People v. Munoz-Casteneda

• Decision Date: 05 July 2012
• Docket Number: No. 09CA2629.,09CA2629.
• Citation: 300 P.3d 944
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Crecenciano MUNOZ–CASTENEDA, Defendant–Appellant.
• Court: Colorado Court of Appeals

300 P.3d 944

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Crecenciano MUNOZ–CASTENEDA, Defendant–Appellant.

No. 09CA2629.

Colorado Court of Appeals, Div. IV.

July 5, 2012.

John W. Suthers, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Adam N. Mueller, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Chief Judge DAVIDSON.

¶ 1 Defendant, Crecenciano Munoz–Casteneda, appeals from the judgment of conviction entered on jury verdicts finding him guilty of possession with intent to distribute a schedule II controlled substance (cocaine) and possession of drug paraphernalia. We affirm. As a matter of first impression, we hold that when a fact witness translating an out-of-court conversation in which he or she participated (1) has personal knowledge of the relevant conversation; (2) is capable of translating the recording of that conversation without misleading the jury; and (3) is subject to cross-examination, he or she need not meet the standards required of a court-certified interpreter. We also address limitations on the prosecution's reference to or use of evidence pertaining to Mexican drug trafficking organizations.

I. Background

¶ 2 In November 2008, the Western Colorado Drug Task Force conducted a multi-day surveillance of two trailers. As a result of this surveillance and related traffic stops of targeted automobiles, the police obtained a search warrant for both trailers. During the search, the police found approximately two ounces of cocaine, two digital scales, pay/owe sheets, receipts bearing defendant's name, and stacks of cash in the middle bedroom of one of the trailers.

¶ 3 After the search, the police interrogated defendant, whom they had arrested earlier that day for failing to provide proof of insurance during a traffic stop. Because defendant did not speak English, a Spanish-speaking detective conducted the interrogation and translated the conversation for a non-Spanish speaking officer who was present. The conversation, including the contemporaneous translation, was recorded.

¶ 4 As recounted by the Spanish-speaking detective at trial, defendant said, during the interrogation, that he had found the cocaine in the living room, but it was not his. He said he had hidden it in his bedroom, which he described as the middle bedroom, so that his mother, with whom he lived, would not find it. He also said he was just holding it until he could return it to whoever had left it.

¶ 5 Defendant was charged with one count of possession with intent to distribute cocaine and one count of possession of drug paraphernalia. The jury found him guilty as charged, and the court sentenced him to a term of six years in the custody of the Department of Corrections plus five years of mandatory parole.

II. Translation Testimony

¶ 6 Defendant contends that the trial court erred by allowing the detective who interrogated him to translate that recorded interrogation during his trial testimony without meeting the requirements for interpreters set forth in CRE 604 and 702. We disagree.

A. Standard of Review

¶ 7 We review the trial court's decision to admit testimony for an abuse of discretion and will disturb that decision only where it is manifestly arbitrary, unreasonable, or unfair. People v. Stewart, 55 P.3d 107, 122 (Colo.2002). Because defendant objected to the court's allowing the detective to translate the interrogation on the grounds that the detective was not a court-certified interpreter and was not qualified to translate the evidence, we disagree with the People and consider this objection sufficient properly to preserve the issue of the admissibility of the challenged testimony. See United States v. Urena, 27 F.3d 1487, 1492 (10th Cir.1994) (“[A] general objection to translator competence may be sufficient to preserve the issue on appeal if it represents a good faith effort by defense counsel to address perceived translation problems.”).

B. Functional Distinction Between Court–Certified Interpreters and Fact Witnesses

¶ 8 CRE 604 governs the use of interpreters at trial: “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.” See People v. Braley, 879 P.2d 410, 412 (Colo.App.1993).

¶ 9 The role of a court-certified interpreter is to protect the fundamental fairness of the trial by ensuring that a non-English speaking defendant can understand the proceedings and that the trier of fact can understand the testimony of a non-English speaking witness. See People v. Ochoa–Magana, 36 P.3d 141, 143–44 (Colo.App.2001); People v. Avila, 797 P.2d 804, 805–06 (Colo.App.1990). While an interpreter's competence and the accuracy of the translation are subject to challenge, Braley, 879 P.2d at 413, an interpreter is not a participant in the trial proceedings in the traditional sense, but merely a conduit of information. Thus, a court should generally depend on the interpreter's qualifications and the oath or affirmation that he or she will produce an accurate translation. See People v. Mejia–Mendoza, 965 P.2d 777, 781 (Colo.1998); People v. Gutierrez, 916 P.2d 598, 600 (Colo.App.1995); Braley, 879 P.2d at 412–13.

