Hernandez v. State

• Decision Date: 19 May 2008
• Docket Number: No. A08A0059.,A08A0059.
• Citation: 662 S.E.2d 325,291 Ga. App. 562
• Parties: HERNANDEZ v. The STATE.
• Court: Georgia Court of Appeals

662 S.E.2d 325

291 Ga. App. 562

HERNANDEZ v. The STATE.

No. A08A0059.

Court of Appeals of Georgia.

May 19, 2008.

Brett Michael Willis, for Appellant.

Lee Darragh, Dist. Atty., John G. Wilbanks Jr., Asst. Dist. Atty., for Appellee.

MIKELL, Judge.

Following his trial before a Hall County jury, Manuel Javier Hernandez was convicted of trafficking methamphetamine, misdemeanor obstruction of an officer, and reckless driving. Hernandez claims on appeal that the trial court erred in admitting translations of his in-custody Spanish-language statements in violation of the rule against hearsay and his right to confront the witnesses against him. He also contends that the trial court abused its discretion in failing to grant a mistrial or to give corrective instructions following the State's closing argument, and in failing to grant his motion to reveal the identity of the confidential informant. For the reasons set forth below, we affirm with direction.

Viewed in a light most favorable to the verdict, the evidence shows that on April 4, 2005, at approximately 11:00 a.m., an undercover officer assigned to the Multi-Agency Narcotics Squad ("MANS") met Hernandez, Flavio Garcia, and a confidential informant in the parking lot of a Hall County shopping center for the purpose of buying methamphetamine. The officer, Hernandez, and Garcia discussed the purchase by the officer of five pounds of methamphetamine for $65,000. Hernandez told the officer that he could do five pounds, but he wanted to see the money. The officer showed Hernandez and Garcia what appeared to be $65,000.

Hernandez told the officer that it would be a couple hours before they could obtain the methamphetamine. Later that afternoon, Hernandez and Garcia returned to the parking lot to meet with the officer. Hernandez was driving a white Lincoln Navigator, and Garcia was a passenger. The Lincoln was followed by a Toyota 4Runner with a driver and two passengers. The undercover officer discussed counting the money with Hernandez. The officer suggested that the money be counted in a motel room, but that he wanted to see the methamphetamine first. One of the Toyota's passengers agreed to show the drugs to the officer. There were five plastic containers containing methamphetamine on the Toyota's floorboard. After the men returned to their vehicles, the officer gave the signal to the nearby "takedown team" to initiate the arrest. Hernandez attempted to leave when the police arrived. As he was trying to flee the scene, Hernandez's Lincoln struck an officer's vehicle.

1. Hernandez contends that the trial court erred in failing to grant a mistrial or to give corrective instructions after the State's injection of extrinsic, prejudicial, and inflammatory matters in closing argument. We disagree.

Hernandez filed a motion in limine asking the trial court to forbid the State from using the term "illegal immigrant" or to make any mention of Hernandez's alleged immigration status or national origin. The trial court granted Hernandez's motion in limine to the extent that the State was barred from using the term "illegal immigrant" unless and until Hernandez put his character into issue.

During closing argument, the prosecutor argued that the defense attorney:

asked [the officer] when he said most of the cases I deal with are these illegal Hispanic type cases. He says, why is that, do you just specialize in busting Hispanics? No. Because that's who is doing the big cases. You read the papers, you know that.

Hernandez did not make a contemporaneous objection to this argument. After closing argument had been concluded and the jury had retired, defense counsel moved for a mistrial. Hernandez argued to the trial court that the prosecutor's closing argument "gets into some of the things that we have a motion in limine about, illegal immigrants." Defense counsel asked the court to grant a mistrial or in lieu thereof to instruct the jury, "to the effect that those things are not for your consideration" and then "think[ing] ... off the top of my head" referred the court to "17-8-75 or 76 about argument of the parties." Hernandez also asked for a curative instruction that "those things are not for your consideration."

The trial court noted that, following an earlier objection by defense counsel during closing argument, he had instructed the jury that "closing argument is not evidence," and declined to give another instruction. The trial court then heard argument from the State and denied the motion for a mistrial, "in consideration of the totality of the evidence during the trial, evidence elicited by defense counsel of the defendant during his testimony and argument to the jury in closing."

