In re Pheth

502 P.3d 920

In the MATTER OF the Personal Restraint of Hach PHETH, Petitioner.

No. 81600-4-I

Court of Appeals of Washington, Division 1.

FILED December 6, 2021

Ordered Published Date January 19, 2022

Nielsen Koch PLLC, Attorney at Law, Christopher Gibson, Nielsen Koch PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, for Petitioner.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Gavriel Gershon Jacobs, Attorney at Law, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Verellen, J.

¶1 In this personal restraint petition, Hach Pheth contends his right to appeal on an adequate record, as well as his rights to equal protection, due process, and effective assistance of counsel require the court to make an audible audio recording during trial including all statements made to and from interpreters. But the English interpretation is the official trial court record, and no courts have routinely required such an audible audio recording of all statements made to and from interpreters.

¶2 Pheth also contends that his counsel was ineffective for failing to disclose to the court his alleged inability to understand the interpreters. Because Pheth bases his argument on his own self-serving affidavit and did not obtain his counsel's version of events, the record is inadequate to establish that his counsel's performance was deficient or that it prejudiced his case.

¶3 Additionally, Pheth argues that the prosecutor committed misconduct by eliciting a response during direct examination that violated an order in limine. But Pheth fails to establish that the prosecutor intentionally elicited that information. And because the court instructed the jury to disregard the witness's statement, Pheth does not establish how the prosecutor's conduct prejudiced his case.

¶4 Pheth further claims that he filed a motion for a postconviction DNA¹ test in accordance with state and local court rules, but that the superior court clerk failed to docket his motion for a hearing. And in its supplemental brief the State took no position on this issue. We conclude a reference hearing is warranted to determine whether Pheth complied with the procedural requirements to obtain a hearing on his motion for a postconviction DNA test.

¶5 Otherwise, we deny his petition.

FACTS

¶6 In 2015, Hach Pheth and K.C., both native Cambodian speakers, began a romantic relationship. A year later, Pheth was charged with various counts of assaulting, kidnapping, and raping K.C., all domestic violence offenses, for his conduct during their "on-and-off" romantic relationship.²

¶7 At the beginning of the court proceedings, the court approved various interpreters for Pheth and K.C. The court engaged in a colloquy with Sarith Tim, a Washington state certified Cambodian interpreter, and Pheth. Pheth acknowledged that he could both understand and communicate with Tim. The court also engaged in a colloquy with Vizochanea Morton, another Washington state certified Cambodian interpreter, and Pheth. Again, Pheth acknowledged that he could both understand and communicate with Morton.

¶8 During motions in limine, Pheth's counsel moved to "exclude mention of Mr. Pheth having been evicted from one of the addresses."³ The prosecutor did not object, and the court granted the motion.

¶9 At trial, Keo Chetra, a California state certified Cambodian interpreter, interpreted for K.C. During direct examination, the prosecutor asked K.C. why Pheth moved into her home. K.C. responded, "Because at the place where he was renting, they did not want him to live there anymore."⁴ Pheth's counsel objected based upon the order in limine. The court sustained the objection and instructed the jury to "disregard the reason why [Pheth] moved."⁵

¶10 Sometime during K.C.’s testimony Pheth's counsel requested a recess. During the recess, Chetra disclosed to the prosecutor, Pheth's counsel, and the court that she had mistakenly interpreted the word "confused" as "unconscious."⁶ As a result, in the presence of the jury, the court informed the jury of the question the prosecutor asked K.C., K.C.’s response as Chetra originally interpreted it, and Chetra's correction conveying K.C.’s actual response.

¶11 On August 23, 2017, the jury found Pheth guilty of second degree assault and first degree rape with domestic violence findings on both crimes. That October, at sentencing, Pheth exercised his right to allocution and Tim interpreted. The court sentenced Pheth to the high end of the standard range.

¶12 Pheth filed a motion for a postconviction DNA test twice with the superior court clerk. The superior court clerk sent a letter to Pheth each time declining to docket the motion for Pheth's failure to serve the judge with a copy of the motion. Pheth responded that he properly served the judge.

¶13 This court affirmed Pheth's convictions on direct appeal. Pheth filed this personal restraint petition.

