STATE OF KANSAS, Appellee, v. GELDY GUTIERREZ-FUENTES, Appellant.
No. 120,339
IN THE SUPREME COURT OF THE STATE OF KANSAS
Opinion filed April 29, 2022
59 Kan. App. 2d 70 | 477 P.3d 1041
WILSON, J.
Review of the judgment of the Court of Appeals in 59 Kan. App. 2d 70, 477 P.3d 1041 (2020). Appeal from Sedgwick District Court; DEBORAH HERNANDEZ MITCHELL, judge.
- The general rule is that an issue not asserted before the trial court cannot be raised for the first time on appeal, though there are three recognized exceptions if, in its discretion, the appellate court believes the exception is justified under the facts of a particular case. One of these exceptions is when consideration of the theory is necessary to prevent the denial of fundamental rights. The right to a speedy trial is a fundamental right.
- Before invoking one of the limited exceptions, an appellate court must also determine whether the unpreserved issue is amenable to resolution on appeal. Even if a discretionary exception would support a decision to review a new claim, an appellate court has no obligation to do so.
- Aggravated burglary under
K.S.A. 2020 Supp. 21-5807(b)(1) prohibits a person from entering, without authority, аny dwelling in which there is a human being, with the intent to commit a felony, theft, or sexually motivated crime therein. - Regarding authority to enter in an aggravated burglary prosecution, a close question may arise when the State does not present direct evidence about the defendant‘s and the victim‘s property interests in the residence where an aggravated burglary occurs. But circumstantial evidence can sufficiently support a finding that someone lacks authority to enter a residence.
- The hearsay exception in
K.S.A. 2020 Supp. 60-460(a) allows admission of a statement previously made by a person who is present at the hearing and available for cross-examination. - When an out-of-court interpreter is utilized, there is more than one statement for separate consideration under
K.S.A. 2020 Supp. 60-460(a) : first, the out-of-court foreign language statement, in that foreign language; and second, the out-of-court English language interpretation of the out-of-court foreign language statement. Because language is complex, a one-to-оne correspondence between words or concepts in different languages is not always possible. Each statement, as uttered, must be separately considered for admissibility. The English interpretation does not serve as a conduit for admissibility of the foreign language statement.
Review of the judgment of the Court of Appeals in 59 Kan. App. 2d 70, 477 P.3d 1041 (2020). Appeal from Sedgwick District Court; DEBORAH HERNANDEZ MITCHELL, judge. Opinion filed April 29, 2022. Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
The opinion of the court was delivered by
WILSON, J.: Geldy Gutierrez-Fuentes petitioned this court for review of three issues after the Court of Appeals affirmed his convictions for aggravated battery, aggravated burglary, and criminal threat. He argues (1) that his constitutional right to a speedy trial was viоlated, (2) that there was insufficient evidence to support his aggravated burglary conviction, and (3) that the district court erred by admitting out-of-court statements of an interpreter over defense hearsay objections. We affirm his convictions.
FACTS AND PROCEDURAL HISTORY
Gutierrez-Fuentes moved in with the victim, D.S., in late June 2016. After an argument in early October 2016 which resulted in Gutierrez-Fuentes grabbing D.S. by the throat and shoving her, D.S. told Gutierrez-Fuentes she did not want to be with him anymore and he needed to move out of the apartment. In compliance, Gutierrez-Fuentes gathered some of his belongings, but when D.S. asked him to return the key to the apartment, he claimed he had lost it.
A few days after the split, D.S. was in the apartment behind a door locked with a deadbolt. The deadbolt could not be unlocked from the outside. Because Gutierrez-Fuentes had not returned the key, D.S. took extra precautions to secure her apartment and placed a chair behind the door. That day, Gutierrez-Fuentes returned to the apartment, knocked on the window, and asked D.S. to talk with him. She refused and did not give him permission to enter the apartment. In response, Gutierrez-Fuentes broke through the front door, went into the apartment, grabbed D.S., and started hitting her. Gutierrez-Fuentes told D.S. that if she was not going to be with him, he would kill her. D.S. blacked out. When she regained consciousness, she found help in the apartment upstairs, where one of her neighbors called 911.
