PEOPLE v GONZALEZ-RAYMUNDO
Docket Nos. 316744 and 319718
Court of Appeals of Michigan
Submitted October 14, 2014; Decided November 18, 2014
308 Mich. App. 175
BOONSTRA, P.J., and MARKEY and K. F. KELLY, JJ.
Leave to appeal denied 497 Mich 998.
The Court of Appeals held:
1. Defense counsel‘s decision to waive defendant‘s right to an interpreter did not preclude appellate review of the issue. While a defendant may waive the right to simultaneous translation by an interpreter at the trial, this waiver must be an informed decision made by the defendant personally, and defendant apparently made no such waiver in this case.
2. The trial court did not abuse its discretion by granting defendant‘s motion for a new trial. Defendant had a statutory and a constitutional right to simultaneous translation of the trial proceedings, and the trial court had a duty to appoint an interpreter in light of the evidence indicating that defendant was not capable of understanding English well enough to effectively participate in his defense. It was unnecessary to decide whether the trial court‘s error in failing to do so was structural because the error was not harmless and it prejudiced defendаnt.
Docket No. 319718 affirmed; Docket No. 316744 dismissed as moot.
The constitutional right to simultaneous translation of trial proceedings for a criminal defendant who is not capable of understanding English well enough to effectively participate in his or her defense may only be waived by the defendant personally.
2. CONSTITUTIONAL LAW — CRIMINAL LAW — TRIAL — INTERPRETERS — DUTY TO APPOINT.
A trial court has a statutory and constitutional duty to appoint an interpreter when there is evidence to indicate that a criminal defendant is not capable of understanding English well enough to effectively participate in his or her defense unless the defendant has effectively waived the right to simultaneous translation of the trial proceedings (
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Julie A. Powell, Assistant Prosecuting Attorney, for the people.
James E. Czarnecki II for defendant.
Before: BOONSTRA, P.J., and MARKEY and K. F. KELLY, JJ.
BOONSTRA, P.J. Defendant was convicted, following a jury trial, of four counts of third-degree criminal sexual conduct,
I. PERTINENT FACTS AND PROCEDURAL HISTORY
This case arises out of a series of alleged sexual encounters between defendant and his stepnephew, IR, in Lincoln Park, Michigan. IR was born on September 11, 1997, and was approximately seven or eight years old when he first met defendant. Defendant lived in a house directly across the street from the Lincoln
IR testified that defendant is his stepuncle. When IR was 10 or 11 years old, numerous members of defendant‘s family came to tоwn for Christmas and stayed at defendant‘s home. To accommodate the number of visitors, some people from defendant‘s home, including defendant, stayed with IR‘s family in the home where IR, Llamas, and Gonzalez lived. IR testified that, at Llamas’ instruction, he and defendant slept in the same room, and the same bed, during the Christmas holiday season.6 Gonzalez disagreed with IR‘s testimony, claiming that no two men had to sleep together during this Christmas holiday and that he did not recall any instance in which defendant and IR had to share a bed. According to IR, he and defendant woke up early in the morning because IR had accidentally touched defendant‘s penis, which was erect аt the time, in his sleep. IR claimed that he and defendant both “felt something,” and defendant asked IR if he would give him “head,” meaning oral sex. IR agreed and performed oral sex on defendant. This encounter was the culmination of a “crush” that IR had developed for defendant over the years prior.
Frequently, defendant would cross the street to use the Internet at IR‘s house, because defendant‘s home did not have wireless Internet access. IR testified that on one of these occasions, shortly after the first sexual encounter, he was lying on a couch on the main floor of the house, watching cartoons. IR was “acting asleep,” but then begаn to signal to defendant, by poking or touching him, that he wanted to engage in sex. Once
A few months later, in May, IR saw defendant getting ready for a soccer game that he was going to play at a nearby park. IR testified that he was “tired of being in [his] house,” so he asked Llamas if he could go to the park with defendant. Llamas told him it was fine as long as defendant did not mind. IR went across the street to defendant‘s house to ask if he could accompany him to the park. When IR entered defendant‘s bedroom, defendant was lying in bed. IR testified that he and defendant began engaging in their “usual ritual,” in which IR would perform oral sex on defendant, and that the encounter ended in anal sex, with defendant‘s penis penetrating IR‘s anus. IR was not yet 13 years old. IR testified that, after these initial encounters, the two would sporadically engage in either oral sex or anal sex, generally every few weeks or so.
