862 N.W.2d 657 (Mich.App. 2014), 316744, People v. Gonzalez-Raymundo

Docket Nº:316744, 319718
Citation:862 N.W.2d 657, 308 Mich.App. 175
Opinion Judge:Boonstra, P.J.
Party Name:PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ELIAS GONZALEZ-RAYMUNDO, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. ELIAS GONZALEZ-RAYMUNDO, Defendant-Appellee
Attorney:For PEOPLE OF MI, PLAINTIFF-APPELLEE: WAYNE COUNTY PROSECUTOR, DETROIT, MI. For ONZALEZ-RAYMUNDO ELIAS, DEFENDANT-APPELLANT: CZARNECKI JAMES II, MT CLEMENS, MI.
Judge Panel:Before: BOONSTRA, P.J., and MARKEY and K. F. KELLY, JJ.
Case Date:November 18, 2014
Court:Court of Appeals of Michigan
 
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Page 657

862 N.W.2d 657 (Mich.App. 2014)

308 Mich.App. 175

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v.

ELIAS GONZALEZ-RAYMUNDO, Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,

v.

ELIAS GONZALEZ-RAYMUNDO, Defendant-Appellee

Nos. 316744, 319718

Court of Appeals of Michigan

November 18, 2014

Page 658

Wayne Circuit Court. LC No. 12-009127-FH. Wayne Circuit Court. LC No. 12-009127-FH.

For PEOPLE OF MI, PLAINTIFF-APPELLEE: WAYNE COUNTY PROSECUTOR, DETROIT, MI.

For ONZALEZ-RAYMUNDO ELIAS, DEFENDANT-APPELLANT: CZARNECKI JAMES II, MT CLEMENS, MI.

Before: BOONSTRA, P.J., and MARKEY and K. F. KELLY, JJ.

OPINION

Page 659

[308 Mich.App. 176] Boonstra, P.J.

Defendant was convicted, following a jury trial, of four counts of third-degree criminal sexual conduct, MCL 750.520d(1)(a) (victim at least 13 years of age but less than 16 years of age).1 Defendant was sentenced to 5 to 15 years' imprisonment for each conviction. In Docket No. 316744, defendant appeals as of right, arguing that (1) his defense counsel was [308 Mich.App. 177] ineffective for failing to use an interpreter at trial and for failing to properly investigate the case, and (2) the trial court violated his constitutional right to due process by failing to provide him with an interpreter. After filing his claim of appeal, defendant moved this Court to remand the case to the trial court for a Ginther 2 hearing on his claim of ineffective assistance of counsel. This Court granted defendant's motion to remand on September 5, 2013.3 After the Ginther hearing, the trial court granted defendant's motion for new trial on the grounds that it had erred by accepting defense counsel's waiver of defendant's right to an interpreter and that its failure to provide an interpreter violated defendant's constitutional rights. In Docket No. 319718, the prosecutor appeals by delayed leave granted4 the trial court's grant of defendant's motion for new trial. The two cases were consolidated by this Court on February 19, 2014.5 For the reasons specified below, we affirm the trial court's order granting defendant a new trial in Docket No. 319718, and dismiss as moot defendant's appeal in Docket No. 316744.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case arises out of a series of alleged sexual encounters between defendant and his stepnephew, IR, in Lincoln Park, Michigan. IR was born on September 11, 1997, and was approximately seven or eight years old when he first met defendant. Defendant lived in a house directly across the street from the Lincoln [308 Mich.App. 178] Park home of IR's stepfather, Jose Gonzalez, and mother, Rosalba Llamas, where IR also lived.

IR testified that defendant is his stepuncle. When IR was 10 or 11 years old, numerous members of defendant's family came to town for Christmas and stayed at defendant's home. To accommodate the number of visitors, some people from defendant's home, including defendant, stayed with IR's family in the home where IR, Llamas, and Gonzalez lived. IR testified that, at Llamas' instruction, he and defendant slept in the same room, and the same bed, during the Christmas holiday season.6 Gonzalez disagreed with IR's testimony, claiming that no two men had to sleep together during this Christmas holiday

Page 660

and that he did not recall any instance in which defendant and IR had to share a bed. According to IR, he and defendant woke up early in the morning because IR had accidentally touched defendant's penis, which was erect at the time, in his sleep. IR claimed that he and defendant both " felt something," and defendant asked IR if he would give him " head," meaning oral sex. IR agreed and performed oral sex on defendant. This encounter was the culmination of a " crush" that IR had developed for defendant over the years prior.

