2013-075, The State of New Hampshire v. Thomas Jur

Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney

No. 2013-075 Rockingham

that the trial court’s failure to appoint an interpreter at trial sua sponte was THE SUPREME COURT OF NEW HAMPSHIRE the State and Federal Constitutions. In the alternative, the defendant argues

(Delker, J.) erred by denying his pretrial request for an interpreter, thus

error. We affirm.

violating his right to a fair trial and effective assistance of counsel under both page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home RSA 262:23 (Supp. 2012). On appeal, he argues that the Superior Court reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 convicted of operating a motor vehicle while certified as a habitual offender. LYNN, J. Following a jury trial, the defendant, Thomas Jur, was

orally, for the defendant. James B. Reis, assistant appellate defender, of Concord, on the brief and

general, on the brief and orally), for the State.

to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as to get in touch with her during the several months prior to the hearing. p. 2 court attempted to contact via letter on August 13, 2012 – but had been unable

had identified an interpreter at one point – the individual whom the clerk of

these questions with one-word or short responses. The trial court then asked he had been living since he moved to New Hampshire. The defendant answered had been unable to reach either. Defense counsel stated that the defendant had tried to contact two different organizations to secure an interpreter, but counsel discussed their efforts to find an interpreter. The State stated that it

came to the United States; whether he was a United States citizen; and where

At the beginning of the hearing, both the State’s attorney and defense

a series of background questions: where the defendant was from; when he first

provided. exercise of discretion in determining the manner in which necessary interpreter services will be little bit about that, okay?” The defendant assented, and the trial court asked reasonably understand the proceedings and receive a fair trial, although it may inform a court’s question about how much English you understand and I want to talk to you a permissible basis for denial of an interpreter to a defendant who requires one in order to English language abilities. It began by asking the defendant, “[T]here’s some interpreter for trial. engage in a colloquy with the defendant to determine whether he needed an week prior to the hearing, and had informed defense counsel that it would

regarding the defendant’s need for an interpreter.

proceeding to trial without one. Difficulty in obtaining an interpreter does not constitute a trial court granted the motion on March 28, 2012. we emphasize that we do not rely on this fact in concluding that the trial court did not err in interpreter was apparently prompted by the difficulty in obtaining a Dinka language interpreter, difficulty understanding the English language. The State did not object. The 2 Although the trial court’s colloquy and determination on whether to proceed without an defendant is from Sudan, that his primary language is Dinka, and that he has

The court next engaged in a colloquy with the defendant to assess his court granted the motion without conducting a hearing or making any specific factual findings 1 The State did not object to the motion for appointment of an interpreter, and it appears that the interpreter. The trial court had been notified of the lack of an interpreter a

with an interpreter. In support of the motion, counsel stated that the

However, as of November 26, 2012, the date the court held a final pretrial need for her services and the dates of both the pretrial conference and the trial.

counsel filed a motion requesting that the trial court provide the defendant indicted on the habitual offender charge. On March 13, 2012, his defense The pertinent facts are as follows. In February 2012, the defendant was

clerk of court mailed a letter to a prospective interpreter, informing her of the

p. 3 THE COURT: Okay. And how long did you take those, how long did you

THE DEFENDANT: Yeah. Teacher Sue.

THE COURT: All right. And do they have classes there?

THE DEFENDANT: In Manchester.

THE COURT: Okay.

THE DEFENDANT: I go to the Congregation Church.

how did you go about learning English here?

THE COURT: [D]id you take classes, English as a Second Language, or

learned to speak English once he arrived in the United States: which the defendant responded, “No.” The trial court then asked how he

defendant had ever taken English language courses in Sudan or Ethiopia, to

which the defendant stated was Dinka. The trial court asked whether the The trial court next inquired about the defendant’s native language,

stopped . . . .

THE DEFENDANT: I started school for one year. I go in the army, then I

THE COURT: Okay.

THE DEFENDANT: And I go to Ethiopia.

THE COURT: Okay.

war.

THE DEFENDANT: Four or five years, and then I stopped because of

THE COURT: How long, how many years did you go to school there?

THE DEFENDANT: Yes.

to school in the Sudan?