Hernandez complains that the prosecutor essentially argued that "illegal Hispanic type" persons are the ones "who [are] doing the big [drug] cases," and that this argument was outside of the wide latitude permitted in closing argument because it injected extrinsic and prejudicial matters which had no basis in evidence.¹ He also contends that the State's closing argument denied his right to a fair trial and due process of law, improperly impugned his character, and was in violation of OCGA § 17-8-75, which provides in part that, if counsel makes "statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same." Hernandez made no contemporaneous objection during closing argument on these grounds, and the issues are therefore waived for purposes of appeal.²

To the extent that Hernandez complains that the trial court erred in denying his motion for a mistrial in light of the State's alleged violation of the motion in limine, we find no error.³ "The trial court has a broad discretion in passing on motions for mistrial, and its ruling will not be disturbed by the appellate courts unless it appears that there has been a manifest abuse of discretion and that a mistrial is essential to the preservation of the right to a fair trial."⁴ As granted, the motion in limine was limited in scope, prohibiting the State from using the term "illegal immigrant." The prosecutor's reference to "illegal Hispanic" is essentially the same as the use of the term illegal immigrant, and so in violation of the motion in limine. The prosecutor did not, however, refer to Hernandez as an illegal immigrant or illegal Hispanic. The prosecutor's language may have implied that Hernandez was an illegal immigrant, but defense counsel had also strongly implied that Hernandez was an illegal immigrant in his previous closing argument. Thus, the trial court could reasonably conclude that the State's use of the term "illegal Hispanic" did not prejudice Hernandez.⁵ The prosecution's argument was improper to the extent that he inferred that Hispanics were responsible for "the big cases," but this argument was not prohibited by the grant of the motion in limine and not objected to by defense counsel. Under the circumstances, we cannot conclude that the trial court abused its discretion in denying Hernandez's motion for a mistrial on the grounds on which that motion was made.

2. Hernandez contends that the trial court erred in admitting inaccurate translations of a nontestifying witness in violation of the hearsay rule and the Sixth Amendment right to confrontation. We disagree.

Following its authentication by a law enforcement officer, the trial court allowed the State to introduce into evidence and play an audiotape of Hernandez's in-custody interview with a MANS officer. The interview was conducted by the officer with the help of Sonia Loredo, who translated between the English-speaking officer and the Spanish-speaking Hernandez. Loredo did not testify at trial. Before the tape was played to the jury, defense counsel was granted a continuing objection to "anything that ... Loredo says [on] the basis of the confrontation clause and hearsay." After the tape was played to the jury, the trial court allowed the defense to call Hernandez's court-appointed interpreter as a witness, and she then provided her own English interpretation of Hernandez's Spanish-language statements. According to the court-appointed interpreter, a substantial amount of the Spanish-language portion of the tape was inaudible and she could not provide an interpretation of those statements.⁶

(a) Under the "language conduit" rule,

absent a motive to mislead, distort or some other indication of inaccuracy, when persons speaking different languages rely upon a translator as a conduit for their communication, the statements of the translator should be regarded as the statements of the persons themselves without creating an additional layer of hearsay.⁷

Hernandez does not contend that Loredo had a motive to mislead or distort his statements, but he argues that the trial court nevertheless lacked the appropriate assurances that the translation was reliable.⁸ In particular, he points out that Loredo was not trained or certified as a translator, and that she only was a clerk and secretary. Notwithstanding her job title, the evidence showed that Loredo spoke both Spanish and English and helped MANS officers with interviews in the course of her work. She was at the scene of the arrest, and Hernandez testified that he realized she spoke Spanish. Hernandez, who also spoke some English, testified that he was unable to tell during the interview whether she translated correctly or incorrectly. Before the tape on the interview was played to the jury, defense counsel argued that "a lot" of Loredo's translation was incorrect, but did not specify in what way the translation was incorrect.

In light of the foregoing, the trial court was entitled to conclude that Loredo's out-of-court statements could be regarded as Hernandez's statements and were therefore not inadmissible hearsay. Evidence showed that Loredo had the capacity to translate the interview, and Hernandez fails to demonstrate she had any motive...