Officer Dane Myers responded to the assault call. He found D.S. covered in blood and being consoled by a neighbor. He was not able to speak directly with D.S. at that time because of a language barrier. Officer Myers concluded the apartment door had been forced open, because wood chips were lying on the ground and the deadbolt was still in a locked position.
An ambulance took D.S. to the hospital, where a staff interpreter facilitated a conversation between D.S. and Officer Myers. At trial, Officer Myers gave testimony outlining this conversation with D.S.
D.S. was examined by forensic nurse Tracy Hess. Through the servicеs of a staff interpreter, D.S. gave information to Hess. At trial, Hess gave testimony outlining this conversation with D.S.
Officer Rick Peña, who speaks both English and Spanish and therefore needed no interpreter, communicated directly with D.S. at the hospital and testified at trial about this conversation with D.S. The information Peña provided was consistent with the trial testimony given by D.S., Myers, and Hess.
Gutierrez-Fuentes, like D.S., does not speak English. He tried to turn himself in at the police station on October 5, 2016—the same day as the attack—but he was turned away. Charges were filed against him on October 31, 2016. Gutierrez-Fuentes was arrested on February 3, 2017, and tried on August 20, 2018.
The jury convicted Gutierrez-Fuentes on two separate counts of aggravated battery, one count of aggravated burglary, and one count of criminal threat. He was sentenced to a controlling 82 months in prison. He timely appealed.
Before the Court of Appeals panel, Gutierrez-Fuentes argued that his constitutional right to a speedy trial had been violated, there was insufficient evidence for his aggravated burglary conviction, the district court had allowed inadmissible hearsay evidence, and the district court erred when it instructed the jury on the elements of aggravated battery. The panel affirmed the district
ANALYSIS
CONSTITUTIONAL SPEEDY TRIAL
Gutierrez-Fuentes first argues that his constitutional right to a speedy trial was violated because he was held in jail for 18 months before being brought to trial. He argues that the panel‘s analysis of the issue was deficient and that a full review and application of the constitutional speedy trial test would show his rights have been violated and his convictions need to be reversed.
Preservation
A defendant has both a statutory and constitutional right to a speedy trial. While clearly related, they are two separate rights with different tests and different burdens. See
The answer is not easy to ascertain. The record shows that neither Gutierrez-Fuentes nor any of his attorneys specifically objected to the court that his constitutional right to a speedy trial had been violated. Nor was a motion to dismiss filed on the basis that the defendant‘s constitutional right to a speedy trial had been violated. Again, this highlights the difference between a defendant‘s statutory right and constitutional right to a speedy trial. The State has the burden of meeting the statutory speedy trial time requirement, and the defendant does not have to assert the right. State v. Dreher, 239 Kan. 259, 260, 717 P.2d 1053 (1986). However, in terms of a defendant‘s constitutional speedy trial right, neither the United States nor the Kansas Constitutions imрose specific time requirements for bringing a criminal defendant to trial, which is why courts utilize the constitutional balancing test of the Barker factors. See Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). An effective review of the constitutional right often requires consideration in context of both trial delay and any prejudice to the defendant that may have resulted from that delay. Such an analysis of the constitutional requirements is more complex than simply counting days. A defendant benefits from ensuring the facts supporting the Barker factors are considered by the district court. Otherwise, those facts will not be included in the appellate court‘s contextual analysis, because appellate courts do not make findings of fact. In other words, the defendant also carries a burden to establish the Barker factors. State v. Queen, 313 Kan. 12, 16, 482 P.3d 1117 (2021) (“[Defendant] has not argued . . . that he could meet his burden to establish any of [the Barker] factors“.). So, we look further. If evidence was presented by the defense from which the court made fact-findings relevant to the alleged violation of Gutierrez-Fuentes’ constitutional speеdy trial rights, the objection may be preserved even if the court did not find that the evidence sufficiently supported the objection or the motion.
Both the
“The test to determine whether an accused has been afforded a speedy trial was set forth in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). Barker identified four factors to be considered when a claim of unconstitutional denial of a speedy trial is asserted: the length of the delay, the reason for delay, the defendant‘s assertion of the right, and prejudice to the defendant. Kansas adopted the Barker four-point test in State v. Otero, 210 Kan. 530, 532-33, 502 P.2d 763 (1972). [Citation omitted.]” State v. Jamison, 248 Kan. 302, 306-07, 806 P.2d 972 (1991).
