Kusi v. State

CRIMINAL PROCEDURE - APPOINTMENT OF INTERPRETER

A trial court’s decision to appoint an interpreter is reviewed using a two-part process in

which the reviewing court will first examine whether the trial judge’s factual findings were

clearly erroneous and, if they were not, will next consider whether the trial judge abused his

discretion in making the determination regarding whether to appoint an interpreter.

Circuit Court for Montgomery County

Case No. 117923

Argued: March 11, 2014

IN THE COURT OF APPEALS OF

MARYLAND

No. 62

September Term, 2013

GEORGE KUSI

v.

STATE OF MARYLAND

Barbera, C.J.

Harrell

Battaglia

Greene

Adkins

McDonald

Watts,

JJ.

Opinion by Battaglia, J.

Barbera, C.J. and McDonald, J., concur

Filed: May 19, 2014

Section 1-202 of the Criminal Procedure Article, Maryland Code (2001, 2008 Repl.

Vol.) provides for the appointment of an interpreter for a defendant in criminal proceedings

and states:

§ 1-202. Interpreters for criminal proceedings.

(a) When appointment required. – The court shall appoint a

qualified interpreter to help a defendant in a criminal proceeding

throughout any criminal proceeding when the defendant . . .

***

(2) cannot readily understand or communicate the English

language and cannot understand a charge made against the

defendant or help present the defense.1

Rule 16-819 of the Maryland Rules provides the procedures to determine whether an

interpreter is needed and is at the heart of the issue before us:

(c) Procedures to determine the need for interpreters.

***

(2) Spoken language interpreter. (A) Examination of

party or witness. To determine whether a spoken language

interpreter is needed, the court, on request or on its own

initiative, shall examine a party or witness on the record. The

court shall appoint a spoken language interpreter if the court

determines that:

(i) the party does not understand English well enough to

participate fully in the proceedings and to assist counsel, or

(ii) the party or a witness does not speak English well

enough to be understood by counsel, the court, and the jury.

1

Section 1-202 of the Criminal Procedure Article was amended by Chapter 705 of the

Maryland Laws of 2012 to renumber the provisions and to add a section providing

interpreters for victims. 2012 Md. Laws, Chap. 705.

(B) Scope of examination. The court’s examination of the

party or witness should include questions relating to:

(i) identification;

(ii) active vocabulary in vernacular English; and

(iii) the court proceedings.

Petitioner George Kusi seeks review of a judgment of the Court of Special Appeals

affirming his conviction in the Circuit Court for Montgomery County for sexual abuse of a

minor, second degree rape, and third degree sexual offense. The Court of Special Appeals,

in an unreported opinion, affirmed the judgment of the Circuit Court and concluded that the

trial judge had satisfied the requirements of Maryland Code, Section 1-202(a) of the Criminal

Procedure Article and adhered to Rule 16-819(c)(2)(A). Before this Court, Kusi, a native of

Ghana who arrived in the United States four years prior to his conviction, alleges that the trial

judge abused his discretion in denying him an interpreter for his criminal trial and also argues

that the Court of Special Appeals applied a clear error review, which, he asserts, was the

wrong standard of appellate review. Kusi petitioned this Court for a writ of certiorari, which

was granted. 432 Md. 466, 69 A.3d 474 (2013). In his petition, Kusi presented the following

question:

Did the Court of Special Appeals err in applying a ‘clearly

erroneous’ standard of review to requests for an interpreter, and

under the proper standard, was it an abuse of discretion to refuse

an interpreter for Petitioner at his jury trial?

We shall hold that appellate review of a trial court’s decision to appoint an interpreter is a

two-part process in which the reviewing court will first examine whether the trial judge’s

factual findings were clearly erroneous and, if those findings were not clearly erroneous, the

2

reviewing court will then consider whether the trial judge abused his discretion in making

the determination regarding whether to appoint an interpreter.

With regard to the appointment of an interpreter in this particular case, Section 1-202

of the Criminal Procedure Article, Maryland Code (2001, 2008 Repl. Vol.) required the trial

judge to first make factual findings regarding whether Kusi could “readily understand or

communicate the English language” and whether he could “understand a charge made against

[him] or help present the defense.” We shall review the factual findings made by the trial

judge utilizing a clearly erroneous standard. Thereafter, the trial judge determined that an

interpreter was unnecessary, which we review under an abuse of discretion standard. In the

present case, after applying the relevant standards, it is clear that the trial judge acted within

his discretion to deny Kusi’s request for an interpreter.

On the morning that Kusi’s criminal jury trial was scheduled to commence, his

attorney notified the trial court for the first time that, one week earlier, Kusi had requested

that an interpreter be present at the trial:2

2

Generally, pursuant to Rule 16-819(b), requests for an interpreter should be

submitted to the clerk of court not less than 30 days before the proceeding. Rule 16-819(b)

states:

(b) Application for the appointment of an interpreter.

A person who needs an interpreter may apply to the court for the

appointment of an interpreter. As far as practicable, an

application for the appointment of an interpreter shall be (1)

presented on a form approved by administrative order of the

Court of Appeals and available from the clerk of the court and

(continued...)

3

[Defense Counsel]: I just need to ask the Court maybe

to inquire. My client and I have

had conversations during the

pendency of this case –

The Court: Sure.