ANALYSIS

¶14 The primary issue in this personal restraint petition revolves around Pheth's claims that the interpreters at trial were "incompetent" and "hostile" toward him, which resulted in inaccuracies that impaired his ability to understand the court proceedings, to assist his counsel, and ultimately to receive a fair trial.⁷

¶15 "To obtain relief on collateral review based on a constitutional error, the petitioner must demonstrate by a preponderance of the evidence that he was actually and substantially prejudiced by the error."⁸ But "[b]are allegations unsupported by citation of authority, references to the record, or persuasive reasoning cannot sustain this burden [of] proof."⁹

I. Interpretation

¶16 Pheth urges this court to broadly "conclude that when language interpreters are necessary to conduct a criminal trial, the accused has a due process right to an adequate record of the interpretation conducted at trial and sentencing so that it can be evaluated for accuracy and significant errors."¹⁰

¶17 The precise issue being raised here is whether equal protection, due process, effective assistance of counsel, and the right to appeal required the court to make an audible audio recording during trial of all statements made to and from the interpreters in English and Cambodian, so that any erroneous interpretation could be documented. "We review constitutional issues de novo."¹¹

¶18 In Washington "the right of a defendant in a criminal case to have an interpreter is based upon the Sixth Amendment constitutional right to confront witnesses and ‘the right inherent in a fair trial to be present at one's own trial.’ "¹² A criminal defendant has a constitutional right to a "competent" interpreter.¹³ And the standard for competence " ‘should relate to whether the rights of non-English speakers are protected, rather than whether the interpreting is or is not egregiously poor.’ "¹⁴ As " ‘long as the defendant's ability to understand the proceedings and communicate with counsel is unimpaired, the appropriate use of interpreters in the court room is a matter within the discretion of the [trial] court.’ "¹⁵

¶19 In support of his argument, Pheth provides citations to cases addressing the inadequacy of reconstructed records.¹⁶ But this is not a question of a reconstructed record. Rather, the issue Pheth raises depends on information that was not part of the record on his direct appeal.¹⁷ Pheth has the burden of establishing a record to support his claims of error and prejudice.¹⁸ He contends that without the audible audio recording of every statement to and from his interpreters in English and Cambodian, he is precluded from meeting his burden.

¶20 Here, the law and the facts are especially unfavorable to his theory. The English interpretation is the trial court record.¹⁹ No statutes or case law support his view that an audible audio recording of court proceedings including all statements made to and from interpreters in English and Cambodian is routinely required.

¶21 At trial, the court appointed two interpreters, Tim and Morton, to assist Pheth in understanding the proceedings. First the court engaged in a colloquy with Tim, a state certified Cambodian interpreter, and Pheth to ensure that Pheth could understand and communicate with him. The court also engaged in a colloquy with Morton, another state certified Cambodian interpreter, and Pheth to ensure that Pheth could understand and communicate with him. Pheth confirmed to the court that he could understand and communicate with both Tim and Morton. During these colloquies, the court also told Pheth "that if there's any point in the proceedings where you are concerned that you are not understanding an interpreter that you let your lawyer know so that she can notify the court."²⁰ Pheth responded, "Yes, Your Honor."²¹ Pheth never expressed to the court an inability to understand or communicate with Tim or Morton.

¶22 In making his arguments, Pheth cites to various articles advocating for a complete audible audio recording of court proceedings including all statements made to and from interpreters, but no courts have routinely required such a recording. His remaining arguments are not persuasive.

¶23 First, Pheth contends that Tim and Morton were "hostile" toward him given the nature of his charges and "habitually spoke simultaneously, often interrupting each other and rendering large portions of testimony totally indecipherable."²² But the substance of the interpreters’ statements is not necessarily needed for the court to visually discern if Tim and Morton were speaking at the same time.²³ And the only citation to the record Pheth provides in support of this claim is his own self-serving affidavit.²⁴ Pheth's "bare allegations" are insufficient to establish that he was "actually" and "substantially" prejudiced by his recollection of the interpretation at trial.²⁵

¶24 Second, Pheth argues that at sentencing his allocution to the court was misinterpreted. The record provides that Pheth stated: "I...