|
You can of the Alaska Court of Appeals opinions.
|
|
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| VUI GUI TSEN, | ) |
| ) Court of Appeals Nos. A-9619 & 9639 | |
| Appellant, | ) Trial Court No. 3AN-05-1687 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2147 February 8, 2008 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Philip R. Volland,
Judge.
Appearances: Dan Lowery, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
This case presents two questions. First, we must
determine whether the trial judge abused his discretion when he
denied the defendants request for an interpreter to assist him in
understanding the testimony and proceedings at his trial.
Second, the State asks us to declare that the defendants sentence
is too lenient.
As we explain more fully in this opinion, we conclude
that the trial judge could properly deny the defendants request
for an interpreter because the defendant failed to allege and
still fails to allege that his understanding of the trial
proceedings was deficient in a way that led to specific,
identifiable prejudice to the conduct of the defense.
With regard to the defendants sentence, we can not
determine whether the sentence is too lenient. The sentencing
judge misunderstood the United States Supreme Courts decision in
Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d
403 (2004), and thus failed to make findings on certain contested
facts facts which, if resolved in the States favor, might have
shown that the sentence was overly lenient.
The question of whether the defendant was entitled to
an interpreter
Vui Gui Tsen ran an escort service / massage
parlor in the Spenard area of Anchorage. After the
police arrested two of Tsens female employees for
prostitution, one of the women agreed to aid the police
by arranging to purchase cocaine from Tsen. Tsen sold
cocaine to the woman, and he was then arrested.
Following his arrest, Tsen waived his Miranda
rights and spoke to the police about his offense. He
told the officers that he was not aware that his female
employees were engaging in prostitution, but he
conceded that he normally purchased about 3.5 grams of
cocaine per week (depending on how many women he had
working), and that he sold this cocaine to his
employees and their customers so that drug dealers
would not come around and disturb the neighbors.
Based on these events (including Tsens
statements), Tsen was charged with two counts of third-
degree controlled substance misconduct (sale of
cocaine, and possession of cocaine for sale), as well
as one count of third-degree promoting prostitution.1
A pre-trial conference in Tsens case was held
in front of Superior Court Judge Philip R. Volland on
Wednesday, November 16, 2005. At this pre-trial
conference, Tsens attorney, Assistant Public Defender
John A. Bernitz, notified Judge Volland that Tsen
wished to have a Vietnamese interpreter during the
trial.2 Bernitz explained:
Defense Attorney: Mr. Tsen, although he
speaks English, he is a native Vietnamese,
and he wants a Vietnamese interpreter for
trial because ... the language gets more
complicated and quicker at trial. ... I
havent checked into the [availability of a
Vietnamese] interpreter, but typically, I
think, I can get an interpreter here for next
week. So wed ask that trial not start
tomorrow, but start on Monday[, November
21st].
Judge Volland replied that he could
start the case the following day (that is,
Thursday, November 17th). However, because
of a scheduling conflict, if the case was
delayed until Monday, he would have to assign
it to a different judge Superior Court Judge
Larry D. Card, who had already announced his
impending retirement. Bernitz stated that he
did not want Tsens case handled by Judge Card
because, in the event that Tsen was
convicted, there was a good possibility that
the sentencing would have to be assigned to
yet another judge (because of Judge Cards
retirement). So, rather than have Tsens case
assigned to Judge Card, Bernitz opted to have
the case start the next day (November 17th)
in front of Judge Volland.
The following day, the parties
appeared in court before Judge Volland to
begin the trial. Just before jury selection
began, Bernitz again brought up the issue of
an interpreter:
Defense Attorney: Judge, I think were
ready to go. [T]he only issue that I can
think of [is] the problem [of] an
interpreter. ... I dont know if I ... can
say anything, if Im restricted by [the]
attorney-client privilege. I guess I can say
that Mr. Tsen is a native of Vietnam, and
actually I dont know what else I can say. I
mean, I have ... information about how well
he speaks English. I know that hes asked for
an interpreter, and I expected to have an
interpreter available for ... next week. I
also know we dont have one now.
The Court: I guess my sense [of the
matter] is to let that [decision] be your
call, Mr. Bernitz. ... [J]ury selection
obviously ... affects Mr. Tsens due process
rights. [And] once we get into [the
presentation of] evidence, his confrontation
rights are affected [too]. ...
. . .
Defense Attorney: I think Mr. Tsen
understands the words that are being said,
but I think theres a nervousness about, you
know, how important this case is, and that
[we are] in the courtroom, and its pretty
formal. And so hes nervous about [not]
understanding the whole concepts about whats
going on.
Bernitz then informed the court
that a friend of Tsens, a Mr. Kalei, was in
the courtroom and was willing to assist
during juror voir dire. Bernitz did not know
if Kalei could speak Vietnamese, but Kalei
was a trusted friend of Tsens, and he
apparently had helped to explain legal
concepts to Tsen in the past. Bernitz asked
Judge Volland to allow Kalei to sit at
counsel table and participate in the
decisions about which jurors to pre-empt.
Judge Volland granted this request, and Kalei
sat at the table with Bernitz and Tsen during
that particular day of jury selection.
On the next day of jury selection,
Bernitz informed Judge Volland that he had
not been able to secure the services of an
interpreter, but he was working hard to get
one. At the same time, Bernitz warned the
court that if they used an interpreter, the
testimony would go half as fast as without an
interpreter.
