concluding the defendant’s rights were satisfied by vigorous cross-examination of 9 the victim about her U-Visa application, and the defendant’s request for the entire 10 file of the victim’s immigration attorney “bears the hallmarks of an impermissible 11 fishing expedition”
How later courts described this case
- concluding the defendant’s rights were satisfied by vigorous cross-examination of 9 the victim about her U-Visa application, and the defendant’s request for the entire 10 file of the victim’s immigration attorney “bears the hallmarks of an impermissible 11 fishing expedition”
Written by the judges who cited it.
The opinion
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 47
Docket: Lin-12-592
Argued: November 21, 2013
Decided: March 25, 2014
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR,
JJ.
STATE OF MAINE
v.
ELFIDO MARROQUIN-ALDANA
SILVER, J.
[¶1] Elfido Marroquin-Aldana appeals from a judgment of conviction of
gross sexual assault (Class A), 17-A M.R.S. § 253(1)(C) (2013), entered in the trial
court (Hjelm, J.) after a jury trial. Marroquin-Aldana argues that the court erred or
abused its discretion in denying Marroquin-Aldana access to immigration records
pertaining to the victim’s mother, in denying Marroquin-Aldana’s motions to
continue the trial, in finding the minor victim competent to testify at trial, and in
failing to provide adequate interpretation services at trial. We focus on the
immigration records and interpretation issues and affirm the judgment.
2
I. BACKGROUND
A. Factual Background
[¶2] The following facts are drawn from the trial record, viewed in the light
most favorable to the State. State v. Mercier, 2014 ME 28, ¶ 2, --- A.3d ---. In
2002, the victim’s mother, Lissette, accepted employment as a housekeeper for the
victim’s father, Joseph, who is a dentist. Lissette and her son Joshua moved into
Joseph’s Maine home. Eventually, Lissette and Joseph’s relationship became
romantic, and they were married in 2005. The victim was born in 2006.
[¶3] In 2011, Lissette met a woman named Carolina to discuss possible
employment in Lissette and Joseph’s home. Lissette and Joseph interviewed
Carolina at her home in Massachusetts, where they also met Carolina’s longtime
partner, Marroquin-Aldana.1 As a result of that meeting, Carolina came to stay
with the victim’s family as a housekeeper in early May 2011.
[¶4] At the time of Carolina’s arrival, work was being done on the family’s
home and the family was living in a building that also housed Joseph’s dental
office. During this period, Marroquin-Aldana made at least one trip to Maine. On
one such occasion, Marroquin-Aldana’s car broke down and he stayed at least one
1
In their testimony, Lissette and Joseph referred to Marroquin-Aldana as Carolina’s husband.
Carolina testified that although she referred to Marroquin-Aldana as her husband, they were not married.
3
night with the family and Carolina in the office building.2 By June 2011, the
family had moved back into their home, and Marroquin-Aldana had moved in with
them. Marroquin-Aldana and Carolina stayed in a third-floor bedroom with no
bathroom of its own. They showered in a bathroom on the second floor, which
was connected to Lissette’s and the victim’s bedrooms.
[¶5] The victim testified that while she and her family were still staying in
the office building, Marroquin-Aldana3 put his “private part” in her “private part.”4
The victim testified that this occurred in her bedroom while Carolina was doing
laundry in the next room. The victim also testified that Marroquin-Aldana
assaulted her on two occasions in the family home. In one instance,
Marroquin-Aldana put his “private part” in her mouth in the bathroom connected
to her room. In the other instance, Marroquin-Aldana put his “private part” in her
“private part” in Carolina and Marroquin-Aldana’s bedroom.
[¶6] On June 22, 2011, Marroquin-Aldana and Carolina took Joshua and the
victim to see a movie while Lissette was out with a friend. When Lissette returned
2
There was conflicting testimony as to the amount of time Marroquin-Aldana stayed with the family
in the office building in May 2011. Lissette testified that Marroquin-Aldana stayed with them for a week.
Joseph testified that Marroquin-Aldana stayed two to three days. Carolina testified that
Marroquin-Aldana stayed a single night.
3
The victim was unable to identify Marroquin-Aldana at trial but testified that he was married to
Carolina and was living in her house at the time of the assaults. Other witnesses identified
Marroquin-Aldana and noted that his appearance had changed since the summer of 2011.
4
The victim identified a “private part” as “[w]here you pee.”
4
home that night, she found the victim asleep in Lissette’s bed,5 still wearing the
clothes that she had worn that day. Lissette then changed the victim into her
pajamas. As she was removing the victim’s shorts and underwear, Lissette
observed a dark stain on the victim’s underwear and discharge from the victim’s
vagina, which she described as looking “like dead blood.” Lissette cleaned off the
discharge using the victim’s shorts. Lissette learned through an internet search that
the discharge could be an infection or a sign of sexual abuse. She then rolled up
the victim’s underwear and shorts and put them in her bedside table. Lissette
spoke to Carolina about the discharge, and Carolina said she had never seen
anything like that. Lissette did not talk to the victim or Joseph about the incident at
that time.