Turning to the record, we observe:
(1) Defendant did not articulate a constitutional speedy trial objection. While defendant filed a document early in the case that he was asserting his right to a speedy trial, he based that assertion on a specific number of days, which indicates a reference to the speedy trial statute rather than the constitutional right. Then, despite his early assertion, defendant later explicitly agreed to some continuances. After that, defendant and his counsel objected to any further delays. However, the proactive assertion that one objects to further delay is not the same as claiming that a right—either statutory or constitutional—has been violated.
(2) Defendant identifies no hearing during which evidence was presented on a claim that his constitutional right had been violated. Because no specific assertion was made of a constitutional violation, the district court, in turn, neither addressed the Barker factors nor made a fact determination as to whether those factors would weigh in favor of Gutierrez-Fuentes or the State. Because the defendant did not identify to thе trial court the days that lapsed between Gutierrez-Fuentes’ arrest and trial, the court did not make a finding as to whether that lapse was presumptively prejudicial. No evidence was presented concerning reasons for the delay. No evidence was presented on any prejudice to the defendant that may have resulted from the delay. Without a pretrial or posttrial motion to dismiss based on an alleged violation of his constitutional right to a speedy trial, the district court was not able to make the necessary factual findings and determination to resolve the issue. Our standard of review relies on the district court‘s factual findings, which we only review for substantial competent evidence. Owens, 310 Kan. at 868. Fact-finding is simply not the role of appellate courts. State v. Nelson, 291 Kan. 475, 488, 243 P.3d 343 (2010).
Considering all of this, we find that the record below does not support a claim that Gutierrez-Fuentes asserted a violation of his constitutional right to a speedy trial before the district court. Consequently, we find that this issue was not preserved. The panel below came to the same conclusion. Despite this finding, however, the panel continued, opting to consider the merits of Gutierrez-Fuentes’ constitutional speedy trial issue under one of our limited exceptions which allows review of an unpreserved issue.
“Generally, the court does not address even constitutional issues for the first time on appeal. Within its discretion, however, the appellate court may do so if the party trying to raise a new issue shows a recognized exception to the general rule. Those exceptions are:
‘(1) [T]he newly asserted claim involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) the claim‘s consideration is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the district court‘s judgment may be upheld on appeal despite its reliance on the wrong ground or reason for its decision.’ [Citations omitted.]” State v. Harris, 311 Kan. 371, 375, 461 P.3d 48 (2020).
The right to a speedy trial is a fundamental right. Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). It is under this exception that the panel reviewed the issue. However, before invoking one of the limited exceptions, an appellate court must also determine whether the unpreserved issue is amenable to resolution on appeal. State v. Allen, 314 Kan. 280, 281, 497 P.3d 566 (2021). Even then, the decision to review an unpreserved claim under an exception is a prudential one; the court necessarily exercises discretion. Despite an exception supporting review of a new claim, an appellate court has no obligation to do so. State v. Gray, 311 Kan. 164, 170, 459 P.3d 165 (2020). Since Gutierrez-Fuentes did not assert this constitutional theory before the trial court and the necessary factual findings were never made, we hold the panel abused that discretion because Gutierrez-Fuentes’ constitutional speedy trial claims require factual development out of our reach as an appellate court. We reverse the panel and decline to review Gutierrez-Fuentes’ unpreserved constitutional speedy trial claim.
SUFFICIENCY OF EVIDENCE ON AGGRAVATED BURGLARY
Next, Gutierrez-Fuentes argues there was insufficient evidence to support his aggravated burglary conviction because the State did not prove that he was legally unauthorized to be in the apartment.
Preservation
Sufficiency of the evidence issues are not constrained by a preservation requirement; “‘[t]here is no requirement that a criminal defendant challenge the sufficiency of the evidence before the trial court to preserve it for appeal.‘” State v. Chavez, 310 Kan. 421, 425, 447 P.3d 364 (2019).
Standard of review
When sufficiency of the evidence is challenged in criminal cases, the appellate court must review all the evidence in a light most favorable to the prosecution to determine if a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Frye, 294 Kan. 364, 375, 277 P.3d 1091 (2012).
