State v. Jadama

THORNE, Judge

(concurring in the result):

¶ 24 I concur in the result of the majority opinion, but write separately to note my concerns regarding the majority’s conclusion that the trial court never determined that Jadama needed an interpreter. See supra ¶ 16. I believe that the trial court did determine that Jadama needed an interpreter and then erred by changing its prior ruling without making any factual findings on Jadama’s ability to understand English proficiently enough to understand or comprehend the legal proceedings.

¶25 Here, the trial court initially held a specific hearing, with the benefit of a Man-dinka interpreter, noting that “the purpose of [the] hearing [was] to decide whether Mr. Jadama needs a Mandinka interpreter, or *556frankly, any type of interpreter.” At the hearing, defense counsel informed the trial court about the circumstances necessitating an interpreter, and Jadama requested an interpreter, stating that he would be more comfortable with one. After hearing from both sides and speaking in English with Ja-dama, the trial court determined that Jada-ma needed an interpreter and ruled that “[u]nder the circumstances I think it would be a terrible idea not to appoint an interpreter. I’m going to appoint a Mandinka[] interpreter .... ” (Emphasis added.)

¶ 26 I disagree with the majority’s reasoning that because the trial court did not make specific findings on Jadama’s English abilities that the trial court did not, therefore, rule on Jadama’s need for an interpreter. Rule 3-306(6)(A) of the Utah Rules of Judicial Administration, which governs the appointment of interpreters in judicial proceedings, appears to allow for a ruling of need without a specific determination regarding the degree to which a defendant has a limited ability to understand and communicate in English. The rule, in effect at the time, provided, “When an interpreter is requested or when the appointing authority determines that a principal party in interest or witness has a limited ability to understand and communicate in English, a certified interpreter shall be appointed_” Utah R. Jud. Admin. 3-306(6)(A) (2009) (emphasis added). In this instance, Jadama and his defense attorney specifically requested a Mandinka interpreter and informed the trial court of the circumstances surrounding said request. Although the trial court did not make any finding regarding Jadama’s English abilities,1 nor does rule 3-306(6)(A) require such,2 the record supports that Jadama’s request was done with a basis in reason and with facts regarding his abilities. The trial court recognized Jadama’s need and appointed an interpreter.

In this type of case there is a serious possibility of grave injustice being done an accused by reason of his being unable to properly present his defense due to his inability to speak or understand the language in which the trial is conducted. Thus it is the duty of the Court to take whatever steps necessary to prevent injustice and, if necessary the Court should, on its own motion, appoint an interpreter for the defendant at the State’s expense.

State v. Karumai, 101 Utah 592, 126 P.2d 1047, 1050 (1942).

¶ 27 I believe that the requirement to prevent injustice obligated the trial court, which after further interactions with Jadama considered him to be conversational in English, to ensure that Jadama also understood English well enough to properly present and participate in the case. The trial court’s failure to specifically inquire or examine Ja-dama’s ability to understand English when deciding to rescind the appointment of an interpreter is especially troublesome given that defense counsel specifically expressed concerns about Jadama’s ability to understand.3

*557¶ 28 An individual’s ability to interact in a basic, directed English conversation only requires a command of the language sufficient to convey and receive simple messages. A person may be conversational in English with a fairly limited vocabulary and may not have a command of the language sufficient to understand long or fast moving exchanges between two or more people which may include words, nuances, connotations, or idiomatic phrases unknown to the individual. Thus, Jadama’s ability to converse one on one with his attorney, the trial court, and alienists does not necessarily demonstrate that he had a command of the language sufficient to understand the proceedings and the issues raised in those proceedings. As a result, it was not appropriate for the trial court to reverse its prior ruling that Jadama needed an interpreter without considering the actual extent of Jadama’s claimed limited ability to understand English and making findings thereon. Likewise, it was inappropriate in the context of a previous request and granting of the request for the trial court to charge defense counsel with the task of moving for a hearing on the matter if counsel felt a formal hearing was necessary to establish whether an interpreter was needed. “It is far better to err by traveling a longer road or taking more time than to err by depriving one of a fair trial for want of understanding or comprehension of what is taking place.” State v. Vasquez, 101 Utah 444, 121 P.2d 903, 906 (1942).

¶29 Under the circumstances, the trial court should have fully evaluated and made findings regarding Jadama’s ability to understand English in the context of a felony trial and associated proceedings before reversing its prior ruling that Jadama needed an interpreter. However, I concur in the result of the majority opinion because Jadama does not, nor does the record, demonstrate that his English abilities materially affected his defense in this case.

. The trial court in speaking with Jadama stated, "I’m not sure how much or how little [English you speak]. That might be the subject of a future proceeding; do you understand that?”

. I recognize that rule 3-306 of the Utah Rules of Judicial Administration has been amended to now require the appointing authority to make such a finding before being required to appoint a certified interpreter. The rule was repealed and reenacted effective November 1, 2009. See Utah R. Jud. Admin. 3-306 (2010) (notes). The amended rule provides that "if the appointing authority determines that a party, witness, victim or person who will be bound by the legal proceeding has a limited ability to understand and communicate in English, the appointing authority shall appoint a certified interpreter in the following cases: ... (4)(A)(i) criminal cases.” Id. R. 3 — 306(4)(A).

.For example, at a January 4, 2007 hearing, defense counsel requested an interpreter, stating, "[Jadama is] having some difficulty understanding the process, and I want to make sure he understands it completely.” Defense counsel again expressed concern at the time the trial court determined that Jadama did not need an interpreter, stating that the

request for an interpreter in part was on Mr. Jadama’s request because there was some difficulty in understanding what was going on. Clearly, when you have a one on one conversation with him, it is not so difficult when there is two or more voices or a dialogue that is more than a one on one, it does get more difficult.