Kusi v. State

BATTAGLIA, J. Section 1-202 of the Criminal Procedure Article, Maryland Code (2001, 2008 RepLVol.) provides for the appointment of an interpreter for a defendant in criminal proceedings and states: § 1-202. Interpreters for criminal proceedings. (a) When appointment required. — The court shall appoint a qualified interpreter to help a defendant in a criminal proceeding throughout any criminal proceeding when the defendant ... (2) cannot readily understand or communicate the English language and cannot understand a charge made against the defendant or help present the defense. 1 Rule 16-819 of the Maryland Rules provides the procedures to determine whether an interpreter is needed and is at the heart of the issue before us: (c) Procedures to determine the need for interpreters.

(2) Spoken language interpreter. (A) Examination of party or witness. To determine whether a spoken language interpreter is needed, the court, on request or on its own initiative, shall examine a party or witness on the record. The court shall appoint a spoken language interpreter if the court determines that: (i) the party does not understand English well enough to participate fully in the proceedings and to assist counsel, or ³⁶⁷ (ii) the party or a witness does not speak English well enough to be understood by counsel, the court, and the jury.

(B) Scope of examination. The court’s examination of the party or witness should include questions relating to: (i) identification; (ii) active vocabulary in vernacular English; and (iii) the court proceedings. Petitioner George Kusi seeks review of a judgment of the Court of Special Appeals affirming his conviction in the Circuit Court for Montgomery County for sexual abuse of a minor, second degree rape, and third degree sexual offense. The Court of Special Appeals, in an unreported opinion, affirmed the judgment of the Circuit Court and concluded that the trial judge had satisfied the requirements of Maryland Code, Section l-202(a) of the Criminal Procedure Article and adhered to Rule 16-819(c)(2)(A).

Before this Court, Kusi, a native of Ghana who arrived in the United States four years prior to his conviction, alleges that the trial judge abused his discretion in denying him an interpreter for his criminal trial and also argues that the Court of Special Appeals applied a clear error review, which, he asserts, was the wrong standard of appellate review. Kusi petitioned this Court for a writ of certiorari, which was granted. 432 Md. 466 , 69 A.3d 474 (2013). In his petition, Kusi presented the following question: Did the Court of Special Appeals err in applying a ‘clearly erroneous’ standard of review to requests for an interpreter, and under the proper standard, was it an abuse of discretion to refuse an interpreter for Petitioner at his jury trial? We shall hold that appellate review of a trial court’s decision to appoint an interpreter is a two-part process in which the reviewing court will first examine whether the trial judge’s factual findings were clearly erroneous and, if those findings were not clearly erroneous, the reviewing court will then consider whether the trial judge abused his discretion in making the determination regarding whether to appoint an interpreter. ³⁶⁸ With regard to the appointment of an interpreter in this particular case, Section 1-202 of the Criminal Procedure Article, Maryland Code (2001, 2008 RepLVol.) required the trial judge to first make factual findings regarding whether Kusi could “readily understand or communicate the English language” and whether he could “understand a charge made against [him] or help present the defense.” We shall review the factual findings made by the trial judge utilizing a clearly erroneous standard.

Thereafter, the trial judge determined that an interpreter was unnecessary, which we review under an abuse of discretion standard. In the present case, after applying the relevant standards, it is clear that the trial judge acted within his discretion to deny Kusi’s request for an interpreter. On the morning that Kusi’s criminal jury trial was scheduled to commence, his attorney notified the trial court for the first time that, one week earlier, Kusi had requested that an interpreter be present at the trial: 2 [Defense Counsel]: I just need to ask the Court maybe to inquire. My client and I have had conversations during the pendency of this case— The Court: Sure. [Defense Counsel]: — and we’ve talked in English and everything.

I met with him last week. For the first time he expressed the desire to have an interpreter. ³⁶⁹ The Court: Really. What language? [Defense Counsel]: He’s Ashanti. There was no line.[ 3 ] I contacted the office on Friday to see.