After hearing the defense attorneys
warning, Judge Volland asked the prosecutor
for an estimate of how long the case would
take. The prosecutor answered that, without
an interpreter, Tsens case would take
approximately one week (including final
arguments).
Upon hearing this estimate, Judge
Volland explained that the extra time
required for complete interpretation of Tsens
trial would cause a scheduling conflict with
other pending trials:
The Court: In a perfect world, [we
would] select [the jury] today, have them
come back on Monday, ... and then swear them
in and go ahead. [But] I need to ... get
this case to the jury on Thursday in order to
start Mr. Bernitzs [next case, the] homicide
case [starting] the following Monday. And I
am concerned about how long [Mr. Tsens case]
might take if we have an interpreter
interpreting the direct and cross-examination
of every witness. ... My experience is that
[interpretation of this sort] literally
doubles the time it takes for [witness]
examination.
A few moments later, Judge Volland announced
that he would make no decision regarding
Tsens request for an interpreter at that
time. Rather, he would play it by ear, and
see where we are [at the end of the day].
Jury selection continued without an
interpreter for Tsen, but also without any
further request for one. Four days later, on
November 25th, during a break in the
proceedings, the prosecutor brought up the
issue of an interpreter. In response, Judge
Volland expressed his belief that Bernitz, by
letting the proceedings go forward without an
interpreter, had implicitly acknowledged that
Tsen had a sufficient command of the English
language and a sufficient understanding of
the proceedings to satisfy any due process
concerns:
Prosecutor: Regarding the issue of an
interpreter: Mr. Bernitz has indicated that
hes still looking for an interpreter. ...
And I just want to make sure [that] theres a
clear record that Mr. Bernitz has made the
determination that Mr. Tsen understands
English [well] enough to proceed and assist
him in this case. ... [W]e keep going back
and forth on whether were going to have an
interpreter ... , and I dont want to have to
re-do [this] trial or [answer] an ineffective
assistance claim [regarding] whether [Mr.
Tsen] can understand the proceedings or not.
The Court: Maybe Im wrong, [but] I
understood [Mr. Bernitzs] request for an
interpreter [to be based] merely [on the
desire] to provide additional assistance to
his client. Not [on the assertion] that Mr.
Tsen didnt understand English or the nature
of the proceedings because weve been going
through jury selection without one. And I
assumed that you made that judgement, Mr.
Bernitz.
In reply, Bernitz stated that his client
still wished to have an interpreter but, at
the same time, Bernitz conceded that he could
not assert that an interpreter was needed as
a constitutional matter:
Defense Attorney: Judge, I know that
Mr. Tsen would like a Vietnamese interpreter.
... But I will do whatever the Court tells
me to do. I just want to make sure that the
Court is telling me to do it.
The Court: Well, Im not barring the
presence of an interpreter here, Mr. Bernitz.
... But I did not take your request [as
meaning] that you were insisting on the need
for an interpreter so that your clients due
process rights were protected. [If I had
believed] otherwise, we wouldnt have even
proceeded with jury selection.
Defense Attorney: Judge, ... I think
that Mr. Tsen wants an interpreter. And I
dont know how to proceed. I mean, ... I cant
say what the Court just said [i.e., that an
interpreter would be needed to protect Tsens
due process rights]. [But] I think Mr. Tsen
thinks that his constitutional or due process
rights would be violated if he doesnt get an
interpreter.
Upon hearing the defense attorneys
response, Judge Volland addressed Tsen
personally:
The Court: Mr. Tsen, have you been able
to understand me today?
The Defendant: Sir, I can speak
English. I listen but the meaning, it
really hard for me to understand the meaning
a lot. For some time is I understand what
the slang meaning, but some its just not like
this. Because I worry about that sometime it
I pick up I cannot pick up something I
should have tell to my lawyer, but I dont. I
let it go opportunities; I worry about that,
thats all.
The Court: Have you been able to
understand what we were doing in court the
last few days?
The Defendant: I come back home, I have
asking my friends and some is I dont really
understand the meaning, but and the first
day, I dont really know about that much, but
I learned from the first day, second day, and
then I just it was just the same thing, and
listen and always not discrimination. I say,
oh, thats not good, this one no good, so I
just ...
The Court: Are you able to understand
Mr. Bernitz when he talks with you?
The Defendant: More than somebody I
didnt communicate with. Mostly I understand
the person, I communicate for a few day or
week, then I pick up. The same as if
somebody who I just talk to I dont really
understand very much. Its like somebody tell
joke to me, I dont really laughing and they
thought I meaning, but I come back, Im going
to ask my friend and I laugh myself.
The Court: I find with respect to Mr.
Tsens command of the English language that
and the preceding colloquy should reflect it
that Mr. Tsen clearly has command of the
English language, hes clearly understood what
the Court was asking of him, clearly able to
express himself and his limitations. What
Mr. Tsen described is what many individuals
experience for whom English is the[ir] second
language and that is [a] lack of command of
some of the nuances of the language. I find
that, so far, Mr. Tsen has understood his
attorney. He has understood our proceedings
in court. Although ... an interpreter
[could] certainly provide assistance to Mr.
Tsen, an interpreters presence is not
required in trial to assure that Mr. Tsens
due process rights are protected.
Just after Judge Volland issued
this ruling, Bernitz asked the judge if he
would permit Tsen to use a telephone service
interpreter throughout the trial (because,
apparently, no interpreters were available in
Anchorage to personally attend the trial).
