Gado v. State
| Decision Date | 24 March 2008 |
| Docket Number | No. 49A02-0706-CR-535.,49A02-0706-CR-535. |
| Parties | Nassirou GADO, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Ellen M. O'Connor, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Joby D. Jerrells, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Nassirou Gado appeals his convictions for Class A felony attempted murder Class A felony robbery, and Class B felony criminal confinement. We affirm.
The issues before us are:
I. whether the trial court properly conducted Gado's trial without providing an interpreter for his native language, Djerma; and
II. whether the trial court properly admitted evidence found during the search of a room Gado had been occupying.
The evidence most favorable to the convictions is that Gado frequently visited a grocery store called Mi Familia in Indianapolis. Maria Espinoza was an employee there. On October 8, 2005, Gado entered Mi Familia as usual and after some time used the restroom. Gado told Espinoza that there was something wrong with the restroom. Espinoza went to check the restroom, saw that the toilet was leaking, and fixed it. As she left the restroom, Gado threw her back into it and began hitting her. Gado bound Espinoza's hands and feet and continued hitting her about the head. He put a plastic bag over Espinoza's head and began hitting her in the head with the toilet tank lid. He barred the door to the restroom with a display case. Espinoza eventually was able to free herself from the restroom. When she did so, she saw Gado heading toward the restroom carrying garbage bags and a circular saw. Espinoza managed to escape from Mi Familia and run to a nearby liquor store, where police were called. Gado had taken $400 and a gold bracelet from Espinoza.
Police located Gado at a nearby apartment complex. He had been staying in an apartment with Rosalind Felemban and her two sons. Felemban had allowed Gado to stay rent-free because he had told her he was homeless. Gado had been sleeping in a bedroom that one of Felemban's sons had been using. The son's toys were in the room and he frequently went in and out of the room to retrieve toys; there was no lock on the door. Felemban gave consent to police to search the entire apartment, including the room in which Gado had been sleeping. In that room, police found a purse, a cell phone, a wallet, identification papers for Gado, and a bloody t-shirt. On October 12, 2005, the State charged Gado with Class A felony attempted murder, Class A felony robbery, Class B felony criminal confinement, and Class B felony aggravated battery; the State later dismissed the battery charge.
Gado is a native of Niger, Africa. He speaks Djerma, a dialect spoken in Niger. Niger's official language is French. Gado's original trial was scheduled to begin on December 4, 2006. Gado requested the services of a Djerma interpreter for trial. The trial court was unable to procure a certified Djerma interpreter for this trial, but did find two uncertified Djerma speakers who were willing to offer their translation services. However, on December 5, 2006, these persons told the trial court that they had received phone calls threatening "certain repercussions" if they continued translating. Tr. p. 619. The trial court clearly suspected Gado of precipitating these calls. In response to this situation, the trial court declared a mistrial.
On March 28, 2007, the trial court held a hearing at which it noted that it had arranged for the services of a Djerma interpreter through the International Bureau of Translations, but that person had unexpectedly withdrawn their services. It also noted that it had contacted the Niger Embassy in Washington, D.C., but the embassy was unable to assist in finding a Djerma interpreter. The trial court then conducted a hearing on the extent of Gado's understanding of English. The court recollected that it had conversed with Gado in English in earlier proceedings, or that he had participated in proceedings with the assistance of a French interpreter. Additionally, the State presented the testimony of Felemban, who indicated that she had had numerous, detailed conversations with Gado in English during the three weeks he had stayed at her apartment. It was her understanding that Gado also spoke French. The State also presented evidence that after being arrested, Gado had called Felemban a "sell-out Nigger." Id. at 462. At the conclusion of the hearing the trial court stated, "we are either going to proceed with this trial in all English with no interpreter or I will allow the Defendant to have the French interpreter, if that's what he wishes to have." Id. at 471-72.
Gado's second trial began on May 14, 2007. At the beginning of trial, the trial court swore in a certified French interpreter for Gado to use as he wished. Gado objected to this procedure and continued to insist that only a Djerma interpreter would be acceptable; Gado himself refused to communicate with the French interpreter. The trial court overruled the objection and proceeded to trial. Gado frequently was disruptive during trial, apparently often making verbal outbursts in Djerma, and eventually was removed from the courtroom for the duration of the trial. The trial court also admitted evidence seized from the bedroom in Felemban's apartment over Gado's objection. On May 15, 2007, the jury convicted Gado as charged. He now appeals.
Gado first challenges the trial court's decision to proceed with his trial without securing a Djerma interpreter to assist him. Our supreme court recently noted that there are two distinct types of interpreters for criminal proceedings: "defense interpreters" and "proceedings interpreters." See Arrieta v. State, 878 N.E.2d 1238, 1242 (Ind.2008). Defense interpreters are for the benefit of non-English speaking defendants; they simultaneously translate English proceedings and assist with attorney-client communications. Id. "Proceedings interpreters serve the court by translating the speech of participants at various junctures." Id. A defense interpreter, which is what Gado requested here, is "`necessary to implement fundamental notions of due process such as the right to be present at trial, the right to confront one's accusers, and the right to counsel.'" Id. (quoting Martinez Chavez v. State, 534 N.E.2d 731, 737 (Ind.1989)). An indigent non-English speaking defendant is entitled to an interpreter at public expense. Id. at 1244.
The Arrieta court approved of this court's analysis in Nur v. State, 869 N.E.2d 472 (Ind.Ct.App.2007), trans. denied, of how trial courts should assess the need for an interpreter. Id. at 1243. A trial court's decision whether an interpreter is needed should be based on factors such as the defendant's understanding of spoken and written English, the complexity of the proceedings, issues, and testimony, and whether, considering those factors, the defendant will be able to participate effectively in his or her defense. Nur, 869 N.E.2d at 479. If the issue of appointing an interpreter is raised at the trial court level, either by the parties or by the court sua sponte, we review the decision whether to appoint an interpreter for an abuse of discretion. Id. at 479-80. "An abuse of discretion occurs if a decision is against the logic of the facts and circumstances before the court." Id. With respect to the abuse of discretion standard, we give substantial weight to a trial court's judgment as to the credibility of witnesses based on its observance of evidence first hand. Pruitt v. State, 834 N.E.2d 90, 104 (Ind. 2005), cert. denied.
Here, the State presented considerable evidence that Gado was being less than candid with the trial court regarding his alleged inability to speak or understand English. The trial court had had interaction with Gado on several occasions that led it to believe he had sufficient command of English. There was evidence that Gado was familiar with English slang terms, such as "sell-out Nigger." Tr. p. 462. Most importantly, Felemban testified to having frequent conversations with Gado in English, lasting an hour or two every day that he lived in her apartment for three weeks. She testified that Gado never seemed to be unable to understand her, and that the topics they discussed included Gado's family, where he had lived, and numerous crimes he had committed, including writing bad checks and stealing a car.
We do not believe a trial court has to accept at face value a defendant's professed lack of understanding of English, anymore than it must accept an assertion of incompetency to stand trial, or must accept in-court disruptiveness as indicative of incompetency. See Bramley v. State, 543 N.E.2d 629, 633-34 (Ind.1989) (). The trial court here essentially found that Gado intentionally was attempting to frustrate his prosecution by faking inability to communicate in any language other than Djerma, a rare language for which it is very difficult to find...
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