{1} In this appeal, we consider an issue of first impression: whether using a single interpreter to interpret for both Defendant, who is Vietnamese, and a Vietnamese juror, denied Defendant a fair trial so as to amount to fundamental or structural error. We also consider Defendant’s claim that he was denied effective assistance of counsel. We conclude that, under the facts of this case, Defendant was not denied a fair trial because all testimony was translated for him, the interpreter was available to him at all times, he has not shown any prejudice, and his attorney actually suggested the procedure used. We reject his claim that he was denied effective assistance of counsel because his contentions depend on matters not of record. We affirm.
BACKGROUND
{2} Defendant was convicted of fourteen felony offenses dealing with criminal sexual penetration and contact of his half-sister, along with two counts of kidnaping. Defendant speaks Vietnamese. His primаry contention is that the use of a single interpreter to interpret for him, as well as for a Vietnamese-speaking juror, requires reversal of his convictions.
{3} On the first day of trial, the State reminded the court that one of the jurors spoke Vietnamese. The interpreter told the court that she was the only Vietnamese interpreter who could perform simultaneous interpretation. There were only two Vietnamese interpreters available, and the other interpreter was unable to intеrpret simultaneously. The interpreter told the court that she would have to translate for Defendant and for the juror and that she was concerned about being able to translate witness testimony and also translate communications between Defendant and his counsel. The equipment available to the interpreter allowed her to interpret for more than one person at a time, but she had to remember to push a mute button when translating any communication between Defendant аnd counsel so that the juror would not hear. The interpreter said that she could interpret everything for Defendant and for the juror. The interpreter also expressed concern that while the jury was deliberating, she would be unavailable to translate any communication between Defendant and his counsel.
{4} The trial court said it would attempt to get a second interpreter to translate for the juror, even though the other Vietnamese interpreter could not perform simultaneous interpretation. At that point, defense counsel told the court that having a single interpreter would work and that it had worked in a previous trial he had done. He told the court, “It can be done. [The interpreter] just has to mute when [Defendant] and I are speaking but, you know, over the course of a two, maybe three day trial, we might forget once and that may be a problem. I think it can be done.” Defense counsel added that his biggest concern was during jury deliberations, but also added, “I think it can be done.” Defеnse counsel said that he would help remind the interpreter to push the mute button when necessary. The court said it would get a second interpreter, but returned after the lunch recess and said it was unable to get the second interpreter. The court then proceeded with one interpreter.
{5} During the testimony of the victim, defense counsel approached the bench and explained that he wanted to ask Defendant a question while the victim was testifying. After some discussion, the attorneys agreed that the prosecutor would speak more slowly, and that if defense counsel and Defendant needed to communicate, counsel would signal the prosecutor. It was understood that a signal to the prosecutor would result in the suspension of testimony so that the interpreter could assist Defendant and defense counsel.
{6} On one other occasion, the defense requested a ten-minute break to have the assistance of the interpreter. Apparently, the interprеter had asked Defendant to make notes of questions he wanted asked. The notes were in Vietnamese and had to be translated by the interpreter. The court granted the request. The record does not
DISCUSSION
A. The Use of a Single Interpreter
{7} It is undisputed that a defendant has the right to an interpreter. See N.M. Const, art. II, § 14 (granting the right to an accused “to have the charge and testimony interpreted to him in a language that he undеrstands”). An interpreter allows non-English-speaking witnesses to testify; facilitates the understanding of a non-English-speaking defendant about court procedures and any discussions between attorneys, witnesses, and the court; and allows a defendant to confer with his counsel. See People v. Mata Aguilar,
{8} Defendant argues that several distinct constitutional rights were violated by the procedure here. He contends that his rights to due process and to confront witnesses against him were violated, and that his right to effective assistance of counsel was violated because his ability to consult with his attorney was adversely affected. We review his claim that there was structural or fundamental error in not providing a personal interpreter de novo. See Stаte v. DeGraff,
1. Structural or fundamental error
{9} Recognizing that he did not object to the procedure below, Defendant argues that the error is structural error automatically requiring reversal. A structural error is a ‘“defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.’ ” State ex rel. Children, Youth & Families Dep’t v. Brandy S.,
{10} Defendant also asks us to reverse, contending that the error should be reviewed as fundamental error. We find fundamental error when a defendant’s “guilt is so doubtful that it would shock the judicial conscience to allow the conviction to stand.” State v. Baca,
{11} Defendant relies on California authority holding that “borrowing” an interpreter constitutes reversible error per se. These cases were decided, in part, based on a California state constitutional provision stating that an accused shall have an interpreter
{12} Other states that have considered this issue have rejected the argument that borrowing an interpreter is per se reversible error, and they have held that reversal is required only if the defendant can show prejudice. See Avila,
{13} With the exception of the earlier California cases that are not current law, we have found no authority holding that using a borrowed or shared interpreter constitutes structural error automatically requiring reversal. Accordingly, we adopt the rule that sharing or borrowing an interpreter does not constitute structural error and that reversal is warranted only on a showing of prejudice.