Judge Volland asked Bernitz why an all-day,
over-the-phone interpreter was necessary, in
light of his ruling. Bernitz responded,
I dont know if I have [a response] to that.
I [just] think its what Mr. Tsen wants.
After Bernitz conceded that he had
nothing to add on the question of whether
Tsen needed an interpreter (as opposed to
wanted one), Judge Volland again ruled that
word-for-word interpretation of the trial
testimony was not required: I find that that
level of interpretation is not required, ...
based on my findings [regarding] Mr. Tsens
ability to understand the English language
and communicate [in English].
The question of an interpreter came
up once more, later in the proceedings.
During the course of the trial, Tsen changed
his mind several times about whether he
wanted to testify. Initially, Tsen told
Judge Volland that he and Bernitz had decided
that it would be better for him not to
testify, given his poor English skills.
However, Judge Volland later declared that if
Tsen wished to testify, he would allow Tsen
to employ the services of a telephonic
interpreter if that would make him feel more
comfortable about testifying.
Despite this offer, Tsen chose not
to testify; instead, the defense rested its
case a few minutes after Judge Volland made
his ruling. However, on the following
Monday, Bernitz sought permission to re-open
the defense case to allow Tsen to testify.
Judge Volland granted this request, and
Bernitz arranged for a telephonic interpreter
but then a jury problem required a recess of
the trial for a few days. By the time the
trial resumed, Tsen had again changed his
mind; that is, he had decided not to testify.
The jury convicted Tsen of all
three counts. At the sentencing hearing on
February 14, 2006, Tsen delivered an
allocution in which he expressed frustration
at not having had an interpreter during the
trial. Tsen declared that the lack of an
interpreter made it hard for him to
understand what was going on, and thus hard
for him to defend himself.
Now, on appeal, Tsen argues that
Judge Volland violated his right to due
process of law when the judge refused to
order word-for-word interpretation of the
jury voir dire and the trial testimony.
(a) Why we conclude that this issue was not
preserved in the trial court, and why it therefore
comes to us as a claim of plain error
As described in the preceding section of this
opinion, Judge Volland repeatedly asked Tsens
attorney, Mr. Bernitz, if he believed that Tsen
needed an interpreter to adequately understand the
proceedings and assist in his defense. Each time,
Bernitz declined or refused to assert that this
was the case.
We note that when Bernitz first discussed
this issue with Judge Volland, Bernitz told the
judge that he had information about how well
[Tsen] speaks English, but that he could not say
much more on this issue because of [Tsens]
attorney-client privilege.
During the next discussion of this issue
(after jury selection had been going on for a
time), Judge Volland told Bernitz that he had
understood Bernitzs request for an interpreter [to
be based] merely [on the desire] to provide
additional assistance to his client, and not on
the assertion that Mr. Tsen didnt understand
English or the nature of the proceedings. Judge
Volland added that he had not understood Bernitz
[to be] insisting on the need for an interpreter
so that [Tsens] due process rights were protected.
In response, Bernitz told Judge Volland that
he [could] not say what the Court just said i.e., he
could not assert that Tsen had so little comprehension
of English that continuation of the trial without an
interpreter would violate due process. Instead,
Bernitz told Judge Volland, I think [that] Mr. Tsen
thinks that his constitutional or due process rights
would be violated if he doesnt get an interpreter.
(Emphasis added)
In other words, when Bernitz responded to
Judge Vollands statements and questions concerning the
legal basis for his request for an interpreter, Bernitz
consistently failed to assert even when prompted that
there was any due process problem.
But now, on appeal, Tsen argues that the lack
of an interpreter undermined his right to due process
of law. Accordingly, this issue was not preserved for
appeal, and Tsen must show plain error if he is to
prevail.
(b) A brief overview of the law relating to a
criminal defendants right to the assistance of an
interpreter
The United States Supreme Court has not yet
explicitly decided whether criminal defendants who lack
the ability, or who have limited ability, to speak and
understand the English language have a due process
right to the assistance of an interpreter at their
trial. The Courts only pronouncement on this subject
is found in Perovich v. United States, 205 U.S. 86, 27
S.Ct. 456, 51 L.Ed. 722 (1907), where the Court
declared that the question of whether an interpreter
should be appointed to aid a criminal defendant in
giving testimony is a matter largely resting in the
discretion of the trial court. Id., 205 U.S. at 91, 27
S.Ct. at 458.
But in 1970, in Negron v. New York, 434 F.2d
386 (2nd Cir. 1970), a federal court of appeals held
that a defendant who neither spoke nor understood any
English was denied due process of law when the trial
court failed to provide an interpreter for the
defendant during the portions of his trial that were
conducted in English. Id. at 387-88. The court
explained that, without an interpreter, the defendant
could neither confer with his attorney nor understand
the testimony of English-speaking witnesses thus
undermining the defendants right of confrontation by
impeding the defendants ability to aid his attorney in
formulating cross-examination.
Since 1970, several other federal panels have
recognized a defendants constitutional right to the
assistance of an interpreter in a criminal trial.3
In 1978, the United States Congress enacted
the federal Court Interpreters Act, 28 U.S.C. 1827.
As just explained, the extent of a potential due
process right to English language translation was not
well-defined in 1978. And according to the legislative
history of the Court Interpreters Act, Congress did not
intend the Act to create new constitutional rights for
defendants or expand existing constitutional
safeguards. United States v. Joshi, 896 F.2d 1303,
1309 (11th Cir. 1990), citing House of Representatives
Report No. 1687 (95th Congress, 2nd session, 1978), pp.
