People v. Gonzalez-Raymundo

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION

November 18, 2014

Plaintiff-Appellee, 9:25 a.m.

v No. 316744

Wayne Circuit Court

ELIAS GONZALEZ-RAYMUNDO, LC No. 12-009127-FH

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 319718

Wayne Circuit Court

ELIAS GONZALEZ-RAYMUNDO, LC No. 12-009127-FH

Defendant-Appellee.

Before: BOONSTRA, P.J., and MARKEY and K. F. KELLY, JJ.

BOONSTRA, P.J.

Defendant was convicted, following a jury trial, of four counts of third-degree criminal

sexual conduct, MCL 750.520d(1)(a) (victim at least 13 years of age but less than 16 years of

age).1 Defendant was sentenced to 5 to 15 years’ imprisonment for each conviction. In Docket

No. 316744, defendant appeals as of right, arguing that (1) his defense counsel was ineffective

for failing to use an interpreter at trial and for failing to properly investigate the case, and (2) the

trial court violated his constitutional right to due process by failing to provide him with an

interpreter. After filing his claim of appeal, defendant moved this Court to remand the case to

the trial court for a Ginther2 hearing on his claim of ineffective assistance of counsel. This Court

1

Defendant was also acquitted of a fifth count of third-degree criminal sexual conduct,

MCL 750.520d(1)(a) (victim at least 13 years of age but less than 16 years of age).

2

People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

-1-

granted defendant’s motion to remand on September 5, 2013.3 After the Ginther hearing, the

trial court granted defendant’s motion for new trial on the ground that its failure to provide an

interpreter violated defendant’s constitutional rights. In Docket No. 319718, the prosecution

appeals by delayed leave granted4 the trial court’s grant of defendant’s motion for new trial. The

two cases were consolidated by this Court on February 19, 2014.5 For the reasons specified

below, we affirm the trial court’s order granting defendant a new trial in Docket No. 319718, and

dismiss as moot defendant’s appeal in Docket No. 316744.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case arises out of a series of alleged sexual encounters between defendant and his

step-nephew, IR, in Lincoln Park, Michigan. IR was born on September 11, 1997, and was

approximately seven or eight years old when he first met defendant. Defendant lived in a house

directly across the street from the Lincoln Park home of IR’s stepfather, Jose Gonzalez, and

mother, Rosalba Llamas, where IR also lived.

IR testified that defendant is his step-uncle. When he was 10 or 11 years old, numerous

members of defendant’s family came to town for Christmas and stayed at defendant’s home.

Due to the amount of visitors, some people from defendant’s home, including defendant, stayed

with IR’s family for the holiday in the home where IR, Llamas, and Gonzalez lived. IR testified

that, at Llamas’ instruction, he and defendant slept in the same room, and the same bed, during

the Christmas holiday season.6 Gonzalez disagreed with IR’s testimony, claimed that no two

men had to sleep together during this Christmas holiday; and did not recall any instance where

defendant and IR had to share a bed. According to IR, he and defendant woke up early in the

morning because IR had accidentally touched defendant’s penis, which was erect at the time, in

his sleep. IR claimed that he and defendant both “felt something,” and defendant asked IR if he

would give him “head,” meaning oral sex. IR agreed and performed oral sex on defendant. This

encounter was the culmination of a “crush” that IR had developed for defendant over the years

prior.

Frequently, defendant would cross the street to use the internet at IR’s house, because

defendant’s home did not have wireless internet access. IR testified that on one of these

occasions, shortly after the first sexual encounter, he was lying on a couch on the main floor of

the house, watching cartoons. IR was “acting asleep,” but then began to signal to defendant, by

poking or touching him, that he wanted to engage in sex. Once defendant accepted his “signals,”

3

People v Gonzalez-Raymundo, unpublished order of the Court of Appeals, entered

September 5, 2013 (Docket No. 316744).

4

People v Gonzalez-Raymundo, unpublished order of the Court of Appeals, entered February 19,

2014 (Docket No. 319718).

5

Id.