THE COURT: Okay. So before you came to the United States, did you go

follows: machine operator in Manchester for six years. The colloquy continued as

had done “a lot” of work and specified that, for example, he had been a whether the defendant had worked at any point. The defendant stated that he strategy.

p. 4 response, but stopped when the defendant’s answers began to reveal trial some follow-up questions to determine what the defendant meant by this understand, the defendant responded, “Yes, a little bit.” The trial court asked

When asked whether there were still things that the defendant did not

THE DEFENDANT: Yes, a lot.

understand all of the words that he’s using; is that correct?

communication back and forth with you and [defense counsel] to THE COURT: Okay. All right. So it sounds like it takes a little bit of

I understand, yes.

words, but some big words I don’t know. And he showed me example so

THE DEFENDANT: But now I talk to him. I understand some of those

THE COURT: Okay.

THE DEFENDANT: Before we have one (indiscernible).

talk to him without an interpreter?

this case; have you and he used an interpreter or have you been able to

THE COURT: Okay. And how about in talking with [defense counsel] in

THE DEFENDANT: Yes.

the past cases?

THE COURT: Okay. Did you have an interpreter in those other cases,

signed. That’s it.” The colloquy continued as follows:

explained: “My lawyer go and talk to the lady . . . and give him the paper I

twelve people, the defendant stated “no” and, upon further questioning, had gone to trial. However, when asked whether there had been a jury of to those questions, the defendant stated that he had had prior charges that

inquired into his past experience with the criminal justice system. In response

previous DUI. Based upon the defendant’s response, the trial court then driving no license” and when asked, said that this was a crime because of a When asked to explain himself more particularly, the defendant stated, “I’m

The defendant responded in the affirmative, stating, “Yes, what happened.”

The trial court next asked the defendant whether he understood the charges.

second shift. So maybe for two years.

work that shift, so I sleep all day. Sometimes school is stopped for THE DEFENDANT: Sometime I go, sometime I’m working. Sometime I was sure he could find someone to assist him during trial. p. 5 defense counsel cross-examined witnesses. Defense counsel stated that he

could assist him, so that the defendant could communicate with someone while

then asked defense counsel whether there was someone from his office who an interpreter. State intends to introduce, that this case can go forward without simple nature of these charges and the limited testimony that the

happening in the trial?” Again, the defendant responded, “Yes.” The trial court comfortable letting me know that you’re having difficulty understanding what’s any questions along the way that he cannot answer for you, do you feel responses to those questions. And so I think given the fairly

The defendant responded, “Yes.” The trial court continued: “And if you have understand questions I’ve asked and I seem to understand his effectively. . . . English isn’t his first language, but he seemed to defendant] I’ve been able to communicate, I think, with him quite

make sure you understand everything that’s going on? to be able to have time to consult with him about those issues to understands all the issues. . . . But I think talking to [the

there are things that the witnesses say that you don’t understand, anyone who is helping him to make sure the Defendant

to talk to [defense counsel], do you feel comfortable asking him, if has an adequate opportunity to talk with [defense counsel] and/or Let me ask you this . . . . If I made sure that you had enough time protected by making sure we conduct this trial in a way that he hear what the witnesses say and understand what they say can be

the defendant during the trial. 3 The trial record reflects that defense counsel did have another person present to assist him and

following: sufficient to ensure that . . . his due process rights and his right to

be “two hours at most.” At this point, the trial court asked the defendant the I think that [in] talking to [the defendant] today that his English is certified the defendant as a habitual offender – and that their testimony would that it had two witnesses – the arresting officer and the hearings officer who an interpreter: At that point, the trial court stated that the trial would proceed without

its case consisted of in terms of witnesses and evidence. The State explained After speaking with the defendant, the trial court asked the State what offers.

p. 6 redirect examination of the defendant. Defense counsel accepted all three of the first witness; after the State rested; and before defense counsel began his would like to recess to consult with the defendant: after the direct examination The trial court asked defense counsel on three occasions whether he

objections or interruptions from defense counsel. more.” The witness agreed and completed her testimony without any further

resumed her testimony, defense counsel asked the witness to slow down “a bit

herself had also been speaking quickly. A few moments after the witness State’s attorney asked the witness to slow down, acknowledging that she occasion, at the beginning of the direct examination of the second witness, the

The witness agreed, and the direct examination continued. On another

also asked the witness to slow down, as he, too, was speaking very quickly.

