Gonzalez v. US, 94-CF-824.

• Citation: 697 A.2d 819
• Decision Date: 10 July 1997
• Docket Number: No. 94-CF-824.,94-CF-824.
• Parties: José M. GONZALEZ, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

697 A.2d 819

José M. GONZALEZ, Appellant, v. UNITED STATES, Appellee.

No. 94-CF-824.

District of Columbia Court of Appeals.

Submitted March 19, 1996.

Decided July 10, 1997.

Severina B. Rivera, Washington, DC, appointed by this court, was on the brief, for appellant.

Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Roy W. McLeese, III and Kristan L. Peters-Hamlin, Assistant United States Attorneys, were on the brief, for appellee.

Before TERRY and RUIZ, Associate Judges, and PRYOR, Senior Judge.

TERRY, Associate Judge:

Appellant Gonzalez, a native of El Salvador, was convicted of distributing cocaine.¹ At trial he was assisted by a court-appointed interpreter. On appeal he contends (1) that the trial court erred in failing to make a preliminary determination that the interpreter was competent to translate the proceedings for him; (2) that the court impermissibly allowed an expert government witness to testify beyond the scope of his expertise; and (3) that a photograph taken at the time of his arrest should not have been admitted into evidence. As to the first contention, we agree that the court erred but hold that the error was harmless. The second and third arguments are without merit. Accordingly, we affirm appellant's conviction.

I

On the early evening of December 2, 1993, Metropolitan Police Officers Collis Timlick and Michelle Green set up an undercover narcotics operation in the 3100 block of Mount Pleasant Street, N.W. They entered the area wearing plain clothes and driving an unmarked car. While Green remained in the car, Timlick got out and walked over to a man who was standing on the east side of the street. He told this man that he was looking for a "twenty," meaning a $20 rock of crack cocaine. The man signaled Timlick to follow him across the street. There they met appellant Gonzalez, who was sitting on a bicycle in front of a pool hall. After Gonzalez and the unknown man had a conversation in Spanish, the three of them proceeded a short distance up the street to a bus stop in front of 3102 Mount Pleasant Street. When they reached the bus stop, Gonzalez and the other man again conversed in Spanish. Gonzalez then pulled three ziplock bags from inside the waistband of his trousers and gave all of them to the unknown man, who in turn gave two of them to Timlick. Each of the two bags contained a small rock-like object. Timlick then handed the unidentified man two pre-recorded $10 bills,² which he gave to Gonzalez.

Officer Green testified that she watched the entire transaction from the car. She was able to discern Gonzalez on his red bicycle and could see that the three men were engaged in conversation. She also saw "arms moving back and forth" among the three men, but from her vantage point she could not tell whether any objects were passed from one to another.

When the transaction ended, Timlick returned to the car, while Officer Green broadcast a description of the two men she had seen engaged in an apparent drug transaction with her partner.³ The two officers then followed Gonzalez, who was riding away on his bicycle, in order to keep the arrest team apprised of his whereabouts. After a few moments, Detective David Stroud, a member of the arrest team, radioed Timlick and Green and informed them that the team had stopped a suspect (Gonzalez) who matched the description and who had in his possession the two pre-recorded $10 bills.⁴ Timlick and Green then drove their car past the point where the arrest team had stopped Gonzalez, and both of them positively identified him.⁵ A later chemical analysis established that both of the rocks Timlick bought from Gonzalez were crack cocaine.

The government also presented, without objection, the expert testimony of Detective Charles Culver, who described to the jury the methods commonly used by drug sellers to distribute cocaine. He testified about the roles of "runners" and "holders" in the sale of drugs on the street, and explained that the runner sometimes receives drugs from the holder as compensation for his services. Detective Culver also outlined the procedures followed by the police department and the Drug Enforcement Administration in handling and sealing evidence recovered in narcotics cases. On direct examination Culver testified that the two rocks of cocaine in this case had been properly heat-sealed and that the sealed envelopes showed no signs of tampering; however, he was not asked whether the envelopes containing the money seized from Gonzalez had been tampered with, or whether the proper chain of custody had been followed with respect to them.⁶ Defense counsel elicited testimony from Detective Culver on cross-examination about the handling and processing of the two envelopes containing the monetary evidence.

