Suarez v. State, 65260

• Citation: 481 So.2d 1201,11 Fla. L. Weekly 1
• Decision Date: 19 December 1985
• Docket Number: No. 65260,65260
• Parties: 11 Fla. L. Weekly 1 Ernesto SUAREZ, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 1201

481 So.2d 1201

11 Fla. L. Weekly 1

Ernesto SUAREZ, Appellant, v. STATE of Florida, Appellee.

No. 65260.

Supreme Court of Florida.

Dec. 19, 1985.

Rehearing Denied Feb. 21, 1986.

James Marion Moorman, Public Defender and Douglas S. Connor, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.

Jim Smith, Atty. Gen. and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

This case is a direct appeal from a trial resulting in a sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

The state's evidence at trial showed that Suarez drove a car with four accomplices to a convenience store in Immokalee. Suarez waited in the car while the four accomplices went into the store and robbed the clerk at gunpoint. During the robbery an off-duty detective pulled into the parking lot of the store and observed the robbery in progress. He left the parking lot and called in marked units to aid in capturing the perpetrators. The accomplices got into the car and Suarez drove away from the store followed by the off-duty officer. When a marked sheriff's deputy's car pulled in behind Suarez, Suarez attempted to evade by speeding up. A high-speed chase ensued during which Suarez forced several oncoming cars off the road and also went through two attempted roadblocks. The chase ended when Suarez pulled into a driveway at a migrant labor camp, his car coming to rest at the rear of a parked bus. Four deputies by this time were close behind the getaway car, and they pulled into the area and stopped. Suarez got out of the car taking with him his .22 caliber semi-automatic rifle. He fired more than a dozen rounds from the rifle before it apparently jammed. One of those bullets found its way into the chest of one of the deputies as he was exiting his vehicle. The shot killed him instantly, a fact not discovered until a short while later after two suspects Suarez testified he didn't know of the robbery until he was driving away from the convenience store. He claimed he fired the rifle only after he saw the flash of muzzle fire from the direction of the sheriff's deputies, and that he had merely fired the rifle blindly. He claimed that this was an automatic reaction resulting from his military experience as a Cuban soldier.

had been captured and Suarez and two other accomplices had fled the scene.

The jury convicted Suarez of first-degree murder and armed robbery. In the penalty phase, Suarez's psychiatrist testified that the defendant had suffered a series of struggles since a child. He was expelled from his home for striking his stepfather and joined the Cuban military. He went AWOL and served time in prison before he was released to serve as a soldier in Angola. There he was wounded three times, once almost fatally. He emigrated to Miami during the Mariel boatlift where he became involved in the paramilitary group, Alpha 66. The psychiatrist testified that, although Suarez was not mentally ill at the time of the killing, when under great stress, "instincts for survival take over."

The jury recommended death, 8-4. In his sentencing order, the judge found no mitigating circumstances and three aggravating: The murder was committed during flight from a robbery, to avoid arrest, and created great risk to many persons.

SIMULTANEOUS TRANSLATION

Suarez first raises a claim regarding the use of an interpreter during his trial. Prior to trial the court appointed an interpreter to assist Suarez's counsel. Suarez spoke little or no English, and the state does not claim that an interpreter was not needed. The interpreter sat at the defense table throughout the trial. As the state pointed out at oral argument, the record does not show that the interpreter did not provide simultaneous translation of all English-speaking witnesses at trial (and the record would normally not show this, unless defense counsel or someone else specifically entered this observation into the record). Because we hold that failure to provide simultaneous translation under the circumstances here is not error, we do not need to resolve this record deficiency.

Prior to the sentencing, Suarez's defense counsel moved for retrial, claiming that Suarez had been denied a fundamental constitutional right by failure to have the entire trial translated to him. The judge denied the motion on the ground that the court had fulfilled its responsibility in appointing the interpreter, and that it was the defense counsel's responsibility to determine how that interpreter should be used.

We do not take issue with Suarez's claim that a non-English-speaking defendant has a right to an interpreter at trial. This right is grounded on due process and confrontation considerations of the Constitution.