What I’m trying to do— The Court: Could I ask him some questions? Kusi was sworn by the court, and the trial judge proceeded to question him regarding his educational level and his use of the English language: The Court: [H]ow far did you go in school? Kusi: My school was (unintelligible), but I learn a lot of language, but I’m not really good in English. The Court: Well, I didn’t ask you that.

I asked you how far you went in school. I’ll get to that. Kusi: Middle school. The Court: I’m sorry?

Kusi: Middle school. The Court: Middle school. Kusi: Okay. The Court: And if I could inquire, where were you born?

Kusi: Born in Ghana. The Court: In Ghana. Very good. And how old are you, sir?

Kusi: I’m 44 years. The Court: Forty-four. And when were you born? Kusi: (No audible response.) The Court: What year?

Kusi: June 16, 1967. The Court: 1967. And when did you come to the United States? ³⁷⁰ Kusi: The date that I come to United States? The Court: Just the year; I don’t need the exact date.

Kusi: It’s four years. The Court: Four years ago? Kusi: Yeah. The Court: Okay.

Very good. The trial court continued to question Kusi regarding what he did for a living and then addressed discussions between Kusi and his attorney: The Court: And before this all happened, what did you do for a living? Kusi: I just help my, one of my friend for home improvement so that he give me— * * * The Court: [Y]ou have been represented by [defense counsel] since this case [w]as first brought, is that correct? Kusi: Yes, sir.

The Court: And have you had meetings with [defense counsel]? Kusi: Yes. * * * The Court: [H]ave you told him everything you know about what the State alleges in this case? Kusi: Yes. The Court: And has he answered all of your questions?

Kusi: Yes. The Court: And when you’ve spoken to [defense counsel], I take it, you have conversed in English, is that right? Kusi: Yes. The Court: Very good.

And have you had any difficulty understanding what he’s telling you? Kusi: Sometimes, but I put some words at, words down to ask some inmate in the (unintelligible). ³⁷¹ The Court: So sometimes there’s an idiom he uses that’s not clear, right? Kusi: Yeah. [Defense Counsel]: I— Kusi: No, he’s clear, but— [Defense Counsel]: — don’t know if you heard what he said. I think he said he put some words down to ask an inmate.

Kusi: Inmate, yeah. [Defense Counsel]: There was an occasion when there was another person that helped me talk— The Court: An investigator or— [Defense Counsel]: No, no, against my better— [State’s Attorney]: Inmate? [Defense Counsel]: — another inmate that spoke Ashanti. The Court: Okay. Very good. And has he answered all of your questions?

Kusi: Yes. The Court: And are you satisfied that he’s listened to what you’ve had to say? Kusi: Yes, sir. The trial judge then addressed the nature of the proceedings against Kusi: The Court: And do you know why you’re here?

Kusi: Yes, Your Honor. The Court: Do you understand what you’re accused of doing? Kusi: Yes. The Court: Believe me, the reason we’re having a trial is the State has to prove it.

Do you understand that? Kusi: Yeah. The Court: You don’t have to prove anything. Do you understand that?

Kusi: Okay. The Court: Yes? ³⁷² Kusi: Yes. The Court: You don’t have to testify. Do you understand?

Kusi: Okay. The Court: You don’t have to call witnesses. Kusi: Okay. The Court: You understand that, yes?

Kusi: Yes. The Court: In our system, the burden of proof always is on the State. Do you understand that, sir? Defense counsel interrupted the dialogue at this juncture to request that the judge vary the dialogue from asking leading questions, which enabled Kusi to repeatedly answer yes: Judge, I know you’ve been asking him ... several questions, and he’s ... been acknowledging by saying yes.