[¶7] Several days later,6 while watching a movie with Lissette in Lissette’s
bedroom, the victim told Lissette that her “private part” hurt. Lissette asked
whether someone had touched her private part; the victim said yes, and told her
who it was. The victim then told Lissette that “he put it in my mouth.” Lissette
asked what it looked like, at which point the victim drew a picture that was later
admitted in evidence. The victim identified the picture as a drawing of
Marroquin-Aldana’s “private part.”
5
The victim regularly slept in Lissette’s bed.
6
Lissette testified that she left the house without the victim twice during this period: once for forty to
forty-five minutes to visit friends, and again for three to four hours to buy mulch.
5
[¶8] Lissette informed Joseph of what had happened, and the next day they
confronted Marroquin-Aldana and accused him of assaulting the victim.
Marroquin-Aldana denied it. Lissette and Joseph asked Marroquin-Aldana to
leave, and he and Carolina moved out. Marroquin-Aldana and Carolina later gave
Lissette and Joseph an address in Chicago where they could be reached so that
Lissette and Joseph could send them the title to a car.
[¶9] Lissette and Joseph did not immediately call the police in part because
Lissette was concerned that she might be deported if she involved the authorities.
Lissette, born in Guatemala, arrived in the United States in 1992 as a legal
immigrant with a work permit and Social Security number. In 2002 or 2003,
Lissette was ordered to return to Guatemala. Lissette testified that she had hired an
immigration attorney but represented herself at the hearing before an immigration
court. She hired another attorney and unsuccessfully pursued an appeal. She
received a final deportation notice in 2003, which she ignored.7 Lissette testified
that, in June 2011, she was facing the same immigration issues that she had faced
for the past nine years, and denied receiving any communications from
immigration authorities that year. On July 21, 2011, after the confrontation with
Marroquin-Aldana, Lissette again consulted an immigration attorney.
7
Lissette testified that, before marrying Joseph, she had been in an abusive relationship with the
father of her son, Joshua. Lissette had ultimately pressed charges against Joshua’s father, and he had been
deported to El Salvador. Lissette testified that she “couldn’t go back home” to Guatemala because
Joshua’s father had told her that he would “find” her.
6
[¶10] Marroquin-Aldana repeatedly called Lissette and Joseph regarding the
title to the car, and on July 25, 2011, called Lissette names and said that they had
nothing on him and could not prove anything. Lissette became convinced that they
needed to call the authorities, which Joseph did the next day. Later, in
February 2012, Lissette filed an application for a “U visa” based on her
participation in Marroquin-Aldana’s prosecution.8 Lissette testified that she
believes that obtaining a U visa would solve her immigration issues, but
maintained that she did not know that U visas were available until after she called
the police.
[¶11] Lissette put the shorts and underwear that she had kept in the bedside
table into a plastic bag and gave the bag to the police. She also gave the police
several tissues that she had found while cleaning Marroquin-Aldana and Carolina’s
old room and had stored in a sealed plastic bag in her bureau. The tissues appeared
to Lissette to have been used by someone “cleaning themselves,” and Lissette
thought that they might help “identify somehow.”
8
Federal law permits aliens who are the victims of certain serious crimes, including sexual assault,
and who assist law enforcement in investigating and prosecuting those crimes to apply for a temporary
“U visa.” See 8 U.S.C. §§ 1101(a)(15)(U), 1184(p), 1255(m) (West, Westlaw through P.L. 113-74
approved 1-16-14). See generally Catholic Charities CYO v. Chertoff, 622 F. Supp. 2d 865, 870-74 (N.D.
Cal. 2008) (providing history and overview of U visa process). U visa status lasts for four years, but an
alien who has been present in the United States on a U visa for three years may apply for permanent
residence. See 8 U.S.C. §§ 1184(p)(6), 1255(m)(1).
7
[¶12] The Maine State Police Crime Lab analyzed the items that Lissette
had provided. A screening test on a stain on the victim’s shorts was weakly
positive for blood and semen, but further testing was unable to confirm the
presence of human blood, and not enough sperm cells were present to perform
DNA testing. The stain was soaked into the fabric and therefore appeared to have
been applied wet. There were no transfer marks to indicate that the stain had been
applied via a wiping motion, as Lissette had described, but the forensic chemist
testified that the absence of such marks could be consistent with a dabbing or
blotting motion.
[¶13] A stain on the victim’s underwear tested positive for blood and
semen, and again appeared to have been applied wet because it had soaked into the
fabric. A differential DNA analysis was performed on the stains on the victim’s
underwear and on the tissues found in Marroquin-Aldana and Carolina’s room.
This process separates DNA profiles originating from sperm cells from those
originating from non-sperm cells. The non-sperm portion of the sample from the
underwear matched the victim’s known DNA profile. Marroquin-Aldana was
included as a donor to the sperm portion of that sample.9 Marroquin-Aldana and
Carolina were included as potential donors to the non-sperm portion of the sample
9
The sperm portion was a mixture of DNA profiles from at least two individuals. The forensic
analyst testified that differential DNA extraction is not one hundred percent efficient, meaning that
residual non-sperm cells could end up in the sperm portion, and vice versa.
8
from the tissues,10 and the victim and Lissette were excluded. The sperm portion
matched Marroquin-Aldana’s known DNA profile.