Discussion
The State charged Gutierrez-Fuentes with aggravated burglary under
Gutierrez-Fuentes primarily relies on State v. Vasquez, 287 Kan. 40, 194 P.3d 563 (2008), to support his argument. In Vasquez, a husband successfully argued that there was insufficient evidence to support his aggravated burglary charge when he entered his marital home. The Vasquez court acknowledged that the victim wanted nothing to do with the defendant: she asked him to stay away, she moved some of his belongings out of the house, she was divorcing him, and she may have been planning to file a petition for a protection from abuse order. But there was no actual evidence that he was legally unauthorized to enter the marital home. Vasquez, 287 Kan. at 59-60.
Gutierrez-Fuentes argues that his case is like Vasquez. Even though the apartment was not a marital home, he and D.S. had been living together for around four months before she told him she was ending the relationship and wanted him to leave. He points out that the record does not, with specificity, demonstrate what kind of legal interest D.S. had in the apartment, such as a rental agreement or some other ownership interest that would allow her legally to exclude him.
The panel distinguished this case from Vasquez. Instead, it chose to apply this court‘s more recent holding in State v. Williams, 308 Kan. 1439, 430 P.3d 448 (2018). In Williams, this court acknowledged that a “close question exists” when the State does not present direct evidence about the defendant‘s and the victim‘s property interests in the residence where an aggravated burglary occurs, but that circumstantial evidence can sufficiently support a finding that someone lacks authority to enter a residence. 308 Kan. at 1446.
The Williams court explained how there was circumstantial evidence that the victim had to give permission for the defendant to enter and that the defendant recognized her right to exclude him. The victim had taken back the defendant‘s key, which suggests she had the right to give and revoke permission. The defendant also called the victim and talked about dropping by, which suggests he did not think he had a right to demand
The facts in Williams align closely with those in the present case. Not only did D.S. tell Gutierrez-Fuentes to move out, but Gutierrez-Fuentes’ actions in gathering his things and leaving indicate recognition that D.S. had the authority to make such a demand. This authority was reinforced when D.S. asked for Gutierrez-Fuentes’ key, and he told her that he had lost the key rather than telling her the key was his and she had no right to ask for it. More, Gutierrez-Fuentes’ act of knocking on the window and trying to persuade D.S. to allow him to enter was an implicit recognition that she had the authority to refuse his request. All of this is circumstantial evidence suggesting that D.S. did, in fact, have authority to revoke his access to the residence and that his forcible entry was without authority. Based on the evidence, and when viewed in a light most favorable to the State, a rational fact-finder could conclude beyond a reasonable doubt that Gutierrez-Fuentes entered the apartment without authority.
Gutierrez-Fuentes also asserts that he had authority to be in the apartment pursuant to
tenants; a relationship we cannot ascertain based on the lack of evidence in the record. Moreover, the same facts that constitute circumstantial evidence showing his absence of authority to be present in the apartment for purposes of the above discussion also provide circumstantial evidence to rebut the presumption he was ever a tenant at will. The actions of D.S. and Gutierrez-Fuentes indicate he understood he was a guest of D.S. and living there only with her permission and not because he was a tenant or co-tenant. Gutierrez-Fuentes cites no additional authority to support his position on this point. His argument fails.
INTERPRETER STATEMENTS AS HEARSAY
In his last issue for review, Gutierrez-Fuentes argues that the district court erroneously admitted testimony given by Officer Myers and forensic nurse Hеss about statements D.S. made to them through one or more unidentified interpreters while they were at the hospital. In addressing this issue of first impression, the panel interpreted the relevant hearsay statute to determine that there is a “language conduit” between the interpreter and D.S. so that statements of D.S. to Myers and Hess through the interpreter should be attributed as D.S.‘s direct statements without an additional layer of hearsay. Even if this is incorrect and the district court erroneously allowed inadmissible hearsay, the panel determined that any error was harmless.
Preservation
Gutierrez-Fuentes objected to the testimony of Myers and Hess about these statements on hearsay grounds and obtained a continuing objection. By doing so, he
preserved this issue for appellate review. See State v. Mattox, 305 Kan. 1015, 1035, 390 P.3d 514 (2017).
