State v. Selalla

#24137-a-DG

2008 SD 3

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

KEVIN JAVIER BALLESILLO SELALLA, Defendant and Appellant.

* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *
HONORABLE PETER H. LIEBERMAN
Judge

* * * *

LAWRENCE E. LONG
Attorney General

STEVEN R. BLAIR
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

JEFF LARSON
Minnehaha County Public
Defender’s Office
Sioux Falls, South Dakota Attorneys for defendant
and appellant.

* * * *
CONSIDERED ON BRIEFS
ON MARCH 19, 2007

OPINION FILED 01/02/08
#24137

GILBERTSON, Chief Justice

[¶1.] On July 27, 2005, a complaint was filed in the South Dakota Second

Judicial Circuit charging Rodolpho Hernandez with possession of

methamphetamine with intent to distribute in violation of SDCL 22-42-2,

possession of methamphetamine in violation of SDCL 22-42-5, and false

impersonation with intent to deceive law enforcement in violation of SDCL 22-40-1.

On August 10, 2005, a Minnehaha County grand jury indicted Kevin Javier

Ballesillo Selalla a/k/a Rodolpho Hernandez (Selalla) on all three charges. A jury

trial was held on January 3-4, 2006. The jury returned guilty verdicts on all three

counts. On May 8, 2006, Selalla was sentenced to 10 years imprisonment for the

violation of SDCL 22-42-2. No sentence was imposed for the convictions on the

other counts. The trial court’s judgment and sentence was filed on May 15, 2006.

We affirm.

FACTS AND PROCEDURE

[¶2.] On July 26, 2005, at approximately 12:00 p.m., Selalla and a

companion checked into Room 215 of the Best Western Empire Towers motel in

Sioux Falls, South Dakota. Selalla identified himself in English as Carlos Torres

Hernandez from Omaha, Nebraska. On his registration he listed that he was

driving a Ford Explorer, license number 295 ALT. The license number actually

belonged to another vehicle parked outside the motel.

[¶3.] Later that afternoon, Selalla came to the front desk to ask in English if

he had received any messages. In the evening, a woman called the front desk from

Room 215 to report a suspicious person in the hallway. Not long afterward, a 911

call was placed from the room, but the person making the call hung up. The 911
-1-
#24137

operator called the front desk to obtain the room number that the call originated

from, and then dispatched Sioux Falls Police Officers Chad Gillen (Gillen) and Eric

Kimball (Kimball) to the motel room to conduct a welfare check.

[¶4.] Upon arriving at the motel, Gillen and Kimball went to Room 215.

The officers heard the sound of running water emanating from inside. They

proceeded to knock on the door, but were unable to get anyone to answer. They

then went to the front desk to get a key to the room. When they came back they

knocked once more, announcing that they were law enforcement officers. This time,

a woman wrapped in a towel came to the door.

[¶5.] Gillen and Kimball told the woman that a 911 call had originated from

the room and that they were there to check on her welfare. Once they entered the

room, the officers noticed a large glass water bong in plain view on a bedside table.

Gillen retrieved a drug-testing kit from his patrol car. He found that the bong

tested positive for methamphetamine. The officers took the bong into evidence and

arrested the woman, identifying her as Isabel Garcia Vallejo (Vallejo).

[¶6.] After her arrest, Vallejo consented to a search of the room. Inside her

purse, Gillen and Kimball found $943 in cash and a “pay/owe” sheet. Hidden in the

bed sheets, they found a glass straw, a glass test tube with residue, and a Ziploc bag

containing 12 grams of methamphetamine. Various other items of drug

paraphernalia were also found about the room. In addition, the officers discovered

luggage containing male clothing.

[¶7.] Vallejo was taken to the Sioux Falls Law Enforcement Center. Before

departing the motel the officers obtained a photocopy of the I.D. that Selalla

presented at the front desk upon check-in. The door to Room 215 was re-keyed and
-2-
#24137

the front desk clerk was advised to contact the police if Selalla returned to the

motel. Law enforcement issued a “be on the lookout” for Selalla and the Ford

Explorer.

[¶8.] While in custody, Vallejo was interviewed by John Duprey (Duprey), a

narcotics detective with the Minnehaha County Sheriff’s Department. Vallejo

admitted to being a drug dealer and to having sold drugs in Sioux Falls. She also

stated that if she were to give a urine sample it would test positive for drugs.