2-4. Rather, the Act was intended to head off
potential constitutional problems by establishing a
standard procedure for trial judges to use when
evaluating the need for an interpreter, and then
appointing a qualified interpreter if one is needed.
Id.
Under subsection (d)(1) of the Act, a trial
judges duty to investigate the appointment of an
interpreter arises when the judge is placed on notice
that the defendant speaks only[,] or primarily[,] a
language other than ... English, so that it appears
that the defendants lack of skill in English will
inhibit [the defendants] comprehension of the
proceedings or [inhibit the defendants] communication
with counsel or the presiding judicial officer, or[, if
the defendant takes the stand, inhibit the defendants]
comprehension of questions and [ability to
meaningfully] present[ their] testimony.
Federal courts have interpreted this Act to
give trial judges broad discretion when deciding
whether a defendants English language skills are so
lacking as to require word-for-word translation of the
trial testimony. See, for instance, United States v.
S ndoval, 347 F.3d 627, 632 (7th Cir. 2002), where the
appeals court explained, The district court is afforded
wide discretion [on this issue] because it is in the
best position to evaluate the need for and the
performance of interpreters. See also United States v.
S nchez, 928 F.2d 1450, 1455 (6th Cir. 1991);
Valladares v. United States, 871 F.2d 1564, 1566 (11th
Cir. 1989).
The trial judge is given broad discretion as
a matter of necessity. The decision whether to order
full non-English interpretation of the trial testimony
involves a balancing of the defendants right to due
process against the publics interest in the economical
administration of criminal justice.4 As the defense
attorney in the present case forthrightly told Judge
Volland, and as Judge Volland confirmed from his own
experience, word-for-word interpretation of a trial
generally means that the trial will last twice as long.
Moreover, and perhaps more importantly, the
decision whether to order word-for-word interpretation
of the trial testimony necessarily hinges on many
variables. Chief among these variables are (1) the
extent to which the defendant can comprehend spoken
English (i.e., understand the English speech of other
people), (2) the extent to which the defendant can
express himself or herself in English, and (3) the
degree to which the trial testimony will present
complex or subtle issues of fact that will require the
defendants input (i.e., the defendants participation in
formulating the defense case and in devising the cross-
examination of adverse witnesses). See United States
v. Febus, 218 F.3d 784, 791-92 (7th Cir. 2000).
We have focused on federal case law here
because the Alaska law on this subject is still
undefined. There are no published Alaska appellate
decisions in this area. It is true that the third
paragraph of the Commentary to Alaska Evidence Rule 604
states that the [a]ppointment of an interpreter for
[an] indigent defendant is probably constitutionally
required if the defendants understanding of the
proceedings against him depends upon it. However, the
Commentary cites no legal authority to support this
statement. We note, moreover, that the Alaska Supreme
Court has [neither] adopted [n]or approved the
Commentary to our Rules of Evidence. See the
Introduction to the Commentary to the Alaska Rules of
Evidence. In other words, the commentaries to the
various evidence rules represent only the views of the
Evidence Rules main drafter, Professor Stephen A.
Saltzburg, and not necessarily the views or the
intentions of our supreme court.
Nevertheless, for purposes of deciding this
appeal, we will assume (without deciding) that Alaska
law mirrors federal law on the issue of a criminal
defendants right to the assistance of an interpreter.
As explained above, when a defendant requests
an interpreter, the trial judge must make an assessment
of the defendants need for an interpreter, given the
level of the defendants English skills and the
particular facts and demands of the case. Seemingly,
everyone (judges, lawyers, and lay persons alike) would
agree that an interpreter is needed when a defendant
has no understanding of English whatsoever. But that
leaves a great middle ground: defendants who
concededly have some ability to understand and to speak
English, but not the level of language skill that a
native speaker of English would possess. For these
situations, there is scant case law describing the
details of the analysis or the precise standards that a
trial judge is to employ in making the decision. The
judge is expected to base the decision on the
defendants ability to understand English, the
defendants ability to speak English, the nature of the
issues to be litigated, and the anticipated complexity
or subtlety of the trial testimony. Weighing all these
factors, the judge must then decide whether an
interpreter is necessary if the defendant is to
participate effectively in his or her defense.5 Yet,
as at least one commentator has noted, trial judges are
often untrained or ill-equipped to make language
proficiency assessments.6
It is likewise unclear what level of English
proficiency is necessary to preserve a defendants due
process rights. Appellate courts have consistently
found that a defendants due process rights were
violated when the defendant lacked any ability to speak
or understand English and yet was denied an
interpreter.7 But as the First Circuit observed in
United States v. Carri¢n, 488 F.2d 12, 14 (1st Cir.
1973), [t]he status of the right [to an interpreter]
becomes less certain [in cases] where ... the defendant
has some ability to understand and communicate, but
clearly has difficulty.
In Carri¢n, the First Circuit concluded that
most cases raising the issue of a defendants purported
need for an interpreter would have to be resolved by
deferring to the trial judges evaluation of this issue.
The First Circuit noted the reasons for giving the
trial judge wide discretion on this issue (reasons we
have already explained), and the court suggested that,
generally speaking, [i]t would be a fruitless and
frustrating exercise for [an] appellate court [to
second-guess the trial judge by] infer[ring] language
difficulty from every faltering, repetitious bit of
testimony in the record. Id. at 15.
