...
Just because he speaks Spanish
doesn't mean he doesn't understand English as well.
And, there's fact...
There's evidence that he...
-: But, then there would've been no need
to call the Spanish interpreter at that point,
a Spanish speaking officer.
-: I mean, I think it's...
I think it's in a...
-: So, let let me ask you a derivative
of what Justice Georges is asking you.
It's your burden beyond a reasonable doubt, right?
-: [Attorney Janssen] Correct.
-: If you got to this hearing,
and one of the police officer testified
that warnings were given in Spanish
and they were sufficient for Miranda,
and there was an objection,
and it's sustained,
don't you lose?
Wouldn't that objection be properly sustained?
-: If Miranda was given in Spanish
and the foundation
of the officer's ability. -: If a non...
Yeah, if a Spanish speaker said I was there,
I saw Guillermo give him the warnings and they were proper,
and there's an objection,
that could be sustained, right?
-: It could be sustained and the Commonwealth then would say,
okay, we're on notice of a...
About the...
-: But, the point being as far as sandbagging,
then you probably should have anticipated
bringing the right... -: The Commonwealth...
Justice Gaziano: The right witnesses.
-: I mean this is...
This...
-: It's a Miranda case.
You have to bring the witness who gave Miranda.
-: I mean, I think this goes back to the purpose of Rule 13
and to put the Commonwealth on notice.
It doesn't...
It's not a heavy lift for the defendant
who has the personal knowledge of the basis
of the motion to suppress,
that I don't speak English.
And, so he didn't...
That English Spanish divide was never mentioned
to put the Commonwealth on notice,
in busy--
-: Let me ask you an unfair question.
-: [Attorney Janssen] Okay?
-: You have a district court,
ADA calls you and says we have a Miranda issue.
Do you say, yeah,
maybe call the witness who gave Miranda,
or you say you better call the witness who gave Miranda?
-: Correct.
I think you could call the witness who gave Miranda,
but there was also evidence that English Miranda
was given as well.
And, just because the judge found that Miranda...
Judge found that Miranda was given in English and Spanish
and that valid waiver happened that he...
It was...
-: But, the judge didn't...
The judge didn't find...
Did the judge find that he waived his rights in English?
I didn't remember--
-: Well, so the line is that the defendant was given Miranda
in both English and Spanish
and then it goes on to state that
defendant was given in his--
-: Oh, he says I find Miranda's...
Yeah, I find Maranda warning--
-: And, then I find a valid waiver
based on him speaking.
But, I don't think there is necessarily
in a finding in there
that defendant necessarily had to be...
-: Actually, I wrote it down.
I find Maranda warnings conveyed to the defendant
in his native language in...
And, he made a voluntary waiver.
So, the judge actually did find it was
in his native language.
Justice Kafker: Right.
-: He found it was in his native language,
but he also found it was in English.
And, I don't...
I don't necessarily think that holding
goes as far, or excuse me,
not that holding,
but that finding goes as far as to say that Spanish...
A vowed waiver could only happen
after Spanish rights were given.
-: Counsel, can I ask you question?
How is it sandbagging when the defendant says,
motion to suppress, Miranda,
for you to need to bring in the officer
who gave the Miranda warning?
-: I think it's...
-: How is that sandbagging?
Why isn't that just sheer logic?
-: Well, I think...
I think when you look at it,
it's because this English Spanish issue was not raised,
I wouldn't say that everybody knew that it...
The waiver only could happen after Spanish was given.
I think--
-: It turns out the officer on the scene
understood that, right?
Because, the officer on the scene
brought in Officer Guillermo.
-: They said...
I...
There was no evidence after English Miranda was given
whether or not that there was a failure
to understand those English warnings.
It was circumspect policing,
because the defendant said...
didn't appear to speak English well.
There was never any thing that he didn't understand English.
And, in fact, Officer Noyes,
I believe it's at transcript page 35 says he's speaking--
-: So, if...
Unless there is a beyond a reasonable doubt inference
that this defendant spoke English,
then you lose.
-: I'm sorry, can you repeat that question?
I wasn't...
-: You have to show that the defendant
waived his Miranda rights beyond a reasonable doubt.
-: We do have to show that.
-: Okay, and so you are relying right now
on this defendant's capacity to understand English.
-: I think that's part of it,
but I also think under this court's holding in Perez
where there's testimony there
from an English speaking officer who didn't speak Spanish,
that defendant was given Miranda in Spanish.