Vallejo told Duprey that Selalla was also a drug dealer involved in distribution in

Sioux Falls. She provided Duprey with information as to quantity, frequency, and

the number of persons to whom Selalla was dealing drugs. Vallejo indicated that

she was cooperating with Omaha police on a significant law enforcement matter. In

consideration of that and her cooperation with Sioux Falls law enforcement, Vallejo

was given back $100 of the money discovered in her purse. She was told to use the

money to rent a motel room for the night and to purchase a bus ticket back to

Omaha.

[¶9.] Unbeknownst to Gillen and Kimball, Selalla had returned to the motel

before they departed Room 215 for the Law Enforcement Center with Vellejo.

Identifying himself as “Rodolpho,” he again asked in English at the front desk, if he

had received any messages. After learning from the front desk clerk that he had

none, Selalla proceeded toward the elevator before turning around and telling the

clerk that he was leaving to get something to eat.

[¶10.] Sometime after leaving the motel for the second time, Selalla called his

friend Jackie Jensen (Jensen) to ask if she could pick him up. Selalla told her that

he had been in a fight with his girlfriend and that he was upset. Jensen picked him
-3-
#24137

up near the motel and the two drove around while Jensen calmed him down.

Eventually, Jensen drove Selalla back to the motel so that he could pick up a

change of clothes, as he had decided to stay elsewhere for the night. Upon arriving

there, the front desk clerk alerted 911 dispatch to Selalla’s return. Officer James

Buteyn (Buteyn) was dispatched to the motel sometime after 12:00 a.m. on July 27,

2005.

[¶11.] When Buteyn arrived, he made contact with Jensen who was in her car

waiting in the motel parking lot for Selalla. Buteyn took Jensen’s car keys and told

her to wait until Selalla could be brought to her for identification. However, by this

time, Selalla had managed to depart the motel on foot. Buteyn and officer Ryan

Flogstad (Flogstad), who had responded to Buteyn’s earlier call for backup, soon

discovered Selalla’s Ford Explorer in the parking lot. The officers ran the plate

number on the Explorer, South Dakota 8AE 074, and discovered it was registered to

Stacey Lane of Mitchell. Buteyn and Flogstad began searching businesses in the

surrounding area for Selalla. Flogstad finally located a Hispanic male matching

Selalla’s description in the restroom of the Fry’n Pan Restaurant.

[¶12.] The individual identified himself as Juan Martinez, but was unable to

spell his name. After consenting to a pat down search, Flogstad found him to be

carrying $598 and a title to a Ford Explorer signed by Stacey Lane. Flogstad placed

the individual under arrest and took him to the motel where Jensen identified him.

He was transported to the Minnehaha County Jail and booked under the name

Carlos Hernandez. An FBI check of his fingerprints revealed the name Rodolpho

Hernandez. Law enforcement ultimately determined that his name was Kevin

Ballesillo Selalla.
-4-
#24137

[¶13.] Law enforcement obtained a search warrant for the Ford Explorer.

Inside the vehicle they discovered a digital scale containing traces of

methamphetamine. Law enforcement also found the original Best Western receipt

issued to Carlos Hernandez on July 26, 2005. Selalla was charged and later

indicted by a Minnehaha County grand jury for possession of methamphetamine

with intent to distribute in violation of SDCL 22-42-2, possession of

methamphetamine in violation of SDCL 22-42-5, and false impersonation with

intent to deceive law enforcement in violation of SDCL 22-40-1.

[¶14.] Although he had conversed with various individuals in English on the

day prior to his arrest in Sioux Falls, Selalla claimed he was not fluent in English to

the point where he could understand what was going on during the jury trial on the

charges pending against him. Prior to the trial, the trial court hired an interpreter

to provide simultaneous translation of the proceedings. The Public Defender’s

Office, which represented Selalla, hired its own Spanish interpreter, at public

expense, to aid communication at trial between defense counsel and Selalla. On

January 3, 2004, immediately before the trial commenced, the trial court dismissed

the interpreter that it had hired for simultaneous translation, noting that Selalla

was the only person in the courtroom who needed an interpreter and that the

services of one taxpayer financed interpreter were sufficient under the

circumstances.