6

On cross-examination at trial, IR admitted that he had previously testified that he had crawled

into defendant’s bed in the morning, and had not slept in the same bed as defendant.

-2-

the two went into a bathroom located in the basement of the home. IR testified that he again

performed oral sex on defendant, and that after this second act of oral sex, defendant told him

that their sexual activity had to stay secret. IR agreed not to tell anyone.

A few months later, in May, IR saw defendant getting ready for a soccer game that he

was going to play at a nearby park. IR testified that he was “tired of being in [his] house,” so he

asked Llamas if he could go to the park with defendant. Llamas told him it was fine as long as

defendant did not mind. IR went across the street to defendant’s house to ask if he could

accompany him to the park. When IR entered defendant’s bedroom, defendant was lying in bed.

IR testified that he and defendant began engaging in their “usual ritual,” in which IR would

perform oral sex on defendant, and that the encounter ended in anal sex, with defendant’s penis

penetrating IR’s anus. IR was not yet 13 years old. IR testified that, after these initial

encounters, the two would sporadically engage in either oral sex or anal sex, generally every few

weeks or so.

IR turned 13 years old shortly before he began eighth grade. He testified that he

remembered sneaking out of his parent’s house late at night on a school night, sometime in the

winter after he had turned 13. On that night, IR waited approximately 30 minutes after he heard

the television turn off in his parents’ bedroom, put on some pants, and then snuck downstairs,

being extremely quiet because his mother was a very light sleeper. Using his mother’s cell

phone, IR sent defendant a text message stating that he was in the mood to have sex and asking

whether defendant wanted him to come over. Defendant responded that he did want IR to come

over. IR then deleted the text messages from his mother’s cell phone. IR walked across the

street and let himself into defendant’s home; the two engaged in both oral and anal sex.

IR testified that, between the ages of 13 and 14, he snuck out of his parents’ house on

numerous occasions to engage in oral and anal sex with defendant. On some nights, IR would

watch defendant’s home, and if defendant flicked his bedroom light on and off, IR knew that to

mean that defendant was interested in having sex that night. IR testified that the last time he and

defendant engaged in sexual relations was in January of 2012. Overall, IR estimated the two had

engaged in oral sex approximately 30 times and anal sex approximately five times.

IR testified that he never told any of the adults in his family about his relationship with

defendant, but that his mother and some other family members had “suspicions.” For example,

when the family would have large barbeques, IR and defendant would act strangely toward each

other, and IR believed other people could tell that something sexual was occurring. In the

middle of February of 2012, IR’s biological father, David Rivera, discovered the relationship

between defendant and IR. It was a Sunday afternoon and IR was asleep when he awoke to hear

Rivera yelling, telling Llamas that someone “was gonna [sic] die, that he was really gonna [sic]

pay for what he did.” He had discovered IR’s iPod, on which IR had sent a message to a friend

regarding his sexual relationship with defendant. Rivera then walked to IR’s room and asked

him if defendant had ever touched IR in an inappropriate way or if they had ever had sex. IR

was unable to answer and hung his head low, and Rivera “just knew” at that point. Rivera, who

was employed as a firefighter, threw his firefighter’s axe into his car, but never actually attacked

defendant.

-3-

Before his father discovered the relationship, IR had already told his brother and two

friends about it. After Rivera found out about the relationship, he required IR to report the

sexual acts to the Lincoln Park police, even though IR did not want to press charges against

defendant. IR also participated in “Kids-Talk,”7 to explain what had happened with defendant.

He also went to a doctor to be examined for evidence of sexual activity, but no such evidence

was found. IR testified that after he reported the incident and spoke to “Kids-Talk,” his mother,

Llamas, called him a liar and did not believe the things he claimed regarding his relationship

with defendant.

On March 28, 2013, the parties appeared before the trial court for an evidentiary hearing

regarding text messages found on IR’s iPod. An interpreter was provided for defendant at this

hearing.8 At the conclusion of the hearing, the trial court ruled that all of the text messages

found on IR’s iPod, apart from those that mentioned defendant, were protected by the rape shield

law, MCL 750.520j, and were therefore inadmissible.