[¶14] A physical examination of the victim performed on August 8, 2011,
was nonspecific and revealed no signs of injury. The examiner testified at trial,
however, that sexual abuse would not necessarily have caused injury, and that even
if it had caused injury, such injury could have healed by the time of the
examination.
[¶15] At the behest of the Lincoln County Sheriff’s Department, Chicago
police visited the address that Marroquin-Aldana and Carolina had given Lissette
and Joseph, in order to confirm that Marroquin-Aldana was living there. Carolina
answered the door, and the officers asked to speak with Marroquin-Aldana. As a
ruse to stall for time until an arrest warrant could be issued, the officers told
Marroquin-Aldana that they were investigating his vehicle and asked to see the car.
After Marroquin-Aldana showed the officers the car, he spontaneously told them
that an incident had occurred in Maine in which he had exited the bathroom while
wearing a towel around his waist and his employer’s daughter was in the
10
DNA analysis was only performed on one of the three tissues.
9
bedroom.11 He also said that “the girl was fond of him.” A warrant issued soon
thereafter, and Marroquin-Aldana was taken into custody.
B. Procedural History
[¶16] On November 18, 2011, Marroquin-Aldana was indicted for unlawful
sexual contact (Class A), 17-A M.R.S. § 255-A(1)(F-1) (2013), and gross sexual
assault (Class A), 17-A M.R.S. § 253(1)(C) (2013).12 Marroquin-Aldana filed a
motion for a speedy trial, which the court granted on January 27, 2012.13
[¶17] Marroquin-Aldana made several attempts prior to trial to obtain
Lissette’s immigration records. First, Marroquin-Aldana served a subpoena on
11
Carolina testified at trial that an incident occurred in which Marroquin-Aldana was wearing a towel
after coming out of the shower and the towel fell off. She testified that Marroquin-Aldana ran to their
bedroom, and that she was not sure if “anybody was there.” She further testified that there was another
incident in which the victim came into the bathroom while Marroquin-Aldana was in the shower and
Carolina was combing her hair in front of the mirror.
12
The indictment was amended on the State’s motion in March 2012.
13
Marroquin-Aldana vigorously defended the charges. He filed numerous pretrial motions, including
a motion for preservation of DNA evidence, a motion to compel discovery relating to the State’s forensic
evidence, a motion to suppress statements, a motion to compel production of any Department of Health
and Human Services records relating to the victim, a motion seeking a court order that a court reporter be
present at grand jury proceedings in the event that the State sought a superseding indictment, a motion for
a hearing concerning the victim’s competence to testify, a motion to compel production of the victim’s
counseling records, a motion to exclude the State’s forensic evidence due to chain-of-custody issues, a
discovery motion seeking to allow Marroquin-Aldana’s expert to independently examine the forensic
evidence, a motion to compel production of the victim’s school records, a motion to compel production of
the victim’s medical records, a motion for a pretrial “taint” hearing regarding allegedly suggestive
interview and counseling techniques, and a motion in limine on evidentiary issues. The parties also
litigated the issue of whether certain investigative reports concerning an investigating officer and an
employee of the Maine State Police Crime Laboratory should be disclosed to the parties and admissible at
trial.
10
Lissette and filed a motion in limine pursuant to M.R. Crim. P. 17(d),14 which sets
forth the appropriate procedure where “a party or its attorney knows that a
subpoena seeks the production of documentary evidence that may be protected
from disclosure by a privilege, confidentiality protection or privacy protection
under federal law, Maine law or the Maine Rules of Evidence.” At a hearing on
the issue on April 27, 2012, Marroquin-Aldana argued that the records were
necessary to establish Lissette’s motive to fabricate the allegations in this case in
order to obtain a U visa. Marroquin-Aldana also sought information as to when
Lissette became aware of her immigration problems, and as to any attempts to
resolve them.
[¶18] By a written order dated May 4, 2012, the court concluded that “[t]he
proper custodian of records of such documents is the Immigration and
Naturalization Service, and . . . a subpoena for production of these documents is
more properly directed toward that agency.” The court “decline[d] to require
[Lissette] to produce the documents directly, because of the court’s concern that
. . . this may invade confidential communications between [Lissette] and her
14
Rule 17 was amended effective January 1, 2014; among other changes, the Rule was renamed to
make clear that it exclusively governs subpoenas seeking the attendance of witnesses and any attendant
production of documentary or other tangible evidence. See M.R. Crim. P. 17 Advisory Note to 2014
amend. Newly adopted Rule 18 governs subpoenas seeking production of documentary or other tangible
evidence without witness attendance. See M.R. Crim. P. 18 Advisory Note to 2014 amend. Because
these changes do not affect Marroquin-Aldana’s appeal, we refer here to Rule 17 as it existed prior to the
January 1, 2014, amendment.
11
immigration counsel.” In accordance with the court’s order, Marroquin-Aldana
then served a subpoena on U.S. Citizenship and Immigration Services,15 which
declined to produce the records on the grounds that the subpoena was
unenforceable.
[¶19] Marroquin-Aldana then served a subpoena on Lissette’s immigration
attorney16 seeking the attorney’s
entire immigration file(s) of [Lissette] . . . including but not limited to
all documents, writings, records, etc. in whatever form related in any
way to [Lissette’s] immigration status and problems related to her
status and her unsuccessful and/or successful attempts to resolve such
problems from the time of onset of such problems through the present
time including but not limited to the application for a U Visa and all
related and supporting documentation.