[¶15.] After the jury was seated, the trial court handed out the preliminary

instructions to the jury stating that it “use[d] the same preliminary instructions in

every single trial, [and that] they don’t change because the jobs don’t change.” The

court further stated that specific instructions of the law relevant to the instant case
-5-
#24137

would be given at the end of the trial before deliberations began. The trial court

went on to point out that state law, nevertheless, required it to read the preliminary

instructions to the jury. Without objection from defense counsel, the trial court

elected not to have the preliminary instructions translated for Selalla, stating that

they could be read to him later.

[¶16.] During the defense case-in-chief, Selalla sought to call Duprey to

testify to self-inculpatory statements made by Vallejo 1 about dealing drugs and her

belief that she would test positive for drug-use if she submitted a urine sample.

Selalla also intended to question Duprey about the fact that $100, of what law

enforcement believed to be drug money, had been returned to Vallejo, after which

she was released. The trial court explained that this line of questioning would

“open the door” to the contextual and explanatory evidence from Vallejo’s

statements inculpating Selalla as a drug dealer and the reason that she had been

released—because she was cooperating with law enforcement in Omaha and Sioux

Falls who were investigating drug dealers. While objecting to the trial court’s

position, defense counsel elected not to question Duprey on the matter of Vallejo’s

self-inculpatory statements.

[¶17.] The trial concluded on January 4, 2006, with the jury returning guilty

verdicts on all three counts. Selalla now appeals raising two issues:

1. Whether the trial court abused its discretion by its
decisions regarding interpreters, therein resulting in
a violation of Selalla’s constitutional or statutory rights.

1. By the time of trial, Vallejo’s whereabouts were unknown, except that Duprey
testified that he believed her to be somewhere in Omaha, Nebraska.

-6-
#24137

2. Whether the trial court abused its discretion regarding
its decision as to the admissibility of hearsay evidence.

STANDARD OF REVIEW

[¶18.] When there is an assertion of a violation of a constitutional right, we

review under the de novo standard. State v. Ball, 2004 SD 9, ¶21, 675 NW2d 192,

199 (quoting State v. Hodges, 2001 SD 93, ¶8, 631 NW2d 206, 209 (citations

omitted)). We review the trial court’s implementation of courtroom procedures

under the abuse of discretion standard. State v. Alidani, 2000 SD 52, ¶¶15-19, 609

NW2d 152, 157-58 (applying the abuse of discretion standard during the review of a

trial court’s decision to allow a victim-witness assistant to hold the hand of a child

victim of sexual abuse during the child’s testimony); State v. Daniel, 2000 SD 18,

¶¶10-13, 606 NW2d 532, 534-35 (applying the abuse of discretion standard during

the review of a trial court’s examination of prospective jurors on various topics

during voir dire); State v. Damm, 62 SD 123, 252 NW 7, 10 (1933) (applying the

abuse of discretion standard during the review of a trial court’s decision to clear

spectators from the courtroom during the testimony of a 13-year-old victim of

second degree rape).

To preserve issues for appellate review litigants must make
known to trial courts the actions they seek to achieve or object
to the actions of the court, giving their reasons. SDCL 23A-44-13.
Issues not advanced at trial cannot ordinarily be raised for
the first time on appeal. Where error has not been preserved
by objection or otherwise, our inquiry is limited to whether
the court committed plain error. “Plain errors or defects
affecting substantial rights may be noticed although they
were not brought to the attention of a court.” SDCL 23A-44-15
(Rule 52(b)). Unlike harmless error review under SDCL
23A-44-14 (Rule 52(a)), in which the State has the burden
of proving the error was not prejudicial, with plain error
analysis the defendant bears the burden of showing the error
was prejudicial.
-7-
#24137

State v. Nelson 1998 SD 124, ¶7, 587 NW2d 439, 443 (additional internal citations

omitted). “We invoke our discretion under the plain error rule cautiously and only

in ‘exceptional circumstances.’ ” Id. ¶8 (citations omitted). “The trial court’s

evidentiary rulings are presumed correct and will not be overturned absent a clear

abuse of discretion.” Kaiser v. University Physicians Clinic, 2006 SD 95, ¶29, 724

NW2d 186, 194 (citations omitted).