Because of their leading nature----I’m suggesting maybe a little alternating or something, because it’s just the routine of saying yes ... to Your Honor, the authority, so I just want to make sure, because he’s expressed to me not always understanding me, even the second or third time that I’ve met with him by not understanding what we talked about before.... The Court responded, “What do you want to do?” and defense counsel continued: [Defense Counsel]: I want to make sure that he’s comfortable doing this in English; that he understands what’s going on. I know— The Court: Absolutely. [Defense Counsel]: — the prosecutor showed me, and I remember there was an advice of rights form that he acknowledged speaking four different languages partially, at least that’s what he’s told me, but— The Court: Well, let me inquire. [Defense Counsel]: — I just want to make sure he knows— The Court: Sure. ³⁷³ [Defense Counsel]: — when he hears when you’re talking that he understands it. The trial judge then began inquiring about Kusi’s ability to speak languages other than English: The Court: Sir, what languages do you speak in whole or in part?

Kusi: I speak Dutch. The Court: Dutch. Very good. Kusi: That’s my language Ashanti.

The Court: Yes. Kusi: And Italy language, which is Latin. The Court: Any others? Where did you learn Dutch?

Kusi: The Dutch, I’ll be in Germany sometimes, and I just pick it up. The Court: How long have you been speaking Dutch? Kusi: Just a year. The Court: Where did you learn English?

Kusi: When I came to United States, I started learn, learning English. The Court: So, when you came here four years ago, you started learning English, is that fair, yes? Kusi: Yes. The Court: And you’ve been able to work in the United States during those four years, is that true?

Kusi: Yes. The Court: I’m sorry? Kusi: Yes, Your Honor. At this point, the judge began to inquire more specifically about what Kusi did for a living and what he did with the money he earned: The Court: Tell me a little bit about what you did.

Kusi: For clean the carpet. The Court: Clean the carpet. Kusi: And fix the drywalls. ³⁷⁴ The Court: Drywall. Kusi: And fix the electrics.

The Court: Electrical work? Kusi: Yes. The Court: What other things, sir? Kusi: I think that’s it.

The Court: That’s it. And how many years have you been doing it? Kusi: (Unintelligible) I be here one year, I didn’t work for nowhere, but after the three years the only thing that I have been doing to help my friend. The Court: During this time did you always work for the same company?

Kusi: Yes. The Court: And what was the name of the company? Kusi: Enos Power Clean. The Court: Very good.

And how did you meet up with them? Kusi: Oh, he, he from Ghana, and is a, a friend of mine introduce me to him. And he know I can work in the street without do anything, so he just take me like that for him to help me (unintelligible). The Court: Okay.

And how many days a week typically would you work? Kusi: Sometimes, sometime if he having a good job maybe three days, sometimes maybe one week. The Court: Okay. And how much were you paid?

Kusi: He used to give me two weeks, two weeks he used to give me about $600 or $700. The Court: Would he pay you in cash or by check? Kusi: Cash. The Court: All right.

Do you have a bank account? Kusi: No. The Court: So, you would just keep the cash, and spend it? ³⁷⁵ Kusi: No, no, I don’t spend it. I just, because I, before I am (unintelligible), and it doesn’t have a good job, so I just help her to pay (unintelligible) that’s why— The judge then explored Kusi’s possession of a Maryland driver’s license, the test for which Kusi took in French: The Court: Do you have a driver’s license? Kusi: Yes, Your Honor.

The Court: From what state? Kusi: From Maryland. The Court: From Maryland. And I take it you had to take a written exam, a driving test?

Kusi: Yes. The Court: What language did you take it in? Kusi: I was (unintelligible), so French. The Court: You took it in French?

Kusi: Yes. The Court: And you passed it? Kusi: Yes. The Court: Okay.

And you’ve been driving around Maryland, and D.C., and I take— Kusi: Yeah, D.C., Laurel, Virginia, and— The Court: Can you read the road signs? Kusi: Yes. The Court: Okay. Anybody else have any additional suggestions for me at this time or requests?

