State v. Nguyen

185 P.3d 368

2008 NMCA 073

144 N.M. 197

STATE of New Mexico, Plaintiff-Appellee, v. An Xuan NGUYEN, Defendant-Appellant.

No. 27,032.

Court of Appeals of New Mexico.

February 21, 2008.

Certiorari Denied, No. 31,000, April 21, 2008.

Gary K. King, Attorney General, Santa Fe, NM, Max Shepherd, Assistant Attorney General, Albuquerque, NM, for Appellee.

Christin K. Kennedy, Albuquerque, NM, for Appellant.

OPINION

PICKARD, Judge.

{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 primary 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 interpret 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 and 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." Defense 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 interpreter 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 reflect any other requests, by Defendant or by defense counsel, for assistance from the interpreter.

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 understands"). 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, 35 Cal.3d 785, 200 Cal.Rptr. 908, 677 P.2d 1198, 1201 (1984) (in bank). The issue presented by this case is commonly referred to as "borrowing" the defendant's interpreter, see, e.g., id. 200 Cal.Rptr. 908, 677 P.2d at 1200; People v. Avila, 797 P.2d 804, 806 (Colo.Ct.App.1990), although we think that "sharing" an interpreter is a more accurate description of what happened.

{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 State v. DeGraff, 2006-NMSC-011, ¶ 6, 139 N.M. 211, 131 P.3d 61 (stating that questions of constitutional law are reviewed de novo). Defendant does not claim that the court below abused its discretion in not providing a personal interpreter under the facts of this case. See Avila, 797 P.2d at 806 (utilizing the abuse of discretion standard when an interpreter was "borrowed" to assist a witness); cf. United Props., Ltd. v. Walgreen Props., Inc., 2003-NMCA-140, ¶ 7, 134 N.M. 725, 82 P.3d 535 (drawing the distinction between the threshold issue of whether a court has discretion in a particular situation, which is reviewed de novo, and whether the exercise of that discretion is proper, which is reviewed for abuse).

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., 2007-NMCA-135, ¶ 18, 142 N.M. 705, 168 P.3d 1129 (quoting Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Structural error has been found only "in a very limited class of cases." Id. ¶ 19 (internal quotation marks and citation omitted). For example, structural error has been found where there is a total deprivation of the right to counsel or when a trial has been conducted before a judge who is not impartial. Id.

{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, 1997-NMSC-045, ¶ 41, 124 N.M. 55, 946 P.2d 1066. Defendant does not argue that this branch of the fundamental error doctrine is satisfied. Instead, he relies on the other branch, arguing that substantial justice is not done when a defendant is deprived of rights essential to his defense. See State v. Jett, 111 N.M. 309, 314, 805 P.2d 78, 83 (1991); State v. Hennessy, 114 N.M. 283, 287, 837 P.2d 1366, 1370 (Ct.App.1992) (recognizing two branches of fundamental error doctrine), overruled on other grounds by State v. Lucero, 116 N.M. 450, 453-54, 863 P.2d 1071, 1074-75 (1993). We hold that there is neither structural nor fundamental error.

{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 "throughout the proceedings." See Mata Aguilar, 200 Cal.Rptr. 908, 677 P.2d at 1202. However, the California Supreme Court later retreated from the rule that borrowing an interpreter is automatically reversible and adopted a harmless-error analysis, thereby requiring a defendant to show prejudice before reversal is warranted. See People v. Rodriguez, 42 Cal.3d 1005, 232 Cal.Rptr. 132, 728 P.2d 202, 207-08 (1986) (in bank) (finding no prejudice where there was no "indication of actual interruption of either defendant's communication or comprehension").

{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, 797 P.2d at 806 (finding that the defendant was not denied due process where his interpreter was borrowed to translate for one witness and the defendant did not show that he could not communicate with his attorney); People v. Tomas, 136 Ill.App.3d 1054, 91 Ill.Dec. 782, 484 N.E.2d 341, 343-44 (1985) (holding that where the shared interpreter was available to translate for the defendants and the testimony could be interrupted for any defendant to be able...