Perez–Sovias v. State

• Court: Florida District Court of Appeals
• Writing for the Court: WELLS
• Citation: Perez–Sovias v. State, 95 So.3d 327 (Fla. App. 2012)
• Decision Date: 23 August 2012
• Docket Number: No. 3D11–284.,3D11–284.
• Parties: Juan Carlos PEREZ–SOVIAS, Appellant, v. The STATE of Florida, Appellee.

95 So.3d 327

Juan Carlos PEREZ–SOVIAS, Appellant,

v.The STATE of Florida, Appellee.

No. 3D11–284.

District Court of Appeal of Florida, Third District.

July 25, 2012.

Rehearing Denied Aug. 23, 2012.

Eugene Zenobi, Criminal Conflict & Civil Regional Counsel, Third Region of Florida and Anthony C. Musto, Special Assistant, Criminal Conflict & Civil Regional Counsel, and Philip Louis Reizenstein, Assistant Criminal Conflict & Civil Regional Counsel, for appellant.

Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.

Before WELLS, C.J., and LAGOA, J., and SCHWARTZ, Senior Judge.

WELLS, Chief Judge.

Defendant Juan Carlos Perez–Sovias appeals from his convictions for aggravated battery and petit theft, raising a number of arguments regarding his conviction and sentence. Although we conclude that none of these arguments has merit, we nonetheless write to address concerns raised by Perez–Sovias' argument that the court below erred when it engaged in untranslated conversations in Spanish with a number of prospective jurors, thereby depriving him of a transcript of a portion of the proceedings and ultimately a record to bring to this court.

Perez–Sovias was charged with aggravated battery, petit theft, and three counts of battery on a law enforcement officer stemming from an altercation between Perez–Sovias and his employer. Prior to jury selection, a qualified interpreter was sworn to translate all portions of the proceedings from English into Spanish for Perez–Sovias' benefit. The interpreter was also available to translate any portion of the proceedings which might occur in Spanish into English so as to facilitate creation of a record.

Shortly after the interpreter was sworn, a panel of prospective jurors was brought into the courtroom. As voir dire commenced, the trial judge asked the panel whether any panel member had any language difficulties that would prevent jury service. The trial judge then began to question, in Spanish, five prospective jury members who had raised their hands in response to his initial question. Although a certified interpreter was present at the time, he was not called upon to translate the exchange between the judge and these five prospective jurors. The trial judge instead summarized in English what he represented he had said in Spanish to these prospective jurors and what he interpreted them to have responded to him in Spanish:

THE COURT: ... Anybody have language difficulties that would prevent them from being a juror for us here today? We have a hand in the back here and it is Mr. Perez. (Judge speaks in Spanish to Juror.)

THE JUROR: Perez.

THE COURT: I've been speaking to him in Spanish for the record and he says he speaks very little English. How much have you understood so far?

THE JUROR: (Juror speaks in Spanish to Judge.)

THE COURT: He responded in Spanish for the record. (Judge speaks in Spanish to Judge.[sic] )

THE JUROR: Driver, truck driver.

THE COURT: (Judge speaks in Spanish to Juror.) He says he's a truck driver; he's been in the country 15 years. (Judge speaks in Spanish to Juror.) Says he doesn't have to speak English for his job. Okay. We have another hand in the back. It is Lopez.

THE JUROR: Martha Lopez.

THE COURT: Martha, do you speak English?

[THE JUROR]: (Juror speaks in Spanish to Judge.)

THE COURT: She says she doesn't understand what I'm saying but—(Judge speaks in Spanish to juror.)

THE JUROR: (Juror speaks in Spanish to Judge.)

THE COURT: She works for a dentist and—(Judge speaks in Spanish to Juror.) She says her contact with the clientele is just to say hello and so forth, not in depth conversations. I told her I would speak to her later. Anybody else with difficulties? We have a hand and it's....

....

THE COURT: Alonso?

THE JUROR: Alonso, yes.

THE COURT: Do you speak English, ma'am?

THE JUROR: Little bit.

THE COURT: What do you do for a living? Where do you work?

THE JUROR: The thrift store.

THE COURT: Where?

THE JUROR: The thrift store.

THE COURT: And how much have you understood so far?

THE JUROR: (Juror speaks in Spanish to Judge.)

THE COURT: I asked her how much she understood, and she asked me in Spanish to ask her in Spanish. (Judge speaks in Spanish to Judge.[sic] )

THE JUROR: (Juror speaks in Spanish to Judge.)

THE COURT: She says she speaks more English than she understands and if you speak it too fast, the English that is, she understands even less. And I have been accused of talking too fast.

THE JUROR: (Juror speaks in Spanish to Judge.)

THE COURT: All right. Anybody else with language difficulties? We have Mr. Ramos, right?

THE JUROR: Yes.

THE COURT: Mr. Ramos, how much have you understood so far? (Judge Speaks in Spanish to Judge [sic].)