IR turned 13 years old shortly before he began eighth grade. He testified that he remembered sneaking out of his parents’ house late at night on a school night, sometime in the winter after he had turned 13. On that night, IR waited approximately 30 minutes after he heard the television turn off in his parents’ bedroom, put on some pants, and then snuck downstairs, being extremely quiet because his mother was a very light sleeper. Using his mother‘s cell phone, IR sent defendant a text message stating that he was in the mood to have sex and asking whether defendant wanted him to come over. Defendant responded that he did want IR to come over. IR then deleted the text messages from his
IR testified that, between the ages of 13 and 14, he snuck out of his parents’ house on numerous occasions to engage in oral and anal sex with defendant. On some nights, IR would watch defendant‘s home, and if defendant flicked his bedroom light on and off, IR knew that to mean that defendant was interested in having sex that night. IR testified that the last time he and defendant engaged in sexual relations was in January of 2012. Overall, IR estimated the two had engaged in oral sex approximately 30 times and anal sex approximately five times.
IR testified that he never told any of the adults in his family about his relationship with defendant, but that his mother and some other family members had “suspicions.” For example, when the family would have large barbeques, IR and defendant would act strangely toward each other, and IR believed other people could tell that something sexual was occurring. In the middle of February of 2012, IR‘s biological father, David Rivera, discovered the relationship between defendant and IR. It was a Sunday afternoon and IR was asleep when he awoke to hear Rivera yelling, telling Llamas that someone “was gonna die, that he was really gonna pay for what he did.” He had discovered IR‘s iPod, on which IR had sent a message to a friend regarding his sexual relationship with defendant. Rivera then walked tо IR‘s room and asked him if defendant had ever touched IR in an inappropriate way or if they had ever had sex. IR was unable to answer and hung his head low, and Rivera “just knew” at that point. Rivera, who was employed as a firefighter, threw his firefighter‘s axe into his car, but never actually attacked defendant.
On March 28, 2013, the parties appeared before the trial court for an evidentiary hearing regarding text messages found on IR‘s iPod. An interpreter was provided for defendant at this hearing.8 At the conclusion of the hearing, the trial court ruled that all the text messages found on IR‘s iPod, apart from those that mentioned defendant, were protected by the rape shield law,
The parties appeared for trial on April 1, 2013. Before voir dire, the following colloquy occurred:
Defense Counsel: Final matter of housekeeping, Your Honor, is as a Hispanic I know that sometimes folks can take offense to people speaking Spanish rather than English.
And I want to avoid the chance of any prejudice, so we‘d like to preserve the right to waive the interpreter during the course of the proceedings and explain things to the defendant on break. And you can hear straight from the defendant‘s mouth if you like, Your Honor, that this is indeed our wish.
We will accept any prejudice that might be done fоr his minimal lack of understanding during the course of the proceedings in order, in exchange for the safeguard against any potential prejudice amongst jury members or folks who don‘t look too kindly upon those who don‘t speak English as a first language.
And, again, I do say that with — as one with experience.
The Court: You don‘t have any objection to that?
The Prosecutor: I think that‘s a very strange thing that they are going to think, so I think that they are making that decision that they shouldn‘t be questioned as ineffective because they have also indicated that he has — it sounds to me, based on what defense counsel‘s indicating, is that the client could, for the most part, could understand, with minimal exception they would need the interpreter. And certainly that‘s something that he could also voir dire on.
Following a recess, the case proceeded to trial without the trial court‘s having further addressed the issue. At the conclusion of the prosecution‘s case in chief, defendant moved for a directed verdict. The trial court found that there was sufficient evidence to allow the case to go to the jury, and denied defendant‘s motion. At the conclusion of trial, defendant was found guilty of four counts of third-degree criminal sexual conduct,
The parties appeared for sentencing on May 6, 2013. Defendant used an interpreter during the sentencing
Defendant appealed his convictions by right on June 12, 2013. On August 7, 2013, defendant moved to remand the case to the trial court for a Ginther hearing. Defendant argued that he had been denied his state and federal rights to the effective assistance of counsel because defense counsel had (1) failed to conduct a jury voir dire to determine whether the jury would have been prejudiced by defendant‘s need for an interpreter, (2) waived defendant‘s right to an interpreter at trial despite defendant‘s need for one, (3) failed to investigate and meet with exculpatory witnesses, and (4) failed to properly inform defendant of his right to testify at trial. Defendant supported his motion with affidavits from Llamas and Gonzalez. In her affidavit, Llamas stated that defendant barely speaks any English, that defendant needed a translator at trial, that she did not believe that defendant committed the crimes alleged, and that she would have testified had she been called by defendant‘s trial counsel. Gonzalez stated in his affidavit that defendant barely speaks any English, that defendant needed a translator at trial, and that trial counsel only prepared him on the day of trial and only for five minutes. This Court granted defendant‘s motion on September 5, 2013.