Standard of review
This court reviews a trial court‘s determination of hearsay admissibility for an abuse of discretion. Discretion may be abused if (1) no reasonable person would take the view adopted by the trial court; (2) the action is based on an error of law; or (3) the action is based on an error of fаct. State v. Hillard, 313 Kan. 830, 838, 491 P.3d 1223 (2021). To the extent this court must interpret
Discussion
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible . . . .”
“(a) Previous statements of persons present. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness.”
Gutierrez-Fuentes’ specific objections are over the testimony of both Myers and Hess about their conversations with D.S. at the hospital, as facilitated by an interpreter supplied by the hospital. He argues that it should be the interpreter testifying about the statements made by D.S. rather than the officer or nurse who could not understand D.S.‘s statements directly.
Gutierrez-Fuentes objects to testimony about D.S.‘s hospital statements on the grounds of hearsay. He claims that the interpretation given by the hospital interpreter provides an additional level of hearsay. Without the interpreter‘s testimony at trial, and without an exception to the hearsay rule, the statements made by D.S. in Spanish to the hospital interpreter cannot be admitted into evidence, even if D.S. is in court during trial to testify about them.
Recognizing the hearsay exception in
Ultimately, the panel sided with the district court and determined that the hospital statements were D.S.‘s statements, despite the use of the interpreter; they were not the statements of the interpreter. Therefore, there was no extra layer of hearsay, they fall under the existing hearsay exception, and the statements were admissible. Gutierrez-Fuentes argues that the panel amended the statute and added a new exception for “language conduit” witnesses, the creation оf which should fall only to the Legislature.
Because Kansas courts have not previously addressed this issue, both parties turn to outside jurisdictions to support their arguments.
Gutierrez-Fuentes relies on State v. Morales, 173 Wash. 2d 560, 573-74, 269 P.3d 263 (2012), where the Washington Supreme Court decided that the hearsay rule applied at least in certain situations involving an interpreter. In that case, the Morales court affirmed that the State had failed to prove the defendant had been read his rights; without the testimony of the interpreter, the State—through the testimony of an officer—could only show that the officer had asked the interpreter to read the required warning. He could not say that the interpreter did so. 173 Wash. at 573-74.
The State cites authority from the Georgia Court of Appeals which describes a “language conduit,” stating that “[u]nder the so-called ‘language conduit’ rule, ‘[a]bsent a motive to mislead, distort or some other indication of inaccuracy, when persons speaking different languages rely upon a[n interpreter] as a conduit for their communication, the
statements of the [interрreter] should be regarded as the statements of the persons themselves without creating an additional
The Lopez rationale fits within “[t]he basic premise of the language conduit theory . . . that an interpreter is a neutral party whose translation does not add or detract meaning from the speaker‘s words. The interpreter can be thought of ‘as a machine into which one language enters and another language exits.‘” Comment, Invisible Touch: Analyzing the Language Conduit Theory Through the Lens of Translation and Interpreting Principles, 88 UMKC L. Rev. 771, 777 (2020). In that sense, the interpreter is just a tool used to facilitate communication. Absent a showing of dysfunction, it is reliable.
The panel explicitly adopted the language conduit rule, holding that except in unusual circumstances, an interpreter is “‘no more than a language conduit and therefor [the] translation’ is viewed as the declarant‘s own.” 59 Kan. App. 2d at 84 (citing United States v. Cordero, 18 F.3d 1248, 1253 [5th Cir. 1994]. It applied various factors to the present case to determine that the record contained no evidence—or argument—of a motive by the interpreter to mislead Myers or Hess, and the statements interpreted were consistent with the testimony provided at trial. Therefore, the panel attributed the statements directly to D.S. without the additional layer of hearsay.
To assist in our analysis of the issue, it is helpful to consider the events as they occurred at the hospital, focusing on the D.S./Myers exchange, though the D.S./Hess exchange would have been essentially the same. Before any discussion began, an injured D.S., presumably knowing only Spanish, said nothing. At the same time, Myers,
presumably knowing only English, said nothing. Someone summoned an interpreter. That person arrived and spoke to Myers in English and spoke to D.S. in Spanish.
