Hardy v. State
| Decision Date | 25 April 2022 |
| Docket Number | A22A0627 |
| Citation | 872 S.E.2d 511 |
| Parties | HARDY v. The STATE. |
| Court | Georgia Court of Appeals |
Susan Dalton Raymond, Laura D. Hogue, Macon, for Appellant.
Robert German Jr., Savannah, Charles Keith Higgins, for Appellee.
Phipps, Senior Appellate Judge.
A jury found Kevin Chad Hardy guilty of one count each of violating the Computer or Electronic Pornography and Child Exploitation Prevention Act (Count 1) and attempted child molestation (Count 2). He appeals from the denial of his motion for a new trial, arguing that: (i) the trial court violated his rights under the Americans with Disabilities Act of 1990 ("ADA"), 42 USC § 12101 et seq., and to due process and a fair trial by failing to ensure that he could communicate effectively in light of his hearing impairment; and (ii) his trial counsel rendered ineffective assistance. For the reasons that follow, we discern no reversible error and affirm the trial court's judgment.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. Duran v. State , 274 Ga. App. 876, 877 (1), 619 S.E.2d 388 (2005). So viewed, the evidence shows that, in February 2018, a female police detective worked with a law enforcement task force targeting internet-related crimes against children. As part of that operation, the detective posed as a man with a stepdaughter and posted the following advertisement on the Craigslist website:
The detective testified that the abbreviation "mw4m" stands for "male and woman ... looking for another male" and that the abbreviation "HMU" stands for "[h]it me up."
Hardy responded electronically to the advertisement, stating that he was "very interested," and provided a nude picture of himself. The detective (still posing as a man) and Hardy then exchanged several electronic messages, in which the detective asked Hardy "what [he had] in mind" and Hardy requested a picture of the man's stepdaughter. The detective sent Hardy a picture of herself (as the stepdaughter) and followed up with a message asking, "[Y]ou good with her being younger?" The following exchanges then ensued:
When the detective asked if Hardy had "protection," he responded, Hardy asked if the stepdaughter had seen his picture, and the detective responded, "oh yea she was really turned up." As the two made arrangements to meet later that night, Hardy asked what type of wine coolers the stepdaughter wanted, and the detective responded, "She said Mango Seagram's." Hardy was arrested when he arrived at the address provided by the detective; he was carrying a paper bag with alcoholic beverages and condoms.
Hardy testified in his own defense, claiming that he believed the woman in the pictures he received (and was going to visit) was an adult. The jury found him guilty of one count each of violating the Computer or Electronic Pornography and Child Exploitation Prevention Act and attempted child molestation. The trial court denied Hardy's motion for a new trial, and this appeal followed.
1. Hardy contends that the trial court violated his rights under the ADA and to due process and a fair trial by failing to ensure that he was able to effectively communicate and participate in the proceedings. He claims that, "because he could not follow or understand much of the sign language" provided by court-assigned interpreters, he could not "meaningfully participate in his own defense." According to Hardy, "despite ... obvious communication problems," the trial court took no remedial action to ensure that he could understand and fully participate in the proceedings. In that regard, Hardy faults the trial court for failing to (a) ask him directly what type of auxiliary aid or service would best ensure his ability to effectively communicate during his trial or (b) affirmatively take other steps to ensure that he understood the proceedings. Moreover, Hardy maintains, by denying his motion for a new trial on this ground, the trial court improperly shifted the burden to him to ensure that his rights under the ADA were not violated. Hardy asserts that prejudice should be presumed from the trial court's failure to follow the ADA's mandates. We discern no reversible error by the trial court.
"A criminal defendant's right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings is guaranteed by the Sixth Amendment and the due process clause of the Fourteenth Amendment to the United States Constitution." Ling v. State , 288 Ga. 299, 300 (1), 702 S.E.2d 881 (2010) (citation and punctuation omitted). Consequently, "due process concerns are raised when a defendant cannot comprehend the testimony of the trial witnesses and thus cannot meaningfully participate in his defense." Neugent v. State , 294 Ga. App. 284, 288 (2), 668 S.E.2d 888 (2008). In that vein, "[o]ne who is unable to communicate effectively in English and does not receive an interpreter's assistance is no more competent to proceed than an individual who is incompetent due to mental incapacity." Ling , 288 Ga. at 301 (1), 702 S.E.2d 881. "[E]very criminal defendant — if the right to be present is to have meaning — must possess sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding." Id. (citation and punctuation omitted).
OCGA § 24-6-650 ; see also generally Ramos v. Terry , 279 Ga. 889, 892 (1), 622 S.E.2d 339 (2005) (). Thus, under OCGA § 24-6-652 (a) (1), Georgia agencies — including courts — are required to "provide a qualified interpreter to [a] hearing impaired person ... [w]henever the hearing impaired person is a party to the proceeding." See also OCGA § 24-6-651 (1) (). Moreover, our Supreme Court has promulgated rules establishing a statewide plan for the use of interpreters in court proceedings involving non-English speaking and hearing impaired persons.2 See Supreme Ct. of Ga., Use of Interpreters for Non-English Speaking and Hearing Impaired Persons; see also generally Weldon v. State , 328 Ga. App. 163, 163-164 (1), 761 S.E.2d 566 (2014).
On a similar note, the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 USC § 12132 ; see 42 USC § 12131 (1) (B) (). And under 28 CFR § 35.160 (b) (2) (), "a public entity shall give primary consideration to the requests of individuals with disabilities" when "determining what types of auxiliary aids and services are necessary." In that regard, OCGA § 24-6-652 (b) requires a hearing impaired person in need of an interpreter to notify the court of such need at least ten days before the proceeding in which an interpreter is needed. A hearing impaired person appearing before a Georgia court thus bears some of the burden for requesting preferred services. Moreover, a criminal defendant is not "constitutionally entitled to a perfect, word for word interpretation," and any "errors in interpretation must be considered in their full context and with respect to the entirety of the trial to determine how they may have affected a defendant's right to a fair trial." Cisneros v. State , 299 Ga. 841, 850 (3) (a), 792 S.E.2d 326 (2016).
(a) Here, the record shows that Hardy filed a pretrial request for "a qualified interpreter for hearing impaired persons during all proceedings in this case." As a result, three sign-language interpreters were used during Hardy's trial — two acted as "proceedings interpreters" and one acted as a "defense table interpreter." On the first day of trial, they arrived and met with Hardy and his lawyers approximately 30 minutes before the trial started. At that time, they learned that Hardy's sign-language proficiency was somewhat diminished from disuse, as a result of which the interpreters provided him with "straight English interpreting," rather than "American Sign Language," which has its own vocabulary, syntax, and grammar.
During the hearing on Hardy's motion for a new trial, one of the interpreters testified that Hardy also could read lips, as a result of which "the interpreters had everything on their lips as well." The interpreter further testified that, had she known earlier of Hardy's lack of proficiency with signing, she would have recommended captioning...
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