Kusi v. State, 62

CourtCourt of Appeals of Maryland
Citation91 A.3d 1192,438 Md. 362
Docket NumberSept. Term, 2013.,No. 62,62
PartiesGeorge KUSI v. STATE of Maryland.
Decision Date19 May 2014

438 Md. 362
91 A.3d 1192

George KUSI
STATE of Maryland.

No. 62, Sept. Term, 2013.

Court of Appeals of Maryland.

May 19, 2014.

[91 A.3d 1193]

Bradford C. Peabody, Assistant Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), for Petitioner.

Ryan R. Dietrich, Assistant Attorney General (Douglas F. Gansler, Attorney

[91 A.3d 1194]

General of Maryland, Baltimore, MD), for Respondent.



Section 1–202 of the Criminal Procedure Article, Maryland Code (2001, 2008 Repl.Vol.) provides for the appointment of an interpreter for a defendant in criminal proceedings and states:

§ 1–202. Interpreters for criminal proceedings.

(a) When appointment required.—The court shall appoint a qualified interpreter to help a defendant in a criminal proceeding throughout any criminal proceeding when the defendant ...

* * *

(2) cannot readily understand or communicate the English language and cannot understand a charge made against the defendant or help present the defense. 1

Rule 16–819 of the Maryland Rules provides the procedures to determine whether an interpreter is needed and is at the heart of the issue before us:

(c) Procedures to determine the need for interpreters.

* * *

(2) Spoken language interpreter. (A) Examination of party or witness. To determine whether a spoken language interpreter is needed, the court, on request or on its own initiative, shall examine a party or witness on the record. The court shall appoint a spoken language interpreter if the court determines that:

(i) the party does not understand English well enough to participate fully in the proceedings and to assist counsel, or

(ii) the party or a witness does not speak English well enough to be understood by counsel, the court, and the jury.

(B) Scope of examination. The court's examination of the party or witness should include questions relating to:

(i) identification;

(ii) active vocabulary in vernacular English; and

(iii) the court proceedings.

Petitioner George Kusi seeks review of a judgment of the Court of Special Appeals affirming his conviction in the Circuit Court for Montgomery County for sexual abuse of a minor, second degree rape, and third degree sexual offense. The Court of Special Appeals, in an unreported opinion, affirmed the judgment of the Circuit Court and concluded that the trial judge had satisfied the requirements of Maryland Code, Section 1–202(a) of the Criminal Procedure Article and adhered to Rule 16–819(c)(2)(A). Before this Court, Kusi, a native of Ghana who arrived in the United States four years prior to his conviction, alleges that the trial judge abused his discretion in denying him an interpreter for his criminal trial and also argues that the Court of Special Appeals applied a clear error review, which, he asserts, was the wrong standard of appellate review. Kusi petitioned this Court for a writ of certiorari, which was granted. 432 Md. 466, 69 A.3d 474 (2013). In his petition, Kusi presented the following question:

[91 A.3d 1195]

Did the Court of Special Appeals err in applying a ‘clearly erroneous' standard of review to requests for an interpreter, and under the proper standard, was it an abuse of discretion to refuse an interpreter for Petitioner at his jury trial?

We shall hold that appellate review of a trial court's decision to appoint an interpreter is a two-part process in which the reviewing court will first examine whether the trial judge's factual findings were clearly erroneous and, if those findings were not clearly erroneous, the reviewing court will then consider whether the trial judge abused his discretion in making the determination regarding whether to appoint an interpreter.

With regard to the appointment of an interpreter in this particular case, Section 1–202 of the Criminal Procedure Article, Maryland Code (2001, 2008 Repl.Vol.) required the trial judge to first make factual findings regarding whether Kusi could “readily understand or communicate the English language” and whether he could “understand a charge made against [him] or help present the defense.” We shall review the factual findings made by the trial judge utilizing a clearly erroneous standard. Thereafter, the trial judge determined that an interpreter was unnecessary, which we review under an abuse of discretion standard. In the present case, after applying the relevant standards, it is clear that the trial judge acted within his discretion to deny Kusi's request for an interpreter.

On the morning that Kusi's criminal jury trial was scheduled to commence, his attorney notified the trial court for the first time that, one week earlier, Kusi had requested that an interpreter be present at the trial: 2

[Defense Counsel]: I just need to ask the Court maybe to inquire. My client and I have had conversations during the pendency of this case—

The Court: Sure.

[Defense Counsel]:—and we've talked in English and everything. I met with him last week. For the first time he expressed the desire to have an interpreter.

The Court: Really. What language?

