United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-1871

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Bounsouay Thatsaphone, *

*

Petitioner - Appellee, *

*

v. * Appeal from the United States

* District Court for the

Douglas Weber, Warden, South Dakota * District of South Dakota.

State Penitentiary; Mark W. Barnett, *

Attorney General, *

*

Respondents - Appellants. *

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Submitted: October 20, 1997

Filed: February 26, 1998

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Before RICHARD S. ARNOLD, Chief Judge, LOKEN and HANSEN, Circuit Judges.

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LOKEN, Circuit Judge.

Bounsouay Thatsaphone was convicted in state court of third degree rape for

engaging in sex with a minor. After the Supreme Court of South Dakota affirmed,

Thatsaphone petitioned for federal habeas corpus relief. The district court granted the

writ, concluding that Thatsaphone because of his lack of English language skills had

been subjected to in-custody interrogation in violation of his constitutional rights under

Miranda v. Arizona, 384 U.S. 436 (1966). The State appeals. We reverse.
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In June 1993, Sioux Falls police detective Bruce Bailey investigated a complaint

that twelve-year-old B.J.H. was the victim of a statutory rape. Bailey interviewed

B.J.H., who identified Thatsaphone as the culprit. At Bailey’s request, Thatsaphone

came to the police station for an untaped twenty-two minute interview during which he

made incriminating admissions. Thatsaphone was indicted for statutory rape and

moved to suppress his statements to Detective Bailey. 

Following an evidentiary hearing, the trial judge made the following findings of

fact. Thatsaphone is a Laotian immigrant who had lived in the United States for seven

years and had worked at a local meat packing plant for six years. When Detective

Bailey contacted him by telephone, Thatsaphone said he both spoke and understood

English. On June 24, Thatsaphone voluntarily came to be interviewed by Bailey at the

police station, accompanied by a friend, Vic Souvannarath, who also spoke English and

Laotian. Bailey excluded Souvannarath from the interview “for several reasons

including that [Thatsaphone] told Bailey that he understood and spoke English pretty

well, that [Thatsaphone] appeared to Bailey to speak and understand English pretty

well, that the friend by virtue of his relationship to [Thatsaphone] did not possess the

requisite impartiality necessary for an appropriate and accurate interview, and that such

friend was not certified by 911 communications as a recognized interpreter of the

Laotian language.” 

Before beginning the interview, Bailey asked Thatsaphone if he understood

English. Thatsaphone explained that he had lived in the United States for seven years,

had learned English at a local high school, and could speak and understand English

pretty well. Bailey then told Thatsaphone that he was not under arrest and would not

be placed under arrest that day, that the door to the interview room was closed for

privacy but unlocked so he was free to leave, and that he could take restroom breaks

at any time. Bailey asked Thatsaphone if he understood; Thatsaphone answered

affirmatively. During the interview, Thatsaphone was anxious but not unusually so,

Bailey did not use complicated terms or phrases, and Thatsaphone “answered Bailey’s
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interview questions appropriately and by his answers appeared to understand such

questions and the language thereof.” Bailey did not administer Miranda warnings at

any time. The interview lasted twenty-two minutes, following which Thatsaphone left

the police station of his own accord. He was arrested the following day. At the

evidentiary hearing, Thatsaphone 

testified before the Court [on] his Motion to Suppress and an interpreter

was present throughout such hearing. Almost all of the testimony at said

hearing was an interchange directly between the respective attorneys

asking questions in English and [Thatsaphone] speaking the answers in

English. Neither attorney made any special effort to use simplistic words

or phrases. [Thatsaphone] did not address the interpreter very often and

. . . only minor points of clarification were involved . . . . The English

language was not a barrier to [Thatsaphone’s] understanding of all that

was occurring at the hearing or Bailey’s interview. 

Based upon these findings, the trial court denied Thatsaphone’s motion to

suppress. After his conviction was affirmed, Thatsaphone filed this petition for a writ

of habeas corpus, arguing that his constitutional rights had been violated because the

Bailey interview was custodial interrogation for Miranda purposes and his incriminating

statements to Detective Bailey were involuntary. The district court on its own motion

ordered an evidentiary hearing on the question of Thatsaphone’s understanding of the

English language. At that hearing, three prison tutors testified that Thatsaphone’s

English language skills were primitive when he was first incarcerated for this offense.

Thatsaphone testified that he had understood almost nothing at the Bailey interview and

the hearing on his motion to suppress. The magistrate judge recommended that the writ

be granted on the ground that Thatsaphone’s statements should have been suppressed

as involuntary. Without reaching the voluntariness issue, the district court granted the

writ, concluding that Bailey’s interview was custodial interrogation, at which Miranda

warnings were constitutionally required, because of Thatsaphone’s “demonstrated

limitations in understanding spoken English” and his “lack of familiarity with the
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American legal system.” The State appeals, arguing that Thatsaphone was not in

custody and his admissions were voluntary. 