Considerations of fairness, the integrity of the fact-finding process, and the potency of our adversary system of justice forbid that the state should prosecute a defendant who is not present at his own trial, unless by his conduct he waives that right. And it is equally imperative that every criminal defendant--if the right to be present is to have meaning--possess "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding." Otherwise, "[t]he adjudication loses its character as a reasoned interaction * * * and becomes an invective against an insensible object."

United States ex rel. Negron v. New York, 434 F.2d 386, 389 (2d Cir.1970). ¹ In other words, a defendant who has no way of However, we do not agree with Suarez that the state or the court has a duty to do anything more than provide him with a competent interpreter. Appellant relies on the court's discussion of waiver of the right to an interpreter in Negron:

understanding the trial at which he is being tried is, in effect, absent from that trial.

The least we can require is that a court, put on notice of a defendant's severe language difficulty, make unmistakably clear to him that he has a right to have a competent translator assist him, at state expense if need be, throughout his trial.

Id. at 390-91 (footnotes omitted). Suarez argues that this statement reflects a judicial duty to personally inform a defendant of his right to simultaneous translation at trial, and that only after such record notice to the defendant can the defendant waive the right. See also State v. Neave, 117 Wis.2d 359, 344 N.W.2d 181 (1984) (right to interpreter waivable only by defendant personally, and not by defendant's attorney). We note, though, that the court in Negron was confronted with a trial where "[t]he times during pre-trial preparation and at trial when translation made communication possible between Negron and his accusers, the witnesses, and the officers of the court were spasmodic and irregular" because an interpreter was only intermittently available to the defendant. 434 F.2d at 388. In Neave the defendant never had an interpreter but counsel had never requested one, and the question before that court therefore was whether failure of defense counsel to request an interpreter constituted a valid waiver of the defendant's right to an interpreter. Thus, while these cases may be correct in requiring a personal on-the-record notification by the court to the defendant of his right to have an interpreter, we do not find in a case such as the one sub judice that, once provided an interpreter, the court has a further obligation to solicit a record waiver from the defendant of the right to simultaneous translation.

We are persuaded by the reasoning of the court in Markiewicz v. State, 109 Neb. 514, 191 N.W. 648 (1922), wherein, as in this case, an interpreter was appointed by the court for the defendant at trial but that interpreter, through no action of the state or the court, failed to provide simultaneous translation of the trial to the defendant. The court wrote:

Though the court must afford the defendant full opportunity to obtain all the benefit of this constitutional right [to confront witnesses] and, to that end, to understand testimony of the witnesses against him, so that a proper cross-examination may be had, we know of no affirmative duty devolving on the court to see that the defendant does have interpreted to him everything that is said and done, as it occurs, during the progress of the trial. The court in this case surely performed its full duty of preserving to the defendant his rights in that regard by appointing the interpreter selected by the defendant, an interpreter who was admittedly competent, and who was appointed for the declared purpose of interpreting and explaining to the defendant all of the things said and done during trial. The defendant and his attorney were furnished the means by which the defendant could be fully apprised with knowledge of the proceedings and the course of the testimony, and it was for them to determine how far they should avail themselves of the services of the interpreter furnished. The defendant having been actually confronted by the witnesses face-to-face as they gave their testimony, and having been given the means and a fair opportunity to understand what they said, and of preparing himself, through his attorney, to have the witnesses properly cross-examined, certainly has been denied no constitutional right, from the mere fact that the court did not, as the evidence was introduced, watch over and require the interpreter to constantly translate to the defendant all that was being said.

109 Neb. at 520-21, 191 N.W. at 650-1.

Suarez does not claim that he was at any time deprived of access to the court-appointed interpreter or that attempts to provide simultaneous translation were thwarted

either by the court, the state, or defense counsel. We will not speculate as to what conditions would require the court to assist the defendant in receiving simultaneous translation, but we find no abuse of discretion in the record before us. See generally Annot., 36 A.L.R.3d 276 (1971).

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