The State’s Attorney then interjected to request the court ask a few questions regarding the language Kusi used at home, as well as to request that the trial judge return to the court proceedings colloquy: [State’s Attorney]: Your Honor, just briefly. What language is spoken in the household with the victim and his girlfriend, the victim’s mother? The Court: Sir, when you were living with the child and her mom, did you speak to each other in English? Kusi: Yes, I tried to pick up from them. ³⁷⁶ The Court: Okay.

And I take it the child speaks English. Is that right? Kusi: (No audible response.) The Court: When you spoke to the child, did you speak in English? Kusi: Yes.

The Court: And when you spoke to the child’s mom, did you speak in English? Kusi: Yes. The Court: I’m not asking you what you said. I’m staying away from that.

I’m just asking the means of communication. Anything else? [State’s Attorney]: My only other concern, Your Honor, is perhaps, we could ask if he’s understood what has happened this morning in terms of discussion. We’re obviously speaking to him directly, speaking more slowly. The Court: Let me ask it a little differently. [State’s Attorney]: And keeping up with a trial is a— The Court: Sure. [State’s Attorney]: — little bit different.

Thank you, sir. The Court: Sir, we are here today to pick a jury. Do you understand that? Kusi: Yes, Your Honor.

The Court: And I’ve been going over with your lawyer, and with the State, questions that I’m going to ask potential jurors. Do you understand that? You have to say yes or no. Kusi: Yes.

The Court: Thank you. The reason we do this is to try to figure out whether any potential jurors are going to be biased before they hear any evidence one way or another. Do you understand that? Kusi: Yes, Your Honor.

The Court: We don’t want people starting off the trial leaning one way or another. Do you understand? ³⁷⁷ Kusi: Yes. The Court: The purpose is to get as neutral a jury as possible, understanding that everybody has opinions about things. Do you understand?

Kusi: (Unintelligible.) The Court: All right. Do you have any questions you’d like to ask me, sir, about what we’re doing, how we’re doing it, procedural things? I’ll answer them. Before stating his findings on the record and ultimately denying Kusi’s request for an interpreter, the trial judge reminded Kusi that Kusi could stop the proceedings at any point if he did not understand what was happening: The Court: Sir, if at any time you don’t understand what’s going on, tell [defense counsel], and he’ll tell me, okay?

Kusi: Okay. Thank you. The Court: I won’t get mad. I won’t get upset.

I mean it. Kusi: Okay. The Court: If something is confusing you, or if you don’t— understanding you’re not a lawyer, but if you have a question, tell him. You can tell me directly, but if you’re more comfortable, you can just tell him.

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

Kusi: Okay. The Court: And we’ll either do it again, or we’ll slow things down, or we’ll figure out a better way to do it. Okay? Kusi: Okay.

The Court: There’s no rush. [Defense Counsel]: I would like to ask him one question. The Court: Sure. [Defense Counsel]: Do you remember when we talked last week? We talked last week, remember? Kusi: (No audible response.) [Defense Counsel]: I came, and we sat down, and I talked with you last week, do you remember? ³⁷⁸ Kusi: Yeah, I talked to you last week. [Defense Counsel]: Right.

And you asked me to get an interpreter for you. Kusi: Yeah. [Defense Counsel]: Why? Kusi: Because I wanted to understand everything that he’s talking about. That’s why I say having the interpreter.

I think I’m gonna be fíne. [Defense Counsel]: Okay. The Court: All right. Sir, but I really mean this. If at any time something happens, and you’re not sure what just happened, let [defense counsel] know, and we’ll figure out how to make sure that you fully understand whatever it was that you may have had a question about, okay?

Kusi: Okay. The Court: There’s no rush. Nobody’s in a hurry, and we’re going to take whatever amount of time we need to take, okay? I mean it.

I know it’s important; I really do. The judge then made various factual findings, as well as a determination that Kusi did not need an interpreter: I am satisfied that the defendant understands the nature of the proceeding. I find that he is able to communicate cogently with his counsel. I find that he is able to discuss with his counsel in English the facts of the case.