[Defense Counsel]: –and we’ve talked in English and

everything. I met with him last

week. For the first time he

expressed the desire to have an

interpreter.

The Court: Really. What language?

[Defense Counsel]: He’s Ashanti. There was no line.[3]

I contacted the office on Friday to

see. What I’m trying to do –

The Court: Could I ask him some questions?

Kusi was sworn by the court, and the trial judge proceeded to question him

regarding his educational level and his use of the English language:

(...continued)

(2) submitted not less than 30 days before the proceeding for

which the interpreter is requested.

In the present case, the State did not challenge the timeliness of the request nor did it assert

waiver as an argument. Rather, the State conceded in oral argument that the Rule states that

applications for the appointment of an interpreter should be submitted in a timely manner

“[a]s far as practicable.”

3

We assume this is a reference to “Language Line,” a telephonic interpretation service

l i s t e d o n t h e J u d i c i a r y’ s w e b s ite a t “ C o u r t L a n g u a g e S e r v i c e s , ”

http://www.courts.state.md.us/courts/courtlanguageservices.html (last visited May 15, 2014)

and described online at “LanguageLine Solutions,” http://www.languageline.com (last visited

May 15, 2014).

4

The Court: [H]ow far did you go in school?

Kusi: My school was (unintelligible), but

I learn a lot of language, but I’m

not really good in English.

The Court: Well, I didn’t ask you that. I asked

you how far you went in school. I’ll

get to that.

Kusi: Middle school.

The Court: I’m sorry?

Kusi: Middle school.

The Court: Middle school.

Kusi: Okay.

The Court: And if I could inquire, where were

you born?

Kusi: Born in Ghana.

The Court: In Ghana. Very good. And how old

are you, sir?

Kusi: I’m 44 years.

The Court: Forty-four. And when were you

born?

Kusi: (No audible response.)

The Court: What year?

Kusi: June 16, 1967.

The Court: 1967. And when did you come to

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the United States?

Kusi: The date that I come to United

States?

The Court: Just the year; I don’t need the exact

date.

Kusi: It’s four years.

The Court: Four years ago?

Kusi: Yeah.

The Court: Okay. Very good.

The trial court continued to question Kusi regarding what he did for a living and then

addressed discussions between Kusi and his attorney:

The Court: And before this all happened, what did you do for

a living?

Kusi: I just help my, one of my friend for

home improvement so that he give

me –

***

The Court: [Y]ou have been represented by

[defense counsel] since this case

[w]as first brought, is that correct?

Kusi: Yes, sir.

The Court: And have you had meetings with

[defense counsel]?

Kusi: Yes.

6

***

The Court: [H]ave you told him everything you

know about what the State alleges

in this case?

Kusi: Yes.

The Court: And has he answered all of your

questions?

Kusi: Yes.

The Court: And when you’ve spoken to

[defense counsel], I take it, you

have conversed in English, is that

right?

Kusi: Yes.

The Court: Very good. And have you had any

difficulty understanding what he’s

telling you?

Kusi: Sometimes, but I put some words

at, words down to ask some inmate

in the (unintelligible).

The Court: So sometimes there’s an idiom he

uses that’s not clear, right?

Kusi: Yeah.

[Defense Counsel]: I–

Kusi: No, he’s clear, but –

[Defense Counsel]: – don’t know if you heard what he

said. I think he said he put some

words down to ask an inmate.

7

Kusi: Inmate, yeah.

[Defense Counsel]: There was an occasion when there

was another person that helped me

talk–

The Court: An investigator or –

[Defense Counsel]: No, no, against my better —

[State’s Attorney]: Inmate?

[Defense Counsel]: – another inmate that spoke Ashanti.

The Court: Okay. Very good. And has he

answered all of your questions?

Kusi: Yes.

The Court: And are you satisfied that he’s

listened to what you’ve had to say?

Kusi: Yes, sir.

The trial judge then addressed the nature of the proceedings against Kusi:

The Court: And do you know why you’re here?

Kusi: Yes, Your Honor.

The Court: Do you understand what you’re

accused of doing?

Kusi: Yes.

The Court: Believe me, the reason we’re

having a trial is the State has to

prove it. Do you understand that?

8

Kusi: Yeah.

The Court: You don’t have to prove anything.

Do you understand that?

Kusi: Okay.

The Court: Yes?

Kusi: Yes.

The Court: You don’t have to testify. Do you

understand?

Kusi: Okay.

The Court: You don’t have to call witnesses.

Kusi: Okay.

The Court: You understand that, yes?

Kusi: Yes.

The Court: In our system, the burden of proof

always is on the State. Do you

understand that, sir?

Defense counsel interrupted the dialogue at this juncture to request that the judge vary

the dialogue from asking leading questions, which enabled Kusi to repeatedly answer yes:

Judge, I know you’ve been asking him . . . several questions,

and he’s . . . been acknowledging by saying yes. Because of

their leading nature . . . . I’m suggesting maybe a little

alternating or something, because it’s just the routine of saying

yes . . . to Your Honor, the authority, so I just want to make sure,

because he’s expressed to me not always understanding me,

even the second or third time that I’ve met with him by not

9

understanding what we talked about before . . . .

The Court responded, “What do you want to do?” and defense counsel continued:

[Defense Counsel]: I want to make sure that he’s

comfortable doing this in English;

that he understands what’s going

on. I know –

The Court: Absolutely.