The parties appeared for trial on April 1, 2013. Before voir dire, the following colloquy

occurred:

DEFENSE COUNSEL: Final matter of housekeeping, Your Honor, is as

[sic] a Hispanic I know that sometimes folks can take offense to people speaking

Spanish rather than English.

And I want to avoid the chance of any prejudice, so we’d like to preserve

the right to waive the interpreter during the course of the proceedings and explain

things to the defendant on break. And you can hear straight from the defendant’s

mouth if you like, Your Honor, this is indeed our wish.

We will accept any prejudice that might be done for his minimal lack of

understanding during the course of the proceedings in order, in exchange for the

safeguard against any potential prejudice amongst jury members or folks who

don’t look too kindly upon those who don’t speak English as a first language.

And, again, I do say that with -- as one with experience.

THE COURT: You don’t have any objection to that?

PROSECUTOR: I think that’s a very strange thing that they are going to

think [sic], so I think that they are making that decision that they shouldn’t be

7

Although the record provided to this Court does not further identify “Kids Talk,” from context

it appears that IR was referring to the Kids-Talk Children’s Advocacy Center, which provides

investigation and treatment for child victims of physical and sexual abuse, neglect, and

psychological trauma. These services include forensic interviewing. See www.guidance-

center.org/kids-talk (last accessed October 21, 2014).

8

Defendant was also provided with an interpreter at his preliminary examination.

-4-

questioned as ineffective because they have also indicated that he has -- it sounds

to me, based on what defense counsel’s indicating, is that the client could, for the

most part, could understand, with minimal exception they would need the

interpreter. And certainly that’s something that he could also voir dire on.

Following a recess, the case proceeded to trial without the trial court having further

addressed the issue. At the conclusion of the prosecution’s case in chief, defendant moved for a

directed verdict. The trial court found that there was sufficient evidence to allow the case to go

to the jury, and denied defendant’s motion. At the conclusion of trial, defendant was found

guilty of four counts of third-degree criminal sexual conduct, MCL 750.520d(1)(a) (victim at

least 13 years of age but less than 16 years of age), and was acquitted of a fifth count of third-

degree criminal sexual conduct, MCL 750.520d(1)(a).

The parties appeared for sentencing on May 6, 2013. Defendant used an interpreter

during the sentencing proceedings. Defendant did not make a statement on his own behalf. At

the conclusion of sentencing, defendant was sentenced as described above.

Defendant appealed his convictions by right on June 12, 2013. On August 7, 2013,

defendant filed a motion to remand the case to the trial court to conduct a Ginther hearing.

Defendant argued that he had been denied his state and federal rights to the effective assistance

of counsel because defense counsel had (1) failed to conduct a jury voir dire to determine if the

jury would have been prejudiced by defendant’s need for an interpreter, (2) waived defendant’s

right to an interpreter at trial despite defendant’s need for such translation, (3) failed to

investigate and meet with exculpatory witnesses, and (4) failed to properly inform defendant of

his right to testify at trial. Defendant supported his motion with affidavits from Llamas and

Gonzalez. In her affidavit, Llamas stated that defendant barely speaks any English, defendant

needed a translator at trial, she did not believe that defendant committed the crimes alleged, and

she would have testified had she been called by defendant’s trial counsel. Gonzalez stated in his

affidavit that defendant barely speaks any English, defendant needed a translator at trial, and trial

counsel only prepped him on the day of trial and only for five minutes. This Court granted

defendant’s motion on September 5, 2013.

The parties appeared before the trial court for a Ginther hearing on October 28, 2013.

Defendant’s trial counsel testified that he had been an attorney for 18 years, approximately 10 to

15% of his practice involved criminal matters, and defendant’s trial had been his second as first-

chair criminal defense attorney. Trial counsel also testified that defendant’s primary language

was Spanish and that he had primarily spoken with defendant in Spanish because defendant’s

English proficiency was limited. Trial counsel also testified that an interpreter had been present

for the entire trial and on breaks the interpreter would “catch [defendant] up” on anything that

had occurred during the trial proceedings about which defendant was confused. Trial counsel

further testified that, to his recollection, defendant had known and understood why counsel had

declined the assistance of an interpreter during trial, and that defendant was “okay” with that.

