People v. Gonzalez-Raymundo

• Decision Date: 10 April 2015
• Docket Number: 319718.,150814.,Docket Nos. 150813,COA Nos. 316744
• Citation: 861 N.W.2d 617 (Mem),497 Mich. 998
• Parties: PEOPLE of the State of Michigan, Plaintiff–Appellant, v. Elias GONZALEZ–RAYMUNDO, Defendant–Appellee.
• Court: Michigan Supreme Court

497 Mich. 998

861 N.W.2d 617 (Mem)

PEOPLE of the State of Michigan, Plaintiff–Appellant

v.Elias GONZALEZ–RAYMUNDO, Defendant–Appellee.

Docket Nos. 150813

150814.

COA Nos. 316744

319718.

Supreme Court of Michigan.

April 10, 2015.

Order

On order of the Court, the application for leave to appeal the November 18, 2014 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

YOUNG, C.J., would grant leave to appeal.

MARKMAN, J. (dissenting).

I respectfully dissent from this Court's order denying leave to appeal and would instead grant leave to assess whether defendant, a non-English-language speaker, is entitled to a new trial because his counsel and not defendant waived his right to a simultaneous translation. Defendant was provided an interpreter by the trial court, but on the first day of trial, his counsel stated on the record that

I want to avoid the chance of any prejudice, so we'd like to preserve the right to waive the interpreter during the course of the proceedings and explain things to the defendant on break. And you can hear straight from the defendant's mouth if you like, Your Honor, that this is indeed our wish.

The trial court assented, and consequently defendant received the assistance of an interpreter throughout trial, but the interpreter did not provide simultaneous translation. Defendant was convicted of four counts of third-degree criminal sexual conduct.

At a Ginther¹ hearing, defense counsel testified that “[a]ll I know is that this was the strategy I recommended to [defendant] and he went along with it to the point that I don't recall him making any objection.” Defendant did not testify at the hearing. Nonetheless, the trial court granted defendant a new trial because he did not personally waive his right to simultaneous translation, and the Court of Appeals affirmed. People v. Gonzalez–Raymundo, 308 Mich.App. 175, 862 N.W.2d 657 (2014).

“ ‘[W]aiver is the “intentional relinquishment or abandonment of a known right.” ’ ” People v. Carines, 460 Mich. 750, 762 n. 7, 597 N.W.2d 130 (1999), quoting United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). “While the defendant must personally make an informed waiver for certain fundamental rights such as the right to counsel or the right to plead not guilty, for other rights, waiver may be effected by action of counsel.” People v. Carter, 462 Mich. 206, 218, 612 N.W.2d 144 (2000). For the following reasons, I question whether the lower courts correctly ruled that a new trial is warranted under the present circumstances.

First, neither the right to an interpreter nor the right to simultaneous translation have yet been deemed to be constitutional rights by either this Court or by the United States Supreme Court, much less to constitute extraordinary “structural” constitutional rights. Accordingly, when a rule of automatic reversal for failure to obtain the defendant's personal waiver has only been applied to violations of “a narrow class of foundational constitutional rights” such as the right to counsel and the right to plead not guilty, People v. Vaughn, 491 Mich. 642, 655–657, 821 N.W.2d 288 (2012), what is the rationale for imposing such an unyielding rule in the present context?

Second, the right to an interpreter and the right to simultaneous translation are fundamentally distinct. Once the trial court has appointed an interpreter to assist the defense, the specific use of the interpreter—whether to provide simultaneous translation or otherwise—would seem to be a matter of trial strategy that does not require that the defendant's personal assent be given to the court. That is, as numerous courts have recognized, the trial court satisfies its obligation, imposed by court rule and statute in Michigan, by appointing an interpreter to assist the defense, and the particular use to which the interpreter is put at trial is determined by counsel's judgment. See Markiewicz v. State, 109 Neb. 514, 520–521, 191 N.W. 648 (1922) (“The defendant and his attorney were furnished the means by which the defendant could be fully apprised with knowledge of the proceedings and the course of the testimony, and it was for them to determine how far they should avail themselves of the services of the interpreter furnished.”); Suarez v. State, 481 So.2d 1201, 1204 (Fla., 1985) (citing Markiewicz ); State v. Casipe, 5 Haw.App. 210, 216, 686 P.2d 28 (1984) (citing same). See also People v. Alvarez, 14 Cal.4th 155, 209, 58 Cal.Rptr.2d 385, 926 P.2d 365 (1996) (“We cannot conclude ... that the superior court denied defendant any right he had to the assistance of an interpreter. It made an interpreter available to assist him throughout the proceedings.”). Respectfully, the lower courts have taken no cognizance of this distinction.

Third, although new MCR 1.111 was not in effect at the time pertinent to this case, the Court of Appeals' decision will impose duties on trial courts significantly beyond those required by that court rule, which provides, in relevant part:

(B) Appointment of a Foreign

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