The Office of Public Defender has moved to suppress the statements to police officers allegedly made by a 50-year-old landscaper who is facing charges of directing a 6-year-old girl to touch his privates.
Assistant public defender Benjamin K. Petersburg, counsel for Domingo Dy, said it appears that the suspect, a Filipino with limited ability to speak English, was jailed for nearly 10 hours before being interviewed.
Petersburg said that when Dy was interviewed at 9:30pm on March 22, 2012, the interview was not preceded by any Miranda warning.
The following day, March 23, at 5pm, the same detective returned to the Department of Corrections with a typewritten statement and told Dy to sign it, Petersburg said.
“Again, Mr. Dy was not presented with any Miranda warnings. After Mr. Dy signed the statement, a detective entered the office and presented Mr. Dy with a constitutional rights form containing Miranda warnings,” he said.
Petersburg said that Dy was instructed to fill out the form by initialing each right and that the form was backdated to March 22 at 9:30pm.
“Here, any waiver of Miranda rights after taking a statement through custodial interrogation does not cure the initial unwarned statements. For these reasons, any statements made by Mr. Dy must be suppressed, “ the lawyer said.
Petersburg noted that at the time of the interview at DOC, Dy told the detective that his ability to speak and understand English was limited.
Despite this, the lawyer said, no interpreter was used and no Miranda warnings were given in Tagalog.
He said at some point on March 23, a constitutional rights form was presented to Dy, but the defendant was unable to read it both because it was in English and that he wears reading glasses and the type of the form was too small for him to read.
Assistant attorney general Nicole Driscoll told the court, however, that Dy voluntarily, knowingly, and intelligently waived his rights and gave statements to the police, applying a totality of the circumstances analysis.
Driscoll said the two police officers at the crime scene did not arrest Dy but merely asked him to talk to about what happened the previous evening. As the interrogation was non-custodial, Miranda warnings were not required, Driscoll said.
The court is set to hear the motion today, Monday, at 9:30am.
Police said the incident happened when the girl told her mother that Dy made her touch his privates in the shower room.
Dy allegedly told police that he was only joking when he asked the girl to touch his privates and that the child actually never touched him.