That was sufficient when the defendant didn't challenge--
-: But, there's also in Perez,
they also have a written...
They have a written...
He's reading from a card.
-: Correct.
I would say, but I would...
I would know,
and I know my brother makes much of the fact
that there were other facts there,
but there were three separate issues
and three separate holdings in Perez
that the defendant raised in the com...
I mean, excuse me,
the court addressed each three,
and each one of those three issues
would've been sufficient to show
that Miranda was given adequately.
-: Can I ask a question,
following up on Justices George and Wendlandt,
'cause there's a lot else said?
The incriminating statement is made in Spanish, right?
So, don't...
That presents a complication too, right?
The...
These guys have no idea.
The two English speaking officers,
they didn't...
The statement about hiding the gun
is given to Guillermo, right?
In Spanish?
-: It is.
-: So, is that a problem?
Is that a separate problem too?
That we don't even...
That we don't, without Guillermo,
we don't know if any of this is said or done.
Does...
Is that...
-: Well, I think that's a separate issue for trial
about whether or not he said that.
-: Well, but...
But, the whole issue
is the motion to suppress the statement.
If we don't even...
Does that matter?
I just...
I'm starting to wonder about Justice Wendlandt's question,
which is he's there for multiple reasons,
and the whole context of this
is a Spanish discussion, right?
It's...
The whole thing is now about Spanish language.
And, these two guys don't speak Spanish, do they?
-: Well, I mean,
only Officer Peter said he didn't speak Spanish.
The other ones,
there's no testimony, or challenge,
or evidence about what their ability is--
Justice Kafker: No evidence in here.
-: If he spoke Spanish,
he wouldn't have called in Officer Guillermo.
-: [Attorney Janssen] I think it was...
-: Isn't that a fair inference?
-: I think it's a fair inference
that he didn't speak Spanish,
but I think there's a difference between under...
Potentially understanding Spanish,
and being fluent enough to give Miranda adequately,
and know what's being said or not said.
And, just...
And, once they have Officer Guillermo there too...
-: But, he's not competent enough
to understand legal Spanish,
at least in his own estimation,
because he called...
It's a fair inference,
because he called in Officer Guillermo, correct?
-: He did call in Officer Guillermo
and I think that's circumsent to policing to call...
-: In fact, he called Officer Guillermo
in order to do the interrogation as well.
-: Well, and Officer Noyes
did speak to the defendant in English,
so he spoke to the defendant in English
and the defendant responded in Spanish.
There's no evidence that Officer Guillermo
was translating the English questions to the defendant,
which I think is important
when we're talking about what the defendant understood
and didn't understand.
-: With all these close calls,
it falls back to the,
who has the burden of proof and beyond a reasonable doubt,
correct?
-: It does, your Honor,
and I think here,
and I would say it again to this court's holding in Perez,
where it wasn't challenged or raised
at the motion to suppress below
by either an affidavit or by the defense attorney--
-: No, I get the distinction with sandbagging.
So, if the...
If the issue that's raised is I never got Miranda at all,
then the Commonwealth says, well,
we're gonna put the witness on who saw them get Miranda,
-: [Attorney Janssen] Which I...
-: If the issue that's raised
is the Miranda warnings in Spanish were deficient,
then you have to call the Spanish speaker.
-: Correct.
And, I think the fair inference
about what the Commonwealth understood it to be
was whether Miranda was given at all.
And, so they presented all evidence regarding Miranda
and they did a...
A suspender and bootstraps approach to it
by going very inclusive about what happened,
and not just saying, yeah,
he was given...
He was Mirandized by saying...
-: But, Counsel, let me go back
to Attorney Sperlock's point though.
Assume for the sake of argument that we agree
that all that was raised was,
I didn't get it at all.
But, the only way for those statements to come in
against the defendant,
if...
Is if the judge makes a finding beyond reasonable doubt
that it was a knowing and intelligent waiver.
Doesn't that implicitly,
if not explicitly also involve the adequacy of the warning?
-: I think...
I think it does,
but-- -: So, if it...
If it does, don't you have to call Officer Guillermo,
even if we give you everything
that we're talking about in Rule 13,
that it says,
I didn't get it at all?
That you as the ADA get that and you say,
I gotta do the math now.
That the only way this comes in is to...
Is to have some showing of the adequacy
beyond reasonable doubt.
