COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Clements
Argued at Chesapeake, Virginia
MAURICE SAUNDERS
OPINION BY
v. Record No. 0975-01-1 JUDGE RUDOLPH BUMGARDNER, III
APRIL 23, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge
(Nathan A. Chapman; Michael Jerome Massie;
Holley & Massie, P.C., on briefs), for
appellant. Appellant submitting on briefs.
Richard B. Smith, Senior Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
The trial court convicted Maurice Saunders of attempted
murder, malicious wounding, two counts of robbery, and four
related firearms charges. On appeal, he contends the trial
court erred in admitting a transcript of the victim's testimony
at the preliminary hearing. He argues that the general district
court did not comply with Code § 19.2-164 1 when it appointed an
1
Code § 19.2-164 provides in part,
[i]n any criminal case in which a
non-English-speaking person is a victim or
witness, an interpreter shall be appointed
by the judge of the court in which the case
is to be heard . . . . An English-speaking
person fluent in the language of the country
of the . . . victim or a witness shall be
appointed by the judge of the court in which
interpreter and that the translations were inaccurate. Finding
no error, we affirm.
Two men robbed the victim, Riadh Mejri, at gunpoint while
he worked at Valley Food Store. The victim testified through an
interpreter at the preliminary hearing, but the victim was
murdered before the trial. The victim primarily spoke Arabic
but also spoke French having been born in France. A friend of
the victim offered to translate Arabic. The defendant objected
because of bias, and the district court sustained the objection.
The Commonwealth then offered a French interpreter. After
speaking with the interpreter, the victim indicated he was
comfortable with the interpreter and chose to use her. The
district court judge swore the interpreter, who translated for
the victim throughout the hearing.
The defendant made no objection in district court to the
use of the interpreter or to the accuracy of the translations.
He made no objections about the preliminary hearing after the
charges were certified to the circuit court. At trial, the
Commonwealth introduced the death certificate of the victim and
proffered the certified preliminary hearing transcript. The
the case is to be heard, unless such person
obtains an interpreter of his own choosing
who is approved by the court as being
competent. . . . The provisions of this
section shall apply in both circuit courts
and district courts.
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defendant moved to exclude it. The circuit court admitted the
transcript.
First, the defendant contends the circuit court erred in
admitting the transcript because the district court failed to
appoint an interpreter fluent in the language of the witness'
country of origin. The defendant complains about decisions made
by the district court during the preliminary hearing, not to
decisions made by the circuit court. Code § 19.2-164 clearly
states the approval and appointment of interpreters is a
decision of "the judge of the court in which the case is to be
heard." The defendant objected to one interpreter, and the
district court sustained that objection. He made no further
objection, and the district court approved the French
interpreter and proceeded with the preliminary hearing without
objection.
The purpose of requiring a contemporaneous objection is to
enable the opposing party to respond to the alleged error and to
enable the ruling court to take any necessary corrective action.
Rule 5A:18; Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164,
167 (1991). The district court was the only place where
corrective action could have cured mistakes made in translating
the preliminary hearing. At trial, the circuit court could not
adequately address evidentiary rulings made final at the
preliminary hearing.
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The record of the preliminary hearing does not indicate the
district court erred when appointing the interpreter. The
defendant contends the district court judge failed to appoint an
interpreter fluent in the language of the country of the victim,
which the defendant asserts is Arabic. Under the literal
interpretation he urges, no one would qualify to translate
Arabic. While widely spoken, and the predominant language in
many countries, Arabic is not affiliated with a particular
county. Arabia is a peninsula. Code § 19.2-164 cannot be read
literally because languages frequently do not correlate with
national boundaries or identify with a single country: English,
German, Spanish. We cannot adopt a statutory interpretation
that leads to an illogical result. Earley v. Landsidle, 257 Va.
365, 369, 514 S.E.2d 153, 155 (1999). Ironically, if such a
literal interpretation were applied to this case, the district
court properly appointed a French interpreter because France was
the country of the victim's birth.
Next, we consider the defendant's contention that the
circuit court should have excluded the transcript because it was
inaccurate. 2 The judge presiding at the proceedings being
2
To the extent the defendant argues the circuit court's
admission of the preliminary hearing transcript violated his
federal constitutional rights, he did not make this argument to
the circuit court and cannot raise it now. West Alexandria
Props. v. First Virginia Mortgage, 221 Va. 134, 138, 267 S.E.2d
149, 151 (1980).
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transcribed determines "the veracity of the proceedings before
him." Stubblefield v. Commonwealth, 10 Va. App. 343, 350, 392
S.E.2d 197, 200 (1990). That judge determines whether "the
interpreter is performing . . . her duties satisfactorily" by
translating the witness' responses with a "reasonable degree of
accuracy." Id. The presiding judge is "in a unique position to
observe the activities of the parties and the clarity of
understanding that [was] offered by the translated testimony."
Id.
The proceedings at the preliminary hearing for this
defendant met the requirements of Stubblefield. The presiding
judge directed the interpreter to give an accurate, verbatim
translation of everything the victim said and instructed her to
request the victim to keep his answers short. The record
reflects that when the defendant wanted to make certain the
victim understood the question, the interpreter clarified both
the question and the victim's response. When the defendant
objected to an unresponsive answer, the presiding judge
sustained the objection.
Contrary to the defendant's assertion that the transcript
is "riddled with mistakes," the presiding judge's
"admonishments" to the interpreter show that he was discharging
his duty to ensure an accurate translation. An interpreter's
"difficulty in translating the testimony, without more, is
insufficient to rebut the presumption that [s]he has acted
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properly." Id. at 350-51, 392 S.E.2d at 200 (citations
omitted). By admitting the testimony, the district judge
determined the interpreter was performing her duties with a
"reasonable degree of accuracy." The record does not reflect
that the testimony and incidents of the hearing were
inadequately memorialized. 3
The prior testimony of a deceased witness is admissible at
trial. Shifflett v. Commonwealth, 218 Va. 25, 28-29, 235 S.E.2d
316, 318-19 (1977) (unrecorded prior testimony is admissible at
trial). The certified transcript of the preliminary hearing is
deemed a correct statement of what occurred at the hearing.
Code § 19.2-165. 4 After finding no significant errors related to
the "factualness" of the translation, the circuit court admitted
it. The circuit court judge stated, the "transcript . . . as an
3
To the extent the defendant contends the translation was
inaccurate, the record provides no means to verify the
translation. The transcript records only the English spoken at
the preliminary hearing. Without a transcript of the French
spoken, we are unable to compare the testimony given in French
with its translation into English to determine whether the
translation was accurate. See Code § 8.01-406 (authorizing a
video transcript of testimony by deaf witnesses for use in
verifying the official transcript).
4
Code § 19.2-165 provides in part that "[t]he transcript in
any case certified by the reporter . . . shall be deemed prima
facie a correct statement of the evidence and incidents of
trial."
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interpretation of a foreign language, is probably about as good
as it gets . . . ."
When the former testimony carries sufficient indicia of
reliability, it provides the trier of fact a satisfactory basis
for evaluating the truth of the earlier testimony. Fisher v.
Commonwealth, 217 Va. 808, 813, 232 S.E.2d 798, 802 (1977). The
fact finder remains the judge of the weight of the evidence and
the credibility of the witnesses. In this case, the circuit
court judge believed the victim's transcribed testimony, which
was corroborated by an eyewitness, and disbelieved the
defendant's testimony that he was an innocent bystander.
Upon careful review of the record, we conclude the circuit
court did not err in admitting and relying upon the transcript
of the victim's testimony at the preliminary hearing.
Affirmed.
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