[Defense Counsel]: – the prosecutor showed me, and I

remember there was an advice of

rights form that he acknowledged

speaking four different languages

partially, at least that’s what he’s

told me, but –

The Court: Well, let me inquire.

[Defense Counsel]: – I just want to make sure he knows

–

The Court: Sure.

[Defense Counsel]: – when he hears when you’re

talking that he understands it.

The trial judge then began inquiring about Kusi’s ability to speak languages other than

English:

The Court: Sir, what languages do you speak in

whole or in part?

Kusi: I speak Dutch.

The Court: Dutch. Very good.

10

Kusi: That’s my language Ashanti.

The Court: Yes.

Kusi: And Italy language, which is Latin.

The Court: Any others? Where did you learn

Dutch?

Kusi: The Dutch, I’ll be in Germany

sometimes, and I just pick it up.

The Court: How long have you been speaking

Dutch?

Kusi: Just a year.

The Court: Where did you learn English?

Kusi: When I came to United States, I

started learn, learning English.

The Court: So, when you came here four years

ago, you started learning English, is

that fair, yes?

Kusi: Yes.

The Court: And you’ve been able to work in

the United States during those four

years, is that true?

Kusi: Yes.

The Court: I’m sorry?

Kusi: Yes, Your Honor.

At this point, the judge began to inquire more specifically about what Kusi did for a

11

living and what he did with the money he earned:

The Court: Tell me a little bit about what you

did.

Kusi: For clean the carpet.

The Court: Clean the carpet.

Kusi: And fix the drywalls.

The Court: Drywall.

Kusi: And fix the electrics.

The Court: Electrical work?

Kusi: Yes.

The Court: What other things, sir?

Kusi: I think that’s it.

The Court: That’s it. And how many years

have you been doing it?

Kusi: (Unintelligible) I be here one year,

I didn’t work for nowhere, but after

the three years the only thing that I

have been doing to help my friend.

The Court: During this time did you always

work for the same company?

Kusi: Yes.

The Court: And what was the name of the

company?

12

Kusi: Enos Power Clean.

The Court: Very good. And how did you meet

up with them?

Kusi: Oh, he, he from Ghana, and is a, a

friend of mine introduce me to him.

And he know I can work in the

street without do anything, so he

just take me like that for him to

help me (unintelligible).

The Court: Okay. And how many days a week

typically would you work?

Kusi: Sometimes, sometime if he having

a good job maybe three days,

sometimes maybe one week.

The Court: Okay. And how much were you

paid?

Kusi: He used to give me two weeks, two

weeks he used to give me about

$600 or $700.

The Court: Would he pay you in cash or by

check?

Kusi: Cash.

The Court: All right. Do you have a bank

account?

Kusi: No.

The Court: So, you would just keep the cash,

and spend it?

Kusi: No, no, I don’t spend it. I just,

13

because I, before I am

(unintelligible), and it doesn’t have

a good job, so I just help her to pay

(unintelligible) that’s why –

The judge then explored Kusi’s possession of a Maryland driver’s license, the test for

which Kusi took in French:

The Court: Do you have a driver’s license?

Kusi: Yes, Your Honor.

The Court: From what state?

Kusi: From Maryland.

The Court: From Maryland. And I take it you

had to take a written exam, a

driving test?

Kusi: Yes.

The Court: What language did you take it in?

Kusi: I was (unintelligible), so French.

The Court: You took it in French?

Kusi: Yes.

The Court: And you passed it?

Kusi: Yes.

The Court: Okay. And you’ve been driving

around Maryland, and D.C., and I

take —

Kusi: Yeah, D.C., Laurel, Virginia, and –

14

The Court: Can you read the road signs?

Kusi: Yes.

The Court: Okay. Anybody else have any

additional suggestions for me at

this time or requests?

The State’s Attorney then interjected to request the court ask a few questions

regarding the language Kusi used at home, as well as to request that the trial judge return to

the court proceedings colloquy:

[State’s Attorney]: Your Honor, just briefly. What

language is spoken in the

household with the victim and his

girlfriend, the victim’s mother?

The Court: Sir, when you were living with the

child and her mom, did you speak

to each other in English?

Kusi: Yes, I tried to pick up from them.

The Court: Okay. And I take it the child

speaks English. Is that right?

Kusi: (No audible response.)

The Court: When you spoke to the child, did

you speak in English?

Kusi: Yes.

The Court: And when you spoke to the child’s

mom, did you speak in English?

Kusi: Yes.

15

The Court: I’m not asking you what you said.

I’m staying away from that. I’m

just asking the m eans of

communication. Anything else?

[State’s Attorney]: M y only other concern, Your

Honor, is perhaps, we could ask if

he’s understood what has happened

this morning in terms of discussion.

We’re obviously speaking to him

directly, speaking more slowly.

The Court: Let me ask it a little differently.

[State’s Attorney]: And keeping up with a trial is a –

The Court: Sure.

[State’s Attorney]: – little bit different. Thank you, sir.

The Court: Sir, we are here today to pick a

jury. Do you understand that?

Kusi: Yes, Your Honor.

The Court: And I’ve been going over with your

lawyer, and with the State,

questions that I’m going to ask

potential jurors. Do you understand

that? You have to say yes or no.