2. Prejudice
{14} Here, Defendant has not shown prejudice. The interpreter provided translations of all statements by witnesses, the court, and the attorneys. There is no claim that Defendant could not understand any testimony. See United States ex rel. Negron v. New York,
{15} Defendant claims that the interpreter was unavailable to translate for him while the jury was deliberating. Normally, there is little reason why a defendant would need to consult with counsel while the jury is deliberating, but we accept that a defendant might desire a discussion with counsel during jury deliberations. However, even accepting that possibility, we reject Defendant’s claim because it is not supported by the facts. It is true that the interpreter was working in the jury room, but it is not true that the interpreter was unavailable. The record establishes that if Defendant wanted to speak with counsel, his needs would have been accommodated. Defendant, however, never made a request for an interpreter during jury deliberations and, for all we know, it may have been possible to get the second interpreter at that point.
{16} On this record, Defendant had every opportunity to consult with counsel with the help of an interpreter. Consequently, we conclude that neither error nor prejudice has been shown. See United States v. Joshi,
{17} In this connection, one pre-Rodriguez case reached a conclusion that reversal was automatically required because even if a provision was made for interrupting the trial, a defendant’s right to consult with counsel was hampered. See People v. Carreon,
{18} Because we conclude that Defendant has shown no prejudice, we do not find fundamental error. See State v. Singleton,
3. Guidelines for interpreters
{19} In support of his argument that his interpreter could not be borrowed, Defendant relies on the guidelines adopted by the Administrative Office of the Courts (AOC guidelines). The relevant guideline states that “a court interpreter ordinarily may not provide interpretation services for both a litigant and a [non-English-speaking] juror.” Our Supreme Court has held that some of the AOC guidelines requiring an oath by the interpreter, and instructions to jurors, are mandatory, see State v. Pacheco,
{20} The language of the guideline recognizes that in some situations it may be necessary to have the interpreter do exactly what was done in this case. Allowing flexibility enables a court to deal with situations, like this one, in which the non-English language is relatively uncommon and certified interpreters may not be in abundance. The lack of interpreters in some languages may exist in less-populated areas of the state, as well. Interpreting the guideline as allowing for flexibility, as opposed to interpreting it as mandatory, is consistent with its plain language, allows for a pragmatic approach, and recognizes the reality that interpreters can be in short supрly.
{21} Additionally, if we were to hold that an interpreter may never be shared, our holding could adversely impact a non-English-speaking juror’s constitutional right to serve. See N.M. Const, art. VII, § 3 (stating that “[t]he right of any citizen of the state to ... sit upon juries, shall never be restricted, abridged or impaired on account of ... inability to speak, read or write the English or Spanish languages”); Singleton,
4. Preservation and invited error
{22} Although we have held that the facts of this case do not amount to structural or fundamental error, we also point out that the principles of preservation and the doctrine of invited error provide additional rationale for rejecting Defendant’s claim of error. As we have discussed, defense counsel lodged no objection to using a single interpreter, but rather affirmatively encouraged the court to do so. Having encouraged the court to proceed with one interpreter, Defendant is in no position to claim error. See State v. Handa,
{23} There is no indication on this record that defense counsel had any such intent, but we believe the better rule requires a defendant to lodge specific objections at trial. See United States v. Arthurs,
5. Waiver
{24} Recognizing that defense counsel agreed to have one interpreter, Defendant claims that his right to an interpreter cannot be waived by counsel. He argues that his right to an interpreter could only be waived by him after he was advised of his rights on the record. Certainly, “[s]ome rights are considered so personal to the defendant they necessitate inquiry into the individual defendant’s decision-making process.” Singleton,
{25} We conclude that a personal, on-the-record waiver by Defendant was not required herе. Our holding is based on the
{26} We hold that, on this record, Defendant was not denied his right to an interpreter and has not shown prejudice requiring reversal.
B. Ineffective Assistance of Counsel
{27} Defendant argues that defense counsel was ineffective for agreeing to use a single interpreter, for failing to call an expert witness, and for failing to call a potential alibi witness.
{28} To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel’s performance fell below that of a reasonably competent attorney, and that defendant was prejudiced by the deficient performance. State v. Hester,
{29} Defеndant argues that counsel should have objected to having a single interpreter, but instead “simply acquiesced to the trial court’s borrowing of [his] interpreter ..., even when doing so prevented him from communicating with his client when necessary.” However, as we have discussed, Defendant’s factual premise is incorrect. Defendant was allowed to have the interpreter to help him confer with his attorney any time he indicated a desire to do so. There is no indication that he was preventеd from doing so, and the record shows that he did do so. Therefore, counsel’s refusal to object to using a single interpreter did not adversely impact any rights of Defendant, nor did it result in any prejudice. Without a showing of prejudice, Defendant’s claim fails. See Duncan v. Kerby,
{30} Defendant argues that counsel should have called Dr. Westfiied, a psychologist, to rebut the testimony оf Dr. Samaras, the expert witness called by the State. The record indicates that Defendant had contemplated calling Westfded, but ultimately he was not called. Defendant argues that the failure to call Westfried constituted ineffective assistance of counsel because Defendant did not have an expert to testify on his behalf. We reject Defendant’s claim. We have no information about the nature of Westfried’s testimony, and we cannot assume it would have been helpful. See State v. Roybal,
{31} Finally, Defendant argues that defense counsel “had knowledge of a potential alibi witness” who was never listed as a witness or subpoenaed. However, Defendant has provided us with no information about this purported witness and no detail establishing that the witness would have provided an alibi. This case stаnds in marked contrast to Duncan, in which the compelling nature of Defendant’s alibi defense was established on the record during a habeas corpus
CONCLUSION
{32} The use of a single interpreter did not deny Defendant a fair trial, and his ineffective assistance claim is without merit. His convictions are affirmed.
{33} IT IS SO ORDERED.