Trial counsel had explained to defendant that he thought that having an interpreter would look

bad not only because of possible jury prejudice against non-English speakers, but also because

having someone whisper in defendant’s ear could look bad to the jury. Finally, trial counsel

testified that he had decided not to call Llamas as a witness because IR had already testified on

cross-examination that his mother did not believe that defendant had had sexual relations with IR

-5-

and Llamas could not add much to that, and additionally, because she was a conflicted witness,

as the victim was her son. An associate in trial counsel’s firm, Stephanie Labelle (known during

the trial as Stephanie Judd), also testified that an interpreter was not used during trial due to fears

of jury bias against a non-English speaking defendant.

Llamas testified at the Ginther hearing that defendant’s primary language was Spanish,

that he previously lived in Mexico before moving to the United States approximately seven years

before the hearing, and that he did not speak English either at work or socially. Additionally, the

only conversation Llamas had with defendant’s trial counsel was in the hallway outside the

courtroom on the first day of trial, and the conversation only lasted about five minutes. Llamas

wanted to testify because she “wanted the truth to come out,” and she did not believe IR’s

allegations against defendant.

The parties returned for the court’s ruling on defendant’s motion for a new trial on

November 22, 2013. The trial court found that it had erred when it did not have defendant

personally waive simultaneous translation, instead accepting trial counsel’s word on the subject.

On that basis, the trial court granted defendant’s motion for a new trial. When asked to clarify,

the court noted that its error was structural, and held that, even if it were not, trial counsel had

been ineffective and defendant had been prejudiced by not “getting [the cross-examination of the

victim] in real time and able to respond to that in a timely fashion to be able to ask questions.”

An order was entered that same day to reflect the trial court’s ruling.

The prosecution filed with this Court its delayed application for leave to appeal on

December 23, 2013. The prosecution argued that the trial court had erred in granting defendant a

new trial because trial counsel’s strategic decision regarding simultaneous translation was not a

structural error, and because defendant did not meet his burden of showing prejudice. This Court

granted the prosecution’s application for leave to appeal on February 19, 2014. Further, this

Court consolidated the prosecution’s appeal with defendant’s pending appeal, in the same order,

on February 19, 2014.

II. MOTION FOR NEW TRIAL

As this issue is dispositive of the case before this Court, we address the prosecution’s

appeal first. The prosecution contends on appeal in Docket No. 319718 that the trial court

abused its discretion in granting defendant’s motion for new trial on remand. We disagree.

A. STANDARD OF REVIEW

MCL 770.1 provides:

The judge of a court in which the trial of an offense is held may grant a new trial

to the defendant, for any cause for which by law a new trial may be granted, or

when it appears to the court that justice has not been done, and on the terms or

conditions as the court directs.

“This Court reviews a trial court’s decision to grant or deny a motion for new trial for an

abuse of discretion.” People v Cress, 468 Mich 678, 691; 664 NW2d 174, 182 (2003). An abuse

-6-

of discretion occurs when the trial court chooses an outcome that falls outside the principled

range of outcomes. People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008).

Constitutional errors are classified as either structural or non-structural. People v

Duncan, 462 Mich 47, 51; 610 NW2d 551 (2000). “Structural errors are defects that affect the

framework of the trial, infect the truth-gathering process, and deprive the trial of constitutional

protections without which the trial cannot reliably serve its function as a vehicle for

determination of guilt or innocence.” People v Watkins, 247 Mich App 14, 26; 634 NW2d 370

(2001), affirmed but criticized on other grounds 468 Mich 233 (2003). Generally, all other errors

are nonstructural. Carines, 460 Mich at 765. When a structural error occurs, reversal is required

without any showing of prejudice. People v Cook, 285 Mich App 420, 424; 776 NW2d 164

(2009). In contrast, a nonstructural constitutional error is subject to analysis for harmless error.

