Cadet v. State, 4D00-3563.

• Decision Date: 06 February 2002
• Docket Number: No. 4D00-3563.,4D00-3563.
• Citation: 809 So.2d 43
• Parties: Ernest CADET, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

809 So.2d 43

Ernest CADET, Appellant, v. STATE of Florida, Appellee.

No. 4D00-3563.

District Court of Appeal of Florida, Fourth District.

February 6, 2002.

Michael S. Goodman, Miami, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Maria J. Patullo, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING

STEVENSON, J.

We deny the motion for rehearing, but withdraw the previous opinion and substitute the following in its place.

The appellant, Ernest Cadet, was tried by jury and convicted of capital sexual battery and battery. The victim of his crimes was V.G., the five-year-old daughter of a friend. On appeal, Cadet seeks to reverse his convictions on the grounds that (1) the trial court failed to ensure that the interpreter remained in the courtroom throughout the trial and (2) the trial court abused its discretion in allowing the victim's sister to testify that the defendant had made lewd sexual advances toward her as well. We affirm on both points.

The Translator's Absence from Trial

Cadet, who is originally from Haiti, first complains that he was entitled to have a Creole translator present throughout the lower court proceedings and that the translator's absence entitles him to reversal and a new trial. At the beginning of the proceedings and before defense counsel arrived in court, the following discussion took place:

Court: Mr. Cadet, do we need an interpreter or anything for him?

Bailiff: Got one right here.

Court: Very good. We appreciate you being here. He needs limited assistance. The work for you may be somewhat lighter, I hope. All we need now is to have Mr. Garcia [defense counsel] join us.

After a short break, defense counsel arrived and the trial proceeded. The interpreter apparently left during the break and defense counsel raised no issues to the trial judge concerning Cadet's need for an interpreter.

Later, during the sentencing hearing, the following exchange took place:

Court: Are we ready for sentencing?

D Cnsl: Yes.

Court: And do we need an interpreter?

D Cnsl: Your Honor, there is an interpreter but Earnest [Cadet] speaks English. Come on up, Earnest.

Court: Okay.

Then, when the judge gave Cadet the opportunity to address the court, the following transpired:

Court: All right, Mr. Cadet, having been adjudicated guilty, there is an interpreter present, if you desire him, but on your lawyer's representation that you are comfortable in English, we will proceed....

Using the interpreter, Cadet responded:

The reason why I need an interpreter because that when I went to the judgment, I know that I am innocent and I didn't know what was going on and they told me that I was not guilty and I know that I was not guilty, although the lawyer told me, I didn't, I didn't know what was going on and that they found me guilty and I didn't understand what was going on. That's why I have never spoken to him.

Defense counsel then chimed in, stating:

We need to stop right now. I think we need to continue this sentencing here and order transcripts of what initially took place in regards to whether or not Mr. Cadet wanted a translator because this is just absurd that he is now accusing me, at this present time, that he had absolutely no idea what was going on.

The trial judge reset the sentencing hearing.

When the court reconvened about a month later, defense counsel admitted that he had been unable to find transcripts reflecting that Cadet had expressly waived his right to an interpreter:

[T]here was never a dissertation between the Court, myself and Mr. Cadet in regard to his command of the English language; however, there are numerous letters in the file which are written in English, written in very good English and his stance and the reason as to why he should be given a new trial.

Defense counsel went on to state that Cadet was having difficulty understanding the Williams rule issues that had arisen during trial, but defense counsel did not attribute that to "his lack of knowledge of the English language." Later, during the sentencing hearing, defense counsel told the trial judge that he had numerous meetings with Cadet and never had any problems communicating with him. Thereafter, the judge imposed sentence.

The right of a defendant to have the assistance of an interpreter at trial was recently addressed in Tehrani v. State, 764 So.2d 895, 898 (Fla. 5th DCA 2000), review denied, 789 So.2d 349 (Fla.2001):

A non-English speaking defendant has the right to an interpreter, a right grounded on due process and confrontation considerations of the Constitution. Suarez v. State, 481 So.2d 1201 (Fla. 1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2908, 90 L.Ed.2d 994 (1986). The right is not necessarily waived by the failure to assert it, since a defendant's inability to understand the language may be the cause of the failure to assert his rights. State v. Neave, 117 Wis.2d 359, 344 N.W.2d 181 (1984), approved in Suarez, 481 So.2d at 1204

. Once the trial court is aware that an accused has difficulty with the English language, the court should determine whether a defendant understands English sufficiently to aid in his defense, much as the court has a duty to determine whether a defendant is mentally competent. 344 N.W.2d at 188.

The State argues that Cadet, through defense counsel, waived the right to an interpreter. Although the right to an interpreter may be waived, see Monte v. State, 443 So.2d 339, 342 (Fla. 2d DCA 1983),

we cannot find an express waiver on this record. Indeed, Suarez approvingly cited Neave for the proposition that the "right to [an] interpreter [is] waivable only by defendant personally, and not by defendant's attorney." Suarez, 481 So.2d at 1204. Nevertheless, we affirm since the record is clear that at the beginning of the proceedings here, the trial judge made the interpreter available to Cadet. Because it was readily apparent that Cadet had at least some command of the English language, the court was under no obligation to constantly monitor the use which Cadet and his counsel made of the interpreter. As for the apparent disagreement between Cadet and defense counsel on the issue of the use of or need for the interpreter, as in Tehrani, where counsel consistently failed to assert the defendant's right to an interpreter, we believe that "[t]his is an issue more appropriately addressed in a postconviction proceeding." 764 So.2d at 896.

Collateral crimes evidence

Next, Cadet challenges the trial court's evidentiary ruling permitting the victim's sister, A.G., to testify about sexual advances that Cadet made toward her. The trial court's ruling on the admissibility of this collateral crime evidence is reviewed for an abuse of discretion. See Reed v. State, 783 So.2d 1192, 1195 (Fla. 1st DCA 2001)

. Generally, the rules controlling the admissibility of collateral crimes evidence in criminal cases are found in the Florida Evidence Code, Florida Statutes Chapter 90.¹ In a trilogy of cases, the Florida Supreme Court adopted special rules and standards for the introduction of collateral crimes evidence in cases involving the sexual abuse of a child. See Heuring v. State, 513 So.2d 122 (Fla. 1987); State v. Rawls, 649 So.2d 1350 (Fla. 1994); Saffor v. State, 660 So.2d 668 (Fla. 1995). The court explained in Saffor, the most recent of these cases, that as the law has evolved in child sex abuse cases, similar fact evidence is admissible to corroborate the victim's testimony if the collateral offense and the charged offense are "strikingly similar" and "share some unique characteristic or combination of characteristics which sets them apart from other offenses." 660 So.2d at 671. When the defendant and the victim of both the charged offense and the collateral offense stand in a familial relationship, while there still must be an additional showing of similarity,

the strict similarity in the nature of the offenses and the circumstances surrounding their commission which would be required in cases occurring outside the familial context is relaxed by virtue of the evidence proving that both crimes were committed in the familial context.

Id. at 672.

The State asserts on appeal that the defendant and these victims stood in a familial relationship, pointing to the longtime friendship between...