The parties appeared before the trial court for a Ginther hearing on October 28, 2013. Defendant‘s trial counsel testified that he had been an attorney for 18 years, approximately 10 to 15 percent of his practice involved criminal matters, and defendant‘s trial had been his second as first-chair criminal defense attorney. Trial counsel also testified that
Llamas testified at the Ginther hearing that defendant‘s primary language was Spanish, that he had lived in Mexico before moving to the United States approximately seven years before the hearing, and that he did not speak English either at work or socially. Additionally, the only conversation Llamas had with defendant‘s trial counsel was in the hallway outside the courtroom on the first day of trial, and the conversation only lasted
The parties returned for the court‘s ruling on defendant‘s motion for a new trial on November 22, 2013. The trial court ruled that it had erred when it did not have defendant personally waive simultaneous translation, instead accepting trial counsel‘s word on the subject. On that basis, the trial court granted defendant‘s motion for a new trial. When asked to clarify, the court noted that its error was structural, and held that, even if it were not, trial counsel had been ineffective and defendant had been prejudiced by not “getting [the cross-examination of the victim] in real time and able to respond to that in a timely fashion to be able to ask questions.” An order was entered that same day to reflect the trial court‘s ruling.
The prosecution filed with this Court its delayed application for leave to appeal on December 23, 2013. The prosecution argued that the trial court had erred by granting defеndant a new trial because trial counsel‘s strategic decision regarding simultaneous translation was not a structural error, and because defendant did not meet his burden of showing prejudice. This Court granted the prosecution‘s application for leave to appeal on February 19, 2014. Further, this Court consolidated the prosecution‘s appeal with defendant‘s pending appeal, in the same order, on February 19, 2014.
II. MOTION FOR NEW TRIAL
As this issue is dispositive of the case before this Court, we address the prosecution‘s appeal first. The prosecution contends on appeal in Docket No. 319718
A. STANDARD OF REVIEW
The judge of a court in which the trial of an offense is held may grant a new trial to the defendant, for any cause for which by law a new trial may be granted, or when it appears to the court that justice has not been done, and on the terms or conditions as the court directs.
“This Court reviews a trial court‘s decision to grant or deny a motion for new trial for an abuse of discretion.” People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). An abuse of discretion occurs when the trial court chooses an outcome that falls outside the range of principled outcomes. People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008).
Constitutional errors are classified as either structural or nonstructural. People v Duncan, 462 Mich 47, 51; 610 NW2d 551 (2000). “Struсtural errors are defects that affect the framework of the trial, infect the truth-gathering process, and deprive the trial of constitutional protections without which the trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.” People v Watkins, 247 Mich App 14, 26; 634 NW2d 370 (2001), affirmed but criticized on other grounds 468 Mich 233 (2003). Generally, all other errors are nonstructural. See People v Carines, 460 Mich 750, 765; 597 NW2d 130 (1999). When a structural error occurs, reversal is required without any showing of prejudice. People v Cook, 285 Mich App 420, 424; 776 NW2d 164 (2009). In contrast, a nonstructural constitutional error is subject to analysis for harmless error. See Carines, 460 Mich at 774.
As a threshold issue, although the prosecution argues that defendant waived his right to an interpreter and has thus waived appellate review of this issue, we do not find that defendant‘s trial counsel‘s statеments operated to affirmatively waive defendant‘s rights.
“Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” Carines, 460 Mich at 762 n 7, quoting United States v Olano, 507 US 725, 733; 113 S Ct 1770; 123 L Ed 2d 508 (1993) (quotation marks omitted). A defendant may generally waive a constitutional right. See People v Carter, 462 Mich 206, 217-218; 612 NW2d 144 (2000) (“It is presumed that waiver is available in a broad array of constitutional and statutory provisions.... While the defendant must personally make an informed waiver for certain fundamental rights such as the right to counsel or the right to plead not guilty, for other rights, waiver may be effected by action of counsel.“) (quotation marks and citations omitted). This includes the waiver of the right be present at trial. People v Buie (On Remand), 298 Mich App 50, 56-57; 825 NW2d 361 (2012).9 However, such waiver must be personal and informed. See People v Kammeraad, 307 Mich App 98, 117; 858 NW2d 490 (2014).10 Courts must “indulge
The lack of simultaneous translation implicated defendant‘s rights to due process of law guaranteed by the United States and Michigan Constitutions.