Myers asked a question in English and listened to the hospital interpreter speak Spanish to D.S. Without knowing Spanish, Myers had to assume the interpreter was conveying a reasonable facsimile of what he had just said in English. Myers then listened to D.S. reply in Spanish. Myers then listened in English to what the interpreter told him D.S. had just said. Meanwhile, D.S. did not understand what the interpreter and Myers were saying in English. And so on. The interpreter may have been completely accurate. However, neither Myers nor D.S. knew enough to correct or applaud the interpreter‘s efforts.
We do not know whether Myers’ assumption about the accuracy of the interpretation at the hospital was well-placed, and at trial Gutierrez-Fuentes had no way of testing its accuracy or reliability because the interpreter did not testify. The State asserts that the interpreter is just a tool, a conduit, unless there is some evidence of taint, such as a conflict of interest or insufficient understanding of the language. Our record is silent on those matters.
To demonstrate why the reliability of the hospital interpreter‘s separate statements may be important, one must have some understanding of how language works. Consider the “telephone game.” Three or more players form a circle. The game begins with one person whispering a detailed and specific message to the next person in the circle. The second person then whispers precisely the same message to the third person—and so on until you get to the last person, who announces the message out loud. The game is fun and interesting because the first person is often surprised by the message as relayed by
the last person. Almost always, the message has changed—sometimes slightly, sometimes dramatically—despite each player‘s best efforts to keep it the same. It is a game which reminds us that language is a complicated enterprise and communication is rarely perfect. Yet in the game, everyone is speaking the same language.
The State argues that the “conduit argument” is strengthened by the fact that both D.S. and Myers are testifying, so they can testify at trial to what they said in the hospital. But this begs the question. Memories fade, sometimes people are motivated to exaggerate, and it is possible the memories of both D.S. and Myers have adopted the message from the interpreter and not from each other. After all, neither of them knew what the other said in the hоspital. They simply
We are not persuaded by the conduit theory. Instead, we identify two persons making statements when an interpreter is utilized: the witness, who made out-of-court foreign language statements; and the language interpreter, who made out-of-cоurt foreign and English language statements. See United States v. Charles, 722 F.3d 1319, 1324 (11th Cir. 2013) (finding two sets of statements were made by two different declarants
when an out-of-court interpreter was used). The inherent differences in languages mean that interpreters do not always convey a “one-to-one correspondence between words or concepts in different languages,” the interpreter is a “declarant” of her out-of-court statements, and the defendant must have an opportunity to confront such a declarant about those statements if they are submitted for the truth of what was said. 722 F.3d at 1324-25. This is true even with an ethical, experienced, and well-intended interpreter.
The State concedes that D.S.‘s out-of-court statements were hearsay. Those hearsay statements, made in Spanish, would have been admissible at trial because D.S. was present and subject to cross-examination.
Because no valid exception to their inadmissibility was asserted, the interpreter‘s statements under these facts were inadmissible hearsay. Gutierrez-Fuentes was not required to trust the hospital interpreter‘s understanding of the source and target languages, the interpreter‘s motives, or the interpreter‘s reliability. His hearsay objection should have been sustained.
Harmlessness
Even though the district court improperly admitted hearsay evidence, the inquiry does not end. The error might be harmless. The erroneous admission is harmless if it does not implicate a defendant‘s constitutional rights and there is no reasonable probability the error affected the trial‘s outcome considering the entire record. State v. Chapman, 306 Kan. 266, 276, 392 P.3d 1285 (2017). Gutierrez-Fuentes has not argued that his constitutional rights have been implicated by the admissions.
The only argument made by Gutierrez-Fuentes about how this evidentiary error affected the trial‘s outcome is that the panеl failed to appreciate the “persuasive content of statements purported to be made closer in time to the alleged crime.” It is true that a jury might find more reliable what D.S. said at the hospital than what she said at trial, even if only because memory fades over time.
Considering the entire record, however, there is no reasonable probability this evidentiary error affected the trial‘s outcome. As the panel correctly notes, the challenged testimony was also admitted through unchallenged witnesses. Officer Peña spoke directly with D.S. at the hospital, without the use of an interpreter, and his testimony about her statements at the hospital is consistent with the testimony of Myers and Hess. Further, while the jury may have found what D.S. said at the hospital more reliable than what she said during trial—as argued by the defense—its relative value is offset by her lengthy testimony at trial about all the same facts relayed to the jury through Peña, Myers, and Hess.
We hold that the erroneous ruling on this hearsay objection was harmless.
