People v. Braley

• Decision Date: 30 December 1993
• Docket Number: No. 92CA1356,92CA1356
• Citation: 879 P.2d 410
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James D. BRALEY, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 410

879 P.2d 410

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James D. BRALEY, Defendant-Appellant.

No. 92CA1356.

Colorado Court of Appeals Div. V.

Dec. 30, 1993.

Rehearing Denied Jan. 27, 1994.

Certiorari Denied Sept. 12, 1994.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Matthew S. Holman, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Lozow, Lozow and Elliott, Gary Lozow, Denver, for defendant-appellant.

Opinion by Judge DAVIDSON.

Defendant, James Dean Braley, appeals from the judgment of conviction entered upon a jury verdict finding him guilty of one count of first degree sexual assault and one count of second degree sexual assault. We affirm.

Defendant participated in bringing women into the United States from Mexico and employing them as domestic help in his house or allowing them to stay as guests in his home. Several of his former housekeepers and one of his former guests reported to immigration officials, who were investigating defendant's possible involvement in alien smuggling, that they had been sexually assaulted by defendant.

Defendant was charged with two counts of first degree sexual assault against each of two different women and one count of second degree sexual assault against a third woman. Because all of the women had limited fluency in English, they testified at trial through a Spanish language interpreter.

I.

For the first time on appeal, defendant argues that although the record contains the witnesses' testimony translated into English, the failure to make a Spanish language record deprives him of the ability to challenge the validity of the translation. Thus, he contends, the record is incomplete and cannot be completed thereby requiring a reversal of his conviction and a new trial.

Because defendant failed to raise any objection to the qualifications of the interpreter or to recording only the English translation, reversal under this contention is required only if the fundamental fairness of the proceeding has been so undermined as to cast serious doubt upon the reliability of the verdict. See People v. Wood, 743 P.2d 422 (Colo.1987). We find no reversible error.

The use of an interpreter during trial is governed by CRE 604 which provides that: "An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation that he will make a true translation." Thus, an interpreter is evaluated as is any other expert witness: it must be shown that the proposed interpreter is qualified by virtue of his or her "knowledge, skill, experience, training, or education." CRE 702; see State v. Burris, 131 Ariz. 563, 643 P.2d 8 (Ariz.App.1982) (an interpreter is subject to the rules regarding the qualification of expert witnesses).

CRE 604 is identical to the federal rule, and therefore, federal interpretation is persuasive as to its meaning. See People v. Nyberg, 711 P.2d 719 (Colo.App.1985); People v. Lupton, 652 P.2d 1080 (Colo.App.1982).

According to the federal rule, "an interpreter is merely a conduit for information, passing on the statement to the listener without adding or detracting from it." 27 C. Wright & V. Gold, Federal Practice & Procedure § 6053 at 302 (1990); see also Federal Practice & Procedure, supra, § 6052.

An interpreter is subject to examination by counsel and the trial court concerning the accuracy of his or her translation. See State v. Burris, supra. In addition, interpreters are required to take an oath or affirmation that they will make a "true translation." CRE 604; see State v. Tamez, 506 So.2d 531, 533 (La.App.1987) ("[I]t is axiomatic that an interpreter should be a neutral and detached individual whose abilities are first screened by the court and who is sworn to make a true, literal and complete bilateral translation.").

After the interpreter has been qualified and sworn, CRE 604 imposes no standards on the interpreter's performance. "In other words, the rule does not require that the interpreter in fact render a true translation." Federal Practice & Procedure, supra, § 6055 at 319.

This failure to impose standards of performance does not signify an indifference to the importance of a correct translation, but instead reflects the practical limits on the ability of the trial court to enforce such standards. Federal Practice & Procedure, supra, § 6055 at 320; see also Stubblefield v. Commonwealth, 10 Va.App. 343, 392 S.E.2d 197 (1990) (An interpreter's translation of a witness' testimony need not be literal, so long as the translation is equivalent to the answers of the witness).

Ultimately the qualification of an interpreter is a matter within the discretion of the trial court. See CRE 702; U.S. v. Moya-Gomez, 860 F.2d 706, 740 (7th Cir.1988) ("Matters regarding the use of an interpreter are left to the discretion of the district court."); cf. State v. Givens, 719 S.W.2d 25 (Mo.App.1986) (The appointment of an interpreter is within the discretion of the trial court as is the competency of witnesses to testify).