Moreover, the appointment of an interpreter
does not guarantee that the issue of the defendants
lack of English proficiency will be laid to rest. Many
of the appellate decisions involving the federal Court
Interpreters Act deal with allegations that the
interpreter appointed to assist the defendant did not
have sufficient bilingual competency, or that the
interpreter was not sufficiently disinterested in the
outcome.8
Because this issue comes to us in Tsens case
as a claim of plain error, we need not resolve all
these facets of the problem. The question confronting
us is whether Judge Volland plainly abused his
discretion when he declined to order word-for-word
interpretation of the testimony at Tsens trial. As we
explain in the next section of this opinion, the record
does not show a plain abuse of discretion.
(c) Why we conclude that, under the facts of this
case, Tsen has failed to show that Judge Volland
committed plain error when he declined to order word-
for-word interpretation of the testimony at Tsens
trial
In the previous section, we listed the
primary factors that a trial judge must presumably
evaluate when deciding whether to order word-for-word
interpretation of the trial proceedings to assist a
defendant who has some ability to understand and to
speak English, but not the level of language skill that
a native speaker of English would possess. These
factors are: (1) the extent to which the defendant can
comprehend spoken English (i.e., understand the English
speech of other people), (2) the extent to which the
defendant can express himself or herself in English,
and (3) the degree to which the trial testimony will
present complex or subtle issues of fact that will
require the defendants input (i.e., the defendants
participation in formulating the defense case and in
devising the cross-examination of adverse witnesses).
The judge should weigh these factors and then decide
whether an interpreter is necessary in order for the
defendant to participate effectively in his or her
defense.
Tsen argues that no reasonable judge could
have reached the decision that Judge Volland did i.e.,
the decision that an interpreter was not required.
Tsens position is arguably supported by the responses
that Tsen gave when Judge Volland questioned him
personally about his English language abilities. We
quoted that exchange earlier in our opinion, but Tsens
responses should be quoted again at this point:
The Court: Mr. Tsen, have you been able
to understand me today?
The Defendant: Sir, I can speak
English. I listen but the meaning, it
really hard for me to understand the meaning
a lot. For some time is I understand what
the slang meaning, but some its just not like
this. Because I worry about that sometime it
I pick up I cannot pick up something I
should have tell to my lawyer, but I dont. I
let it go opportunities; I worry about that,
thats all.
The Court: Have you been able to
understand what we were doing in court the
last few days?
The Defendant: I come back home, I have
asking my friends and some is I dont really
understand the meaning, but and the first
day, I dont really know about that much, but
I learned from the first day, second day, and
then I just it was just the same thing, and
listen and always not discrimination. I say,
oh, thats not good, this one no good, so I
just ...
The Court: Are you able to understand
Mr. Bernitz when he talks with you?
The Defendant: More than somebody I
didnt communicate with. Mostly I understand
the person, I communicate for a few day or
week, then I pick up. The same as if
somebody who I just talk to I dont really
understand very much. Its like somebody tell
joke to me, I dont really laughing and they
thought I meaning, but I come back, Im going
to ask my friend and I laugh myself.
It is obvious from this excerpt
that Tsen had difficulty expressing himself
in grammatical English or, as Judge Volland
phrased it, Tsen had difficulty with some of
the nuances of the [English] language.
Nevertheless, Judge Volland concluded that
Tsen had a good understanding of the
questions the judge was asking him i.e.,
that Tsen had a good understanding of other
peoples spoken English. Accordingly, Judge
Volland decided that it was not necessary to
order word-for-word interpretation of the
entire trial although (later in the trial)
he did offer to make an interpreter available
to assist Tsen if Tsen decided to testify.
As Tsen points out in his brief,
criminal defendants spend most of their trial
listening to what other people are saying
the witnesses, the lawyers, and the judge.
And if a defendant is to participate
meaningfully in their defense, it is
important for them to understand what is
being said.
One can easily imagine that, given
Tsens limited command of English, he might
not have correctly or completely understood
everything that was said in the courtroom.
But the same sort of problem could easily
exist for defendants whose native tongue is
English.
Some witnesses have accents that
are difficult to understand for someone who
is not used to their regional pronunciation.
Some witnesses employ slang or professional
jargon that is not familiar to others outside
that social or professional group. Within
this category, some of the chief offenders
are lawyers and judges who often speak in
legal shorthand that can be incomprehensible
to a lay person.
(For example, judges and lawyers
speak of continuing a trial or hearing when
they actually mean stopping it and delaying
it until a later time; similarly, they say
discovery when they actually mean
disclosure.)
In other words, it is likely that
many defendants even those whose first
language is English do not have a perfect
understanding of everything that is said in
their criminal trial. One can hope that a
defendant will be assertive enough to seek
clarification of important matters, or that
their lawyer will be attentive and helpful
enough to offer the needed clarification.
But there is no guarantee. Thus, it is
reasonable to assume that, among defendants,
there will be a range in their level of
comprehension varying degrees to which they
can understand the witnesses testimony and
other aspects of the proceedings. Indeed,
this is inescapable.
The question, therefore, is not
whether the defendant can understand
everything perfectly, but rather whether the
defendants level of comprehension is so
deficient as to make the trial fundamentally
unfair.
Judge Volland concluded that Tsens
difficulties with the English language did
not rise to this level. And the judges
position on this matter is supported by what
Tsens attorney said and declined to say
during the various discussions of this issue.