ANALYSIS AND DECISION

[¶19.] 1. Whether the trial court abused its discretion
by its decisions regarding interpreters, therein
resulting in a violation of Selalla’s constitutional
or statutory rights.

[¶20.] Selalla asserts that the trial court’s decisions to proceed with one

interpreter instead of two and not translate the preliminary jury instructions, but

rather to have them read to him at a later time violated South Dakota law, under

SDCL 23A-39-1, which requires a criminal defendant to be present at all stages of a

trial. Selalla also asserts that his right to a fair trial guaranteed under the Due

Process Clause of Article VI, Section 2 of the South Dakota Constitution, and the

Fifth and Fourteenth Amendments of the United States Constitution have been

violated. In addition, Selalla contends that his right to counsel, to be present at

trial and to confront witnesses guaranteed under Article VI, Section 7 of the South

Dakota Constitution and the Sixth and Fourteenth Amendments of the United

States Constitution have been violated. Since this Court has not addressed the

-8-
#24137

nature and scope of a defendant’s right to an interpreter as provided by SDCL 23A-

22-11 (Rule 28), 2 the issue presented by Selalla is one of first impression.

The Trial Court’s Decision to Dismiss One Interpreter.

[¶21.] Clearly, a criminal defendant’s ability, or lack thereof, to understand

the English language and the ruling of the trial court, as to whether an interpreter

should be provided for the defendant, implicates the constitutional rights of due

process, confrontation of witnesses, and effective assistance of counsel. See

generally United States v. Johnson, 248 F3d 655 (7thCir 2001); United States v.

Carrion, 488 F2d 12 (1stCir 1973), cert. denied, 416 US 907, 94 SCt 1613, 40 LEd2d

112 (1974); United States v. Gallegos-Torres, 841 F2d 240 (8thCir 1988); United

States ex rel. Negron v. New York, 434 F2d 386 (2dCir 1970); People v. Escalante,

627 NE2d 1222 (IllCtApp 1994); People v. Gutierrez, 222 CalRptr 699 (CalCtApp

1986). Nevertheless, as a function of courtroom procedure, we observe that trial

courts have been given broad discretion when making this determination. See

United States v. Khehra, 396 F3d 1027, 1030 (8thCir 2005) (citing United States v.

Coronel-Quintana, 752 F2d 1284, 1291 (8thCir 1985); Luna v. Black, 772 F2d 448,

451 (8thCir 1985)); United States v. Gonzales, 339 F3d 725, 727 (8thCir 2003);

(acknowledging that the appointment of an interpreter lies within a trial court’s

discretion) (citations omitted); Martins v. State, 52 SW3d 459, 471 (TexCtApp

2001); In re Raymundo B., 250 CalRptr 812, 815 (CalCtApp 1988); State v. Grubbs,

2. SDCL 23A-22-11 (Rule 28) provides:

A court may appoint an interpreter or translator of its own selection and may
set reasonable compensation for him.

-9-
#24137

570 P2d 1289, 1292 (ArizCtApp 1977); see also Carrion, 488 F2d at 14-15 (noting

that the trial court should have “wide discretion” when determining whether to

appoint an interpreter because of the variety of factors that enter into the decision,

including the defendant’s ability to understand English, and the complexity of the

proceedings, issues and testimony) (citing Perovich v. United States, 205 US 86, 91,

27 SCt 456, 51 LEd 722 (1907); United States v. Barrios, 457 F2d 680 (9thCir 1972);

United States v. Sosa, 379 F2d 525, 527 (7thCir 1967), cert. denied, 389 US 845, 88

SCt 94, 19 LEd2d 111 (1967)); Luna 772 F2d at 451 (8thCir 1985) (quoting Carrion,

488 F2d at 14-15); Johnson, 248 F3d at 664 (7thCir 2001) (recognizing that as a

constitutional matter the appointment of an interpreter is within the trial court’s

discretion).

