NOT TO BE PUBLISHED
OPINION
STUMBO, JUDGE.
The Commonwealth of Kentucky appeals from an Order of the Jefferson Circuit Court granting the motion of Sandy Jesus Ferreiro to suppress a statement he made to the police while in custody. The Commonwealth seeks reversal of the trial court's Order based on its contention that Ferreiro's statement was not the product of interrogation. We are persuaded that Ferreiro's statement was a spontaneous and voluntary utterance rather than the product of interrogation, and therefore it should not have been excluded from evidence. Accordingly, we reverse the Order on appeal.
The facts are not in controversy. On January 2, 2010, Ferreiro was arrested and later charged with two counts of first-degree Rape, one count of first-degree Sodomy, two counts of fourth-degree Assault, and one count of third-degree terroristic threatening. It was alleged that Ferreiro committed these offenses on December 31, 2009, and January 1, 2010, against his then-girlfriend "Amy."
On the day of his arrest, Ferreiro was interviewed by Detective John Grissom. Detective Grissom asked Ferreiro if he was willing to speak with the detective on tape about what happened on New Year's Eve. According to the record, Ferreiro responded "no." Ferreiro then asked Detective Grissom what the charges were. Grissom responded by answering Ferreiro's question. According to Grissom, Ferreiro then said without prompting, "I was drinking, I was on pills, I don't remember anything." Grissom then said, "Okay, but if you don't want to go on tape, we're done. I can't ask you any questions."
Trial on the charges was scheduled to commence on January 31, 2011. On the day of trial, Ferreiro's counsel filed a Motion to Suppress Evidence and Statements. The motion alleged that any statements given by Ferreiro were not voluntary acts and that he did not knowingly or intelligently waive any constitutional rights. Ferreiro sought to suppress his statement to Grissom that he had been drinking, had taken pills, and did not remember anything about New Year's Eve.
A hearing on the motion was conducted the same day as part of a larger hearing where various pretrial matters were addressed. At the hearing, Ferreiro was aided by a Spanish interpreter. Ferreiro asked Judge Willett to pause after speaking so the interpreter would have time to translate. Later in the hearing, Ferreiro's trial counsel acknowledged that her conversations with Ferreiro had been in English and that he was capable of speaking English. Detective Grissom then testified as to the conversation he had with Ferreiro, including that Ferreiro had not been read the Miranda rights because it had not been necessary after Ferreiro stated that he would not answer any questions. In addition to testifying that Ferreiro had spontaneously stated that he had been drinking, was on pills, and did not remember anything about the night in question, Grissom stated that he asked Ferreiro to take a DNA test. Ferreiro responded that he would consent to the test and he signed a consent form. The DNA test was then administered, after which Ferreiro was transported to the Department of Corrections. Detective Grissom also testified that his entire conversation with Ferreiro was conducted in English and that Ferreiro never stated that his native language was Spanish.
During the course of the hearing, Ferreiro's counsel sought an Order suppressing the statement. Conversely, the Commonwealth argued that because Ferreiro was never interrogated and his statement was spontaneous and voluntary, there was no basis for sustaining Ferreiro's motion to suppress.
After considering the matter, the trial court opined that because Ferreiro was not read his Miranda rights and because English was not Ferreiro's primary language, it would be proper to suppress the statement at issue. The court noted that, "It's a close call, and a close call goes in favor of the defendant." This interlocutory appeal followed.
The Commonwealth argues on appeal that the trial court erred in sustaining Ferreiro's motion to suppress. As a basis for its argument, the Commonwealth maintains that the trial court's finding that English was not Ferreiro's primary language was unsupported by the evidence. Additionally, the Commonwealth argues that even if this were true, it is not relevant in rendering a suppression ruling. The Commonwealth notes that in order to justify suppression, the court must find that the movant was in custody and that the statement sought to be suppressed resulted from interrogation. The Commonwealth argues that though Ferreiro was in custody he was never interrogated and that the statement at issue was a voluntary and spontaneous utterance which was not precipitated by any interrogation, question or other action by Detective Grissom. The Commonwealth argues that since the statement did not result from interrogation, the statement should not have been suppressed, and the trial court erred in failing to so rule. In response, Ferreiro argues that the Commonwealth failed to meet its burden of demonstrating by a preponderance of the evidence that his statement was voluntary. In support of this argument, he relies in large part on the fact that he was never Mirandized, and he contends that Grissom's question of "Are you willing to give us a statement?" demonstrates that an interrogation had commenced.
As the parties are well aware, the Miranda warning — which apprises a person in custody of his right not to answer questions and to retain counsel — is required only if the prosecution seeks to introduce a statement made during the course of custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Direct questioning constitutes interrogation for purposes of Miranda, as do any words or actions that the police should know is reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). Words or actions on the part of the police which are normally attendant to arrest and custody are not properly characterized as interrogation. Id. Interrogation "as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself." 446 U.S. at 300, 100 S.Ct. at 1689. And finally, absent some limited exceptions, statements made by a suspect as a result of custodial interrogation are subject to exclusion from evidence unless the Miranda warning is first given. Miranda, supra.
The Commonwealth acknowledges that Ferreiro was in custody at all relevant times and the circuit court properly so found. The dispositive question, then, is whether the statement at issue resulted from police interrogation, as Ferreiro contends, or whether it was a voluntary statement made for reasons other than interrogation. The exchange between Detective Grissom and Ferreiro is not in dispute. Grissom asked Ferreiro if he were willing to answer questions, to which Ferreiro responded "no." Ferreiro asked what the charges were and Grissom answered. Ferreiro then responded that he had been drinking, taking pills, and did not remember anything. This statement was not made as a result of any words or actions properly construed as interrogation. That is to say, Grissom did not ask Ferreiro what he remembered about New Year's Eve, nor if he were intoxicated.
The question for us then is whether Grissom engaged in any words or actions which he knew were reasonably likely to elicit an incriminating response from Ferreiro. Innis, supra. We must answer this question in the negative. It is noteworthy that Ferreiro initiated the exchange with Grissom by asking what the charges were. Grissom's response, which Ferreiro voluntarily sought, cannot be construed as reasonably likely to elicit an incriminating statement. The court in Innis held that words or actions on the part of the police which are "normally attendant to arrest and custody" are not properly characterized as interrogation. Grissom's act of telling Ferreiro the charges, in the context of Ferreiro's custody and in response to Ferreiro's direct question as to the charges, constitutes words or actions which are normally attendant to arrest and custody. It is both reasonable and foreseeable for a detained person to ask why he is being held, and we are aware of no basis in the law for the proposition that the detained person must first be Mirandized or have counsel present in order to receive the answer. And finally, we find nothing in Grissom's words or actions which reflect a "measure of compulsion" sufficient to characterize those words or actions as interrogation for purposes of Miranda. Innis 446 U.S. at 300, 100 S.Ct at 1689.
In sustaining Ferreiro's motion, the circuit court relied on its finding that Ferreiro did not receive a Miranda warning and that English was not his primary language. For the reasons stated above, however, the determinative question is whether Ferreiro's statement was the result of custodial interrogation. We conclude that it was not.
For the foregoing reasons, we reverse the Order of the Jefferson Circuit Court suppressing Ferreiro's statement, and remand the matter for further proceedings.
CLAYTON, JUDGE, CONCURS.
TAYLOR, CHIEF JUDGE, CONCURS IN RESULT ONLY.