Defense counsel, at the Ginther hearing, stopped well short of indicating that defendant made a personal and informed decision to waive his right to an interpreter, saying only that “this was the strategy I recommended to him and he went along with it to the point that I don‘t recall him making any objection” and that defendant “wasn‘t opposed to it.” Counsel also described defendant as “very deferential” to his experience and status as a defense attorney. Under these circum-
Id. at 118. In that case, the trial court made extensive efforts, in the face of an extremely obstinate and uncooperative defendant, to secure the defendant‘s constitutional rights; that this Court was forced reluctantly to find those efforts inadequate indicates the strength of the dictate that courts must indulge every reasonable presumption against the loss of constitutional rights. Allen, 397 US at 338, 343.
C. THE TRIAL COURT‘S NONCOMPLIANCE WITH MCL 775.19a
If an accused person is about to be examined or tried and it appears to the judge that the person is incapаble of adequately understanding the charge or presenting a defense to the charge because of a lack of ability to understand or speak the English language, the inability to adequately communicate by reason of being mute, or because the person suffers from a speech defect or other physical defect which impairs the person in maintaining his or her rights in the case, the judge shall appoint a qualified person to act as an interpreter.
Further, a trial court should appoint an interpreter when it appears from the record that a witness is not understandable, comprehensible, or intelligible, and thе absence of an interpreter would deprive the defendant of some basic right. See People v Warren (After Remand), 200 Mich App 586, 591-592; 504 NW2d 907 (1993).
In this case, the trial court, prosecution, and defense counsel all were aware that defendant was incapable of understanding English at a level necessary to effectively participate in his defense without simultaneous translation of the trial proceedings. Therefore, having failed to secure defendant‘s personal and knowing waiver of his right to simultaneous translation, the trial court erred by allowing defendant to proceed to trial without simultaneous translation of the trial proceed-
Defendant asserts that the trial court correctly determined that the error in this case was structural. The United States District Court for the Eastern District of Michigan, in granting a petition for habeas corpus, has described the violation of a defendant‘s right to be present at his trial as a “structural defect” and suggested that denial of simultaneous translation was such a defect, although the court also addressed prejudice to the defendant. Gonzalez v Phillips, 195 F Supp 2d 893, 902-903 (ED Mich, 2001).11 The prosecution аrgues, in contrast, that the failure to provide a full and simultaneous
We conclude, however, that we need not decide whether the complete lack of simultaneous translation in the instant case is a structural error, because even if we were to subject the trial court‘s error to harmless-error analysis, we would conclude in this case that the error was not harmless and that it prejudiced defendant. The trial court found that defendant was specifi-
In this case, defendant‘s trial was essentially a credibility contest between himself and IR. Defendant lacked the ability, because of the denial of simultaneous translation, to assist his counsel in cross-examining IR. Defendant asserts, for example, that he could have refuted IR‘s testimony that he had signaled IR using the lights from his house, refuted IR‘s testimоny that Llamas had instructed IR to share a bed with defendant, and refuted IR‘s characterization of him as a homosexual, had he been aware that IR had so testified. Further, defendant asserts that his waiver of his right to testify was not made knowingly because he did not understand what IR had testified to at trial. At the Ginther hearing, trial counsel described defendant‘s communication with him during trial as “not much” and said “we might have passed one note [in Spanish].” Although defense counsel also indicated at the hearing that defendant was able, prior to trial, to communicate his version of events sufficiently for defense counsel to prepare a trial strategy, it does not apрear that defense counsel was able to modify that strategy with input from defendant in response to answers received during
We share the prosecution‘s concern that defendants may waive their right to an interpreter and later claim error on appeal resulting from it, thereby harboring error in the form of an “appellate parachute.” However, we note that in this case the trial court primаrily based its grant of a new trial on its own failure to follow the dictates of
Because we affirm the trial court‘s grant of a new trial in Docket No. 319718, we decline to address as moot the issues presented in defendant‘s appeal in Docket No. 316744, as there is no relief this Court can grant. In re Contempt of Dudzinski, 257 Mich App 96,
We affirm in Doсket No. 319718 and remand for further proceedings consistent with this opinion, and in Docket No. 316744 we dismiss the appeal as moot. We do not retain jurisdiction.
MARKEY and K. F. KELLY, JJ., concurred with BOONSTRA, P.J.