Defendant contends that without a Spanish language transcript it is impossible to gauge the competency of the interpreter and, therefore, the accuracy of her translation. While it is true that, at this point in the proceedings, a word for word comparison of the Spanish and English versions of the testimony is not feasible, we do not agree with defendant that such a comparison is necessary in order to determine if he has received a fundamentally fair trial.

A trial court must determine the competency of an interpreter prior to the time when the interpreter begins his or her duties and any challenge to that competency should be raised before the translation begins. See State v. Burris, supra. Further, the interpreter's competency can be attacked by direct or cross-examination or by independent testimony. See U.S. v. Desist, 384 F.2d 889 (2d Cir.1967); see also U.S. v. Manos, 848 F.2d 1427 (7th Cir.1988).

Here, defendant had ample opportunity to assert a timely challenge as to the interpreter's qualifications, neutrality, and translations in the trial court. He also had the opportunity to object to any deficiency in the nature or manner of the interpreter's oath. See People v. Avila, 797 P.2d 804 (Colo.App.1990).

Defendant has not directed our attention to any portion of the record which would tend to indicate that testimony of the Spanish-speaking witnesses was not being translated correctly. Neither has he suggested that the English translation has not been recorded reliably. Because we have no basis for concluding that the interpreter performed incompetently, we do not perceive an abuse of discretion by the trial court regarding the use of the interpreter. See People v. Costales, 166 Ill.App.3d 234, 117 Ill.Dec. 260, 520 N.E.2d 421 (1988).

We also do not agree with defendant that a recording of the witnesses' testimony in Spanish is necessary to ensure a reliable translation. We are not aware of any authority so holding. Any means of providing such a bilingual recording would necessarily be cumbersome and expensive. See U.S. v. Boria, 371 F.Supp. 1068 (D.P.R.1973). Accordingly, "[CRE 604] reflects the reasonable conclusion that, in light of these practical problems, the court should normally depend on the qualifications and oath or affirmation requirements of Rule 604 to produce an accurate translation." See Federal Practice & Procedure, supra, § 6055 at 321.

Moreover, the burden is on defendant to show that the deficiencies of the interpreter, or the lack of a recorded transcript of the Spanish language testimony, deprived him of a fair trial. See U.S. v. Manos, supra; State v. Mohler, 102 Or.App. 75, 792 P.2d 1239 (1990).

The record here reflects no substantial difficulties encountered by the interpreter, or by the court or counsel, in obtaining the English translation of the testimony. Defendant has not alleged any reason to believe that the interpretation of the testimony at trial was inaccurate, biased, or otherwise inadequate.

Because defendant has not affirmatively demonstrated that the failure to record the Spanish language testimony deprived him of his right to a fair trial, we do not perceive any reversible error. See People v. Avila, supra.

II.

Defendant contends that the trial court erred in failing to sever the three counts on which he was tried. However, the record indicates that defendant failed to renew his motion for severance during or at the close of trial. Thus, he is deemed to have waived his right to challenge the denial of the motion, and we do not address it. People v. Aalbu, 696 P.2d 796 (Colo.1985); People v. Weese, 753 P.2d 778 (Colo.App.1987).

III.

Defendant next contends that the trial court erred in failing to exclude defendant's statement made to his daughter that "Mexicans were bred for sex" and Spanish-English dictionaries containing numerous underlined words. We disagree.

A.

Relevant evidence is defined in CRE 401 as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." In resolving an issue of relevancy, a court must consider whether the proffered evidence is legally material to some factual issue in the case. People v. District Court, 785 P.2d 141 (Colo.1990).

A trial court is vested with broad discretion in determining the relevance of evidence, and its decision will not be reversed on appeal unless an abuse of that discretion is shown. People v. Roybal, 775 P.2d 67 (Colo.App.1989). In determining whether the challenged evidence relates to a fact of consequence, we must look to the elements of the crime charged. People v. Carlson, 712 P.2d 1018 (Colo.1986).

As relevant here, a person commits the crime of sexual assault in the first degree when he knowingly inflicts sexual penetration and...