* * *
LUCKERT, C.J., concurring: I write separately on one issue: Whether the district court judge erred in categorically admitting all testimony from Officer Dane Myers and forensic nurse Tracy Hess about statements a language interpreter made to them concerning things D.S. said while at the hospital for treatment. I join the majority on all other aspects of today‘s decision.
On the language interpreter issue, I agree with the majority‘s conclusions that (1) the district court erred in admitting the interpreter‘s statements and the Court of Appeals erred in affirming the admission of this testimony and (2) the erroneous admission of the testimony was harmless error. But my reasons for finding error differ from those of my colleagues.
I would hold that the State failed to preserve the argument it makes on appeal. It contends the statements of the interpreter are not hearsay under the language conduit theory applied by courts in some other states and adopted by the Court of Appeals panel in this case. See State v. Gutierrez-Fuentes, 59 Kan. App. 2d 70, 84, 477 P.3d 1041 (2020). The State asks us to adopt the theory as explained in Lopez v. State, 281 Ga. App. 623, 625, 636 S.E.2d 770 (2006). That decision‘s holding requires factual determinations about the interpreter‘s motive and about other issues that might impact the accuracy of the interpretation. But the State failed to establish a factual foundation to make those determinations. Plus, it failed in its appellate briefing to explain how the theory could apply given Kansas’ hearsay statute,
A brief recap of the evolution of the parties’ arguments explains why I reach these conclusions. At trial, Geldy Gutierrez-Fuentes’ attorney objected on hearsay grounds when Officer Myers began to testify about the statements D.S. made through an interpreter. Gutierrez-Fuentes’ attorney then argued the language interpreter should be testifying because the officer was “testifying to what another person is telling him about what a third person is saying. It‘s pure hearsay.” He reiterates that argument on appeal.
Gutierrez-Fuentes’ position finds broad support in cases decided before codes of evidence were adopted for use in federal and most state courts, including those in Kansas. Under those cases, “‘[a] person conversing with a third person through an interpreter is not qualified to testify to the other person‘s statements, because he knows them only through the hearsay of the interpreter. Ordinarily, therefore, the third person‘s words cannot be proved by anyone except the interpreter himself.‘” Saavedra v. State, 297 S.W.3d 342, 345 (Tex. Crim. App. 2009) (quoting 2 Wigmore on Evidence § 812[3] [2d ed. 1923]).
Kansas’ statutory definition of hearsay follows this common law view. Under Kansas’ code of evidence and its definition of hearsay, out-of-court statements made for the truth of the matter asserted are hearsay that arе excluded from evidence unless one of the statutory hearsay exceptions applies. These exceptions are set out in 31 provisions.
No one at trial explicitly discussed the implications of
The State argued that D.S. “can corroborate the correct translation, that‘s why it‘s the State‘s position that it goes to weight and credibility and not admissibility under hearsay because she will be present to corroborate the statements that were translated.” The State also tried to argue why the statements were reliable based on factors like who employed the interpreter. Gutierrez-Fuentes’ attorney objected, saying no evidence supported those contentions.
In ruling on the arguments, the district court judge explicitly found the interpreter‘s statements were hearsay and thus rejected the State‘s non-hearsay argument. But the judge implicitly accepted the State‘s contention that he could admit the statements because D.S. could corroborate the statements; the judge noted that D.S. would testify and could be cross-examined about the accuracy of the interpretation. Yet no one argued what hearsay exception this fell under. And Kansas has no general catchall exceptions for reliability of hearsay or for hearsay that others can corroborate. See
On appeal, the State makes a different argument. For the first time, it raises the language conduit theory to argue the language interpreter‘s statements are not hearsay. As I have discussed, that assertion ignores the statutory hearsay definition in
Without discussion of why the interpreter‘s statements do not meet the definition of hearsay in
The first reason arises because the Lopez holding requires the presence of certain factual predicates before the language conduit theory can be applied. Those predicаtes include establishing that the interpreter had no motive to mislead or distort and that nothing else suggests inaccuracy in the interpretation. 281 Ga. App. at 625. Finding motive (or the lack thereof) and judging circumstances that might impact the accuracy of an interpretation are inherently factual determinations. The State began to argue some indicia of reliability. But when Gutierrez-Fuentes’ attorney accurately argued no evidence supported the contentions, the State did not make another effort to lay a foundation. Nor did the State ask the district court judge to make any findings, and the judge made none.
