State v. Joseph

150 Conn.App. 867

93 A.3d 1174

STATE of Connecticut

v.Pierre L. JOSEPH.

No. 35312.

Appellate Court of Connecticut.

Argued April 7, 2014.

Decided June 17, 2014.

Annacarina Jacob, senior assistant public defender, for the appellant (defendant).

Katherine E. Donoghue, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Joseph J. Harry, senior assistant state's attorney, for the appellee (state).

GRUENDEL, BEACH and NORCOTT, Js.

NORCOTT, J.

The defendant, Pierre L. Joseph, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a–71 (a)(3).¹ The sole issue in this appeal is the defendant's claim that his rights under the fifth, sixth, and fourteenth amendments to the United States constitution to be present at trial, to confront his accusers, to counsel, and to a fair trial were violated because he did not receive the assistance of a Creole interpreter during critical stages of his trial. We disagree and, accordingly, we affirm the judgment of the trial court.

The specific factual allegations of the crimes for which the defendant was charged are not relevant to this appeal.

In this case, we must resolve the defendant's claim that certain of his constitutional rights were violated because he did not receive the assistance of a Creole interpreter during critical stages of the prosecution. Specifically, the defendant argues that once the court had notice that he was not a native speaker of English, it “had an obligation sua sponte to determine if the defendant understood the ... proceedings that had occurred up until that point without the assistance of a Creole interpreter.”

The defendant did not raise this claim before the trial court. He nonetheless argues that his unpreserved claim is reviewable under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989). “In Golding, our Supreme Court held that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail.” (Internal quotation marks omitted.) State v. Daniel G., 147 Conn.App. 523, 539, 84 A.3d 9, cert. denied, 311 Conn. 931, 87 A.3d 579 (2014).

The state does not dispute that the defendant's claim is of constitutional magnitude; it does, however, argue that the record is inadequate to review the defendant's claim. “[U]nless the defendant has satisfied the first Golding prong, that is, unless the defendant has demonstrated that the record is adequate for appellate review, the appellate tribunal will not consider the merits of the defendant's claim.” State v. Brunetti, 279 Conn. 39, 54, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S.Ct. 1328, 167 L.Ed.2d 85 (2007). “[I]n the absence of a sufficient record, there is no way to know whether a violation of constitutional magnitude in fact has occurred.... Thus, as [our Supreme Court] stated in Golding, we will not address an unpreserved constitutional claim ‘[i]f the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred....’ ” (Footnote omitted.) Id., at 55–56, 901 A.2d 1.

The state contends that “[t]he record is insufficient because it is devoid of any legitimate assertion or facts from which a reasonable inference can be drawn that the defendant did not understand the proceedings against him. At best, the record is unclear and ambiguous as to whether the defendant needed an interpreter in order to ... understand the proceedings.” We disagree. Rather, we conclude that the state's argument is “hoist [by its] own petard.” W. Shakespeare, Hamlet, act 3, sc. 4. The state first contends that the record is inadequate for us to reach the merits of the defendant's claim but it then proceeds to argue that “[t]he trial transcript, taken as a whole, shows that the defendant had a sufficient command of the English language and was able to understand the witnesses' testimony and communicate with defense counsel.” The flaw in this argument is that it conflates a question of reviewability with one of reversibility. We conclude that the voluminous trial transcript provides a sufficient record for our review.

Having determined that the record is adequate for review, we conclude that the first two prongs of Golding are satisfied and, therefore, we will proceed to review the defendant's claim. State v. Daniel G., supra, 147 Conn.App. at 540, 84 A.3d 9; see also State v. Lavigne, 307 Conn. 592, 599, 57 A.3d 332 (2012) (“[t]he first two [prongs of Golding ] involve a determination of whether the claim is reviewable; the second two ... involve a determination of whether the defendant may prevail” [internal quotation marks omitted] ). After reviewing the merits of the defendant's claim, we conclude that he cannot satisfy the third Golding prong.²

The resolution of this case is controlled by our Supreme Court's decision in State v. Munoz, 233 Conn. 106, 659 A.2d 683 (1995). In Munoz, that court held that, “under appropriate circumstances, a defendant's right to confrontation, his right to counsel and his right to be present at trial may be violated if he is not provided with a separate interpreter, who performs the functions of translating for him, into his language, the testimony of English speaking witnesses and interpreting between him and his English speaking counsel during the testimony of all witnesses, both English and nonEnglish speaking.... A critical factual underpinning of these constitutional requirements, however ... is that the defendant has so limited an understanding or ability to speak English that his ability to comprehend the proceedings and to communicate with his counsel is significantly impaired. Thus, the basic constitutional inquiry is whether any inadequacyin the interpretation made the trial fundamentally unfair.... [T]he failure to provide continuous, word-for-word translation will require a new trial only upon such a showing of fundamental unfairness.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., at 133–34, 659 A.2d 683. Applying Munoz in State v. Jeudis, 62 Conn.App. 787, 790, 772 A.2d 715, cert. denied, 256 Conn. 923, 774 A.2d 140 (2001), this court held that “[t]he constitutional standard [for determining whether a trial is fundamentally fair] is whether the defendant can understand the witnesses, communicate and otherwise comprehend the proceedings.”

In light of these precedents, we conclude that the defendant has failed to demonstrate that the constitutional violation alleged in this case clearly exists and clearly deprived him of a fair trial. The entirety of the trial transcript reveals that the defendant had a conversational command of the English language, was able to understand the testimony of the witnesses, and could communicate with his counsel. In the defendant's eight previous court appearances, he neither asked for an interpreter nor indicated that he had difficulty understanding the proceedings. Furthermore, during his arraignment, the defendant had communicated orally with the court only in English.³

The defendant, through his counsel, did not request an interpreter until the defendant already had taken the stand on direct examination. After requesting an interpreter for the defendant's direct and cross-examinations, his counsel stated (outside the presence of the jury) that he was requesting an interpreter because of the importance of the defendant's trial testimony before the jury. ⁴ The defendant's counsel further explained that the defendant spoke English, that he had communicated with the defendant in English throughout the representation, and that the defendant understood their conversations. ⁵ On direct examination, the defendant testified that he and his attorney had discussions in English and that he understood those discussions.⁶ Perhaps most significant to us is the fact that the defendant was never—not once—denied the assistance of an interpreter. Indeed, once requested, the interpreter was allowed and was excused only at the conclusion of the defendant's testimony after his counsel indicated that the defendant no longer required the interpreter's services.⁷

All of this satisfies us that despite English not being the defendant's native tongue, he was able to “understand the witnesses, communicate and otherwise comprehend the proceedings”; State v. Jeudis, supra, 62 Conn.App. at 790, 772 A.2d 715; such that his trial was not fundamentally unfair. State v. Munoz, supra, 233 Conn. at 134, 659 A.2d 683. The fact that at one critical juncture in his trial his counsel requested that the defendant be provided with an interpreter—which he was—does nothing to vitiate this conclusion.⁸ We therefore conclude that the defendant's claim must fail because he has not demonstrated that the constitutional violation alleged in this case clearly exists and clearly deprived him of a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

1. In addition to the charge of sexual assault in the second degree, the defendant was charged with criminal trespass in the third degree in violation of General Statutes § 53a–109 (a)(1). The jury found him not guilty of that charge.

2. Because we conclude that the defendant's claim fails to satisfy the third prong of Golding, we need not address harmless error. See State v. Fabricatore, 281 Conn....