attorney responded that she would slow her pace. In addition, the trial court the trial court that the State’s attorney was speaking too quickly. The State’s testimony, defense counsel interrupted, approached the bench, and informed

and witnesses was identified as an issue. At the beginning of the first witness’s Several times during the trial, the rate of speech of the State’s attorney

attorney to do the same. The trial then commenced.

would be mindful to speak more slowly going forward, and reminded the State’s

to the defendant about the instructions. The trial court also stated that it prior to trial, and indicated that it would take a break to allow counsel to speak noted that counsel had received a written copy of the preliminary instructions

saying as it was speaking, because it was speaking too fast. The trial court

counsel noted that the defendant did not understand what the trial court was

jury should be listening to see if he’s guilty or not guilty.” However, defense stated that the defendant’s understanding of the instructions was that “the After the trial court concluded its instructions, defense counsel –at the bench –

ensure that defense counsel had enough time to confer with the defendant.

because the defendant’s native language was not English, and it wanted to court informed the jury that it would take more frequent breaks than usual At the start of the trial, during its preliminary jury instructions, the trial

“Absolutely.” permission to take breaks when necessary, the trial court responded, those issues. When defense counsel asked whether it had the trial court’s

break even during a direct or cross” so that defense counsel could address

questions that he wants to talk to you about or doesn’t understand, we can to talk or even if during the course of the testimony [the defendant] has make sure that defense counsel had “enough time between directs and crosses

be in the defendant’s best interest. The trial court responded that it would Defense counsel objected to the ruling, stating that an interpreter would federal law only to aid our analysis. See State v. Ball, 124 N.H. 226, 231-33 p. 7 We first address his claims under the State Constitution, and rely upon

Constitution. Constitution and the Sixth and Fourteenth Amendments to the United States

effective assistance of counsel under Part I, Article 15 of the New Hampshire

defendant asserts that the trial court violated his rights to a fair trial and proficiency became more “pronounced” and “obvious.” For these reasons, the appointing an interpreter during the trial, when the defendant’s limited English

further that, even if the pretrial ruling was proper, the trial court erred by not

interpreter was necessary to protect his constitutional rights. He argues

ability to understand English was compromised to such an extent that an trial without a Dinka interpreter was error, as the colloquy showed that his The defendant argues that the trial court’s pretrial ruling to proceed to

after certification as a habitual offender. This appeal followed. Ultimately, the jury convicted the defendant of operating a motor vehicle

pages of transcript of the two-day trial. In total, the defendant provided extensive testimony that spans sixty-three

DEFENDANT: A little bit.

. . . did you understand what she was saying? DEFENSE COUNSEL: Okay. When the [hearings officer] was testifying

DEFENDANT: Yes. matter, and that the trial here took place prior to our recent adoption of the DEFENSE COUNSEL: A little bit.

New Hampshire Constitution, that there is no state statute addressing the

defendant is constitutionally entitled to a court-appointed interpreter under the DEFENDANT: A little bit.

said or some of what he said?

(1983). Given that we have never specifically considered when a criminal

here and the police officer testified, did you understand most of what he

DEFENSE COUNSEL: Okay. By the way, Thomas, when you’re sitting

the testimony of the State’s two witnesses:

examination, defense counsel inquired into how much he had understood of The defendant testified in his own defense at trial. During direct p. 8 8

counsel or the presiding judicial officer . . . . inhibit such party’s comprehension of the proceedings or communication with speaks only or primarily a language other than the English language . . . so as to rest[s] in the discretion of the trial court”). motion of a party that such party (including a defendant in a criminal case) . . . United States, 205 U.S. p. 8 86, 91 (1907) (stating that the matter of appointing an interpreter “largely of the trial court. United States v. Si, 333 F.3d 1041, 1043 n.3 (9th Cir. 2003); see Perovich v. interpreter, but has stated that whether to appoint an interpreter is a matter within the discretion 6 The United States Supreme Court has not recognized a constitutional right to a court-appointed interpreter.” United States v. Lim, 794 F.2d 469, 470 (9th Cir. 1986); see