THE JUROR: (Juror Speaks in Spanish to Judge.)

THE COURT: I asked him how much he's understood; he said very little. (Judge speaks in Spanish to Juror.)

THE JUROR: (Juror speaks in Spanish to Judge.)

THE COURT: He's a Spanish Telemarketer.

THE JUROR: Yes.

THE COURT: (Judge speaks in Spanish to Juror.)

The JUROR: (Juror speaks in Spanish to Judge.)

THE COURT: He's been here 25 years. Any other Spanish—any other language? Mr. Quintero, all right, how much have you understood?

THE JUROR: How much.

THE COURT: How much? (Judge speaks in Spanish to Judge. [sic] )

THE JUROR: (Juror speaks in Spanish to Judge.)

THE JUDGE: Where do you work? What's your job?

THE JUROR: (Juror speaks in Spanish to Judge.)

THE JUDGE: What do you do there?

THE JUROR: [ (]Juror speaks in Spanish to Judge.)

THE COURT: Chauffeur for Cadillac. (Judge speaks in Spanish to Juror.)

THE JUROR: (Juror speaks in Spanish to Judge.)

THE COURT: He's understood—I said 50 percent; he said probably less. Anybody else Spanish difficulties? Speak now or forever hold your peace on that issue. Let's move on....

Following these exchanges, the trial judge indicated that he was going to excuse all five of these prospective jurors, but asked the five individuals with language difficulties to remain in the courtroom while the court took a recess. But before the other prospective jurors left the courtroom, the judge spoke again in Spanish to the entire panel. On this occasion, the judge gave no indication in English as to what was said:

THE COURT: All right. Ladies and gentlemen, we're going to take a short break, and I'm going to name a few people that I want to remain with us; Number 16, Ramos; number 18, Quintero; number 23, Alonso; number 36, Lopez; and 34, Perez.

(Judge speaks in Spanish to Jurors.)

Everyone else, we're going to have a short recess....

After the panel left, the judge spoke in Spanish to the five remaining prospective jurors:

(Thereupon, the prospective jury panel departed from the courtroom, after which the proceedings continued as follows:)

THE COURT: Okay. Please be seated. (Judge speaks in Spanish to Jurors.)

THE BAILIFF: All rise for the jurors. Follow me.

THE JUROR: (Juror speaks in Spanish to Judge.)

(Juror departed the courtroom.)

Following this exchange, the court took a short recess.

When the panel returned, the judge commented that “[s]ome of [the] Spanish speakers were released.” Then as jury selection proceeded, the trial court made reference to the fact that prospective juror Ramos was “gone,” with the judge saying, “He's [a] Spanish speaker.” With regard to another prospective juror, the judge stated, “We've already gotten rid of him. He's a Spanish speaker.” A jury ultimately was empanelled without objection to any of this. Trial commenced the following day.

At the conclusion of the trial, the jury found Perez–Sovias guilty of aggravated battery and petit theft. Upon determining him eligible for enhanced sentencing, the court sentenced Perez–Sovias as a violent career criminal and a prison releasee reoffender to life imprisonment on the aggravated battery count and to sixty days on the petit theft count.

Perez–Sovias does not complain here that the trial court erred in communicating with the jurors in Spanish. Rather, he claims fundamental error as a consequence of the judge's actions because the court reporter was unable to record all portions of the proceedings and because the court reporter failed to bring her inability to do so to the attention of the court:

[T]he court reporter had an obligation to record all proceedings, including those portions conducted in Spanish. If she did not have the ability to do so, she had an obligation to bring that inability to the attention of the judge and the parties so that alternative arrangements could have been made—perhaps the substitution of a court reporter who spoke Spanish, perhaps the use of [an] interpreter, perhaps an agreement that the judge could interpret, perhaps the taping of the conversations for future transcription, perhaps some other approach.

SeeFla. R. Jud. Admin. 2.535(c) (“When trial proceedings are being reported, no part of the proceedings shall be omitted unless all parties agree to do so and the court approves the agreement.”); see also Springer v. State, 429 So.2d 808, 808 (Fla. 4th DCA 1983) (confirming that it is “incumbent upon the reporter to inform the court of his inability to transcribe the tapes at the time the tapes [are] played.”).

While voir dire is a critical stage of a trial and should be transcribed, we cannot agree that the failure to transcribe the entire voir dire in this case was error that reached down into the validity of the trial itself, so as to mandate reversal without further inquiry. See Gomez v. U.S., 490 U.S. 858, 873, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) (confirming that voir dire is “a critical stage of the criminal proceeding”); Tanzi v. State, 94 So.3d 482 (Fla.2012) (“A fundamental error is error that ‘reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ Rodriguez v. State, 919 So.2d 1252, 1282 (Fla.2005) (quoting Brown v. State, 124 So.2d 481 (Fla.1960)...