Kusi: Yes.

The Court: Thank you. The reason we do this

is to try to figure out whether any

potential jurors are going to be

biased before they hear any

evidence one way or another. Do

you understand that?

16

Kusi: Yes, Your Honor.

The Court: We don’t want people starting off

the trial leaning one way or

another. Do you understand?

Kusi: Yes.

The Court: The purpose is to get as neutral a

jury as possible, understanding that

everybody has opinions about

things. Do you understand?

Kusi: (Unintelligible.)

The Court: All right. Do you have any

questions you’d like to ask me, sir,

about what we’re doing, how we’re

doing it, procedural things? I’ll

answer them.

Before stating his findings on the record and ultimately denying Kusi’s request for an

interpreter, the trial judge reminded Kusi that Kusi could stop the proceedings at any point

if he did not understand what was happening:

The Court: Sir, if at any time you don’t

understand what’s going on, tell

[defense counsel], and he’ll tell me,

okay?

Kusi: Okay. Thank you.

The Court: I won’t get mad. I won’t get upset.

I mean it.

Kusi: Okay.

17

The Court: If something is confusing you, or if

you don’t – understanding you’re

not a lawyer, but if you have a

question, tell him. You can tell me

directly, but if you’re more

comfortable, you can just tell him.

Kusi: Okay.

The Court: He’s not shy. He’ll let me know.

Okay?

Kusi: Okay.

The Court: And we’ll either do it again, or

we’ll slow things down, or we’ll

figure out a better way to do it.

Okay?

Kusi: Okay.

The Court: There’s no rush.

[Defense Counsel]: I would like to ask him one

question.

The Court: Sure.

[Defense Counsel]: Do you remember when we talked

last week? We talked last week,

remember?

Kusi: (No audible response.)

[Defense Counsel]: I came, and we sat down, and I talked with you

last week, do you remember?

Kusi: Yeah, I talked to you last week.

[Defense Counsel]: Right. And you asked me to get an

18

interpreter for you.

Kusi: Yeah.

[Defense Counsel]: Why?

Kusi: Because I wanted to understand

everything that he’s talking about.

That’s why I say having the

interpreter. I think I’m gonna be

fine.

[Defense Counsel]: Okay.

The Court: All right. Sir, but I really mean this.

If at any time something happens,

and you’re not sure what just

happened, let [defense counsel]

know, and we’ll figure out how to

make sure that you fully understand

whatever it was that you may have

had a question about, okay?

Kusi: Okay.

The Court: There’s no rush. Nobody’s in a

hurry, and we’re going to take

whatever amount of time we need

to take, okay? I mean it. I know it’s

important; I really do.

The judge then made various factual findings, as well as a determination that Kusi did

not need an interpreter:

I am satisfied that the defendant understands the nature

of the proceeding. I find that he is able to communicate

cogently with his counsel. I find that he is able to discuss with

his counsel in English the facts of the case. I find that he’s able

to discuss with his counsel in English the legal strategies to be

19

employed. I find that he understands as much as any civilian

would understand the process of jury selection. And I find that

he is able to proceed in this matter without the aid of an

interpreter.

If anything changes, somebody let me know, and I will

revisit my findings, and, if necessary, make whatever

accommodation needs to be made. Okay? . . .

(Emphasis added.)

It is the language embodying the trial judge’s determination that is couched as a finding that

sparks, in part, the controversy before us, in addition to the methodology employed by the

judge.

Before us, Kusi argues that the trial judge erred when he determined not to appoint

an interpreter during his trial. Kusi also contends that the Court of Special Appeals applied

the wrong standard of review when it reviewed the judge’s determination, having embraced

clear error review. Kusi argues that abuse of discretion is the appropriate standard of review,

because the appointment of an interpreter is “a ‘reasoned decision based on the weighing of

various alternatives.’” (Petitioner’s brief at 22, quoting Judge v. R and T Construction Co.,

68 Md. App. 57, 60, 509 A.2d 1236, 1237 (1986)). Kusi’s counsel at oral argument reasoned

that were the correct standard for the determination to be used in review that we would

reverse and remand because the trial judge did not adhere to the recommendation contained

in the Committee Note appended to Rule 16-819, which states:

Committee note. – Examples of matters relating to

identification are: name, address, birth date, age, and place of

birth. Examples of questions that elicit active vocabulary in

vernacular English are: How did you come to court today? What

20

kind of work do you do? Where did you go to school? What was

the highest grade you completed? What do you see in the

courtroom? Examples of questions relating to the proceedings

are: What do you understand this case to be about? What is the

purpose of what we are doing here in court? What can you tell

me about the rights of the parties to a court case? What are the

responsibilities of a court witness? Questions should be phrased

to avoid “yes or no” replies.

Kusi’s argument also relies on the word “shall” as used in Section 1-202 of the Criminal

Procedure Article, Maryland Code (2001, 2008 Repl. Vol.) which mandates that courts “shall

appoint a qualified interpreter” when the defendant cannot readily understand or

communicate in English because, he contends, the court was obligated to appoint him an

interpreter.

The State argues that the trial judge’s lengthy colloquy with Kusi supports the trial

judge’s factual findings and that, even under an abuse of discretion standard, his

determination that there was no need for an interpreter should be affirmed. The State posits,

though, that the clearly erroneous standard of review is the appropriate standard to apply

because, according to the State, the court’s inquiry in determining whether to appoint an

interpreter necessarily involves a factual finding.