to appoint an interpreter . . . .”); Joung Youn Kim v. State, 331 S.W.3d 156, [I]f the presiding judicial officer determines on such officer’s own motion or on the Interpreters Act, 2 p. 8 8 U.S.C. § 1827(d)(1)(2012), under the following circumstances: 5 A criminal defendant in federal court also has a statutory right to an interpreter under the Court Language Services Plan. effectiveness of cross-examination would be severely hampered.”); Ko v. United 4 See N.H. Sup. Ct. Order of Dec. 24, 2013, adopting the New Hampshire Judicial Branch criminal law.” his trial against the public’s interest in the economical administration of witness, to understand or respond to questions has a constitutional right to an 162 (Tex. App. 2011) (explaining that a criminal defendant has a right to be confrontation of witnesses, effective assistance of counsel, and to be present at

issue, where a defendant cannot understand and speak English, the judge is required that the United States Supreme Court has not specifically weighed in on the omitted); State v. Faafiti, 513 P.2d 697, 699 (Haw. 1973) (“It is general law that he cannot fairly be said to be present at his own trial.”) (quotation and citation interpreter. United States v. Carrion, 4 p. 8 88 F.2d 12, 14 (1st Cir. 1973) the proceedings, then the trial, to him, is no more than a babble of voices, and aware of all the proceedings” does not have a constitutional right to an States, 722 A.2d 830, 834 (D.C. 1998) (“When the accused cannot understand that a foreign-born defendant who speaks fluent English and is “completely meaningless if the accused could not understand their testimony, and the Carrion, 488 F.2d at 14 (“Clearly, the right to confront witnesses would be

impaired that it interferes with his right to confrontation or his capacity, as a needed, the trial court must balance the defendant’s rights to due process, “As a constitutional matter, in determining whether an interpreter is 6 it seems equally clear that “a defendant whose fluency in English is so

(quotation omitted). At the opposite end of the spectrum, and notwithstanding assistance to our analysis.

New Hampshire Judicial Branch Language Services Plan,

2011) (quotation omitted). At one end of the spectrum, it is settled federal law

5 United States v. Edouard, 4 p. 8 85 F.3d 1324, 1338 (11th Cir.

of federal courts and other state courts addressing similar issues to be of great

determining whether an interpreter is necessary.” Carrion, 488 F.2d at 14; see Although the defendant urges us to employ de novo review in light of the

trial that our State Constitution demands. Cosme, 157 N.H. at 42. decision as to the need to appoint an interpreter using the abuse of discretion

consigned to the wide discretion of the trial court.” (quotation omitted)); Garcia,

constitutional implications of the trial court’s decision, we decline to do so. As coming into direct contact with the defendant, be granted wide discretion in Article 15 of the State Constitution. See State v. Cosme, 157 N.H. 40, 42 opportunity to participate in, his trial to satisfy the requirements of Part I, aware of the proceedings against him has sufficient “presence” at, and confront his accusers, assist his counsel with his defense, or receive the fair discretion”). Thus, federal and state appellate courts review a trial court’s cannot, in any realistic sense, be deemed to be “present” at the trial so as to “uniquely within the province of the trial judge,” who must be given “wide abilities are so impaired as to prevent comprehension of what is occurring 3 p. 9 99 N.E.2d at 470 (stating that the decision to appoint an interpreter is of factors. See id.; United States v. Johnson, 248 F.3d 655, 661 (7th Cir. defendant speaks some English, albeit imperfectly, will depend upon a variety fundamental question of whether an interpreter is necessary has been United States v. Mayans, 17 F.3d 1174, 1179 (9th Cir. 1994) (“[The] but clearly has difficulty.” Carrion, 488 F.2d at 14. Many courts have stated . . . [when] the defendant has some ability to understand and communicate, Moreover, “considerations of judicial economy . . . dictate that the trial court, “The status of the right [to an interpreter] becomes less certain, however knowledge of English,” Johnson, 248 F.3d at 661 (quotation omitted). language ability of the defendant’s counsel,” id.; and “the defendant’s the issues and testimony presented during trial,” Carrion, 488 F.2d at 14; “the Regardless of where born, a criminal defendant who is fluent in English and is 399 N.E.2d 460, 470 (Mass. 1980). These factors include: “the complexity of 2001); Nur v. State, 869 N.E.2d 472, 478 (Ind. Ct. App. 2007); Com. v. Garcia, Similarly, there can be no doubt that a defendant whose English language

that a trial court’s determination as to whether an interpreter is needed when a

are consistent with the law of other jurisdictions as articulated above. We conclude that the rights afforded by the New Hampshire Constitution