When these factual predicates have not been established or found at the trial court level, appellate courts in other jurisdictions have refused to apply the theory for the first time on appeal. These courts recognize that the proponent of the theory, which in this case was the State, has the obligation to
Unlike these courts and Kansas’ general rule, the Court of Appeals panel scoured the record to see whether it revealed a motive for the interpreter to mislead or distort or any other indication of the interpretation‘s inaccuracy. Gutierrez-Fuentes, 59 Kan. App. 2d at 84-85. But appellate courts are not finders of fact and should not consider an issue raised for the first time on appeal if doing so requires making factual findings. When an appellate court engages in fact-finding, it abuses its discretion. See generally State v. Allen, 314 Kan. 280, 284, 497 P.3d 566 (2021) (“An appellate court abuses its discretion to take up a newly raised issue if deciding its merits would require the court to make factual findings such as credibility determinations, resolving evidentiary conflicts, and reweighing evidence. These are typically tasks an appellate court may not perform when the factual issues could have been fully litigated before the appeal.“).
Here, the State failed to preserve the issue it asserts on appeal and has thus established no basis for introducing the interpreter‘s statements. Given that, the Court of Appeals should not have considered application of the language conduit theоry nor should this court.
The second reason the appellate courts should not address the language conduit theory is that the State in its appellate brief made no effort to discuss the doctrinal underpinning of the Lopez holding. Yet the statutory structure of the hearsay rule on which its holding is based differs in an important respect—the definition of hearsay—from the definition in Kansas.
To explain, we must look beyond Lopez itself because it fails to explain its rationale. Instead, it merely quotes and adopts the holding of the Texas Court of Criminal Appeals in Cassidy, 149 S.W.3d at 715. Cassidy, also cited by the State, explains its holding rests on “‘the theory that the interpreter serves as an agent of, or a language conduit for, the declarant.‘” 149 S.W.3d at 715. Another Texas Court of Criminal Appeals decision—Saavedra, 297 S.W.3d at 344-49—provides a fuller explanation of the rationale and discusses the roots of the language conduit theory in common law and the way the theory fits with the Federal Rules of Evidence and Texas’ evidence rules, which follow the federal rules.
As the Texas court explained, the language conduit theory evolved from a common-law hеarsay rule that recognized interpreters often function as an agent of the declarant. Saavedra, 297 S.W.3d at 345 (quoting 2 Wigmore on Evidence § 812[4]). With the advent of the Federal Rules of Evidence, federal courts recognized the common law agent-interpreter theory could still be applied under Federal Rule of Evidence 801(d)(2)(C) and (D). Saavedra, 297 S.W.3d at 347. The Texas court cited a federal case decided soon after the rules were adopted—United States v. Da Silva, 725 F.2d 828 (2d Cir. 1983). The Da Silva court held that “‘[p]rovided the interpreter has a sufficient capacity, and there is no motive to misrepresent, the interpreter is treated as the agent of the party and the statement is admitted as an admission unless circumstances are present which would negate the presumption of agency.‘” 725 F.2d at 831-32 (quoting 4 J. Weinstein & M. Berger, Evidence ¶ 801(d)(2)(C)[01], at 801-158 n. 34 [1981], and citing 6 J. Wigmore,
Understanding that this interpreter-agency theory creates the rationale for the cases cited by the State leads to my conclusion that the State failed to adequately explain how the theory can be applied under Kansas law. That is because
Even so, the majority chooses to discuss whether
I also recognize that some courts have followed a different analytical path for applying the language conduit theory than the path followed in Cassidy and Lopez (see Saavedra, 297 S.W.3d at 347-49 [gathering cases]). But I would not analyze any other path than the Cassidy/Lopez one without allowing the parties to brief the alternative. See State v. Toothman, 310 Kan. 542, 547, 448 P.3d 1039 (2019) (“‘[W]hen “an appellate court raises a new issue sua sponte, counsel for all parties should be afforded a fair opportunity to brief the new issue and to present their positions to the appellate court before the issue is finally determined.“‘“).
BILES, J., joins the foregoing concurrence.