The Court of Special Appeals, in an unreported opinion, affirmed the judgment of the

Circuit Court. The Court of Special Appeals rejected the State’s argument, which the State

has abandoned before this Court, that Kusi’s statement indicating that he was “gonna be fine”

represented an affirmative waiver. The intermediate appellate court did agree, however, with

the State that “it was incumbent upon [Kusi] to let the court know if there came a point

21

during trial when [Kusi] could not understand the proceedings.” The intermediate appellate

court referenced its earlier decision in Biglari v. State, 156 Md. App. 657, 665 n. 2, 847 A.2d

1239, 1244 n.2 (2004), in which the court announced that “[the] statutory mandate [of

Section 1-202 of the Criminal Procedure Article] requires that we apply the clearly erroneous

standard of review to the issue of whether [a defendant] was entitled to an interpreter.” As

the Biglari court explained the clearly erroneous standard, “[a] judge’s decision is not clearly

erroneous if the record shows that there is legally sufficient evidence to support it.” Id. at

668, 847 A.2d at 1245.

The intermediate appellate court noted that the trial judge had “engaged in an

extensive colloquy” with Kusi and held that “the judge was not clearly erroneous in finding

that [Kusi] understood the English language well enough to participate meaningfully in the

proceedings” and that the trial “court’s determination concerning appellant’s need for an

interpreter was not clearly erroneous.” The Court of Special Appeals concluded that the trial

judge had satisfied the requirements of Maryland Code, Section 1-202(a) of the Criminal

Procedure Article and had fulfilled the dictates of Rule 16-819(c)(2)(A).

The history of Rule 16-819 and our recent jurisprudence regarding appointment of an

interpreter do not assist us in answering the ultimate question of when an interpreter should

be appointed by the court or what is the correct standard of review to employ. Our most

recent cases involving interpreters, Gonzalez v. State, 429 Md. 632, 57 A.3d 484 (2012) and

Kang v. State, 393 Md. 97, 899 A.2d 843 (2006), address different questions. In Gonzalez,

22

this Court confronted the admissibility of incriminating statements made by a defendant who

claimed, due to the lack of an interpreter, he did not understand the Miranda warnings he was

given. While the Gonzalez opinion aptly demonstrates this Court’s reluctance to second

guess the factual findings of a trial court, it does not address the standard of review

applicable to requests for an interpreter.4 Likewise, in Kang, an interpreter had been

4

Of note, in the Gonzalez opinion is this Court’s indication that it would “defer to the

motion court’s factual findings and uphold them unless they are shown to be clearly

erroneous.” Gonzalez, 429 Md. 632, 647, 57 A.3d 484, 493 (2012). The Court’s inquiry in

Gonzalez focused not on the adequacy of the Miranda warnings given, but rather on the trial

court's acceptance of testimony from a trooper explaining his belief that the defendant had

understood the warnings. This Court explained that:

In evaluating the adequacy of the warnings issued by [the

trooper], we begin with a crucial credibility determination made

by the suppression court. The court stated that it “believe[d] the

testimony of [the trooper] to be both truthful and persuasive.”

That credibility determination is virtually unassailable.

Consequently, we, as the reviewing court, must accept as fact

(as obviously did the suppression court) [the trooper’s]

testimony concerning his impressions of Petitioner’s

comprehension of not only the Spanish language, but also the

trooper’s phonetic pronunciation of the Mixtec words for

“court” and “attorney.” Indeed, the suppression court found that

Petitioner “could sufficiently understand Spanish in order to

waive his rights under Miranda.” Implicit in that finding,

moreover, is the suppression court’s predicate (albeit

unexpressed) finding that Petitioner sufficiently comprehended

the Miranda warnings so as to enable him to make a valid

waiver of the rights described therein.

Id. at 652-53, 57 A.3d at 496.

As we shall address infra, a focus on the trial court’s factual determination is likewise

controlling in this case.

(continued...)

23

appointed by the trial court and the appointment was not challenged in this Court. Rather,

this Court assessed Kang’s claims that untranslated portions of the proceedings had unfairly

impacted his waiver of a jury trial and, like our decision in Gonzalez, we relied upon the

record to determine that a “jury trial waiver was likely not the result of language deficiency”

and indicated that we were “satisfied that [the defendant] had an opportunity to understand

and participate in his criminal proceedings.” Kang, 393 Md. at 118, 899 A.2d at 855.

Before we address the ultimate question of whether an interpreter should have been

appointed by the trial judge, we must address just how we review his decision. Maryland

Rule 8-131 generally defines the scope of appellate review and subsection (c) describes the

standards applied when an action has been tried without a jury:

Rule 8-131. Scope of review.

(c) Action tried without a jury. When an action has

been tried without a jury, the appellate court will review the case

on both the law and the evidence. It will not set aside the

judgment of the trial court on the evidence unless clearly

erroneous, and will give due regard to the opportunity of the

trial court to judge the credibility of the witnesses.