I find that he’s able to discuss with his counsel in English the legal strategies to be employed. I find that he understands as much as any civilian would understand the process of jury selection. And I find that he is able to proceed in this matter without the aid of an interpreter. If anything changes, somebody let me know, and I will revisit my findings, and, if necessary, make whatever accommodation needs to be made.

Okay? ... (Emphasis added.) It is the language embodying the trial judge’s determination that is couched as a finding that sparks, in part, the controver ³⁷⁹ sy before us, in addition to the methodology employed by the judge. Before us, Kusi argues that the trial judge erred when he determined not to appoint an interpreter during his trial. Kusi also contends that the Court of Special Appeals applied the wrong standard of review when it reviewed the judge’s determination, having embraced clear error review.

Kusi argues that abuse of discretion is the appropriate standard of review, because the appointment of an interpreter is “a ‘reasoned decision based on the weighing of various alternatives.’ ” (Petitioner’s brief at 22, quoting Judge v. R and T Construction Co., 68 Md.App. 57, 60 , 509 A.2d 1236, 1237 (1986)). Kusi’s counsel at oral argument reasoned that were the correct standard for the determination to be used in review that we would reverse and remand because the trial judge did not adhere to the recommendation contained in the Committee Note appended to Rule 16-819, which states: Committee note. — Examples of matters relating to identification are: name, address, birth date, age, and place of birth. Examples of questions that elicit active vocabulary in vernacular English are: How did you come to court today? What kind of work do you do?

Where did you go to school? What was the highest grade you completed? What do you see in the courtroom? Examples of questions relating to the proceedings are: What do you understand this case to be about?

What is the purpose of what we are doing here in court? What can you tell me about the rights of the parties to a court case? What are the responsibilities of a court witness? Questions should be phrased to avoid “yes or no” replies.

Kusi’s argument also relies on the word “shall” as used in Section 1-202 of the Criminal Procedure Article, Maryland Code (2001, 2008 RepLVol.) which mandates that courts “shall appoint a qualified interpreter” when the defendant cannot readily understand or communicate in English because, he contends, the court was obligated to appoint him an interpreter. ³⁸⁰ The State argues that the trial judge’s lengthy colloquy with Kusi supports the trial judge’s factual findings and that, even under an abuse of discretion standard, his determination that there was no need for an interpreter should be affirmed. The State posits, though, that the clearly erroneous standard of review is the appropriate standard to apply because, according to the State, the court’s inquiry in determining whether to appoint an interpreter necessarily involves a factual finding. The Court of Special Appeals, in an unreported opinion, affirmed the judgment of the Circuit Court. The Court of Special Appeals rejected the State’s argument, which the State has abandoned before this Court, that Kusi’s statement indicating that he was “gonna be fine” represented an affirmative waiver.

The intermediate appellate court did agree, however, with the State that “it was incumbent upon [Kusi] to let the court know if there came a point during trial when [Kusi] could not understand the proceedings.” The intermediate appellate court referenced its earlier decision in Biglari v. State, 156 Md.App. 657 , 665 n. 2, 847 A.2d 1239 , 1244 n. 2 (2004), in which the court announced that “[the] statutory mandate [of Section 1-202 of the Criminal Procedure Article] requires that we apply the clearly erroneous standard of review to the issue of whether [a defendant] was entitled to an interpreter.” As the Biglari court explained the clearly erroneous standard, “[a] judge’s decision is not clearly erroneous if the record shows that there is legally sufficient evidence to support it.” Id. at 668 , 847 A.2d at 1245 . The intermediate appellate court noted that the trial judge had “engaged in an extensive colloquy” with Kusi and held that “the judge was not clearly erroneous in finding that [Kusi] understood the English language well enough to participate meaningfully in the proceedings” and that the trial “court’s determination concerning appellant’s need for an interpreter was not clearly erroneous.” The Court of Special Appeals concluded that the trial judge had satisfied the requirements of Maryland Code, Section l-202(a)