¶ 10 Accordingly, an interpreter must be neutral and impartial, see Lujan v. United States, 209 F.2d 190, 192 (10th Cir.1953); Braley, 879 P.2d at 412, and qualified to interpret by virtue of “knowledge, skill, experience, training, or education,” CRE 702; see Braley, 879 P.2d at 412. A court should determine whether an interpreter meets these qualifications before the interpreter begins his or her translation duties. Braley, 879 P.2d at 413.

¶ 11 Conversely, the role of a fact witness is to relate, based on personal knowledge, information or events relevant to an issue at trial. SeeCRE 602 (“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.”); Burlington N. R.R. Co. v. Hood, 802 P.2d 458, 468–69 (Colo.1990).

¶ 12 A fact witness need not be neutral and impartial, but must provide a truthful recollection of events. SeeCRE 603 (“Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation.”). The witness's credibility and truthfulness are subject to cross-examination and, generally, to impeachment by independent evidence. SeeCRE 607; People v. Garcia, 826 P.2d 1259, 1264 (Colo.1992); see alsoCRE 608; Avila, 797 P.2d at 805. It is these procedures, rather than any type of court certification, that ensure truthful and accurate fact witness testimony.

¶ 13 When a fact witness's testimony includes an English translation of his out-of-court conversation with a non-English speaker, his role does not change from fact witness to neutral interpreter for purposes of that testimony. See United States v. Villalta, 662 F.2d 1205, 1206–07 (5th Cir.1981) (the rules of evidence pertaining to expert witnesses and interpreters are not applicable to a witness testifying about out-of-court conversations he participated in with the defendant in a foreign language); Commonwealth v. Shooshanian, 210 Mass. 123, 96 N.E. 70, 70 (1911) (“The narration in English ... is covered by his oath as a witness. It is only when testimony given in a foreign tongue requires translation in court that an interpreter is sworn specially for that purpose.” (quoting Commonwealth v. Kepper, 114 Mass. 278, 280 (1873))); State v. Roldan, 151 N.H. 283, 855 A.2d 445, 449 (2004) (rules applicable to neutral court interpreters retained by the court do not apply to testimony regarding the meaning or accuracy of foreign language evidence); 27 Charles Alan Wright et al., Federal Practice & Procedure §§ 6053, 6054 (2d ed. 2011) (“Rule 604's requirement that an interpreter must qualify as an expert witness may be relaxed” “[w]here a witness translates into English the contents of an out-of-court statement she heard in a foreign language,[even though] that witness in part functions like a witness interpreter”).

¶ 14 Thus, we conclude that, as long as the translating witness has personal knowledge of the relevant conversation or evidence, is capable of testifying to a translation of its contents without misleading the jury, and is subject to cross-examination, he may testify without first being certified as an interpreter. See Washington v. Texas, 388 U.S. 14, 22, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (“ ‘[T]he truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court....’ ” (quoting Rosen v. United States, 245 U.S. 467, 471, 38 S.Ct. 148, 62 L.Ed. 406 (1918))); United States v. Hernandez, 693 F.2d 996, 999–1000 (10th Cir.1982) (no error in allowing a witness who was not a court-certified interpreter, but who understood both English and Spanish, to translate the defendant's prior statement and a document the defendant had previously given him during his in-court testimony); Burlington, 802 P.2d at 469 (“[A]s long as there is evidence before the trial court that the jury, as the trier of fact, could reasonably find that the witness has personal knowledge of the event to which [he or she] is about to testify, the witness should be permitted to testify, and the questions of credibility and weight should be left for the jury to resolve.”); see also Shooshanian, 96 N.E. at 70 (“There was no error in permitting the witness ... to state in English the substance of the conversation between him and the defendant held in a foreign language.”); Roldan, 855 A.2d at 448–49 (same); cf. State v. Garcia, 299 Conn. 39, 7 A.3d 355, 367–68 (2010) (th...