Unlike the dichotomy presented in the instant case between application of the clearly

erroneous standard of review and that of abuse of discretion, we have acknowledged that

Rule 8-131(c) does not always require a solitary standard of review, but rather there are often

“interrelated standards” applicable. In re Adoption/Guardianship of Victor A., 386 Md. 288,

(...continued)

24

297, 872 A.2d 662, 667 (2005). For example, we have articulated “three distinct aspects of

review in child custody disputes.” In re Yve S., 373 Md. 551, 586, 819 A.2d 1030, 1051

(2003), quoting Davis v. Davis, 280 Md. 119, 125, 372 A.2d 231, 232-33, cert. denied, 434

U.S. 939, 98 S.Ct. 430, 54 L.Ed.2d 299 (1977). See also Robinson v. Robinson, 328 Md.

507, 513, 615 A.2d 1190, 1193 (1992); McCready v. McCready, 323 Md. 476, 484, 593 A.2d

1128, 1131 (1991); Domingues v. Johnson, 323 Md. 486, 492 n. 2, 593 A.2d 1133, 1136 n.2

(1991) (“A chancellor’s decision founded upon sound legal principles and based upon factual

findings that are not clearly erroneous will not be disturbed in the absence of a showing of

a clear abuse of discretion.”).

It is also common for appellate courts to employ a two-tier standard of review, first

applying a clearly erroneous standard to the judge’s factual findings before reviewing a

judge’s legal determination under an abuse of discretion standard. See, e.g., Falls Rd.

Community Ass’n, Inc. v. Baltimore County, 437 Md. 115, 135, 85 A.3d 185, 197 (2014)

(“The trial court’s evaluation of the evidence is reviewed under a clearly erroneous standard

. . . . A court’s decision to grant or deny declaratory relief is generally assessed under an

‘abuse of discretion’ standard.”); State v. Walker, 345 Md. 293, 325, 691 A.2d 1341, 1356

(1997) (“Some of the subsidiary determinations made by a trial court in arriving at its

findings and conclusions may well be purely factual or discretionary ones, and, as to them,

we will continue to apply a clearly erroneous or abuse of discretion standard.”)

Because the trial judge in this case, as required by Rule 16-819, first made factual

25

findings concerning Kusi’s ability to use the English language, the first tier of review in this

case involves an examination of the trial judge’s factual findings using the clear error

standard. We will give deference to the trial court’s factual findings, while still reviewing

those findings for clear error, because we give “‘due regard to the opportunity of the trial

court to judge the credibility’” of the evidence. City of Bowie v. MIE Properties, 398 Md.

657, 676, 922 A.2d 509, 521 (2007), quoting Maryland Rule 8-131(c); Colandrea v. Wilde

Lake Cmty. Ass’n, Inc. 361 Md. 371, 394, 761 A.2d 899, 911 (2000); Murphy v. 24th St.

Cadillac Corp., 353 Md. 480, 497, 727 A.2d 915, 923-24 (1999). As this Court has

previously stated, “A finding is clearly erroneous when although there is evidence to support

it, the reviewing court on the entire evidence is left with the definite and firm conviction that

a mistake has been committed.” Goodwin v. Lumbermens Mut. Cas. Co., 199 Md. 121, 130,

85 A.2d 759, 763 (1952) (internal quotations omitted). Judge Wilner expounded on the

concept of clear error review in Attorney Grievance v. Maignan, 390 Md. 287, 295, 888 A.2d

344, 349 (2005), explaining that the Court will only overturn a trial judge’s factual finding

if, for example, a document in evidence “belies the judge’s finding,” rendering that factual

finding “fundamentally and clearly erroneous.” He noted that:

It is true, as we have indicated, that credibility decisions

made by a hearing judge are ordinarily entitled to deference, but

. . . not when the credibility decision is so contrary to

unexplained, unimpeached, unambiguous documentary evidence

as to be inherently incredible and unreliable. If the check

admitted into evidence was blue in color, and we could see it

was blue in color, we certainly would not accept the judge’s

26

crediting of the office manager’s testimony that it was yellow.

Id.

Applying the clearly erroneous standard of review to the present case, it is evident that

the trial judge did not commit clear error when he found that Kusi could “understand[] the

nature of the proceeding,” “discuss with his counsel in English the facts of the case,” and

“understand[] as much as any civilian would understand the process of jury selection.” The

trial judge had an opportunity firsthand to hear Kusi speak English during the lengthy

process, and the judge also asked a number of questions that revealed the amount of

education Kusi had received, the jobs he had worked in the U.S., and his use of English in

his home. Kusi’s answers to these questions revealed that his knowledge of the English

language was thorough enough to allow him to proceed without an interpreter.

After the trial judge made the factual findings that Kusi “understands the nature of the

proceedings” and was “able to communicate cogently with his counsel,” the trial judge next

stated, “I find that [Kusi] is able to proceed in this matter without the aid of an interpreter.”

Although the trial judge used language indicating that this statement was a “finding,” the

statement was the legal determination that the trial judge reached when he applied Maryland

Rule 16-819 to the facts found. We have stated that the clearly erroneous standard “does not

apply to a trial court’s determinations of legal questions or conclusions of law based upon

findings of fact.” In re Yve S., 373 Md. at 585, 819 A.2d at 1050; see also Nesbit v. GEICO,

382 Md. 65, 72, 854 A.2d 879, 883 (2004); Rohrbaugh v. Estate of Stern, 305 Md. 443, 446-

47 n. 2, 505 A.2d 113, 115 n.2 (1986); Elza v. Elza, 300 Md. 51, 55-56, 475 A.2d 1180, 1182

27

(1984). Rather, where a trial court makes a discretionary ruling, such as the determination

of whether or not to appoint an interpreter, we apply an abuse of discretion standard of

review.

