State v. Pacheco

• Decision Date: 27 February 2007
• Docket Number: No. 29,557.,29,557.
• Citation: 2007 NMSC 009,155 P.3d 745
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Raul PACHECO, Defendant-Respondent.
• Court: New Mexico Supreme Court

155 P.3d 745

2007 NMSC 009

STATE of New Mexico, Plaintiff-Petitioner, v. Raul PACHECO, Defendant-Respondent.

No. 29,557.

Supreme Court of New Mexico.

February 27, 2007.

Gary K. King, Attorney General, Martha Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Petitioner.

John Bigelow, Chief Public Defender, Nancy M. Hewitt, Assistant Appellate Defender, Santa Fe, NM, for Respondent.

OPINION

CHÁVEZ, Chief Justice.

{1} In this case, an interpreter was sworn to interpret for two non-English speaking jurors throughout the court proceedings. Defendant appealed his convictions asserting that the interpreter should not have been present during jury deliberations without being given an additional instruction not to participate in the deliberations. The New Mexico Court of Appeals agreed in a majority opinion, holding that the trial court should have given a pre-deliberation instruction to the interpreter as suggested by the Non-English Speaking Juror Guidelines (NES Guidelines). State v. Pacheco, 2006-NMCA-002, ¶¶ 10, 18, 138 N.M. 737, 126 P.3d 553; see NES Guidelines, § III(C)(5) (attached as Appendix C to this opinion). Because the trial court did not give a pre-deliberation instruction to the interpreter, the Court of Appeals concluded the interpreter was not authorized to be in the jury room during deliberations, and thus, Defendant was presumptively prejudiced. Pacheco, 2006-NMCA-002, ¶¶ 18, 21, 138 N.M. 737, 126 P.3d 553. Finding that the State made no attempt to overcome the presumption of prejudice, the Court of Appeals reversed Defendant's convictions and remanded for a new trial. Id. ¶¶ 21-22.

{2} This case requires us to address whether an interpreter's presence during jury deliberations is unauthorized, thus giving rise to a presumption of prejudice, and to clarify the application of the NES Guidelines. We hold under existing case law, once an interpreter has been given the mandatory interpreters' oath to interpret testimony correctly, an interpreter is authorized to be in the room during deliberations to assist non-English speaking jurors. Furthermore, because the interpreter is authorized to be present during deliberations, no presumption of prejudice arises. To obtain a new trial, a party must present evidence of prejudice by showing that the interpreter behaved improperly during deliberations. Because Defendant did not demonstrate that the interpreter acted improperly by, for example, participating in the deliberations, Defendant failed to prove he was prejudiced by the interpreter's presence in the jury deliberation room. We therefore reverse the Court of Appeals. However, we take this opportunity to make certain suggested procedures in the NES Guidelines mandatory in future cases involving an interpreter for a non-English speaking juror.

I. BACKGROUND

{3} Defendant was charged with three counts of criminal sexual penetration of a minor and one count of criminal sexual contact of a minor after his girlfriend's twelve-year old daughter alleged that Defendant forced her to engage in sexual acts with him. During the trial, two jurors required assistance from an interpreter who was present to interpret English into Spanish. Additionally, one witness who testified during the trial also required the assistance of an interpreter.

{4} Prior to the commencement of the trial, the judge administered the following oath to the interpreter: "Do you solemnly swear that you will faithfully and impartially interpret English into Spanish and Spanish into English the testimony about to be given in the cause now on trial so help you God?" The interpreter agreed to faithfully and impartially translate testimony. Nothing in the record indicates that the trial judge administered an additional oath or instruction to the interpreter regarding the interpreter's role during jury deliberations, nor was such an instruction requested by either party.

{5} After the jury convicted Defendant of three counts of criminal sexual penetration of a minor, Defendant made a motion for a new trial, arguing among other things that "the Court neglected to give an oath to the interpreter that she would not participate directly or indirectly in the deliberations." Defendant further alleged that a new trial was necessary because following deliberations the trial court did not require the interpreter to swear, on the record, that the deliberations were free from undue influence. However, Defendant did not point to any allegations of improper behavior by the interpreter. The record is silent as to whether the trial judge ruled on Defendant's motion for a new trial. Thus, the motion was automatically denied thirty days after Defendant filed the motion. See Rule 5-614(C) NMRA ("If a motion for new trial is not granted within thirty (30) days from the date it is filed, the motion is automatically denied.").