Obviously, Tsens attorney had first-
hand knowledge concerning Tsens English
language proficiency. The defense attorney
confirmed this when he told Judge Volland
that he [had] information about how well
[Tsen] speaks English. And, based on that
first-hand knowledge, the defense attorney
told Judge Volland that he [thought] Mr. Tsen
understands the words that are being said.
Later, when Judge Volland
specifically asked the defense attorney
whether he believed that Tsens right to due
process would be defeated if no interpreter
was provided; the defense attorney responded,
I think that Mr. Tsen wants an interpreter.
[But] I cant say what the Court just said.
That is, the defense attorney could not
assert that an interpreter was needed to
protect Tsens due process rights.
We have examined the testimony
presented at Tsens trial, and (as might be
expected) the witnesses accounts of events
and conversations are full of details that
Tsen conceivably might not have completely
grasped. But it would be mere speculation to
assume that Tsen had insurmountable
difficulty understanding these witnesses.
The record contains no indication that Tsen
failed to comprehend any of this testimony.
Moreover, we note that the primary
defense strategy in this case did not require
Tsen or his attorney to actively deny or
rebut most of the testimony presented by the
States witnesses.
As described toward the beginning
of this opinion, Tsen ran an escort service /
massage parlor. The police arrested two of
Tsens female employees for prostitution, and
one of the women Tammy Hogan agreed to aid
the police by arranging to purchase cocaine
from Tsen.
After Hogan telephoned Tsen to
arrange the sale, one of the police officers,
Officer Leonard Torres, posing as a customer,
accompanied Hogan to the trailer that Tsen
used as his office. When they got to the
trailer, Torres handed Hogan $50.00 in buy
money i.e., pre-marked currency that Hogan
was to use when purchasing the cocaine.
Torres testified that Mr. Tsen
opened the door, greeted us, [and] let us
come into ... the trailer. ... I was going
to light a cigarette, [but Mr. Tsen] didnt
want me to light it there, [so] he told me to
stand in this [other] little room, ... that I
could smoke in that room. While Torres
waited, Ms. Hogan and Mr. Tsen continued on
into the back bedroom ... . [Ms. Hogan]
entered [the bedroom], the door was closed,
and then, within seconds, she came back out,
walked to the room [where I was waiting], and
placed in my hand two pieces of crack
cocaine.
Torres conceded that he did not
personally observe what occurred in the
bedroom while Tsen and Hogan were there
together behind the closed door. Torres
could see Hogan as she walked with Tsen down
the hall to that room, and he could see her
when she came out of the room and walked back
down the hall toward where he was waiting.
The only time he could not see her was when
she was in the room with Tsen and she was in
that room for only approximately thirty
seconds.
After Tsen was arrested, the police
found the pre-marked buy money in his wallet.
And, as we described earlier, Tsen consented
to be interviewed by the police. During this
post-arrest interview, Tsen admitted that he
routinely purchased cocaine to make it
available to his female employees and their
customers, so that drug dealers would not be
hanging around the neighborhood.
The only major problem that the
State faced in presenting its case was the
absence of its main witness, Tammy Hogan.
Hogan the only potential government witness
who had first-hand knowledge of what occurred
when she accompanied Tsen into the room did
not testify at Tsens trial. Indeed, despite
the best efforts of the Anchorage police,
Hogan was nowhere to be found.
Tsens attorney built his defense on
Hogans absence. Rather than controverting
any of the police testimony, the defense
attorney pointed out that only Hogan could
say for sure what happened during the crucial
thirty seconds inside the back bedroom. And
the defense attorney suggested that Hogan had
falsely implicated Tsen in cocaine
trafficking set [him] up so that Hogan
would not have to pay the price for her own
crimes.
The defense attorney elicited
evidence that Hogan was on probation from
several previous convictions for
prostitution, as well as convictions for
shoplifting and trespass. He suggested that,
when Hogan was again arrested for
prostitution that night, she faced a
significant amount of jail time and therefore
would try to obtain mitigated treatment in
her prostitution case by appearing to help
the police.
Hogans friend and co-employee,
Cynthia Stockman, testified for the defense.
Stockman declared that Hogan was already in
possession of crack cocaine before the police
arrived that night. Stockman stated that she
personally knew that Hogan had purchased some
crack cocaine the day before, and then had
purchased more cocaine on the day of her
arrest.
Stockman further declared that, to
her knowledge, Hogan never purchased cocaine
at Tsens trailer. On cross-examination, the
prosecuting attorney confronted Stockman with
Tsens post-arrest statement (i.e., Tsens
admission that he made a practice of having
cocaine available for sale to his female
employees and their customers). Stockman
responded, I never saw that happen, [and I]
dont know anything about that.
In his summation at the close of
the trial, Tsens attorney suggested to the
jurors that most of the police testimony was
irrelevant that the crucial facts of the
case (the events that occurred in the back
room) had not been observed by the police and
were not covered by their testimony:
Defense Attorney: You dont know what
happened in that [back] room in [the] trailer
because you werent there, and because the
State hasnt presented any witnesses as to
what happened in that room. Because the door
was closed, and because theres no wire on
anyone in that room. ... And [the State
has] to prove to you beyond a reasonable
doubt ... that Mr. Tsen exchanged money for
cocaine with Hogan in that room.
. . .
[Hogan] is desperately addicted to crack
[cocaine], ... and [then] shes busted ... for
prostitution ... , [and] shes terrified of
... going to jail. We know [that] shes going
to jail for a long time, because shes been
charged so many times before.
. . .
Shes desperate enough to set up Mr. Tsen
in order to avoid going to jail.