There are a “multitude of varying definitions of ‘abuse of discretion,’” Alexis v. State

437 Md. 457, 87 A.3d 1243 (2014). It is nevertheless clear that “a ruling reviewed under

an abuse of discretion standard will not be reversed simply because the appellate court would

not have made the same ruling.” Id., quoting North v. North, 102 Md. App. 1, 14, 648 A.2d

1025, 1031-32 (1994). We previously have defined it as:

We have defined abuse of discretion as “discretion manifestly

unreasonable, or exercised on untenable grounds, or for

untenable reasons.” Jenkins v. City of College Park, 379 Md.

142, 165, 840 A.2d 139, 153 (2003) (emphasis not included).

See also Garg v. Garg, 393 Md. 225, 238, 900 A.2d 739, 746

(2006) (“‘The abuse of discretion standard requires a trial judge

to use his or her discretion soundly and the record must reflect

the exercise of that discretion. Abuse occurs when a trial judge

exercises discretion in an arbitrary or capricious manner or when

he or she acts beyond the letter or reason of the law.’”) (quoting

Jenkins v. State, 375 Md. 284, 295-96, 825 A.2d 1008, 1015

(2003) . . .).

Touzeau v. Deffinbaugh, 394 Md. 654, 669, 907 A.2d 807, 816 (2006). When the trial court

exhibits a clear “failure to consider the proper legal standard in reaching a decision,” such

an action constitutes an abuse of discretion. Neustadter v. Holy Cross Hosp. of Silver Spring,

418 Md. 231, 242, 13 A.3d 1227, 1233-34 (2011), quoting Aventis Pasteur, Inc. v.

Skevofilax, 396 Md. 405, 433, 436, 914 A.2d 113, 130 (2007).

Abuse of discretion is not limited solely to those occurrences when a trial court

28

misapplies a legal standard. A trial court also abuses its discretion when:

‘. . . no reasonable person would take the view adopted by the

[trial] court[]’. . . or when the court acts ‘without reference to

any guiding rules or principles.’ An abuse of discretion may also

be found where the ruling under consideration is ‘clearly against

the logic and effect of facts and inferences before the court[]’

. . . or when the ruling is ‘violative of fact and logic.’

Wilson v. John Crane, Inc., 385 Md. 185, 198, 867 A.2d 1077, 1084 (2005), quoting In re

Adoption/Guardianship No. 3598, 347 Md. 295, 312, 701 A.2d 110, 118-19 (1997) (citations

omitted). We also have said that the trial court abuses its discretion when, “‘no reasonable

person would take the view adopted by the court.” In re Adoption/Guardianship No. 3598,

347 Md at 312, 701 A.2d at 118, quoting North v. North, 102 Md. App. 1, 13, 648 A.2d

1025, 1031 (1994). A reviewing court may also find an abuse of discretion when “the ruling

under consideration is ‘clearly against the logic and effect of facts and inferences before the

court . . . or when the ruling is ‘violative of fact and logic.” Id. (citations omitted).

Under any of our articulations, the trial judge did not abuse his discretion when he

denied the appointment of an interpreter in the instant case. His extended colloquy and his

factual findings support his determination that an interpreter was not needed at Kusi’s trial.

Rule 16-819(c)(2)(B) specifically indicates that a “court’s examination” should include

questions relating to a defendant’s “identification,” “active vocabulary in vernacular

English,” and “the court proceedings.” The trial judge’s factual findings show that he had

examined Kusi regarding each of these areas described in the Rule and that the judge’s

ultimate conclusion was clearly based on the finding that Kusi could understand. The record

29

clearly demonstrates that the trial judge was attempting to ascertain, in compliance with the

Rule, whether Kusi spoke English “well enough to participate fully in the proceedings and

to assist counsel,” Rule 16-819(c)(2)(i), and in so doing, did not abuse his discretion.

Finally, although Kusi argues that the statutory language of “shall” in Section 1-202(a)

of the Criminal Procedure Article requires the appointment of an interpreter when requested

by the defendant, it is clear that the obligatory language only applies when the statutory

precondition is met. With respect to the appointment of an interpreter, the statutory

precondition is a factual finding that the criminal defendant is unable to understand and

communicate readily in English.

Kusi also asserts that the Committee Note to Rule 16-819, which gives courts

“[e]xamples of questions that elicit active vocabulary in vernacular English” and “[e]xamples

of questions relating to the proceedings,” also directs that, “[q]uestions should be phrased to

avoid ‘yes or no’ replies.” While the Note advises, it is not binding, because it is not part of

the Maryland Rules. See Maryland Rule 1-201(e) (“committee notes . . . are not part of these

rules”). As this Court has previously stated, “the Committee Note following the Rule lay[s]

out the kinds of things a court may do.” See, e.g., Arrington v. Department of Human

Resources, 402 Md. 79, 104-05, 935 A.2d 432, 448 (2007) (emphasis in original); see also

Bijou v. Young-Battle, 185 Md. App. 268, 288, 969 A.2d 1034, 1046 (2009) (“committee

notes . . . are not part of [the Maryland] Rules”). The Note does not impose a per se

requirement that the questions asked must follow a certain rubric.

