State v. Neave, 82-1543

• Decision Date: 29 February 1984
• Docket Number: No. 82-1543,82-1543
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Abel NEAVE, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 181

344 N.W.2d 181

117 Wis.2d 359

STATE of Wisconsin, Plaintiff-Respondent, v. Abel NEAVE, Defendant-Appellant.

No. 82-1543.

Supreme Court of Wisconsin.

Argued Dec. 1, 1983.

Decided Feb. 29, 1984.

Ruth S. Downs, Asst. State Public Defender, for defendant-appellant.

Thomas J. Balistreri, Asst. Atty. Gen. (argued), for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

DAY, Justice.

This is an appeal from an order of the circuit court for Kenosha county, Hon. William W. Zievers, Circuit Judge, denying the defendant's post conviction motion for a new trial or release from custody and discharge. The case is before this court on certification from the court of appeals pursuant to sec. (Rule) 809.61, Stats. 112 Wis.2d 681, 336 N.W.2d 677.

There are three issues on this appeal:

(1) Does a defendant have a right to an interpreter if such defendant does not understand English sufficiently to confer with his attorney or reasonably understand testimony given in English at his preliminary hearing or trial?

We conclude that as a matter of fairness and sound judicial administration the answer is "yes."

(2) Is the right to an interpreter waivable by the defendant's attorney or is it only waivable by the defendant personally?

We hold that such right may be waived only by the defendant. It should be done in open court and on the record.

(3) Should the rule announced in this case be retrospective or prospective in its application?

We conclude that for reasons of judicial administration the rule shall be prospective only. But as to the defendant it shall apply and to any other cases where the issue is presently on appeal or incorporated in a pending motion for a new trial.

In the case of this defendant since the record seems clear that defendant could not understand English sufficiently to reasonably understand testimony given in English at his trial we reverse the trial court and remand for a new trial.

The defendant, Abel Neave, was tried and convicted of attempted first-degree murder in violation of sections 940.01 and 939.32, 1979-80 ¹ and sentenced to ten years in prison. Subsequent to his conviction, the defendant filed a motion for post conviction relief under section 974.06, alleging a violation of a constitutional right to an interpreter. ² In its decision denying the defendant's motion, the trial court agreed that there is a constitutional right to an interpreter but held that there was no violation of that right in this case. The court rested its holding on three grounds: (1) the defendant was not indigent; (2) the decision not to have an interpreter was a tactical decision made by the defendant's counsel; and (3) the defendant's failure to request an interpreter amounted to a waiver.

It is evident from the record that the defendant did have an interpreter at his preliminary hearing and arraignment; there was no interpreter at the trial or sentencing. In a letter to the defendant's appellate counsel, the defendant's retained trial counsel, Mr. Joe Kremkowski, stated that he "felt that an interpreter [at trial] would have prevented [him] from taking accurate notes of the testimony which was being had." At the hearing on the post conviction motion, counsel stipulated that Mr. Kremkowski would testify consistently with the statement made in the letter.

It is also evident from the record that the trial judge, who did not preside over the preliminary hearing, was aware of the defendant's language disability. At one point during the trial, a portion of the transcript from the preliminary hearing was read to the jury. The excerpt included a statement by the district attorney that it was his understanding "that the defendant speaks Spanish quite exclusively and speaks very little, if any, English." In its written decision on the section 974.06, Stats. motion, the court stated: "It is apparent from the record that the defendant speaks and understands little English."

The United States Supreme Court has never addressed the question of whether a criminal defendant who does not understand English has a constitutional right to the services of an interpreter. In Perovich v. United States, 205 U.S. 86, 27 S.Ct. 456, 51 L.Ed. 722 (1907), the defendant challenged his murder conviction on the grounds that the trial court had failed to appoint an interpreter when he was testifying. The court refused to upset the conviction on those grounds, stating: "This is a matter largely resting in the discretion of the trial court, and it does not appear from the answers made by the witness that there was any abuse of such discretion." 205 U.S. at 91, 27 S.Ct. at 458. A number of more recent cases have held that the appointment of an interpreter is discretionary with the trial court. See, Suarez v. United States, 309 F.2d 709 (5th Cir.1962); United States v. Sosa, 379 F.2d 525 cert. denied 389 U.S. 845, 88 S.Ct. 94, 19 L.Ed.2d 111 (1967), United States v. Barrios, 457 F.2d 680 (9th Cir.1972). Clearly the discretion referred to in Perovich is to determine the factual question of whether an interpreter is needed; a trial court does not have discretion to decide whether a defendant who needs an interpreter has a legal entitlement to one. United States v. Carrion, 488 F.2d 12 (1st Cir.1973) cert. denied 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974).