and (2) a rational as well as factual understanding of the proceedings). but also comprehension of the proceedings). with and assist counsel with a reasonable degree of rational understanding; present at his trial and that presence includes not only physical attendance standard for competency to stand trial: (1) sufficient present ability to consult (2008); cf. State v. Decato, 165 N.H. 2 p. 9 94, 297 (2013) (reciting two-prong throughout the colloquy, there were also answers that were more detailed and

p. 10 each question. However, while these “yes” or “no” responses were common

sense, they did not show the defendant’s level of understanding with regard to English proficiency. While they were responsive to the questions in a technical defendant’s “yes” or “no” responses necessarily indicated a sufficient level of

specific or detailed responses. In general, we are not convinced that the

phrased so as to require only “yes” or “no” answers, while others required more standard. Cf. State v. Lambert, 147 N.H. 295, 296 (2001) (“Because the ‘abuse The trial court posed many questions to the defendant: some were in this case is subject to review under our unsustainable exercise of discretion system.

Accordingly, we conclude that the trial court’s handling of the interpreter issue against him; and his past experience with the New Hampshire criminal justice classes he took in New Hampshire; his understanding of the proceedings the United States from Sudan; his schooling in Africa; the English language

determine his English language abilities. See Johnson, 248 F.3d at 661 pretrial hearing, the court properly engaged in a colloquy with the defendant to

that appellate courts are ill-equipped to second-guess such decisions. determine when a defendant has need for the services of an interpreter and (Quotation omitted). We agree that trial courts are in the best position to the prejudice of his case.” State v. Morrill, 154 N.H. 547, 550 (2006). colloquy covered a variety of topics, including: the defendant’s immigration to bears the burden of establishing that the decision was clearly unreasonable to

proceed without providing the defendant with an interpreter. During the

court to consider when deciding whether an interpreter is needed). The defendant of his or her constitutional rights. that the trial court’s exercise of discretion was unsustainable, the defendant (stating that “the defendant’s knowledge of English” is a factor for the trial such that the failure to appoint an interpreter will deprive the necessary to determine whether there exists a language barrier

discretion when it determined, at the pretrial hearing, that the trial could We first consider whether the trial court unsustainably exercised its

refer to it as the ‘unsustainable exercise of discretion’ standard.”). “To show of discretion’ standard may carry an inaccurate connotation, we will hereafter is in the best position to make the fact-intensive inquiries

the court aptly observed in In re Ejoel M., 824 N.Y.S.2d 660, 662 (N.Y. App.

necessary lies within the sound discretion of the trial court, which The determination whether a court-appointed interpreter is

Div. 2006), could give him time to consult with counsel. The court also asked whether the

p. 11 defense counsel if he did not understand a witness, so that the trial court

an interpreter.” State v. Topete, 380 N.W.2d 635, 636 (Neb. 1986) (citation

proceedings. It asked the defendant whether he felt comfortable notifying accommodations to enhance the defendant’s ability to understand the Furthermore, prior to its ruling, the trial court proposed various

case as “fairly simple.” and answers given, there has been no abuse of discretion in refusing to appoint the nature of the charge, we agree with the trial court’s characterization of the testimony would take two hours at most. Based on this information, as well as

See Mui v. United States, No. 99 CV 3627 (55)(RER), 2013 WL 6330661, at *19

where the record satisfactorily demonstrates that such defendant [had] a indicated that it would call only two witnesses, and estimated that their “Even though a defendant might not speak grammatically correct English,

introduce at trial. See Carrion, 488 F.2d at 14 (stating that the “complexity of

an interpreter to assist him in pretrial preparation sessions with the defendant. with each other in English, and that counsel does not allege that he requested reassured by the fact that the defendant and defense counsel communicated

consider when deciding whether an interpreter is necessary). The State a lot, with defense counsel using examples to explain things to the defendant.

trial court also asked the State about the testimony and evidence it would In addition to examining the defendant’s English language ability, the offered some other oral statement.” State v. Selalla, 744 N.W.2d 802, 810 (S.D. understand English than when the record reflects that he gave testimony or no better indication for an appeals court that a defendant can speak and We agree with the Supreme Court of South Dakota that “there is perhaps

seem[ed] to understand his responses to those questions.” We also are

the issues and testimony presented at trial” are factors for the trial court to defendant, they were able to communicate successfully by going back and forth volumes” about his ability to communicate in English). According to the interpreter to assist him in communicating with counsel pretrial “speaks

omitted).