So, I have to call Guillermo,
even if it doesn't say anything more than,
I didn't get it at all.
-: I think, well,
maybe I would amend my statement.
I go back to what I cite in Johnson,
because in that case,
that's an appeals court case.
So, I...
It's persuasive.
But, in there, I guess...
There, the issue is whether Miranda was raised at all,
and not the adequacy of the warning,
and so what was presented at trial
or at the motion to suppress
wasn't about the substance of the warning.
So, I guess my answer is
we would just need to show that Miranda was given
and that he waived Miranda after it was given.
-: But, how can you show Miranda was given
if nobody speaks Spanish?
-: And, I would...
I would just again point this court to Perez
where there's nothing in the record here
to show that they don't have the...
Because it wasn't challenged by the defense attorney below,
that the officers didn't understand,
though when they call an officer to a scene
for the purpose of giving Spanish Maranda,
they're watching him read from a card,
it's the English card,
but read from a card,
and give him the warnings in Spanish
that they have the ability to recognize
that there's a difference between fluency
and ability to recognize.
And, I think where it's not challenged below,
like in Perez,
that is adequate for the Commonwealth to meet its burden
that Miranda was given
and that a waiver was made.
-: Let me ask you...
Let me ask you about an English speaker.
Suppose the issue is whether or not
someone got Miranda at all,
and the police officers testify, we gave Miranda rights,
and I'm the trial judge going way back.
We gave...
We gave Miranda rights and he waived them.
Then, you have to find
you were given the specific Miranda rights
beyond a reasonable doubt.
I mean, just...
Is a breezy, I gave them Miranda rights,
sufficient to satisfy the Commonwealth's burden,
even with an English speaker?
-: I think, if the issue is
whether Miranda was given and then the defendant...
Yes, and then the defendant could challenge
what was in the content of those Miranda warnings.
-: And, that's...
Right, and that satisfies your burden
beyond a reasonable doubt?
-: I think so.
I don't have a case directly on point
that would say that.
-: Probably a reason there's no case.
-: Well, I'm...
Yeah, I...
-: It would have to be this case, if we...
If we do say that.
-: And, doesn't MUBDI put the burden on you?
On...
MUBDI's...
MUBDI'S like bare minimum, right?
That the defendant has standing
to challenge the constitutionality
of the search and seizure,
the affidavit must, under 13.A2,
must be sufficiently detailed
to give fair notice to the prosecution
of the particular search or seizure
that the defendant is challenged,
so the prosecution may determine
which witnesses it should call.
-: I frankly think MUBDI should be walked back a little,
and it's essentially obvious the purpose of Rule 13,
the defendant can make this broad claim,
and then it's up to the Commonwealth
to be clairvoyant essentially to say--
-: The guy who actually gave the warning?
-: I mean, there was another person who testified
who gave the warning,
but I... -: Who couldn't...
-: I do...
I mean, I don't think you can just say statements
and then that's it.
And, it's not much to ask a defendant to narrow the issue.
And, it's clear the Commonwealth didn't understand
that if this was gonna be the scope of the motion,
because we would've brought in Officer Guillermo,
'cause we did for trial.
I mean, if that...
If MUBDI's gonna require the Commonwealth
to be essentially clairvoyant on these issues
and go into every single subsidiary issue--
-: Can I ask a question?
In the motion to suppress
for the English portion of the Miranda questioning,
did the Commonwealth go through
and have the witness say, yes,
I gave him Miranda warnings.
This is what I said, this is what I always say.
-: No, your Honor,
it was just that I gave English Miranda warnings
and then the prosecutor asking them what happened.
He goes, then I didn't know how well they spoke English,
so I stopped.
And, then I called the Spanish speaking officer.
-: If that's the case back to Justice Gaziano's point,
if that's all the English speaking officer said,
was the breezy I gave it,
and there isn't any competent testimony
as to what Officer Guillermo said to the defendant,
how is it the Commonwealth could sustain its burden?
I mean, wouldn't that be a sea change in our law
if we said that this was okay?
-: Well, I think the court has said
that this is okay under Perez
when it said this is the officer gave these warning...
Just the testimony the officer gave Spanish Miranda warnings
from a card.
But, I mean, I understand the court's point
and it's a difficult one obviously for the Commonwealth.
The court has any further no further questions,
I'd be happy to rest on my brief.
-: Thank you.