30

The trial judge in this case made extensive findings based on a lengthy colloquy which

included multiple open-ended questions directed to the defendant. While it may be that the

trial judge could have asked more open-ended questions relating to the defendant’s

comprehension of courtroom procedures, it is nonetheless clear that the trial judge elicited

enough information from the defendant to make factual findings that Kusi understood

“English well enough to participate fully in the proceedings and to assist counsel,” which did

not constitute clear error. The legal determination that Kusi was, therefore, not entitled to

the appointment of an interpreter under either Section 1-202 of the Criminal Procedure

Article or Maryland Rule 16-819 was not an abuse of discretion.

JUDGMENT OF THE COURT OF

SPECIAL APPEALS AFFIRMED.

COSTS IN THIS COURT AND THE

COURT OF SPECIAL APPEALS TO

BE PAID BY PETITIONER.

31

Circuit Court for Montgomery County

Case No. 117923

Argued: March 11, 2014

IN THE COURT OF APPEALS

OF MARYLAND

No. 62

September Term, 2013

GEORGE KUSI

v.

STATE OF MARYLAND

Barbera, C.J.

Harrell

Battaglia

Greene

Adkins

McDonald

Watts,

JJ.

Concurring Opinion by McDonald, J., which

Barbera, C.J., joins.

Filed: May 19, 2014

I concur in the judgment, but do not join the Court’s opinion. While I agree with the

outcome of the case, I do not understand the Court’s use of multiple standards of review in

this context. In particular, I do not believe that an “abuse of discretion” standard need be

overlaid on the “clearly erroneous” standard that the Court also applies.

The relevant statute and rule require the appointment of an interpreter for a defendant

in specified circumstances.1 In particular, the relevant statute provides, in pertinent part:

(a) The court shall appoint a qualified interpreter to help a

defendant ... when the defendant ...

(2) Cannot readily understand or communicate the

English language and cannot understand a charge ... or help

present the defense.

Maryland Code, Criminal Procedure Article (“CP”), §1-202(a) (emphasis added). Similarly,

the related court rule provides, in pertinent part:

The court shall appoint a spoken language interpreter if the

court determines that:

(i) the party does not understand English well enough to

participate fully in the proceedings and to assist counsel, or

(ii) the party ... does not speak English well enough to be

understood by counsel, the court, and the jury.

1

Although neither the Supreme Court nor our Court has announced a constitutional

right to the appointment of an interpreter, these provisions appear designed to satisfy the

constitutional bases for such a right. See Biglari v. State, 156 Md. App. 657, 665, 847 A.2d

1239, cert. denied, 382 Md. 686 (2004) (“[t]he ability to understand the proceedings is

essential to a defendant’s right to a fair trial”); United States ex rel. Negron v. New York, 434

F.2d 386, 389 (2d Cir. 1970) (due process, the Sixth Amendment right of confrontation, and

the right to be present at one’s own trial required appointment of interpreter for a defendant

who did not speak or understand English).

Rule 16-819(c)(2)(A) (emphasis added).2

As is evident, both CP §1-202 and Rule 16-819 state that a trial court “shall appoint”

an interpreter for the defendant if the court finds that certain circumstances exist – for

example, that the defendant does not readily understand English or does not speak it well

enough to be understood by the jury. If those circumstances exist, the court has no discretion

– it must appoint an interpreter. Whether the predicate circumstances exist is a factual

determination made by the trial court. As is generally the case, a trial court’s fact findings

are reviewed by an appellate court under a “clearly erroneous” standard. See Biglari, 156

Md. App. at 665-68 & n. 2.

The Majority opinion appears to agree with the reasoning above. See Majority slip

op. at pp. 26-28. But the Majority opinion then goes on to add an “abuse of discretion”

standard as well. See Majority slip op. at pp. 28-30 . The Majority opinion does not indicate

what legal provision compels an exercise of discretion by the trial court and what, if any,

criteria exist for measuring the exercise of that discretion – apart from the criteria in CP §1-

202 and Rule 16-819, which do not accord the trial court any discretion if the factual

predicate for appointment of an interpreter is established.3 The introduction of this standard

2

As the Majority opinion notes, Rule 16-819 also sets forth the procedure a trial court

should follow to determine whether the predicate factual circumstances exist. I have no

quarrel with the Majority’s assessment of the trial court’s compliance with those procedures.

Majority slip op. at pp. 30-32.

3

I suppose that we might say that a trial court has “discretion” to appoint an interpreter

even if the appointment is not compelled by CP §1-202 or Rule 16-819, but it is difficult to

(continued...)

2

of review, untethered to CP §1-202, Rule 16-819, or any other legal provision, has the

potential to sow confusion.4

Chief Judge Barbera joins this opinion.

3

(...continued)

imagine how that decision would be subjected to review under an “abuse of discretion”

standard. Presumably, the defendant would not object to that assistance.

4

If it were contended that a trial court misinterpreted the requirements of CP §1-202

or Rule 16-819, our review would not accord the trial court’s legal interpretation any

deference – that is, we would not apply an “abuse of discretion” standard, but would review

the trial court’s legal determination de novo.

3