[¶22.] Since this case presents an issue of first impression, we review with

interest federal appeals court opinions on the right to interpreters. In 1978, the

United States Congress passed the Court Interpreters Act, 28 USC §§ 1827, 1828

(CIA), requiring that federal courts appoint interpreters under certain conditions

and establishing statutory guidelines for their use to ensure that the quality of

translation does not fall below a constitutionally permissible threshold. Johnson,

248 F3d at 661 (citations omitted). Under the CIA, a defendant is only entitled to

an interpreter if he “speaks only or primarily a language other than the English

language” and that fact inhibits his “comprehension of the proceedings or

communication with counsel.” Id. (quoting 28 USC § 1827(d)(1)). The CIA requires

the trial court to evaluate a variety of factors including the defendant’s ability to

-10-
#24137

understand English, the complexity of the proceeding and the testimony. Id.

(quoting United States v. Febus, 218 F3d784, 791 (7thCir 2000)).

[¶23.] In light of the facts in this case we note Carrion and Johnson with

particular interest. Although Carrion predated the CIA by five years, we still find

it to be instructive. 3 See Carrion, 488 F2d at 14-15 (recognizing the same

evaluation factors as mandated by the subsequent CIA). In that case, the defendant

had limited English speaking and comprehension skills. Carrion, 488 F2d at 15.

On appeal, the defendant alleged that the trial court should have held a formal

competency hearing to determine if he needed an interpreter. Id. Moreover, the

trial court refused the defendant’s request to allow an interpreter for one of his two

co-defendants’s to sit between the defendant and the co-defendant on the ground

that that would be unworkable. Id. at 15. However, the court of appeals upheld the

defendant’s conviction noting that the trial court told him that if at any point during

the trial there was something he did not understand, he needed only to raise his

hand and the testimony would be repeated. Id. at 15.

[¶24.] In Johnson, the trial court appointed one interpreter to simultaneously

translate the proceedings to the four defendants. Johnson, 248 F3d at 659. The

defendants objected to this arrangement because they could only communicate with

their respective attorneys, through the one interpreter, during breaks in testimony,

3. Beyond our recitation of the facts in Carrion, we also note with interest that
court’s statement in reference to a defendant who has difficulty
understanding English, “that he has a right to a court-appointed interpreter if
the court determines that one is needed. . . .” 488 F2d at 14 (emphasis
added).

-11-
#24137

thus denying them the ability to simultaneously communicate with their attorneys.

Id. at 662. In upholding the defendant’s convictions, the Johnson court opined, “The

CIA provides for simultaneous interpretation of the proceedings, not simultaneous

interpretation of attorney-client communications. As long as the [trial] court, when

put on notice, adopts a solution that removes the inhibition on communication with

counsel, we cannot say that the [trial] court abused its discretion.” Id. at 663.

[¶25.] Johnson is also instructive for other cases that it cites. See id. at 662-

63 (citing United States v. Sanchez, 928 F2d 1450, 1454-56 (6thCir 1991) (abrogated

on other grounds by United States v. Jackson-Randolph, 282 F3d 369 (6thCir 2002))

(holding that the CIA authorizes the appointment of one interpreter in multi-

defendant trials and finding no abuse of discretion where each of two defendants

had a court-appointed interpreter to aid in communication with counsel and the

trial court borrowed one of the interpreters in order to translate witness testimony,

and the defendants consequently argued they had been prevented from effectively

communicating with counsel); United States v. Bennett, 848 F2d 1134, 1139-41

(11thCir 1988) (superseded on other grounds by Rule as stated in United States v.

Moore, ---F3d--- (11thCir 2007) (holding that the trial court’s appointment of a

single interpreter to provide simultaneous translation of the proceedings in a multi-

defendant trial satisfied the requirements of the CIA; that nothing in the act

required the trial court to appoint additional interpreters to translate

communications between the defendants and their attorneys; and that the trial court

thereby acted within its discretion when it refused to do so, but offered to recess the

trial at any time the defendants needed to consult with their attorneys)); see also

-12-
#24137

United States v. Yee Soon Shin, 953 F2d 559, 561 (9thCir 1992) (finding no error

when trial court appointed one interpreter for two defendants and holding that the

CIA does not require separate interpreters for each defendant in multi-defendant

cases); United States v. Lim, 794 F2d 469, 471 (9thCir 1986) (finding no error where

communication with counsel was by means of notes and during breaks)).