Marroquin-Aldana also filed a motion in limine pursuant to Rule 17(d) to enforce
the subpoena. In response, Lissette’s attorney filed a motion to quash the
subpoena. A hearing was held on the motions on July 12, 2012. At the hearing,
defense counsel stated that she was seeking “anything that [Lissette] filed” with
immigration authorities and any “letters that would be sent” to Lissette by
immigration authorities.
15
Defense counsel represented to the trial court that the Immigration and Naturalization Service had
been abolished and U.S. Citizenship and Immigration Services had assumed its relevant functions. See
Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 451, 471, 116 Stat. 2135 (codified as amended
at 6 U.S.C.A. §§ 271, 291 (West, Westlaw through P.L. 113-74 approved 1-16-14)).
16
On Marroquin-Aldana’s motion, the court had ordered the State to disclose the attorney’s name to
Marroquin-Aldana if the State knew the attorney’s name or if Lissette was willing to disclose it. The
State provided the name to Marroquin-Aldana.
12
[¶20] By a written order dated July 23, 2012, the court concluded that there
was insufficient justification for disclosure of the documents because the State had
already produced a copy of the District Attorney’s certification17 in support of
Lissette’s U visa application, and Marroquin-Aldana could therefore call Lissette’s
credibility into question based on her attempts to seek protection from deportation
based on her assistance with Marroquin-Aldana’s prosecution. To the extent that
Marroquin-Aldana sought materials other than the U visa application itself, the
court concluded that “that effort can only be viewed as the proverbial ‘fishing
expedition.’” The court also noted the high level of protection given to
confidential communications between attorney and client, and the protections
given to documents filed with immigration authorities pursuant to federal law. The
court therefore denied Marroquin-Aldana’s motion in limine and granted the
motion to quash.
[¶21] Throughout the pretrial proceedings, Marroquin-Aldana filed several
motions to continue, including an unopposed motion to continue the case from the
February 2012 trial list, a joint motion to continue the case from the April 2012
trial list, and an unopposed motion to continue the case from the June 2012 trial
list. The court granted each of these motions, but indicated that the case “really
17
U visa applications must be accompanied by “a certification from a Federal, State, or local law
enforcement official, prosecutor, judge, or other Federal, State, or local authority . . . . stat[ing] that the
alien has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of
criminal activity” set forth by statute. 8 U.S.C. § 1184(p)(1) (quotation marks omitted).
13
needs to be tried in August” due to the victim’s age and because Marroquin-Aldana
had not posted bail and remained in custody. The court thereafter denied
Marroquin-Aldana’s fourth and fifth motions to continue the trial.
[¶22] A six-day jury trial was held beginning on August 16, 2012. At the
outset of the trial, the court conducted a voir dire to determine the victim’s
competence to testify. Based on the voir dire, the court found that the victim was
not disqualified from testifying because she was capable of communicating about
the issues in the case, understood the duty to tell the truth, and had sufficient ability
to remember events.
[¶23] Spanish interpreters were present to assist Marroquin-Aldana
throughout the proceedings. Carolina also required a Spanish interpreter during
her testimony. At trial, there were up to four interpreters present. The court
consistently asked that counsel and witnesses speak slowly and loudly to ensure
that the interpreters could hear and keep up with the testimony and arguments of
counsel. The court routinely asked Marroquin-Aldana whether he had understood
what had been said during the proceedings. Marroquin-Aldana invariably said that
he had.
[¶24] Some issues of interpretation arose during the trial. After a
suppression hearing held on the second day of trial, two of the interpreters raised
concerns about another interpreter’s translations of Carolina’s answers during the
14
hearing. The court discussed the issues with the interpreters and counsel at length
in chambers. The interpreters who raised the concerns listened to an audio
recording of Carolina’s testimony and revised the record to more accurately reflect
what was said. The court concluded that the interpretation issues that were raised
all related to “collateral” issues and did not call into question the court’s ruling on
the suppression motion. The court also concluded that it needed to be more
assertive in interrupting Spanish-speaking witnesses to allow the interpreters to
keep up. Finally, the court decided to excuse the interpreter at issue and work with
three interpreters during the trial rather than four.
[¶25] More interpretation issues arose on the fifth day of trial. First, during
Carolina’s testimony, one of the interpreters present in the courtroom indicated to
the court that Carolina’s interpreter had incorrectly interpreted a word meaning
“Mrs.” or “ma’am” as “sign.”18 After reviewing the court reporter’s notes with the
interpreters, defense counsel indicated to the court that the error was “not
substantive,” and the court authorized counsel to go back over “anything that you
18
The testimony in question apparently came in response to defense counsel’s questions regarding
whether the victim had complained of physical issues while Carolina was there:
Yeah, when I started working there she always—she would always say to me, Carolina, I
sense—I feel as though I have a hair. And I would look but I wouldn’t see anything and I
would say—I didn’t know what to say. I spoke to [Lissette] and I said that there was no
sign of anything.
Carolina later clarified that the victim had complained about her throat and that Carolina saw something
in the victim’s throat that could have been a cat hair, and told Lissette about it.
