State v. Tok
| Decision Date | 29 April 2008 |
| Docket Number | No. 27316.,No. 27315.,27315.,27316. |
| Citation | 107 Conn.App. 241,945 A.2d 558 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Veasna TOK. State of Connecticut v. Eddy Jourdain. |
Christopher M. Neary, special public defender, for the appellant (defendant in the second case).
Rita M. Shair, senior assistant state's attorney, with whom were Walter D. Flanagan, former state's attorney, and, on the brief, David R. Shannon, assistant state's attorney, for the appellee (state in the second case).
McLACHLAN, HARPER and PELLEGRINO, Js.
The defendants, Veasna Tok and Eddy Jourdain, each were convicted after a consolidated trial before a jury following their arrests for involvement in an assault occurring outside a Danbury nightclub.1 On appeal, Tok claims that (1) the trial court abused its discretion in permitting Johnny Vega to testify through an interpreter, (2) his constitutional rights were violated because the interpreter provided unreliable interpretations, (3) the prosecutor engaged in impropriety during the questioning of witnesses and closing and rebuttal arguments, (4) the court improperly instructed the jury on the essential element of intent, (5) the court improperly charged the jurors on both subdivisions of the attempt statute and (6) the court failed to give the jury a specific unanimity instruction as to the theory of liability. On appeal, Jourdain claims that (1) the court abused its discretion in permitting Vega to testify through an interpreter, (2) during the course of Vega's testimony, Jourdain's constitutional rights were violated because the interpreter provided unreliable interpretations, (3) the prosecutor engaged in impropriety during closing and rebuttal arguments, (4) the court improperly instructed the jury on the essential element of intent and (5) the court improperly referred to the defendants in the singular when giving its charge.2 We affirm the judgments of the trial court.
The jury reasonably could have found the following facts. At approximately 11 p.m. on August 27, 2004, the victim, Jason Sheppard, went to Tuxedo Junction, a Danbury nightclub. While at the nightclub, Sheppard met an acquaintance, Jessica Osorio, and arranged for her to drive him home. At approximately 1:45 a.m., Sheppard and Osorio left the nightclub and walked through an alley to where Osorio's car was parked. While they were walking, Osorio heard footsteps approaching from behind. Sheppard turned around and saw three men, whom he recognized as Tok, Tok's younger brother and Jourdain. Jourdain, acting first, punched Sheppard above his eye. Thereafter, the three assailants, acting together, assaulted Sheppard continually. At some point, a metal pipe was used to strike Sheppard on the head.
A few minutes after the assault began, the assailants fled. Sheppard suffered a split lip, swollen eye, bruising on both eyes, lumps on the back of his head, a bruise on his neck and cuts on his head, elbows and knees. When the police arrived, Sheppard identified the defendants and Tok's brother as his assailants. Sheppard then was taken by ambulance to a hospital to receive treatment for his injuries.
During their investigation immediately following the assault, the police encountered Vega, a deaf mute who, through hand gestures, alerted police that he had seen the assault. Vega then pointed to a group of seven males getting into a car together. Officers approached the males and instructed them to stop. The police then conducted a lineup at the scene. Vega identified the defendants and Tok's brother as the assailants. The police thereafter arrested the defendants. Additional facts will be set forth as necessary.
The defendants each claim that the court improperly permitted Vega to testify at trial through a certified sign interpreter. The defendants' claim is twofold. First, they claim that the court abused its discretion in permitting Vega to testify through an interpreter. Second, they claim that during the course of Vega's testimony, their constitutional rights were violated because the interpreter provided unreliable interpretations. We are not persuaded.
Additional facts are necessary to resolve the defendants' claims. Before Vega testified at trial, the court held a hearing to determine if he was able to communicate through the use of an interpreter. Deborah Greener and Pasquale Leo, both certified interpreters in American sign language, testified that they met with Vega outside of the courtroom and were able to communicate with him using sign language.3 They also testified that there were some minor communication glitches during their meeting but that communication was possible through repetition and rephrasing of unknown signs. Upon inquiry from the court, the interpreters stated that they felt comfortable interpreting the language of Vega. At this juncture, Tok's attorney objected to permitting Vega to testify without assurances that the interpreters were able to provide a word for word translation. The court overruled the objection and permitted Vega to testify through an interpreter. During Vega's testimony, Greener indicated on at least three separate occasions that she needed to reinterpret something or there had been a misinterpretation. Neither of the defendants objected to the quality of interpretation during Vega's testimony.
The first component of the defendants' claim is that the court abused its discretion in permitting Vega to testify. The defendants' claim challenges whether Vega was competent to be a witness due to his inability to speak. Although there is a presumption that every person is competent to be a witness; Conn.Code Evid. § 6-1; "[a] person may not testify if the court finds the person incapable of . . . expressing himself or herself concerning the matter so as to be understood by the trier of fact either directly or through interpretation by one who can understand the person." Conn.Code Evid. § 6-3(b). Our key inquiry, therefore, is whether Vega could express himself "either directly or through interpretation by one who can understand" him.
Because the defendants' claim challenges an evidentiary ruling, our review of the court's decision is limited to whether the court abused its discretion. See Hayes v. Decker, 263 Conn. 677, 683, 822 A.2d 228 (2003); State v. Rodriguez, 180 Conn. 382, 389, 429 A.2d 919 (1980). On the basis of the record before us, we are confident that the court did not abuse its discretion in permitting Vega to testify.
A court has wide discretion to permit "any method of interrogation that is best adapted to obtain information intelligibly." C. Tait & E. Prescott, Connecticut Evidence (4th Ed.2008) § 6.3.5, p. 299. In the present case, Vega's inability to speak required the court to permit the use of an alternative method of interrogation. The court could have permitted Vega to be examined through written questions or, as the court ultimately chose to do, through sign language. In either case, our code of evidence requires that the court be satisfied that Vega could express himself to the trier of fact. The court's colloquy with the interpreters, whereby the interpreters stated that they were able to communicate effectively with Vega, is sufficient to satisfy the competency requirements set forth in our code of evidence.4
The defendants argue that the interpreters were required to guarantee that Vega could understand them with 100 percent accuracy and that they could likewise understand him to such a certainty. We find, however, no Connecticut precedent for this proposition, and the defendants likewise cite to none. More importantly, the record does not support the defendants' contention that the interpreters were unable to understand Vega. We believe in fact, that the record belies such a claim because the interpreters testified that they were able to communicate with Vega, and Vega did in fact testify through an interpreter in a manner that does not suggest any misunderstanding in communication. Although there were "communication glitches" where the interpreter stated that she misinterpreted a question or response or needed clarification as to the question or as to Vega's response, these instances are not evidence of the interpreters' lack of understanding of Vega such that Vega was rendered incompetent to testify. Accordingly, the court did not abuse its discretion in permitting Vega to testify through an interpreter.
The second component of the defendants' claim is that during the course of Vega's testimony, their rights under the fifth, sixth and fourteenth amendments to the United States constitution and under article first, § 8, of the constitution of Connecticut were violated because the interpreter provided unreliable interpretations. The defendants refer to the communication glitches referenced in part I A as evidence of the unreliable interpretations, which thereby violated the defendants' fifth amendment due process rights and sixth amendment rights to be confronted by the witnesses against them.5 We are not persuaded.
We begin our analysis by finding that this portion of the defendants' claim was not preserved at trial. During the course of Vega's testimony, the defendants did not object to the manner in which the interpreter communicated the testimony. The only objections the defendants made in relation to the use of interpreters came prior to Vega's testimony and concerned the preliminary question of whether the interpreters could understand Vega. These pretestimony...
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