Kusi v. State
91 A.3d 1192
Md.2014Background
- Defendant George Kusi, a native of Ghana who had lived in the U.S. four years, was convicted of sexual offenses; he requested an interpreter the week before jury selection but did not timely file a Rule 16-819(b) application.
- On the morning trial began, defense counsel informed the court of Kusi’s request; the trial judge conducted a lengthy on-the-record colloquy with Kusi about education, language use, work, home communication, and understanding of trial rights and jury selection.
- Kusi said he sometimes had difficulty understanding English and had previously asked counsel to obtain an Ashanti interpreter; he also said he and household members spoke English and that he had passed a Maryland driver’s test given in French.
- The trial judge found as facts that Kusi understood the nature of the proceedings, could communicate cogently with counsel, and could proceed without an interpreter; the court denied the interpreter request but told Kusi to notify the court if comprehension problems arose.
- The Court of Special Appeals affirmed, applying a clearly erroneous standard to the trial court’s findings; Kusi sought certiorari claiming the wrong appellate standard and that denial was an abuse of discretion.
- The Maryland Court of Appeals granted certiorari and addressed the proper standard(s) of appellate review and whether denying an interpreter was an abuse of discretion given the record.
Issues
| Issue | Kusi's Argument | State's Argument | Held |
|---|---|---|---|
| Standard of appellate review for interpreter appointment | Court of Special Appeals used wrong standard; appellate review should be abuse of discretion because appointment is discretionary | Trial court’s inquiry involves factual findings so clearly erroneous review applies to findings | Two-tiered approach: factual findings reviewed for clear error; legal/discretionary determination reviewed for abuse of discretion |
| Whether trial court erred in denying an interpreter | Statute says court "shall appoint" when defendant cannot readily understand English; committee note recommends open-ended questioning — Kusi argued judge failed to follow recommended procedure and should have appointed interpreter | Record (lengthy colloquy) supports judge’s factual findings that Kusi understood English well enough to participate and assist counsel; denial was within discretion | No error: factual findings were not clearly erroneous and denial was not an abuse of discretion given colloquy and compliance with Rule 16-819 inquiry |
| Effect of Rule 16-819 committee note requiring non-yes/no questions | Note should be followed; judge’s leading questions undermined the inquiry | Committee notes are advisory and not binding; judge asked sufficient open-ended questions and obtained necessary information | Committee note is non-binding; judge asked adequate questions to satisfy Rule 16-819 and statutory predicate |
| Mandatory nature of statutory "shall" in CP §1-202 | "Shall appoint" means court must provide interpreter when defendant requests and lacks English ability | The statutory "shall" applies only when the factual predicate (inability to readily understand/communicate) is established; that predicate is a factual finding | "Shall" is mandatory only once the statutory factual precondition is found; here the precondition was not established on the record |
Key Cases Cited
- Gonzalez v. State, 429 Md. 632 (2012) (deference to trial court factual findings about defendant’s language comprehension)
- Kang v. State, 393 Md. 97 (2006) (assessing defendant’s opportunity to understand and participate where interpreter issues arose)
- Biglari v. State, 156 Md. App. 657 (2004) (applying clearly erroneous standard to entitlement to an interpreter)
- In re Yve S., 373 Md. 551 (2003) (articulating multi-aspect appellate review: clearly erroneous for facts; abuse of discretion for discretionary legal determinations)
- Goodwin v. Lumbermens Mut. Cas. Co., 199 Md. 121 (1952) (definition of clearly erroneous standard)