15
have so . . . that you can be satisfied that the interpretation is proper.” The court
agreed with counsel’s suggestion that if any similar issues arose, the interpreters
should signal for a sidebar conference. Defense counsel then went back over the
testimony in question with Carolina.
[¶26] Shortly after that exchange, defense counsel reported to the court that
Marroquin-Aldana had requested a different interpreter for Carolina, as he believed
that “some things . . . have been omitted.” The court immediately took a recess to
permit counsel to speak with Marroquin-Aldana and determine what the issue was.
Upon reconvening, defense counsel stated that “unlike what . . .
[Marroquin-Aldana] first advised me, he has not noticed anything omitted from the
interpretation.” Rather, Marroquin-Aldana said that when Carolina’s interpreter
was interpreting for him,19 the interpreter seemed to get “tongue tied or stuck or
didn’t seem to complete the thought.” Marroquin-Aldana therefore suggested that
the people that the interpreter was translating for needed to speak more slowly,
because he did not notice this when people spoke slowly. He also believed that the
interpreter in question was speaking too softly and not pronouncing words clearly
enough.
[¶27] The court, noting that “there is no indication of any omissions” in the
interpretation, concluded that a change of interpreters was not necessary. The
19
The interpreters rotated throughout the trial.
16
court noted that adjustments had been made to the microphone in response to
jurors’ reports that they were having trouble hearing the interpreters, and indicated
that it would remind the jurors to signal to the court if they had trouble hearing.
The court also noted that Carolina was breaking up her answers into shorter parts
to allow the interpreter to keep up. The court stated that it had been “watching
very carefully throughout the trial” and that “the interpreters . . . in this case are
certified and in my judgment very skilled.” The court also stated that it had
reminded the interpreters during the recess to speak loudly and clearly.
[¶28] Two other interpretation issues arose during Carolina’s testimony. In
response to a question as to how she first came into contact with Lissette,
Carolina’s response was first translated as: “[A] woman told me then that she had a
couple that needed—that needed someone . . . .” Another interpreter asked for a
sidebar, and indicated that Carolina had actually said that a woman told her that
she had a friend who was looking for a couple to come stay in her house to help
them. All of the interpreters agreed that the correction was accurate, and the court
directed the original interpreter to correct the answer for the jury. After that
interpreter attempted to correct the answer, the interpreter who raised the issue then
17
restated the correction that had been agreed upon at sidebar: “I have a friend
[who’s] looking for a couple to come stay in their house to help them.” 20
[¶29] On the last day of trial, one of the interpreters raised a concern about
her interpretation of one of Carolina’s answers the previous day regarding why she
did not change the victim into pajamas the night that they went to the movies. The
interpreter recalled that her interpretation “was to the effect [that] she did not put
on pajamas, or meaning she did not put on pajamas that night.”21 In hindsight,
however, the interpreter felt that it might have been more accurate to say that the
victim did not normally wear pajamas. The court permitted defense counsel to
follow up with Carolina to clarify her response, and defense counsel agreed with
that approach. In response to defense counsel’s follow-up questions, Carolina
testified simply that she did not recall what the victim was wearing that night, and
was not in charge of changing her. Defense counsel did not ask Carolina if the
victim usually wore pajamas.
[¶30] During an in-chambers conference on the last day of the trial, the
court indicated that this was the first time he had worked with a “team” of
interpreters and that he had therefore never had an arrangement where “one
20
The original interpreter’s initial attempt at correcting the testimony was: “Clarification, the
woman . . . stated I have a friend, a couple, who needs help.” She agreed with the ultimate correction
provided to the jury.
21
The original interpretation was in fact that “the girl didn’t want to put on pajamas . . . to sleep,” and
that “I never put pajamas . . . on her.”
18
interpreter can ask to be heard on another interpreter’s work.” The court saw the
issues raised by the interpreters “as a strength, not as a problem,” because that
process “provided an additional level of assurance about the quality of the work
that was done.”
[¶31] At the close of the State’s case-in-chief, the court granted
Marroquin-Aldana’s motion for a judgment of acquittal as to the count of unlawful
sexual contact. On August 23, 2012, the jury found Marroquin-Aldana guilty of
gross sexual assault. On December 4, 2012, the court sentenced
Marroquin-Aldana to the Department of Corrections for a term of twenty-four
years, followed by a twenty-five-year term of supervised release.
Marroquin-Aldana was ordered to pay $4670 as restitution for the benefit of the
victim’s family or the Victims’ Compensation Fund. Marroquin-Aldana timely
filed a notice of appeal on December 19, 2012.22
II. DISCUSSION
A. Immigration Records
[¶32] Marroquin-Aldana argues that the trial court erred or abused its
discretion in denying his motion in limine pursuant to Rule 17(d) and granting the
22
The same day, Marroquin-Aldana also filed an application for leave to appeal his sentence. We
denied Marroquin-Aldana leave to appeal his sentence by an order dated April 23, 2013.