A number of state and lower federal courts have addressed the question of whether there is a federal constitutional right to an interpreter in criminal cases. Those cases have generally held that the sixth amendment right to confront one's accusers, which includes the right to cross examine witnesses (Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965)) as well as the right to be present in the courtroom at every stage of the trial (Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970)), and the fundamental fairness required by the due process clause of the fourteenth amendment include the right of a criminal defendant who does not understand English to have the proceedings of his trial translated into a language he understands. United States ex rel. Negron v. State of New York, 434 F.2d 386 (2nd Cir.1970); United States v. Carrion, 488 F.2d 12 (1st Cir.1973) cert. denied, 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974); Commonwealth v. Garcia, 379 Mass. 422, 399 N.E.2d 460 (1980); Baltierra v. State, 586 S.W.2d 553 (Tex.Cr.App.1979).

This court reviewed the cases discussing a criminal defendant's right to an interpreter in Kropiwka v. DILHR, 87 Wis.2d 709, 275 N.W.2d 881, cert. denied, 444 U.S. 852, 100 S.Ct. 105, 62 L.Ed.2d 68 (1979). That case was an appeal from an order of the Department of Industry, Labor and Human Relations dismissing a handicap discrimination complaint. The question was not whether there was a legal entitlement to an interpreter but whether an interpreter was needed. The court stated that the determination of whether an interpreter is necessary is discretionary with the trial court and that the record gave no indication of an abuse of discretion. In the course of its opinion, the court stated: "The question of the right to a court-appointed interpreter has arisen in criminal cases. The use of an interpreter has been elevated to a right when the defendant is an indigent and obviously does not comprehend English. United States ex rel. Negron v. New York, 434 F.2d 386 (2nd Cir.1970)." 87 Wis.2d at 715, 275 N.W.2d 881.

We do not hold that there is federal constitutional right to an interpreter. We do hold that as a matter of judicial administration, and to avoid questions of effective assistance of counsel and questions of whether inability to reasonably understand testimony resulted in a loss of an effective right to cross-examination, or whether the right had been waived by a defendant or his attorney with the defendant's assent and how such assent was demonstrated, we adopt the rule herein announced. We also conclude that it removes the feeling of having been dealt with unfairly which is bound to arise when part or all of a trial is incomprehensible because of a language barrier.

The languages that were part of immigrant communities in this country from continental Europe have largely disappeared as succeeding generations used English as their primary or in most cases their only language. But today new groups from the southern portions of our own hemisphere and from portions of Asia seek to make their home among us and still speak and understand only languages other than English. Fairness requires that such persons who may be defendants in our criminal courts have the assistance of interpreters where needed. If the defendant is personally unable to pay for the services of an interpreter, one will be provided at public expense. ³

The second question is whether the right to an interpreter may be waived by the defendant's attorney or is to be treated as a personal right which may only be waived by the defendant. ⁴

A number of early cases have held that the right to an interpreter is waived if it is not asserted by the defendant. In Gonzalez v. People of Virgin Islands, 109 F.2d 215 (3rd Cir.1940), the Third Circuit Court of Appeals stated: "Where, as here, the defendant fails to state to the court that he cannot understand the language of the prosecution witnesses and fails to request an interpreter, his right must be deemed to be waived." 109 F.2d at 217 (footnote omitted). Similarly, in People v. Ramos, 26 N.Y.2d 272, 258 N.E.2d 197, 309 N.Y.S.2d 906 (1970), the Court of Appeals of New York held that where the defendant is represented by counsel and fails to request an interpreter, it cannot later be claimed defendant was denied due process of law. "Otherwise, it would be possible for a defendant to remain silent throughout the trial, and take a chance of a favorable verdict--failing in which, he could secure a new trial upon the ground that he did not understand...