{6} The Court of Appeals reversed Defendant's convictions and remanded for a new trial. First, the court concluded that the interpreter's presence in the jury room was unauthorized without an additional oath or instruction from the trial court to ensure that she neither participate nor interfere with the jury's deliberations. Pacheco, 2006-NMCA-002, ¶ 15, 138 N.M. 737, 126 P.3d 553. Second, although the record did not indicate any improper behavior by the interpreter that might have prejudiced Defendant, the court held that a presumption of prejudice arose when the interpreter was not given an additional oath or instruction, and that the State did not overcome this presumption. Id. ¶ 21. The Court of Appeals found support for its holding in the NES Guidelines, which encourage the use of such an instruction. See id. ¶ 10.

II. DISCUSSION

A. Defendant Did Not Preserve His Claim of Error, But We Review the Claim as a Matter of General Public Interest.

{7} As noted previously, Defendant did not request the trial court to give a predeliberation oath to the interpreter, nor did Defendant object when the trial court did not give such an oath. Defendant raised the issue in his motion for new trial. To preserve an issue for appellate review under Rule 12-216(A), "it must appear that a ruling or decision by the district court was fairly invoked." "We require a party to object at trial and invoke a ruling from the trial court in order to `alert the trial court to a claim of error so that it has an opportunity to correct any mistake.'" State v. Reyes, 2002-NMSC-024, ¶ 41, 132 N.M. 576, 52 P.3d 948 (quoting State v. Gomez, 1997-NMSC-006, ¶ 29, 122 N.M. 777, 932 P.2d 1).

{8} Because the interpreter assisted non-English speaking jurors throughout the trial it is reasonable to assume Defendant understood the interpreter would be present during jury deliberations. Therefore, Defendant should have either requested the court to administer a pre-deliberation oath to the interpreter or objected when such an oath was not given before deliberations. Doing so would have allowed the trial court to address the issue. Because Defendant did neither, he did not preserve the issue for appellate review. However, we may review the claim of error if it is a question involving fundamental error, fundamental rights of a party, or an issue of general public interest. See Rule 12-216(B)(1)-(2) NMRA (stating the exceptions to the preservation rule).

{9} Defendant argues this case involves fundamental error because the interpreter was not authorized to be present during jury deliberations without a pre-deliberation oath or instruction. However, as the Court of Appeals noted, Pacheco, 2006-NMCA-002, ¶ 14, 138 N.M. 737, 126 P.3d 553, New Mexico case law holds that an unauthorized presence in the jury room gives rise to a presumption of prejudice which the State may rebut. See State v. Coulter, 98 N.M. 768, 769-70, 652 P.2d 1219, 1220-21 (Ct.App. 1982).

{10} Although this case implicates Defendant's fundamental right to a trial by a fair and impartial jury, we are not persuaded that we may review the claimed error on that basis. See U.S. Const. amend. VI (guaranteeing a defendant the "right to a speedy and public trial, by an impartial jury"); N.M. Const. art. II, § 12 ("The right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate."). Fundamental rights, such as the right to trial by a fair and impartial jury, may be waived or lost. State v. Sanchez, 2000-NMSC-021, ¶ 26, 129 N.M. 284, 6 P.3d 486. Defendant waived his right by failing to timely invoke the ruling of the trial court. See Vigil v. Atchison, T. & S.F. Ry., 28 N.M. 581, 590, 215 P. 971, 974 (1923) (holding that counsel waived any alleged error as to an interpreter's presence during deliberations by waiting to object until after the interpreter entered the jury room), overruled on other grounds by Dunleavy v. Miller, 116 N.M. 353, 356 n. 1, 862 P.2d 1212, 1215 n. 1 (1993); cf. State v. Escamilla, 107 N.M. 510, 515, 760 P.2d 1276, 1281 (1988) (finding that a defendant waives his right to trial by a fair and impartial jury by waiting to object to jury qualifications until after the verdict is rendered).

{11} What remains is our discretion under Rule 12-216(B) to consider an issue not preserved below under the general public interest exception. See Rule 12-216(B)(1) NMRA. Although this exception should be used sparingly, we choose to do so in this case because of the important competing constitutional interests. See U.S. Const. amend. VI; N.M. Const. art. VII, § 3. We believe the large population of non-English speaking citizens in New Mexico who may require the assistance of an interpreter to effectively exercise their constitutional right to serve as jurors, and the impact of this case on a defendant's right to a fair and impartial trial by jury, justifies our review of the claimed error.

B. Because of the Constitutional Provisions Involved, the Proper Standard of Review is De Novo.

{12} In determining whether the claimed error occurred in this case, we must...