19
motion to quash filed by Lissette’s immigration attorney.23 Specifically,
Marroquin-Aldana argues that the trial court erred in failing to apply Maine Rule
of Evidence 510 regarding waiver of privileges. In the alternative,
Marroquin-Aldana contends that the court’s order constitutes an abuse of
discretion because his effort to obtain Lissette’s immigration records was not a
“fishing expedition” in that “[defense] counsel was aware that actual documents
existed and that immigration information pertinent to the U Visa application would
be found in those documents.” This information, Marroquin-Aldana argues, was
critical to his ability to impeach Lissette and develop her motive to fabricate.
Marroquin-Aldana contends that the court’s error amounts to a deprivation of his
constitutional rights to due process, compulsory process, and confrontation.
1. Standards of Review
[¶33] We review a court’s decision on a motion to quash for an abuse of
discretion. See State v. Watson, 1999 ME 41, ¶ 5, 726 A.2d 214 (“The decision to
quash a subpoena duces tecum rests in the discretion of the court.”) Because
Marroquin-Aldana concedes that he did not raise his constitutional arguments in
23
Marroquin-Aldana broadly contends that “[a]ll avenues taken . . . to obtain Lissette[’s] . . .
immigration records were thwarted by the trial court.” His legal arguments, however, primarily concern
the court’s decision with respect to the subpoena directed to Lissette’s immigration attorney. To the
extent that Marroquin-Aldana’s brief can be read to challenge any other action by the court regarding the
immigration records, we deem any such arguments waived for failure to adequately develop them in
briefing. See Mehlhorn v. Derby, 2006 ME 110, ¶ 11, 905 A.2d 290 (citing United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990)).
20
the trial court, we review that issue only for obvious error. See State v. Dolloff,
2012 ME 130, ¶ 35, 58 A.3d 1032; State v. Pabon, 2011 ME 100, ¶ 18, 28 A.3d
1147. We have described obvious-error review as follows:
Obvious error review requires us to consider if there is (1) an error,
(2) that is plain, and (3) that affects substantial rights. If these
conditions are met, we will exercise our discretion to notice an
unpreserved error only if we also conclude that (4) the error seriously
affects the fairness and integrity or public reputation of judicial
proceedings. [A]n error affects a criminal defendant’s substantial
rights if the error was sufficiently prejudicial to have affected the
outcome of the proceeding.
State v. Patton, 2012 ME 101, ¶ 30, 50 A.3d 544 (alteration in original) (citations
and quotation marks omitted); see also Pabon, 2011 ME 100, ¶¶ 18-29, 28 A.3d
1147 (discussing obvious-error standard).
2. Analysis
[¶34] Rule 17(c) of the Maine Rules of Criminal Procedure provides that
“[a] subpoena may . . . command the person to whom it is directed to produce the
books, papers, documents or other objects designated therein. The court on motion
made promptly may quash or modify the subpoena if compliance would be
unreasonable, oppressive or in violation of constitutional rights.” The purpose of a
subpoena duces tecum is not to “expand the discovery rights of the parties,” but
rather “to facilitate and to expedite the trial.” Watson, 1999 ME 41, ¶ 5, 726 A.2d
214 (quotation marks omitted). To withstand a motion to quash pursuant to
21
Rule 17(c), the party seeking to enforce the subpoena must make a preliminary
showing
(1) that the documents are evidentiary and relevant; (2) that they are
not otherwise procurable reasonably in advance of trial by exercise of
due diligence; (3) that the party cannot properly prepare for trial
without such production and inspection in advance of trial and that the
failure to obtain such inspection may tend unreasonably to delay the
trial; and (4) that the application is made in good faith and is not
intended as a general fishing expedition.
Id. ¶ 6 (quotation marks omitted). Stated more simply, this test requires a showing
of relevancy, admissibility, and specificity. See United States v. Nixon, 418 U.S.
683, 699-700 (1974) (applying Fed. R. Crim. P. 17(c)).
[¶35] To satisfy the requirement of specificity, a subpoena must generally
request specific documents or at least a narrowly defined set of documents. See
United States v. Morris, 287 F.3d 985, 991 (10th Cir. 2002) (“Courts have held that
requests for an entire file are evidence of an impermissible fishing expedition.”);
United States v. Reed, 726 F.2d 570, 577 (9th Cir. 1984) (affirming trial court
order quashing defendants’ subpoena after in-camera review where the defendants
“did not request specific documents, but sought entire arson investigation files”).
The name of a document and mere speculation as to its contents are not sufficient
to satisfy the Rule’s specificity and relevance requirements. See United States v.
Hardy, 224 F.3d 752, 755-56 (8th Cir. 2000) (upholding trial court’s order
quashing defendant’s subpoena of recorded police radio transmissions where the
22
defendant had “stated why he wants to listen to the transmissions, but he cannot set
forth what the subpoenaed materials contain”); United States v. Arditti, 955 F.2d
331, 345-46 (5th Cir. 1992) (holding that the trial court did not abuse its discretion
in quashing a subpoena where the defendant “demonstrated why he wants to look
into the [subpoenaed] material, but . . . has not set forth what the subpoena[ed]
materials contain, forcing the court to speculate as to the specific nature of their
contents and its relevance”).
[¶36] Here, Marroquin-Aldana’s subpoena broadly sought Lissette’s
attorney’s
entire immigration file(s) . . . including but not limited to all
documents, writings, records, etc. in whatever form related in any way
to [Lissette’s] immigration status and problems related to her status
and her unsuccessful and/or successful attempts to resolve such
problems from the time of onset of such problems through the present
time including but not limited to the application for a U Visa and all
related and supporting documentation.