[¶26.] We also find instructive a number of cases from other jurisdictions. So

too in these cases, trial courts have been granted broad discretion when making

decisions about whether to appoint interpreters. However, the record must reflect

some basis upon which the trial court exercised this discretion before its decision

can be affirmed on appeal. In conducting this review, we observe that the refusal

below to appoint an interpreter may be upheld where there is evidentiary support

for a finding that the defendant is sufficiently fluent in English or the record is

otherwise indicative of the defendant’s English competency.

[¶27.] There is perhaps no better indication for an appeals court that a

defendant can speak and understand English than when the record reflects that he

gave testimony or offered some other oral statement. See Larias v. State, 528 So2d

944, 944 (FlaDistCtApp 1988) (affirming the decision below not to appoint an

interpreter, concluding that the trial court’s oral finding was supported, in part, by

the record of extensive colloquies between the trial court and the defendant);

Gonzales v. State, 356 SE2d 545, 546 (GaCtApp 1987) (holding that the trial court

did not abuse its discretion where the defendant gave testimony that revealed he

had a sufficient command of English to participate meaningfully in the proceedings

without an interpreter); People v. Lopez, 449 NE2d 927, 934 (IllAppCt 1983)

-13-
#24137

(affirming the trial court’s refusal to appoint an interpreter, in part, on the

defendant’s testimony as to his English competency); State v. Ngoc Van Vu, 339

NW2d 892, 897 (Minn 1983) (affirming the defendant’s conviction and noting his

extensive hearing testimony without an interpreter); Johnson v. State, 512 So2d

1246, 1250, 1256 (Miss 1987) (affirming the trial court’s decision not to provide an

interpreter for defendants, concluding that its informal finding that they “were

fluent and conversant in English and appeared to have no trouble understanding

it,” was supported, in part, by transcripts from a previous trial and the trial at bar

that reflected the defendants’ ability to understand English); State v. Topete, 380

NW2d 635, 636 (Neb 1986) (affirming the trial court’s refusal to appoint an

interpreter based, in part, on the defendant’s English competency, exhibited in

testimony at a fluency hearing and at trial); State v. Drobel, 815 P2d 724, 737

(UtahCtApp 1991) (affirming the pro se defendant’s conviction and the trial court’s

refusal to appoint interpreters based, in part, on the trial transcript indicating that

the defendant had no difficulty communicating with the trial court in English);

Cantu v. State, 716 SW2d 688, 690 (TexCtApp 1986) (where the trial court did not

order an interpreter to be present for the entire proceeding, affirming the

defendant’s conviction and sentence based on his English competency as

demonstrated in the transcript of his testimony); see also Vargas v. State, 627 SW2d

785, 787 (TexCtApp 1982) (affirming the trial court’s refusal to provide an

interpreter for the defendant’s testimony where the transcript revealed that he was

able to testify in English without difficulty).

-14-
#24137

[¶28.] The reviewing court may justify affirming the decision not to appoint

an interpreter based on witness testimony relevant to that issue. See Larias, 528

So2d at 944 (affirming the decision below, concluding that the trial court’s oral

finding was supported, in part, by an interpreter’s opinion testimony that the

defendant spoke “ ‘just about perfect English’ ”); Topete, 380 NW2d at 636 (Neb

1986) (affirming the trial court based, in part, on the transcript of testimony from a

law enforcement officer that he had conversed with the defendant, in English, for

over an hour following the arrest).

[¶29.] Courts have also found a record of background information about the

defendant as supportive of the trial court’s decision not to appoint an interpreter.

See Lopez, 449 NE2d at 934 (affirming the decision below based, in part, on the trial

court’s statement, for the record, that the defendant was born in Texas and

educated in America, served in the United States Army and had been a county

employee for ten years); People v. Boehm, 130 NE2d 897, 899 (NY 1955) (affirming

a lower appellate court’s reinstatement of conviction where the decision was

supported by record evidence that the defendants had lived in and worked

throughout the United States for nine years); Drobel, 815 P2d at 737 (affirming a

pro se defendant’s conviction based, in part, on his acknowledgment that he was

schooled in English and had used it both to conduct business and as United States

resident for the previous seven years).