In other words, the defense
attorney adopted a litigation strategy that
did not require him to completely discredit
the narrative of events offered by Torres and
his fellow officers. For this reason, it was
not crucial for Tsen to closely follow and
carefully analyze all the details of the
officers testimony, nor was it crucial for
Tsen to actively participate in formulating
the cross-examination of these officers.
As we have explained, one of the
primary factors that a trial judge should
weigh when deciding whether to appoint an
interpreter for a criminal defendant is the
degree to which the trial testimony will
present complex or subtle issues of fact that
will require the defendants participation in
formulating the defense case and in devising
the cross-examination of adverse witnesses.
Tsens case was litigated in a manner that
minimized this concern.
Even now, on appeal, Tsen does not
point to any particular portion of the
testimony that he failed to understand, or
any specific way in which his lack of English
proficiency actually prejudiced him. His
argument in this appeal is based solely on
general assertions that his English language
skills were not good. Given the
circumstances here, this type of generalized
assertion is not sufficient to obtain a
reversal of the jurys verdict.
As we acknowledged earlier, Tsens
colloquy with Judge Volland certainly
suggests that he would have had a difficult
time testifying without the aid of an
interpreter. But that problem did not arise
because, even after Judge Volland offered
Tsen an interpreter for this purpose, Tsen
chose not to testify.
Based on the record before us,
Judge Volland did not plainly abuse his
discretion when he concluded that Tsens
limitations as an English speaker were not so
severe as to require word-for-word
interpretation of the trial proceedings. We
therefore uphold Judge Vollands decision in
this matter.
The question of whether Tsens sentence is too lenient
Tsen was convicted of third-degree controlled
substance misconduct based on his sale of cocaine
and possession of cocaine for sale. Third-degree
controlled substance misconduct is a class B
felony.9 In State v. Eskridge, 53 P.3d 619
(Alaska App. 2002), this Court set out sentencing
guidelines for class B felony controlled substance
offenses. Under the Eskridge guidelines, a first
felony offender who has engaged in the on-going
commercial sale of smaller quantities of cocaine
should normally receive up to 2 years
imprisonment. Id. at 621.
At Tsens sentencing hearing, the State
asserted that Tsen was a first felony offender who had
engaged in on-going commercial sales of smaller
quantities of cocaine. The State relied on Tsens
statement to the police following his arrest i.e.,
Tsens admission that he purchased approximately 3.5
grams of cocaine per week, so that he would have
cocaine available to sell to his female employees and
their clients. Based on this evidence, and based on
the Eskridge guidelines, the State argued that Tsen
should receive a sentence of 2 years imprisonment with
1 year suspended for his drug offenses.
But Judge Volland declared that the United
States Supreme Courts decision in Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d
403 (2004), prohibited him from basing his sentencing
decision on any factual assertions that lay outside the
jurys verdict:
The Court: I cant [find] that he sold
that amount [of cocaine] every week. I mean,
the jury didnt hear that evidence. [And]
thats not what they convicted him of. He was
convicted of basically a [single]
transaction. I mean, there was no evidence
presented [of other sales,] other than how
one might interpret his admission ... .
A little later in the sentencing
hearing, Judge Volland explained that his
refusal to find that Tsen had engaged in on-
going commercial sales of cocaine was based
on his interpretation of the Sixth Amendment
right to jury trial as expounded in Blakely:
The Court: [A]lthough the State
presented circumstantial evidence that might
suggest Mr. Tsen was involved in other
cocaine sales, I interpret the Blakely
decision to restrict my findings for the
purposes of sentenc[ing] to those facts which
were determined by the jury. [And the jurys
verdict establishes only] a single
transaction involving a modest amount of
cocaine.
For this reason, Judge Volland rejected the
States argument that Tsens conduct qualified
for a sentence of up to 2 years imprisonment
under the Eskridge guidelines.
After assessing Tsens conduct and
background under the Chaney sentencing
criteria,10 Judge Volland concluded that Tsen
should receive a suspended imposition of
sentence, conditioned on Tsens successful
completion of 4 years probation, plus Tsens
serving 8 days in jail (the amount of time
that Tsen had already spent in jail before he
was released on bail).
On appeal, the State argues that
this sentence is manifestly too lenient for
two class B felonies. The States argument
would have considerable merit if the facts
were as the State alleges: that is, if Tsen
had indeed engaged in on-going commercial
sales of small quantities of cocaine. But
the States factual assertions remain
unresolved because Judge Volland concluded
that, under Blakely, he had no authority to
resolve them.
The real problem here is that Judge
Volland believed that his fact-finding
authority was constrained by Blakely. This
belief was mistaken.
Blakely holds that a defendant has
a right to demand a jury trial on any issue
of fact, other than a prior conviction, that
(if resolved in favor of the government) will
subject the defendant to a higher potential
maximum sentence. But under Alaska
sentencing law at the time of Tsens offenses
(that is, in February 2005), Judge Volland
had the authority to sentence Tsen to any
term of imprisonment up to 4 years to serve
based on the jurys verdict alone, without
making any additional findings of fact.11
And the State was not seeking a sentence
higher than that 4-year ceiling. Rather, the
State was seeking a sentence considerably
below that ceiling: 2 years imprisonment
with 1 year suspended.
We have expressly held that Blakely
does not regulate or restrict a sentencing
judges traditional consideration of the many
factors that potentially affect the selection
of a case-appropriate sentence within the
applicable statutory bounds. Cleveland v.