Carines, 460 Mich. at 774.

B. WAIVER

As a threshold issue, although the prosecution argues that defendant waived his right to

an interpreter and has thus waived appellate review of this issue, we do not find that defendant’s

trial counsel’s statements operated to affirmatively waive defendant’s rights. “Whereas

forfeiture is the failure to make the timely assertion of a right, waiver is the intentional

relinquishment or abandonment of a known right.” People v Carines, 460 Mich 750, 762 n 7;

597 NW2d 130 (1999), reh den 461 Mich 1205 (1999), quoting United States v Olano, 507 US

725, 733; 113 S Ct 1770; 123 L Ed 2d 508 (1993). A defendant may generally waive a

constitutional right. See People v Carter, 462 Mich 206, 217-218; 612 NW2d 144 (2000), reh

den 463 Mich 1210 (2000) (“It is presumed that waiver is available in a broad array of

constitutional and statutory provisions . . . [however,] the defendant must personally make an

informed waiver for certain fundamental rights such as the right to counsel or the right to plead

not guilty, for other rights, waiver may be effected by action of counsel.”) (internal quotation

marks omitted; citations omitted). This includes the waiver of the right be present during his

trial. People v Buie (On Remand), 298 Mich App 50, 56-57; 825 NW2d 361 (2012).9 However,

such waiver must be personal and informed. See People v Kammeraad, ___ Mich App ___; ___

NW2d ___ (2014), slip op at 13-14.10 Courts must “indulge every reasonable presumption

9

As discussed in Part C, the lack of simultaneous translation implicates defendant’s “presence”

at his trial, despite being physically present.

10

In Kammeraad, this Court found that the defendant, despite his express statements that he

wished to be removed from the courtroom during his trial, had not been “specifically informed of

his constitutional right to be present at trial, even though the circuit court’s exhaustive efforts

certainly made it implicitly clear that he had a right to be present.” Id., slip op at 12. This Court

therefore was forced to conclude that defendant had not waived his right to be present. Id. at 12-

13. In that case, the trial court made extensive efforts, in the face of an extremely obstinate and

uncooperative defendant, to secure the defendant’s constitutional rights; that this Court was

forced reluctantly to find those efforts inadequate indicates the strength of the dictate that courts

-7-

against the loss of constitutional rights” in assessing a waiver of such rights. See Illinois v Allen,

397 US 337, 343; 90 S Ct 1057; 25 L Ed 2d 353 (1970).

The lack of simultaneous translation implicated defendant’s rights to due process of law

guaranteed by the United States and Michigan Constitutions. US Const, Am V; US Const, Am

XIV; Const 1963, art 1, § 17. Specifically, a defendant has a right to be present at a trial against

him; a defendant’s lack of understanding of the proceedings against him renders him effectively

absent. See Drope v Missouri, 420 US 162, 171; 95 S Ct 896; 43 L Ed 2d 103 (1975); People v

Cunningham, 215 Mich App 652, 654-655; 546 NW2d 715 (1996). In addition, lack of

simultaneous translation impairs a defendant’s right to confront witnesses against him and

participate in his own defense. Cunningham, 215 Mich App at 654-655. The right at issue is

thus not merely statutory as codified by MCL 755.19a, but constitutional, and thus subject to the

every reasonable presumption against its loss.

Defense counsel, at the Ginther hearing, stopped well short of indicating that defendant

made a personal and informed decision to waive his right to an interpreter, saying only that “this

was the strategy I recommended to him and he went along with it to the point that I don’t recall

him making any objection” and that defendant “wasn’t opposed to it.” Counsel also described

defendant as “very deferential” to his experience and status as a defense attorney. Under these

circumstances, and where it does not appear that the trial court inquired of defendant personally

concerning his awareness of his constitutional and statutory right to an interpreter, we decline to

find that defendant made an informed waiver of his right to receive simultaneous translation

during his trial.