Frequently, defendant would cross the street to use the Internet at IR's house, because defendant's home did not have wireless Internet access. IR testified that on one of these occasions, shortly after the first sexual encounter, he was lying on a couch on the main floor of the house, watching cartoons. IR was " acting asleep," but then began to signal to defendant, by poking or touching him, that he wanted to engage in sex. Once [308 Mich.App. 179] defendant accepted his " signals," the two went into a bathroom located in the basement of the home. IR testified that he again performed oral sex on defendant, and that after this second act of oral sex, defendant told him that their sexual activity had to stay secret. IR agreed not to tell anyone.

A few months later, in May, IR saw defendant getting ready for a soccer game that he was going to play at a nearby park. IR testified that he was " tired of being in [his] house," so he asked Llamas if he could go to the park with defendant. Llamas told him it was fine as long as defendant did not mind. IR went across the street to defendant's house to ask if he could accompany him to the park. When IR entered defendant's bedroom, defendant was lying in bed. IR testified that he and defendant began engaging in their " usual ritual," in which IR would perform oral sex on defendant, and that the encounter ended in anal sex, with defendant's penis penetrating IR's anus. IR was not yet 13 years old. IR testified that, after these initial encounters, the two would sporadically engage in either oral sex or anal sex, generally every few weeks or so.

IR turned 13 years old shortly before he began eighth grade. He testified that he remembered sneaking out of his parents' house late at night on a school night, sometime in the winter after he had turned 13. On that night, IR waited approximately 30 minutes after he heard the television turn off in his parents' bedroom, put on some pants, and then snuck downstairs, being extremely quiet because his mother was a very light sleeper. Using his mother's cell phone, IR sent defendant a text message stating that he was in the mood to have sex and asking whether defendant wanted him to come over. Defendant responded that he did want IR to come over. IR then deleted the text messages from his [308 Mich.App. 180] mother's cell phone. IR walked across the street and let himself into defendant's home, where the two engaged in both oral and anal sex.

IR testified that, between the ages of 13 and 14, he snuck out of his parents' house on numerous occasions to engage in oral and anal sex with defendant. On some nights, IR would watch defendant's home, and if defendant flicked his bedroom light on and off, IR knew that to mean that defendant was interested in having sex that night. IR testified that the last time he and defendant engaged in sexual relations was in January of 2012. Overall, IR estimated the two had engaged in oral sex approximately 30 times and anal sex approximately five times.

IR testified that he never told any of the adults in his family about his relationship with defendant, but that his mother and some other family members had " suspicions." For example, when the family would have large barbeques, IR and defendant

Page 661

would act strangely toward each other, and IR believed other people could tell that something sexual was occurring. In the middle of February of 2012, IR's biological father, David Rivera, discovered the relationship between defendant and IR. It was a Sunday afternoon and IR was asleep when he awoke to hear Rivera yelling, telling Llamas that someone " was gonna die, that he was really gonna pay for what he did." He had discovered IR's iPod, on which IR had sent a message to a friend regarding his sexual relationship with defendant. Rivera then walked to IR's room and asked him if defendant had ever touched IR in an inappropriate way or if they had ever had sex. IR was unable to answer and hung his head low, and Rivera " just knew" at that point. Rivera, who was employed as a firefighter, threw his firefighter's axe into his car, but never actually attacked defendant.

[308 Mich.App. 181] Before his father discovered the relationship, IR had already told his brother and two friends about it. After Rivera found out about the relationship, he required IR to report the sexual acts to the Lincoln Park police, even though IR did not want to press charges against defendant. IR also participated in " Kids-Talk," 7 to explain what had happened with defendant. He also went to a doctor to be examined for evidence of sexual activity, but no such evidence was found. IR testified that after he reported the incident and spoke to " Kids-Talk," his mother, Llamas, called him a liar and did not believe the things he claimed regarding his relationship with defendant.

On March 28, 2013, the parties appeared before the trial court for an evidentiary hearing regarding text messages found on IR's iPod. An interpreter was provided for defendant at this hearing.8 At the conclusion of the hearing, the trial court ruled that all the text messages found on IR's iPod, apart from those that mentioned defendant, were protected by the rape shield law, MCL 750.520j, and were therefore inadmissible.

The parties appeared for trial on April 1, 2013. Before voir dire, the following colloquy occurred:

Defense Counsel : Final matter of housekeeping, Your Honor, is as a Hispanic I know that sometimes folks can take offense to people speaking Spanish rather than English.

[308 Mich.App. 182] And I want to avoid the chance of any prejudice, so we'd like to preserve the right to waive the interpreter during the course of the proceedings and explain things to the defendant on break. And you can hear straight from the defendant's mouth if you like, Your Honor, that this is indeed our wish. We will accept any prejudice that might be done for his minimal lack of understanding during the course of the proceedings in order, in exchange for the safeguard against any potential prejudice amongst jury members or folks...

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