State, 143 P.3d 977, 986 (Alaska App. 2006).
See also Vandergriff v. State, 125 P.3d 360,
369 (Alaska App. 2005) (Mannheimer, J.,
concurring): [U]nder a system of
indeterminate sentencing i.e., a sentencing
scheme in which the judge has the discretion
to impose any term of imprisonment within a
specified range of sentences a sentencing
judge does not violate the Sixth Amendment
when the judge engages in fact-finding when
choosing a sentence within the specified
range.
Moreover, we have also held that
the Blakely right to jury trial does not
apply to the findings of fact that trigger or
define the various sentencing benchmark
ranges or guidelines established by Alaska
appellate decisions. See Carlson v. State,
128 P.3d 197, 211 (Alaska App. 2006) (holding
that a defendant being sentenced for second-
degree murder has no Blakely right to a jury
trial on the question of whether the
defendants sentence should exceed the
benchmark range of 20 to 30 years to serve
that was established in Page v. State, 657
P.2d 850, 855 (Alaska App. 1983));
Vandergriff, 125 P.3d at 363 (holding that
when a defendant is being sentenced for two
or more offenses, Blakely does not apply to
the sentencing judges decision under the Neal-
Mutschler rule that is, the sentencing
judges decision as to whether, because of the
need to protect the public, the defendants
composite term of imprisonment should exceed
the maximum term for the defendants most
serious offense).
For these reasons, the Blakely
right to jury trial did not apply to the
States efforts to prove that Tsen had engaged
in on-going commercial sales of small
quantities of cocaine. Judge Volland should
have allowed the State to litigate this
assertion and, if the judge found that the
assertion was proved, the judge should have
sentenced Tsen according to the guidelines
set forth in Eskridge.
To this extent, we find error in
Judge Vollands sentencing decision.
Conclusion
The judgement of the superior court is
AFFIRMED. However, we agree with the State that
the sentencing proceedings were flawed because the
superior court adopted an erroneous interpretation
of Blakely.
_______________________________
1 AS 11.71.030(a)(1) and AS 11.66.130(a)(1), respectively.
2 In this opinion, we use the term interpreter to mean a
person who translates spoken (or signed) communications from
one language to another. This conforms to the usage
recommended in William E. Hewitt, Court Interpretation:
Model Guides for Policy and Practice in the State Courts
(National Center for State Courts, 1995), p. 31.
3 See United States v. Mayans, 17 F.3d 1174, 1179-1181 (9th
Cir. 1994); United States v. Yee Soon Shin, 953 F.2d 559,
561 (9th Cir. 1992); United States v. S nchez, 928 F.2d
1450, 1456 (6th Cir. 1991); United States v. Bennett, 848
F.2d 1134, 1141 (11th Cir. 1988); United States v.
Cirrincione, 780 F.2d 620, 634 (7th Cir. 1985); United
States v. Carri¢n, 488 F.2d 12, 14-15 (1st Cir. 1973).
4 United States v. Mart¡nez, 616 F.2d 185, 188 (5th Cir.
1980).
5 See Nur v. State, 869 N.E.2d 472, 478-79 (Ind. App. 2007)
(explaining the standard that trial judges should apply when
deciding whether a particular criminal defendant is to be
considered non-English speaking for purposes of appointing
an interpreter).
6 Virginia E. Hench, What Kind of Hearing? Some Thoughts on
Due Process for the Non-English-Speaking Criminal Defendant,
24 T. Marshall Law Rev. 251, 272 (1999) (The current
standard asks judges who are not linguistically trained to
evaluate a defendants ability to communicate without an
interpreter, and [thus] allows for an unconscionable
inequality in the safeguarding of basic trial rights.).
7 See, e.g., United States v. Si, 333 F.3d 1041, 1042 (9th
Cir. 2003); State v. Kounelis, 609 A.2d 1310, 1313 (N.J.
App. 1992); In re Application of Murga, 631 P.2d 735, 736
(Okla. 1981).
8 See, e.g., United States v. Ben¡tez-Arzate, 203 Fed. Appx.
427, 428 (4th Cir. 2006); United States v. Garc¡a-P‚rez, 190
Fed. Appx. 461, 472 (6th Cir. 2006); United States v.
Gonz les, 179 Fed. Appx. 362, 364-65 (6th Cir. 2006); United
States v. Bail¢n-Santana, 429 F.3d 1258, 1260 -1261 (9th
Cir. 2005); United States v. Quiroz, 137 Fed. Appx. 667, 672
(5th Cir. 2005); United States v. Aispuro-Guadiana, 97 Fed.
Appx. 76, 76-77 (8th Cir. 2004);
United States v. Bell, 367 F.3d 452, 464 (5th Cir. 2004); United
States v. S ndoval, 347 F.3d 627, 632 (7th Cir. 2003).
9AS 11.71.030(c).
10 That is, the sentencing goals first announced in State v.
Chaney, 477 P.2d 441, 443-44 (Alaska 1970), and now
codified in AS 12.55.005.
11 See former AS 12.55.125(k)(2) (pre-March 2005 version),
which declared that, in the absence of aggravating
factors, a first felony offender could receive a
sentence of unsuspended imprisonment up to the
presumptive term provided for second felony offenders
convicted of the same offense; and former AS
12.55.125(d)(1) (pre-March 2005 version), which set a
presumptive term of 4 years imprisonment for second
felony offenders convicted of a class B felony.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