At the hearing, defense counsel narrowed the scope of the subpoena only slightly,
indicating that Marroquin-Aldana was seeking “anything that [Lissette] filed” with
immigration authorities and any “letters that would be sent” to Lissette by
immigration authorities.
[¶37] Marroquin-Aldana’s subpoena, seeking a broad range of documents
comprising Lissette’s attorney’s “entire immigration file(s),” bears the hallmarks
of an impermissible fishing expedition. See Morris, 287 F.3d at 991; Reed,
23
726 F.2d at 577. The only document identified with any specificity is Lissette’s
U visa application. Marroquin-Aldana failed to show what specific information
the application would contain that would be relevant to his defense. See Hardy,
224 F.3d at 755-56; Arditti, 955 F.2d at 345-46. As we have stated, Rule 17 is not
a discovery device. See Watson, 1999 ME 41, ¶ 5, 726 A.2d 214; see also Nixon,
418 U.S. at 698 (“[T]he subpoena duces tecum . . . was not intended to provide a
means of discovery for criminal cases . . . .”); United States v. Nixon, 777 F.2d
958, 968-69 (5th Cir. 1985) (“[D]efendants were attempting to use the subpoena
duces tecum as a discovery device, which it is not.”). The court therefore did not
abuse its discretion in denying Marroquin-Aldana’s motion in limine and quashing
Marroquin-Aldana’s subpoena pursuant to Rule 17.
[¶38] Because we conclude that Marroquin-Aldana’s subpoena failed to
meet the requirements of Rule 17, we need not reach his constitutional
arguments.24 See United States v. LaRouche Campaign, 841 F.2d 1176, 1178
(1st Cir. 1988) (“[W]e consider first [the] contention that the defendants’ subpoena
failed to satisfy the requirements of Rule 17(c); for we need not address the
competing constitutional interests in question unless the defendants’ subpoena met
those requirements.”). In any event, we are not convinced that the court committed
24
Marroquin-Aldana does not contend that the requirements of Rule 17 infringe upon his
constitutional rights.
24
obvious error in the circumstances of this case. Marroquin-Aldana was aware of
Lissette’s attempt to obtain a U visa based on her assistance in
Marroquin-Aldana’s prosecution, and had obtained in discovery a copy of the
District Attorney’s certification in support of Lissette’s application.
Marroquin-Aldana’s lack of access to Lissette’s attorney’s file did not prevent him
from impeaching Lissette based on her immigration issues and her U visa
application. In fact, defense counsel vigorously cross-examined Lissette regarding
her immigration issues and her motive to fabricate in order to resolve those issues.
See United States v. Brown, 347 F.3d 1095, 1098-99 (9th Cir. 2003) (holding that
the quashing of a defendant’s subpoena for a prosecution witness’s complete
immigration file did not violate the defendant’s confrontation rights where the
defendant’s cross-examination “enabled the jury sufficiently to assess [the
witness’s] credibility”).
[¶39] In light of the evidence of Lissette’s motive to fabricate presented at
trial, the possibility that any evidence contained in Lissette’s attorney’s file would
have appreciably affected the jury’s perception of Lissette’s credibility is remote.
We therefore conclude that the court did not commit obvious error in denying
Marroquin-Aldana’s motion in limine and granting the motion to quash. See
Patton, 2012 ME 101, ¶ 30, 50 A.3d 544 (“[W]e will exercise our discretion to
notice an unpreserved error only if we . . . conclude that . . . the error seriously
25
affects the fairness and integrity or public reputation of judicial proceedings.”
(quotation marks omitted)).
B. Interpretation Services
[¶40] Marroquin-Aldana argues that defects in the interpretation services
provided at trial deprived him of his constitutional rights to due process and to
confrontation. Because Marroquin-Aldana did not raise any objection to the
interpretation at trial, we review only for obvious error. See Dolloff, 2012 ME 130,
¶ 35, 58 A.3d 1032; Patton, 2012 ME 101, ¶ 30, 50 A.3d 544; Pabon, 2011 ME
100, ¶¶ 18, 29, 28 A.3d 1147.
[¶41] “[I]t is an unquestioned principle that a defendant must be afforded
the means to understand the proceedings against him.” State v. Poblete, 2010 ME
37, ¶ 27, 993 A.2d 1104 (quotation marks omitted). Maine law therefore
guarantees criminal defendants with “limited English proficiency” the right to an
interpreter. Id. (quotation marks omitted); see also 5 M.R.S. § 51 (2013);25
M.R. Crim. P. 28;26 Guidelines for Determination of Eligibility for
25
Title 5 M.R.S. § 51 (2013) provides, in relevant part: “When personal or property interest of a
person who does not speak English is the subject of a proceeding before an agency or a court, the
presiding officer of the proceeding shall either appoint a qualified interpreter or utilize a professional
telephone-based interpretation service.”