English than was evidenced by his simple “yes” or “no” answers. proficiency, in that they showed a deeper comprehension and command of seemed to understand questions [the trial court] asked and [the trial court] defendant – that although “English isn’t [the defendant’s] first language, . . . he conclusion – based upon its face-to-face conversation and interaction with the

(E.D.N.Y. Dec. 5, 2013) (finding that defendant’s failure to request an

the questions posed – were indicative of the defendant’s English language lengthy. We find that these detailed responses – all of which were responsive to

2008). In light of the hearing record, we are satisfied with the trial court’s remains so throughout the trial, see State v. Bertrand, 123 N.H. 719, 726

p. 12 responsibility to ensure that a defendant found mentally competent before trial

not end its responsibility with respect to this issue. Rather, similar to its Initially, we agree with the defendant that the court’s pretrial ruling did

We disagree.

unsustainably exercised its discretion by not reconsidering that decision and pretrial determination not to appoint an interpreter, the trial court The defendant next argues that, regardless of the correctness of its

violation of the Federal Constitution. appoint an interpreter for the defendant. See Carrion, 488 F.2d at 15 (no trial court must sua sponte inquire into his competency.” Bertrand, 123 N.H. at 725 (citation those employed in other cases where courts have upheld decisions not to enjoys the procedural advantage that if sufficient doubt exists of his competency to stand trial the

deprives him of his constitutional right to a fair trial.” Id. (quotation omitted). omitted). “A court's failure under such circumstances to inquire as to the defendant's competency

procedures must be adequate to protect this right). “To protect this guarantee a defendant also conviction of an accused person while legally incompetent violates due process, and state 127 N.H. 266, 270 (1985); see also Pate v. Robinson, 383 U.S. 375, 378 (1966) (stating that the Constitution under these circumstances, as discussed above, we also find no 7 A defendant has a right not to be tried if he is mentally incompetent. See State v. Champagne, engaged. These accommodations undertaken by the trial court are similar to

[became] apparent that an interpreter [was] necessary during the trial, the see Commonwealth v. Pana, 364 A.2d 895, 898 (Pa. 1976). Therefore, “if it absence of an interpreter had the effect of denying the defendant a fair trial, (1983),7 the trial court was under a continuing obligation to assess whether the

Federal Constitution offers the defendant no greater protection than the State violate any of the defendant’s rights under the State Constitution. As the the defendant could communicate when defense counsel was otherwise without an interpreter was a sustainable exercise of discretion and did not take breaks whenever necessary, and suggested finding someone with whom Overall, we are satisfied that the trial court’s pretrial decision to proceed both questions. The trial court then assured defense counsel that he could

the testimony would be repeated”). there was something he did not understand, he need only raise his hand and

understanding what was happening. The defendant responded affirmatively to defendant felt comfortable letting it know when he was having a difficult time

factors, “the court told the appellant that if, at any point in the proceedings, abuse of discretion by not appointing an interpreter where, among other find that the court’s response to the defendant’s concern was adequate, both

p. 13 revise its earlier ruling regarding the defendant’s need for an interpreter. We

defendant. We are not persuaded that this incident required the trial court to showing an ongoing commitment to providing accommodations for the would be mindful to speak more slowly throughout the remainder of the trial,

offer that counsel declined. And third, it reassured defense counsel that it

so that defense counsel could explain the instructions to the defendant, an the defendant before the trial began. Second, it offered to recess immediately prior to the trial, and so had the opportunity to go over the instructions with

First, it pointed out that counsel had received a written copy of the instructions We are, moreover, reassured by the trial court’s response to this concern.

jury’s role was to listen and determine whether or not the defendant was guilty.

defendant did seem to comprehend the import of the instructions: that the

undoubtedly a matter of concern, counsel also acknowledged that the

defendant did not understand what the trial court said as it was speaking was appoint an interpreter. Although defense counsel’s statement that the understanding them required the trial court to reconsider its decision not to

speech during its preliminary instructions, arguing that his difficulty The defendant next points to his complaint about the trial court’s rate of

that any delays resulting therefrom should not be held against the defendant.