[¶30.] In other cases the decision not to appoint an interpreter has been

supported by the trial court’s statement as to its observations of the defendant. See

State v. Perez, 404 NW2d 834 (MinnCtApp 1987) (holding that the trial court’s

-15-
#24137

finding, that the defendant had sufficient command of the English language such

that he did not need simultaneous interpretation of the proceedings, was supported

by its having heard the defendant’s taped confession and testimony at another

proceeding); Johnson, 512 So2d at 1251 (affirming the decision below and

concluding that the trial court’s findings were supported, in part, by its

observations of the defendant, evincing his English competency); State v. Trevino,

516 P2d 779, 784 (WashCtApp 1973) (affirming the defendant’s conviction and

noting the trial court’s statement for the record, observing that the defendant could

“express himself very well” and “had no difficulty testifying”); see also State v.

Mendez, 784 P2d 168, 170 (WashCtApp 1989) (affirming the trial court’s refusal to

vacate a sentence where it stated for the record that the defendant obviously

“understood the proceedings,” and that it had no doubt that the defendant’s guilty

plea was entered “with full knowledge of [his] constitutional rights”).

[¶31.] In the instant case, the Public Defender’s Office arranged for an

interpreter to be present to facilitate communication between defense counsel and

Selalla, while the trial court arranged for a second interpreter to provide

simultaneous translation of the court proceedings. However, immediately prior to

the commencement of trial, the trial court dismissed the simultaneous translator.

The trial court did not conduct a fluency hearing to determine the extent of Selalla’s

English comprehension, nor did it enter findings either written or oral in support of

its determination that the second interpreter was unnecessary. Moreover, the trial

court did not even make an informal comment for the record as to any observation

relative to Selalla’s ability to understand English. The only justification offered by

-16-
#24137

the trial court for its dismissal of the simultaneous translator was its statement:

“[T]he point of paying for two interpreters’ flies by me.”

[¶32.] Despite the fact that the trial court made no attempt to support the

dismissal by articulating some justification, we might still endorse the trial court’s

decision were we to find an independent basis in the record to demonstrate that

Selalla had no need of a second interpreter. However, no such basis is to be found

in the record of this case. Selalla did not testify. There are no demonstrative

colloquies between the trial court and the defendant. 4 Furthermore, there is no

history offered as to Selalla’s place of birth, education or work experience. The

record does reflect that Jensen drove around Sioux Falls with Selalla for some time

on the night of his arrest and that she does not speak Spanish. Also, the two front

desk clerks that spoke to Selalla at the Empire Best Western Towers, Ashley Thiry

and Beverly Weyer, and arresting officer Flogstad, all testified to having

conversations with Selalla. However, the transcript of testimony as to these

conversations falls short of forming a basis to support the trial court’s dismissal of

the second interpreter. Accordingly, since the trial court entered no findings, nor

made any statement for the record as to Selalla’s English competency and we find

no independent evidentiary support justifying its dismissal of the second

interpreter; we conclude this decision was an abuse of discretion.

4. There was, however, a short exchange between the trial court and Selalla at
the close of the State’s case. At that point Selalla was advised of his right to
testify in his own defense or remain silent. Selalla replied with one word
answers to most of the trial court’s five lengthy questions. Selalla did not
indicate any inability to understand what was being said by the trial court.

-17-
#24137

[¶33.] Nevertheless, we will not reverse the trial court unless Selalla can

show that he was unduly prejudiced as a result of the trial court’s decision to

dismiss the second interpreter. See State v. Saldana, 246 NW2d 37, 39 (Minn 1976)

(holding that there was no basis to set aside the defendant’s conviction where the

defendant failed to show any prejudicial effect on his ability to offer a defense due to

the absence of an interpreter); Perez 404 NW2d at 838; Carrion, 488 F2d at 15

(affirming the defendant’s conviction where the trial court did not appoint an

interpreter for him, but offered to repeat testimony at any time the defendant

requested). See also Vargas, 627 SW2d at 786 (affirming the judgment below and

noting that after the trial court indicated it would provide the defendant an

interpreter for his testimony if he “gets into trouble,” the defendant thereafter gave

his testimony without difficulty and made no further requests for an interpreter).

[¶34.] When defense counsel objected to the trial court’s dismissal of the

second interpreter, on the ground that he and Selalla would not be able to freely

communicate, 5 the trial court responded as follows:

I will work with you [defense counsel] and take a recess, . . .
if you need to visit with your client, just state that to me because
you can’t listen to the witnesses, and your client can’t listen
to the witnesses while talking. If you need to visit, just state
that to me and I’ll be glad to stop the testimony and give you
an opportunity to do that.