[Defense Counsel]: He's Ashanti. There was no line.3 I contacted the office on Friday to see. What I'm trying to do—

The Court: Could I ask him some questions?

Kusi was sworn by the court, and the trial judge proceeded to question him regarding

[91 A.3d 1196]

his educational level and his use of the English language:

The Court: [H]ow far did you go in school?

Kusi: My school was (unintelligible), but I learn a lot of language, but I'm not really good in English.

The Court: Well, I didn't ask you that. I asked you how far you went in school. I'll get to that.

Kusi: Middle school.

The Court: I'm sorry?

Kusi: Middle school.

The Court: Middle school.

Kusi: Okay.

The Court: And if I could inquire, where were you born?

Kusi: Born in Ghana.

The Court: In Ghana. Very good. And how old are you, sir?

Kusi: I'm 44 years.

The Court: Forty-four. And when were you born?

Kusi: (No audible response.)

The Court: What year?

Kusi: June 16, 1967.

The Court: 1967. And when did you come to the United States?

Kusi: The date that I come to United States?

The Court: Just the year; I don't need the exact date.

Kusi: It's four years.

The Court: Four years ago?

Kusi: Yeah.

The Court: Okay. Very good.

The trial court continued to question Kusi regarding what he did for a living and then addressed discussions between Kusi and his attorney:

The Court: And before this all happened, what did you do for a living?

Kusi: I just help my, one of my friend for home improvement so that he give me—

* * *

The Court: [Y]ou have been represented by [defense counsel] since this case [w]as first brought, is that correct?

Kusi: Yes, sir.

The Court: And have you had meetings with [defense counsel]?

Kusi: Yes.

* * *

The Court: [H]ave you told him everything you know about what the State alleges in this case?

Kusi: Yes.

The Court: And has he answered all of your questions?

Kusi: Yes.

The Court: And when you've spoken to [defense counsel], I take it, you have conversed in English, is that right?

Kusi: Yes.

The Court: Very good. And have you had any difficulty understanding what he's telling you?

Kusi: Sometimes, but I put some words at, words down to ask some inmate in the (unintelligible).

The Court: So sometimes there's an idiom he uses that's not clear, right?

Kusi: Yeah.

[Defense Counsel]: I—

Kusi: No, he's clear, but—

[Defense Counsel]:—don't know if you heard what he said. I think he said he put some words down to ask an inmate.

Kusi: Inmate, yeah.

[Defense Counsel]: There was an occasion when there was another person that helped me talk—

The Court: An investigator or—

[91 A.3d 1197]

[Defense Counsel]: No, no, against my better—

[State's Attorney]: Inmate?

[Defense Counsel]:—another inmate that spoke Ashanti.

The Court: Okay. Very good. And has he answered all of your questions?

Kusi: Yes.

The Court: And are you satisfied that he's listened to what you've had to say?

Kusi: Yes, sir.

The trial judge then addressed the nature of the proceedings against Kusi:

The Court: And do you know why you're here?

Kusi: Yes, Your Honor.

The Court: Do you understand what you're accused of doing?

Kusi: Yes.

The Court: Believe me, the reason we're having a trial is the State has to prove it. Do you understand that?

Kusi: Yeah.

The Court: You don't have to prove anything. Do you understand that?

Kusi: Okay.

The Court: Yes?

Kusi: Yes.

The Court: You don't have to testify. Do you understand?

Kusi: Okay.

The Court: You don't have to call witnesses.

Kusi: Okay.

The Court: You understand that, yes?

Kusi: Yes.

The Court: In our system, the burden of proof always is on the State. Do you understand that, sir?

Defense counsel interrupted the dialogue at this juncture to request that the judge vary the dialogue from asking leading questions, which enabled Kusi to repeatedly answer yes:

Judge, I know you've been asking him ... several questions, and he's ... been acknowledging by saying yes. Because of their leading nature.... I'm suggesting maybe a little alternating or something, because it's just the routine of saying yes ... to Your Honor, the authority, so I just want to make sure, because he's expressed to me not always understanding me, even the second or third time that I've met with him by not understanding what we talked about before....

The Court responded, “What do you want to do?” and defense counsel continued:

[Defense Counsel]: I want to make sure that he's comfortable doing this in English; that he understands what's going on. I know—

The Court: Absolutely.

[Defense Counsel]:—the prosecutor showed me, and I remember there was an advice of rights form that he acknowledged speaking four different languages partially, at least that's what he's told me, but—

The Court: Well, let me inquire.

[Defense Counsel]:—I just want to make sure he knows—

The Court: Sure.

[Defense Counsel]:—when he hears when you're talking that he understands it.


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