court would follow to accommodate this circumstance, and cautioned the jury

that English was not the defendant’s first language and of the procedures the itself was improper or prejudicial. The instruction simply informed the jury reconsider its decision, nor does the defendant suggest that the instruction

ruling and the time it gave this instruction that should have caused it to

not claim that anything occurred between the time the court made its pretrial

ruling to proceed without an interpreter was erroneous. The defendant does defendant’s argument, which we have already rejected, that the court’s pretrial court believed it necessary to give this instruction adds nothing to the

the Defendant or his attorneys that we’re taking more breaks.” That the trial

statement, the court specifically told the jury that it should not “hold it against the defendant, whose primary language was not English. In making this would take more frequent breaks to allow defense counsel time to confer with In its preliminary instructions, the trial court advised the jury that it

understanding of the testimony. We address each in turn. attorney, and witnesses at certain points; and the defendant’s limited

preliminary jury instructions; the rate of speech of the trial court, the State’s

interpreter available.” Id. court should [have], on its own motion or on a motion of a party, [made] an

the trial court’s obligation to appoint an interpreter: the trial court’s The defendant points to various events at trial that he argues triggered similar to Selalla. In that case, the trial court offered to stop the proceedings at p. 14 had made clear it would “absolutely” allow. In this regard, the present case is

understood what was happening at trial – accommodations that the trial court

recesses or stated that he needed more time to ensure that the defendant counsel took advantage of most of these offers, but never asked for additional that his counsel could ensure that he understood the proceedings. Defense

trial, the trial court offered the defendant multiple opportunities for a recess so To the contrary, the record reflects that during the course of the short

an interpreter. these events should have caused the court to reassess the defendant’s need for

single objection posed during Hume’s testimony, we are not persuaded that

concerns expressed by counsel during Officer Goard’s testimony, as well as the given the absence of an objection to the trial court’s effort to address the to notify the trial court if the defendant did not understand a witness. Thus,

other relief. We note that defense counsel and the defendant had both agreed

At no point during Hume’s testimony did counsel seek a recess or request any not directly assert – that she had spoken rapidly during her direct examination. speech during Hume’s cross-examination, in which counsel implied – but did

Hume’s direct examination. Defense counsel also briefly mentioned the rate of

witness, motor vehicle hearings officer Brenda Hume, at the beginning of Defense counsel objected once to the rate of speech of the second

the remainder of the officer’s examination.

concerning the speaking pace of either the prosecutor or Officer Goard during

there were no further objections or comments from the defense or the court instructed him to articulate and speak more slowly. The witness agreed, and the witness – whose speaking pace had not been the subject of complaint – and

might counsel together.” Id. at 813. Therefore, the court found “no basis upon prosecutor immediately agreed to do so. In addition, the court then addressed

take the trial court up on its offer to suspend the proceedings so that they occasion during the proceedings did either [the defendant] or defense counsel Goard, defense counsel asked the prosecutor to slow her speaking pace. The interpreter, the Supreme Court of South Dakota emphasized that “on not one During the direct examination of the State’s first witness, Officer Nathan at 812-13. In affirming the trial court’s decision to dismiss a second his understanding of the proceedings. The record does not support this claim. any time so that the defendant and counsel could confer. Selalla, 744 N.W.2d

rate of speech used by the State’s attorney and the State’s witnesses impaired The defendant also argues that, given his limited English proficiency, the

thereafter.

court had said to the jury and by agreeing to moderate its rate of speech by ensuring that the defendant had the opportunity to understand what the offender, and therefore did not knowingly violate the law. Thus, the court p. 15 deficiency, he did not understand that he had been certified as a habitual

Specifically, the defendant’s defense at trial was that, due to his language

defendant’s defense hinged upon his inability to understand English. for an interpreter, the trial court could properly consider the fact that the considering the credibility of this testimony as it bore on the defendant’s need

violated the habitual offender statute, and thus we have no occasion to address that matter. challenge the sufficiency of the evidence to establish beyond a reasonable doubt that he knowingly understand it well or no?”, the defendant replied, “No.” However, in before us is the correctness of the interpreter appointment decision. The defendant does not is relevant to his claim that the trial court erred in failing to appoint an interpreter, the only issue alleged inability to understand the proceedings that led to his certification as a habitual offender agree with the trial court on this point and note that, although the evidence of the defendant’s credibility of what to believe . . . I think those are issue’s [sic] that the jury needs to resolve.” We Manchester?