Gonzalez was the sole defense witness. He testified that around 6:30 p.m. on the evening of December 2, he left his home to buy drugs and rode his bicycle to the 3100 block of Mount Pleasant Street. There he met his friend and main drug supplier, "Carlos," at a Seven-Eleven store.⁷ When Gonzalez asked Carlos if he had any drugs to sell, Carlos told him to wait at a pool hall near the Seven-Eleven. Gonzalez then stood at the bus stop where Officers Timlick and Green had said the drug transaction occurred. Five minutes later Carlos arrived with a man that Gonzalez did not know, who turned out to be Officer Timlick.

Gonzalez then reached into his waistband, pulled out a $20 bill, and asked Carlos for drugs. Carlos took the money and, according to Gonzalez, engaged in a transaction with Timlick. When that was completed, Carlos turned back to Gonzalez, handed Gonzalez his $20 back, and told him that he had no more drugs to sell.⁸ Gonzalez then left the bus stop and went to call his wife from a pay phone. While he was making the call, two police officers stopped him and said he was being detained. Gonzalez admitted that he had two $10 bills on him when he was stopped.

II

Gonzalez contends that the trial judge committed error by failing to ensure at the beginning of the trial that the court-appointed interpreter was competent. The government maintains that the issue of translator competence was not preserved for appellate review because defense counsel never objected at trial to the interpreter's translations. Thus the government argues that the trial court did not commit plain error, see Watts v. United States, 362 A.2d 706, 709 (D.C.1976) (en banc), when it failed to interrupt the proceedings sua sponte and determine the competence of the interpreter.

The District of Columbia Interpreter Act, D.C.Code §§ 31-2701 et seq. (1993), provides in part:

Before appointing an interpreter, an appointing authority shall make a preliminary determination that the interpreter is able to accurately communicate with and translate information to and from the communication-impaired person involved.

D.C.Code § 31-2704.⁹ Because no such preliminary determination was made, Gonzalez argues that both his "statutory and constitutional due process rights to participate fully in his defense" were violated. See Redman v. United States, 616 A.2d 336, 338 & n. 4 (D.C.1992) (defendant claimed that failure to make a preliminary determination of interpreter's competence violated his due process rights by rendering him incompetent to stand trial and to waive his right to testify on his own behalf); see also Bassil v. United States, 517 A.2d 714, 716 (D.C.1986) (defendant has a due process right "to present evidence, testimonial and otherwise, in his own defense"). Because the trial court failed to verify at the beginning of the trial that the interpreter was "able to accurately communicate with and translate information to and from" Gonzalez, D.C.Code § 31-2704, we agree with Gonzalez that the court erred. But the effect of this error, if any, was minimal.

Before considering the merits of Gonzalez's claim, there are two preliminary matters that we must address: whether Gonzalez sufficiently preserved this issue for appellate review, and if so, whether his claim should be reviewed for constitutional or nonconstitutional harmless error. As to the first point, although a defendant has the right to an interpreter who is "competent to render accurate translations," United States v. Villegas, 899 F.2d 1324, 1348 (2d Cir.), cert. denied, 498 U.S. 991, 111 S.Ct. 535, 112 L.Ed.2d 545 (1990),¹⁰ the right to challenge the competence of a translator "may be waived if it is not raised in timely fashion." Redman v. United States, supra, 616 A.2d at 338; accord, e.g., Villegas, 899 F.2d at 1348; Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir.1989); Delgado v. Walker, 798 F.Supp. 107, 115 (E.D.N.Y.1992).¹¹ "Basic considerations of fairness demand no less." Redman, 616 A.2d at 338. As this court explained in Redman:

Only if the defendant makes any difficulty with the interpreter known to the court can the judge take corrective measures. To allow a defendant to remain silent throughout the trial and then, upon being found guilty, to assert a claim of inadequate translation would be an open invitation to abuse.

Id. (quoting Valladares, supra, 871 F.2d at 1566) (emphasis added in Redman); see also Villegas, 899 F.2d at 1348; Delgado, 798 F.Supp. at 115.¹²

As the government acknowledges in its brief, at one point during the trial Gonzalez alerted the court to a problem with the interpreter's translation.¹³ On direct examination, defense counsel asked Gonzalez to describe how he had been stopped and arrested by the two police officers. The following exchange then took place:

THE WITNESS (through interpreter): When the car stopped in the middle of the street, a white woman got out and a black guy, a tall black guy, and they said, "You are detained," and right away they got out of the car. I was on my bicycle. I didn't think anything bad because I hadn't done anything bad and they were just detaining me.

They asked me — they checked me out and the

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