C. THE TRIAL COURT’S NONCOMPLIANCE WITH MCL 775.19a

MCL 775.19a provides in relevant part:

If an accused person is about to be examined or tried and it appears to the judge

that the person is incapable of adequately understanding the charge or presenting

a defense to the charge because of a lack of ability to understand or speak the

English language, the inability to adequately communicate by reason of being

mute, or because the person suffers from a speech defect or other physical defect

which impairs the person in maintaining his or her rights in the case, the judge

shall appoint a qualified person to act as an interpreter.

Further, a trial court should appoint an interpreter when it appears from the record that a witness

is not understandable, comprehensible, or intelligible, and the absence of an interpreter would

deprive the defendant of some basic right. See Warren (After Remand), 200 Mich App at 591-

592.

In this case, the trial court, prosecution, and defense counsel all were aware that

defendant was incapable of understanding English at a level necessary to effectively participate

in his defense without simultaneous translation of the trial proceedings. Therefore, having failed

must indulge every reasonable presumption against the loss of constitutional rights. Allen, 397

US at 338.

-8-

to secure defendant’s personal and knowing waiver of his right to simultaneous translation, the

trial court erred in allowing defendant to proceed to trial without simultaneous translation of the

trial proceedings. See People v Sepulveda, 412 Mich 889, 889; 313 NW2d 283 (1981)

(“Notwithstanding the failure of the defendant to request an interpreter, it was error to fail to

appoint an interpreter where the record clearly shows that the defendant spoke no English

whatsoever.”). The trial court possessed an affirmative duty to establish defendant’s proficiency

in English or appoint an interpreter in light of the record evidence concerning his limited

understanding of English. Compare People v Atsilis, 60 Mich App 738, 739; 231 NW2d 534

(1975) (“[A] trial judge is not under a duty to affirmatively establish a defendant’s proficiency in

the English language when no evidence is presented to him that could put the issue in doubt.”),

and Kammeraad, slip op at 14 (“defendant . . . needlessly demanded an interpreter, as it is quite

evident that defendant is fluent in the King’s English . . . .”). We conclude that the trial court

erred in failing to satisfy this duty, and that this error effectively prevented defendant from being

truly present at his trial and arguably interfered with his ability to assist in his defense, including

in the cross-examination of witnesses.

Defendant asserts that the trial court correctly determined that the error in this case was

structural. The United States District Court for the Eastern District of Michigan, in granting a

petition for habeas corpus, has in one case described the violation of a defendant’s right to be

present at his trial as a “structural defect” and suggested that denial of simultaneous translation

was such a defect, although the court also addressed prejudice to the defendant. Gonzalez v

Phillips, 195 F Supp 2d 893, 902-903 (2001).11 The prosecution argues, in contrast, that the

failure to provide a full and simultaneous translation is a non-structural error. It cites to an

unpublished decision of this Court12 that indeed found non-structural error, but that did so in the

context of deficient, rather than non-existent, simultaneous translation. In this case, by contrast,

defendant received no simultaneous translation during the trial at all. This Court also has stated

that “although occasional lapses [in simultaneous translation] will not render a trial

fundamentally unfair, adequate translation of trial proceedings requires translation of everything

relating to the trial that someone conversant in English would be privy to hear.” Cunningham,

215 Mich App at 655. The Court in Cunningham thus considered whether lapses in translation

rendered the defendant’s trial fundamentally unfair; however, while not directly addressing

whether the error was a structural one, it remanded for further proceedings based on its inability

to determine whether the error was harmless beyond a reasonable doubt. The parties have

therefore presented us with authority that is both arguably conflicting and distinguishable from

the instant case; neither party has presented binding authority to this Court on the precise issue of

whether the complete lack of simultaneous translation during a trial is a structural error such as

would require us to affirm the trial court’s grant of a new trial even absent a showing of

prejudice.

11

Decisions of lower federal courts are not binding on this Court. Abela v General Motors Corp,

469 Mich 603, 607; 677 NW2d 325 (2004).

12

Unpublished decisions of this Court are not binding on future panels of this Court.

MCR 7.215(C)(1).

