State v. Jur
| Decision Date | 08 May 2014 |
| Docket Number | No. 2013–075,2013–075 |
| Citation | 166 N.H. 234,94 A.3d 283 |
| Parties | The STATE of New Hampshire v. Thomas JUR |
| Court | New Hampshire Supreme Court |
Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
James B. Reis, assistant appellate defender, of Concord, on the brief and orally, for the defendant.
Following a jury trial, the defendant, Thomas Jur, was convicted of operating a motor vehicle while certified as a habitual offender. RSA 262:23 (Supp.2012). On appeal, he argues that the Superior Court (Delker, J.) erred by denying his pretrial request for an interpreter, thus violating his right to a fair trial and effective assistance of counsel under both the State and Federal Constitutions. In the alternative, the defendant argues that the trial court's failure to appoint an interpreter at trial sua sponte was error. We affirm.
The pertinent facts are as follows. In February 2012, the defendant was indicted on the habitual offender charge. On March 13, 2012, his defense counsel filed a motion requesting that the trial court provide the defendant with an interpreter. In support of the motion, counsel stated that the defendant is from Sudan, that his primary language is Dinka, and that he has difficulty understanding the English language. The State did not object. The trial court granted the motion on March 28, 2012.1 On August 13, 2012, the clerk of court mailed a letter to a prospective interpreter, informing her of the need for her services and the dates of both the pretrial conference and the trial. However, as of November 26, 2012, the date the court held a final pretrial hearing, neither the court nor the parties had been able to secure a Dinka interpreter. The trial court had been notified of the lack of an interpreter a week prior to the hearing, and had informed defense counsel that it would engage in a colloquy with the defendant to determine whether he needed an interpreter for trial.
At the beginning of the hearing, both the State's attorney and defense counsel discussed their efforts to find an interpreter. The State stated that it had tried to contact two different organizations to secure an interpreter, but had been unable to reach either. Defense counsel stated that the defendant had identified an interpreter at one point—the individual whom the clerk of court attempted to contact via letter on August 13, 2012—but had been unable to get in touch with her during the several months prior to the hearing.2
The court next engaged in a colloquy with the defendant to assess his English language abilities. It began by asking the defendant, "[T]here's some question about how much English you understand and I want to talk to you a little bit about that, okay?" The defendant assented, and the trial court asked a series of background questions: where the defendant was from; when he first came to the United States; whether he was a United States citizen; and where he had been living since he moved to New Hampshire. The defendant answered these questions with one-word or short responses. The trial court then asked whether the defendant had worked at any point. The defendant stated that he had done "a lot" of work and specified that, for example, he had been a machine operator in Manchester for six years. The colloquy continued as follows:
The trial court next inquired about the defendant's native language, which the defendant stated was Dinka. The trial court asked whether the defendant had ever taken English language courses in Sudan or Ethiopia, to which the defendant responded, "No." The trial court then asked how he learned to speak English once he arrived in the United States:
The trial court next asked the defendant whether he understood the charges. The defendant responded in the affirmative, stating, "Yes, what happened." When asked to explain himself more particularly, the defendant stated, "I'm driving no license" and when asked, said that this was a crime because of a previous DUI. Based upon the defendant's response, the trial court then inquired into his past experience with the criminal justice system. In response to those questions, the defendant stated that he had had prior charges that had gone to trial. However, when asked whether there had been a jury of twelve people, the defendant stated "no" and, upon further questioning, explained: The colloquy continued as follows:
When asked whether there were still things that the defendant did not understand, the defendant responded, "Yes, a little bit." The trial court asked some follow-up questions to determine what the defendant meant by this response, but stopped when the defendant's answers began to reveal trial strategy.
After speaking with the defendant, the trial court asked the State what its case consisted of in terms of witnesses and evidence. The State explained that it had two witnesses—the arresting officer and the hearings officer who certified the defendant as a habitual offender—and that their testimony would be "two hours at most." At this point, the trial court asked the defendant the following:
Let me ask you this.... If I made sure that you had enough time to talk to [defense counsel], do you feel comfortable asking him, if there are things that the witnesses say that you don't understand, to be able to have time to consult with him about those issues to make sure you understand everything that's going on?
The defendant responded, "Yes." The trial court continued: "And if you have any questions along the way that he cannot answer for you, do you feel comfortable letting me know that you're having difficulty understanding what's happening in the trial?" Again, the defendant responded, "Yes." The trial court then asked defense counsel whether there was someone from his office who could assist him, so that the defendant could communicate with someone while defense counsel cross-examined witnesses. Defense counsel stated that he was sure he could find someone to assist him during trial.3
At that point, the trial court stated that the trial would proceed without an interpreter:
I think that [in] talking to [the defendant] today that his English is sufficient to ensure that ... his due process rights and his right to hear what the witnesses say and understand what they say can be protected by making sure we conduct this trial in a way that he has an adequate opportunity to talk with [defense counsel] and/or anyone who is helping him to make sure the Defendant understands all the issues.... But I think talking to [the defendant] I've been able to communicate, I think, with him quite effectively.... English isn't his first language, but he seemed to understand questions I've asked and I seem to understand his responses to those questions. And so I think given the fairly simple nature of these charges and the limited testimony that the State intends to introduce, that this case can go forward without an interpreter.
Defense counsel objected to the ruling, stating that an interpreter would be in the defendant's best interest. The trial court responded that it would make sure that defense counsel had "enough time between directs and crosses to talk or even if during the course of the testimony [the defendant] has questions that he wants to talk to you about or doesn't understand, we can break even during a direct or cross" so that defense counsel could address those issues. When defense counsel asked whether it had the trial court's permission to take breaks when necessary, the trial court responded, "Absolutely."
At the start of the trial, during its preliminary jury instructions, the trial court informed the jury that it would take more frequent breaks than usual because the defendant's native language was not English, and it wanted to ensure that defense counsel had enough time to confer with the defendant. After the trial court concluded its instructions, defense counsel—at the bench—stated that the defendant's understanding of the instructions was that "the jury should be listening to see if he's guilty or not guilty." However, defense counsel noted that the defendant did not understand what the trial court was saying as it was speaking, because...
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