little bit.” And when counsel asked, “If someone talks fast in English, do you think that he was exaggerating his English skills, or their lack thereof, and, you know, the “I think that whether the jury accepts or doesn’t accept Mr. Jur’s testimony, and whether they 8 In denying the defendant’s motion for a directed verdict, the court made the following statement:

DEFENSE COUNSEL: What happened when you stepped off the plane in

arrival in New Hampshire well demonstrates the point: colloquy relating to the circumstances surrounding the defendant’s initial his thoughts to the jury, see Faafiti, 513 P.2d at 699-700. The following reflects that he gave testimony . . . .” Id. at 810. “Even though a defendant (8th Cir. 1985), assist in his defense, see Perez, 404 N.W.2d at 838, and convey that a defendant can speak and understand English than when the record English to understand the proceedings, see Luna v. Black, 772 F.2d 448, 451 understood the two witnesses who had testified for the State, he replied, “A defendant’s testimony, we are satisfied that he had a sufficient command of true that during his direct examination, when he was asked whether he inability to understand English.8 In any event, based upon our review of the could have found that the defendant had a motive to embellish the extent of his The defendant presented extensive testimony in his own defense. It is

abuse of discretion in refusing to appoint an interpreter.” Topete, 380 N.W.2d language to understand questions posed and answers given, there has been no

trial testimony. “There is perhaps no better indication for an appeals court

at 636. court’s actions. Id. which to conclude that [the defendant] was in any way prejudiced” by the trial

demonstrates that such defendant had a sufficient command of the English might not speak grammatically correct English, where the record satisfactorily

in failing to appoint an interpreter is the lengthy record of the defendant’s own The most significant factor demonstrating that the trial court did not err understand English.” Luna, 772 F.2d at 451. We do not doubt that the

p. 16 . . . appear[s] to be very responsive and indicative of [his] ability to speak and

“Aside from some syntactical errors, [the defendant’s] testimony on the whole

friends he know to get me work. I got and work at CCT, Bedford.

then we go in the church and we pray, you know. So he talks to the

dad’s church is here, by the Pine Street. I say oh, I don’t know that. I (phonetic). He worked in my father’s church, and he said yeah, your Africans there, and three weeks, I see one guy, his name is Don Lear

DEFENDANT: Go to church, at (indiscernible) church. I see some

Laurel Street, what did you do? DEFENSE COUNSEL: So for those first few months that you lived on

I have a bed to sleep, I have food. That’s it.

Laurel Street, 213, Apartment 6, at 2003. So they put me in the house. And then called me, we go in the car, then bring me to Manchester at people were in the airplane, and she came, she called, “Thomas, come.”

DEFENDANT: Yeah, she had my picture and my name, and too many

you? DEFENSE COUNSEL: Okay. So Natalie – a person came to meet with had never taken the test, and that it is “not okay” to drive without a license. cross-examination that he had never had a valid driver’s license because he lengthy responses during direct examination, the defendant also admitted on

questions posed, and express himself to the jury. In addition to various

DEFENDANT: I don’t know.

DEFENSE COUNSEL: Did you know who this person was? sufficient command of English to assist in his defense, understand the interpreter . . . .”). Instead, we must determine whether the defendant had a himself a little better in Spanish did not require the use of an

1982) (“[T]he mere fact that [the defendant] might have been able to express the question before us. See Vargas v. State, 627 S.W.2d 785, 787 (Tex. App. had he been able to speak in Dinka, his native language. However, that is not defendant would have been more comfortable, and better able to communicate,

DEFENDANT: Yes.

DEFENSE COUNSEL: Natalie?

DEFENDANT: Natalie, she come. p. 17 A f f i r m e d .

Plan, section V(B).

an interpreter to ensure full access to the court.” N.H.J.B. Language Services

is the [New Hampshire Judicial Branch’s] policy to err on the side of providing

that “[w]hen it appears that an individual has any difficulty communicating, it interpreter, it does ameliorate this burden to a significant degree by providing difficult determinations concerning whether a person needs the services of an

eliminate the need for trial judges and other court personnel to make often

Services Plan, adopted after the trial in this case. Although the Plan does not trial courts of the obligations imposed upon them pursuant to our Language Notwithstanding our analysis herein, we take this opportunity to remind

as we do under the State Constitution.

as discussed above, we reach the same result under the Federal Constitution

DALIANIS, C.J.