-9-

We conclude, however, that we need not decide whether the complete lack of

simultaneous translation in the instant case is a structural error, because even if we were to

subject the trial court’s error to harmless error analysis, we would conclude in this case that the

error was not harmless and that it prejudiced defendant. The trial court found that defendant was

specifically prejudiced by the lack of translation of IR’s testimony. In Cunningham, 215 Mich

App at 657, this Court noted that inadequate (rather than absent) translation of the complainant’s

cross-examination responses was subject to harmless error analysis, with the burden of proof

resting on the prosecution to prove the error was harmless beyond a reasonable doubt. This

Court in that case was unable to determine if the error prejudiced defendant due to an inadequate

record. Id. Further, this Court has noted that exact translation of witness testimony is more

important than translation of attorney colloquy. People v Truong (After Remand), 218 Mich App

325, 333; 553 NW2d 692 (1996).

In this case, defendant’s trial was essentially a credibility contest between himself and IR.

Defendant lacked the ability, due to the denial of simultaneous translation, to assist his counsel in

cross-examining IR. Defendant asserts, for example, that he could have refuted IR’s testimony

that defendant signaled IR using the lights from his house, refuted IR’s testimony that Llamas

instructed IR to share a bed with defendant, and refuted IR’s characterization of him as a

homosexual, had he been aware that IR had so testified. Further, defendant asserts that his

waiver of his right to testify was not made knowingly due to his lack of understanding of what IR

had testified to at trial. At the Ginther hearing, trial counsel described defendant’s

communication with him during trial as “not much” and said “we might have passed one note [in

Spanish].” Although defense counsel also indicated at the hearing that defendant was able, prior

to trial, to communicate his version of events sufficiently for defense counsel to prepare a trial

strategy, it does not appear that defense counsel was able to modify that strategy with input from

defendant in response to answers received during either direct examination or cross-examination

of IR. On the record before this Court, we therefore conclude that the trial court did not err in

determining that the lack of simultaneous translation was prejudicial to defendant.

We share the prosecution’s concern that defendants may waive their right to an

interpreter and later claim error on appeal resulting from it, thereby harboring error in the form

of an “appellate parachute.” However, we note that in this case the trial court primarily based its

grant of a new trial on its own failure to follow the dictates of MCL 775.19a, which requires the

appointment of an interpreter if “it appears to the judge that the person is incapable of adequately

understanding the charge or presenting a defense to the charge because of a lack of ability to

understand or speak the English language.” Id. (emphasis added). While a trial court is not

required to inquire into a defendant’s ability to comprehend English when no evidence of any

limitation is presented to it, see Atsilis, 60 Mich App at 739, Kammeraad, slip op at 14, it should,

when presented (as in this case) with indications that a defendant may lack sufficient

comprehension of the English language, either satisfy itself of defendant’s proficiency, provide

for simultaneous interpretation, or, in the case where a defendant wishes to waive such a right,

secure the defendant’s personal, informed waiver. Id.; Carter, 462 Mich at 217-218;

Kammeraad, slip op at 13-14. Such an approach should alleviate concerns that a defendant may

harbor appellate error.

Because we affirm the trial court’s grant of a new trial in Docket No. 319718, we decline

to address as moot the issues presented in defendant’s appeal in Docket No. 316744, as there is

-10-

no relief this Court can grant. In re Contempt of Dudzinksi, 257 Mich App 96, 112; 667 NW2d

68 (2003). In light of our affirmance of the trial court’s grant of a new trial, we do not reach the

issue of the effectiveness of defendant’s counsel under Strickland v Washington, 466 US 668,

694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).13

Affirmed in Docket No. 319718 and remanded for further proceedings consistent with

this opinion. Dismissed as moot in Docket No. 316744. We do not retain jurisdiction.

/s/ Mark T. Boonstra

/s/ Jane E. Markey

/s/ Kirsten Frank Kelly

13

We note that we have found no cases where a defense counsel’s failure to request an

interpreter, or affirmative waiver of an interpreter, under circumstances where the record

evidence satisfies MCL 775.19a, has been deemed objectively reasonable conduct on the part of

the defense attorney.

-11-