26
Rule 28 of the Maine Rules of Criminal Procedure provides: “The court may provide, or when
required by administrative order or statute shall provide, to individuals eligible to receive court-appointed
interpretation or translation services, an interpreter or translator and determine the reasonable
compensation for the service when funded by the court. An interpreter or translator shall be appropriately
26
Court-Appointed Interpretation and Translation Services, Me. Admin. Order
JB-06-3 (as amended by A. 7-13) (effective July 16, 2013).27 Interpreters must be
qualified as expert witnesses and appropriately sworn. See M.R. Evid. 604.28
[¶42] We have “strongly encouraged trial courts to be vigilant in ensuring
that interpreters perform their appropriate role in a judicial proceeding, namely
providing a precise and accurate translation of the exact testimony of a witness.”
Poblete, 2010 ME 37, ¶ 27, 993 A.2d 1104 (quotation marks omitted). We have
made clear, however, that “minor deviations from the rules governing interpreters
will not necessarily render a trial fundamentally unfair.” Id.; see also, e.g., id.
¶¶ 16-18, 28-29 (upholding trial court’s denial of the defendant’s motion for a
mistrial where the defendant “presented no evidence that the lack of a
word-for-word contemporaneous translation” of certain testimony affected his
decision to testify); State v. Green, 564 A.2d 62, 63-64 (Me. 1989) (concluding
that the failure to appropriately qualify or swear in an interpreter did not deprive
sworn.” Rule 43(l) of the Maine Rules of Civil Procedure provides for the appointment of interpreters in
civil cases.
27
By administrative order, the Judicial Branch provides an interpreter for “persons with limited
English proficiency . . . . who are parties or witnesses in any type of court case.” Guidelines for
Determination of Eligibility for Court-Appointed Interpretation and Translation Services, Me. Admin.
Order JB-06-3 (as amended by A. 7-13) (effective July 16, 2013). “[P]ersons with limited English
proficiency” are “individuals whose primary language is a language other than English and whose ability
to speak English is not at the level of comprehension and expression needed to participate effectively in
court transactions and proceedings.” Id.
28
Marroquin-Aldana does not suggest that any of the interpreters in this case were not appropriately
qualified or sworn.
27
the defendant of a fair trial); State v. Doucette, 398 A.2d 36, 39-40 (Me. 1978)
(holding that an interpreter’s “occasional lapses from first to third person” when
interpreting for the victim did not deprive the defendant of a fair trial).
[¶43] Here, the trial court carefully ensured that the proceedings were
accurately interpreted. The court routinely asked Marroquin-Aldana whether he
understood what was said during the proceedings, and Marroquin-Aldana
invariably replied in the affirmative. The court repeatedly asked that counsel and
witnesses speak slowly and clearly for the benefit of the interpreters.
Marroquin-Aldana also had the unusual benefit of having multiple interpreters
present in the courtroom throughout the trial; on several occasions, the interpreters
alerted the court to errors by other interpreters. The court took corrective action in
every instance that such an issue arose, whether by excusing an interpreter, asking
the interpreters to speak more loudly and clearly, directing the interpreters to
correct an error for the jury, or permitting counsel to elicit further testimony to
clarify a potential error.29
[¶44] The mere fact that interpretation issues arose does not call into
question the fundamental fairness of the trial where the court promptly addressed
those issues and took appropriate action to correct any defects. That interpretation
29
Marroquin-Aldana contends that the possible issue with Carolina’s testimony regarding the victim’s
pajamas was “never rectified.” The court, however, gave Marroquin-Aldana an opportunity to explore
this issue through further testimony; defense counsel failed to elicit testimony to clarify the issue.
28
issues were identified and corrected bolsters, rather than undermines, confidence in
the process instituted by the trial court. Indeed, we commend the court for its
vigilance and adaptability in overseeing a particularly complex trial. We discern
no error, much less an error that affects Marroquin-Aldana’s substantial rights or
“seriously affects the fairness and integrity or public reputation of judicial
proceedings” so as to constitute obvious error. See Patton, 2012 ME 101, ¶ 30,
50 A.3d 544 (quotation marks omitted).
C. Other Issues
[¶45] We do not find persuasive Marroquin-Aldana’s arguments that the
trial court erred or abused its discretion in denying his motions to continue the trial
or in finding the victim competent to testify at trial, and therefore do not address
those arguments further. See State v. Cochran, 2004 ME 138, ¶ 6, 863 A.2d 263
(stating that “[a] trial court’s ruling on witness competency is a factual one that we
review for clear error” and that “a child of any age is competent to be a witness
unless disqualified” (quotation marks omitted)); State v. Dechaine, 572 A.2d 130,
132 (Me. 1990) (“The decision to deny a motion for a continuance is committed to
the discretion of the trial justice, and will be disturbed on appeal only for an abuse
of that discretion.” (quotation marks omitted)).
29
The entry is:
Judgment affirmed.
On the briefs:
Jeremy Pratt, Esq., Camden, for appellant Elfido Marroquin-Aldana
Geoffrey Rushlau, District Attorney, Prosecutorial District 6, Wiscasset, and
Deborah P. Cashman, Asst. Atty. Gen., Augusta, for appellee State of Maine
At oral argument:
Jeremy Pratt, Esq., for appellant Elfido Marroquin-Aldana
Deborah P. Cashman, Asst. Atty. Gen., for appellee State of Maine
Lincoln County Superior Court docket number CR-2011-202
FOR CLERK REFERENCE ONLY