I. The Miranda Issue

“Miranda warnings are due only when a suspect interrogated by the police is ‘in

custody.’” Thompson v. Keohane, 116 S. Ct. 457, 460 (1995). “In determining whether

an individual was in custody, a court must examine all of the circumstances surrounding

the interrogation, but the ultimate inquiry is simply whether there [was] a formal arrest

or restraint on freedom of movement of the degree associated with a formal arrest.”

Stansbury v. California, 511 U.S. 318, 322 (1994) (quotations omitted).

Absent the English language issue, it is clear that Bailey’s twenty minute interview

of Thatsaphone was not custodial interrogation. Indeed, the case would then be virtually

on all fours with Oregon v. Mathiason, 429 U.S. 711 (1977). There, a police officer

investigating a theft contacted defendant by phone, and they agreed to meet at the police

office. The thirty-minute meeting took place in a room with the door closed. The officer

told defendant he was not under arrest, but he was suspected of a burglary and his

truthfulness might be considered by the prosecutor or judge. No Miranda warnings were

given until after defendant confessed. The state supreme court reversed the conviction

on the ground that the interrogation took place in a “coercive environment.” The

Supreme Court summarily reversed. Because defendant came to the brief meeting

voluntarily, was not arrested, and left without police hindrance, the Court concluded he

had not been subjected to custodial interrogation:

Any interview of one suspected of a crime by a police officer will have

coercive aspects to it . . . . But police officers are not required to

administer Miranda warnings to everyone whom they question. Nor is the

requirement of warnings to be imposed simply because the questioning

takes place in the station house, or because the questioned person is one

whom the police suspect. Miranda warnings are required only where
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there has been such a restriction on a person’s freedom as to render him “in custody.”

It was that sort of coercive environment to which Miranda by its terms was made

applicable, and to which it is limited.

429 U.S. at 494. Here, too, Thatsaphone came to the interview voluntarily, was told he

was not under arrest, and left without hindrance after a short interview. At the outset,

Detective Bailey advised that the interview was voluntary and that Thatsaphone was free

to leave. The brief interview was less coercive in nature, and was held in a less coercive

environment, than other interrogations we have held to be non-custodial for Miranda

purposes, such as the station-house questioning in Feltrop v. Bowersox, 91 F.3d 1178

(8th Cir. 1996), cert denied, 117 S. Ct. 1849 (1997), and in Jenner v. Smith, 982 F.2d

329 (8th Cir.), cert. denied, 510 U.S. 822 (1993). 

That brings us to the central issue in the case, Thatsaphone’s understanding of the

English language. Before discussing its merits, we must frame that issue and place it in

its proper procedural context. We agree with the district court that a suspect’s language

skills may be relevant to the “in custody” issue. Cf. United States v. Ceballos, 812 F.2d

42, 48 n.4 (2d Cir. 1987). But the question is not whether Thatsaphone subjectively

believed that he was in custody because he did not understand Detective Bailey’s

cautions to the contrary. The district court erred in treating this as a subjective issue,

misreading a passage in United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990),

that added a misleading reference to “subjective belief” to a quote from Berkemer v.

McCarty, 468 U.S. 423 (1984). Berkemer held that the inquiry is objective -- “the only

relevant inquiry is how a reasonable man in the suspect’s position would have

understood his situation.” 468 U.S. at 442. Any doubt on this question was laid to rest

in Stansbury v. California, where the Court stated, “the initial determination of custody

depends on the objective circumstances of the interrogation, not on the subjective views

harbored by either the interrogating officers or the person being questioned.” 511 U.S.

at 319 (emphasis added).
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Thus, the ultimate issue is whether a reasonable police officer conducting

Detective Bailey’s otherwise non-custodial interview would have given Miranda

warnings because he realized that the questioning would be perceived by Thatsaphone

as custodial due to his limited English language skills. This is a mixed question of

constitutional law and fact which the federal habeas courts must review de novo. See

Thompson v. Keohane, 116 S. Ct. at 465. A critical preliminary question is, on what

record should the federal court make this determination? The district court ordered an

evidentiary hearing sua sponte. First, the court reasoned that Thatsaphone procedurally

defaulted the English language issue by not seeking post-conviction relief in state court,

but that the State had waived that default. We disagree. The Miranda issue was not

procedurally defaulted; it was preserved in state court both by Thatsaphone’s motion to

suppress, on which the state court held an evidentiary hearing, and by his direct appeal.

The extent of Thatsaphone’s English language skills was an issue he had every

opportunity to develop in the state court suppression hearing. If Thatsaphone did not

adequately develop the facts supporting his motion in state court, that is a different kind

of procedural default, one that he may overcome in federal court only with a showing of

cause and prejudice. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 8-12 (1992);

McDonald v. Bowersox, 101 F.3d 588, 592 (8th Cir. 1996), cert. denied, 117 S. Ct.

2527 (1997). That default was not waived by the State, which timely objected when the

district court first ordered an evidentiary hearing.

Second, the district court reasoned that an evidentiary hearing was needed “to

develop the factual record,” and “to have an independent review of the constitutional

issues.” As we have explained, Thatsaphone was not entitled to a second hearing in

federal court because he failed to show cause excusing his failure to develop the factual

record in state court. The federal courts retain some discretion to hold non-mandatory

evidentiary hearings in habeas cases. Compare Clemmons v. Delo, 124 F.3d 944, 952

(8th Cir. 1997), with Zeitvogel v. Delo, 84 F.3d 276, 279 (8th Cir.), cert. denied, 117
The recent amendments to § 2254 enacted by the Antiterrorism and Effective 1

Death Penalty Act of 1996 may limit this discretion to hold evidentiary hearings in

habeas cases. See 28 U.S.C. § 2254(e)(2); Porter v. Gramley, 112 F.3d 1308, 1317 &

n.8 (7th Cir. 1997). But those amendments do not apply to Thatsaphone’s noncapital

case. See Lindh v. Murphy, 117 S. Ct. 2059, 2063 (1997).

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S. Ct. 368 (1996). However, if the court did not abuse its discretion in holding an

1

evidentiary hearing -- an issue we do not decide -- the court went beyond its habeas

authority when it heard testimony rehashing what occurred at the Bailey interview and

at the state court suppression hearing, and then reweighed the state court’s fact findings

as to what was said by whom, and how much Thatsaphone understood or appeared to

understand at the Bailey interview and the suppression hearing. Even when, as here, the

ultimate habeas issue is reviewed de novo, a state court’s findings on “basic, primary,

or historical facts: facts in the sense of a recital of external events and the credibility of

their narrators,” are presumed to be correct unless the district court finds that one of the

exceptions in 28 U.S.C. § 2254 (1988) applies. Thompson v. Keohane, 116 S. Ct. at

463-64. A federal habeas court “may not disregard this presumption unless it expressly

finds that one of the enumerated exceptions to § 2254 is met, and it explains the

reasoning in support of that conclusion.” Burden v. Zant, 498 U.S. 433, 437 (1991).

Here, the district court made no such determination. Moreover, a federal habeas court

may not simply disagree with the state court’s factual determinations. “Instead, it must

conclude that the state court’s findings lacked even ‘fair support’ in the record.”

Marshall v. Lonberger, 459 U.S. 422, 423 (1983). 

Returning now to the merits, we review the ultimate “in custody” issue de novo.

See Feltrop, 91 F.3d at 1181. Giving the state court’s primary fact findings the

deference to which they are entitled, we conclude that Thatsaphone’s limited

understanding of the English language provides no objective basis to change our

conclusion that Detective Bailey’s interview was non-custodial. Bailey repeatedly asked

Thatsaphone if he could speak and understand English, and Thatsaphone
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responded affirmatively. Thatsaphone never expressed a desire to halt the interview, he

responded coherently in English, and he remained silent when asked questions he did not

want to answer. He rarely used the interpreter provided at the suppression hearing and

responded in English to questions posed to him in English. Throughout these

proceedings, he has employed both colloquial and sophisticated English terms such as

“interrogate,” “bodysuit” (describing the victim’s clothing), and “get hard” (describing

his lack of sexual feeling). In short, Thatsaphone’s self-serving testimony at the habeas

hearing is belied by the state court record and the findings of the state court judge who

observed him at the suppression hearing and at trial. Because Thatsaphone was not in

custody when interviewed by Detective Bailey, his constitutional rights were not violated

by the absence of Miranda warnings.

II. Voluntariness

The magistrate judge recommended that Thatsaphone’s statements to Detective

Bailey were involuntary because, given Thatsaphone’s Laotian background, “merely

summoning him to the police station, excluding him from his friend, and demanding

information was sufficient coercion to overcome [his] resistance to confession.”

Reviewing this recommendation de novo, see United States v. Jacobs, 97 F.3d 275, 279

(8th Cir. 1996), we disagree. 

“Coercive police activity is a necessary predicate to the finding that a confession

is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth

Amendment.” Colorado v. Connelly, 479 U.S. 157, 167 (1986); LaRette v. Delo, 44

F.3d 681, 688-89 (8th Cir.), cert. denied sub nom. LaRette v. Bowersox, 116 S. Ct. 246

(1995). As we have explained, Detective Bailey in the twenty-minute interview used no

improperly coercive questioning tactics, and Thatsaphone’s responses and conduct gave

no indication that coercion was causing his will to be overborne, either by his lack of

English language skills or any other factor. In reviewing voluntariness, we give “great

weight to the considered conclusions of a coequal state judiciary.” Miller v.
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Fenton, 474 U.S. 104, 112 (1985). We agree with the South Dakota state courts that

Thatsaphone’s incriminating statements were not constitutionally involuntary. Compare

Beckwith v. United States, 425 U.S. 341, 347-48 (1976); United States v. Hatten, 68

F.3d 257, 262 (8th Cir. 1995); Jenner, 982 F.2d at 333-34. 

The judgment of the district court is reversed and the case is remanded with

instructions to deny Thatsaphone’s petition for a writ of habeas corpus.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.