(Emphasis added).

5. Selalla’s argument to this Court is limited to an assertion of abuse of
discretion by the trial court. No claim of a breach of the attorney-client
privilege by the use of his interpreter to translate for him during the court
proceedings is raised.

-18-
#24137

[¶35.] The trial court extended an offer to stop the proceedings at any time

Selalla or defense counsel felt the need to confer. This is relevant to the claim of

Selalla that his constitutional right to counsel and confront witnesses was violated

by the trial court’s Spanish translation arrangements. Specifically, on not one

occasion during the proceedings did either Selalla or defense counsel take the trial

court up on its offer to suspend the proceedings so that they might counsel together.

In light of this fact we find no basis upon which to conclude that Selalla was in any

way prejudiced by the trial court’s error in dismissing the second interpreter.

The Trial Court’s Decision not to have the Preliminary Jury Instructions Translated
at the Time They Were Read to the Jury.

[¶36.] Because he raised no objection at the time, Selalla now argues plain

error, implicating a constitutional violation by the trial court, in deciding not to

have the interpreter translate the preliminary jury instructions for Selalla at the

time they were read to the jury, but rather to have the interpreter read them to

Selalla at a later time.

[¶37.] “Plain error requires (1) error, (2) that is plain, (3) affecting

substantial rights; and only then may we exercise our discretion to notice the error

if (4) it ‘seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.’ ” Nelson, 1998 SD 124, ¶8, 587 NW2d at 443 (quotations omitted)

(alteration in original). Selalla bears the burden of showing that any such error

was prejudicial. Id. ¶7.

[¶38.] Prior to its decision regarding the real-time translation of the

preliminary jury instructions, the trial court passed out copies of the instructions to

each juror and stated:

-19-
#24137

I hope that these will give you some guidelines as to what
your job is and what my job is. I use the same preliminary
instructions in every single trial, they don’t change because
the jobs don’t change. At the end of the trial, I am going
to give you jury instructions that are specific to this case
....

(Emphasis added).

[¶39.] The State concedes that the trial court erred by not having the

interpreter translate the generic preliminary instructions at the time they were

given to the jury and that the error is plainly on the record. The State also submits

that Selalla may have had statutory and constitutional rights to be present during

the reading of the preliminary jury instructions; and that these rights may have

been violated by the trial court’s decision, thus, potentially affecting a substantial

right. We do not need to address these questions because Selalla has failed to show

any prejudice conceivably affecting the outcome of the jury’s verdict as a result of

the trial court’s decision to forego the real-time translation of the generic

preliminary instructions. Accordingly, we find no plain prejudicial error.

[¶40.] 2. Whether the trial court abused its discretion
regarding its decision on the admissibility of
hearsay evidence.

[¶41.] Selalla sought to elicit testimony from Duprey as to Vallejo’s

admissions that she was a drug dealer and would fail a urine test. The trial court

refused to allow this line of exculpatory questioning, unless the State was allowed

to open the door to elicit Duprey’s testimony as to Vallejo’s remarks inculpating

Selalla in drug distribution in Sioux Falls. Selalla asserts that the trial court’s

evidentiary ruling in this regard was an abuse of discretion. Selalla argues that the

former are admissible as statements against interest by an unavailable declarant,

-20-
#24137

and thus hearsay exceptions as provided under SDCL 19-16-32 (Rule 804(b)(3)). 6

On the other hand, Selalla claims that the later remark is not admissible under

Rule 804(b)(3), and further, in the wake of Crawford v. Washington, 541 US 36, 124

SCt 1354, 158 LEd2d 177 (2004) is barred as a testimonial statement by an

unavailable declarant in violation of the Confrontation Clause of the Sixth

Amendment to the United States Constitution. In addition to Crawford, Selalla

also cites Williamson v. United States, 512 US 594, 114 SCt 2431, 129 LE2d 476

(1994), United States v. Chapman, 345 F3d 630 (8thCir 2003); and United States v.

Hazelett, 32 F3d 1313 (8thCir 1994) as supportive of his claim.

[¶42.] In Williamson, the declarant was found to be in possession of a large

amount of cocaine following a routine traffic stop. 512 US at 596, 114 SCt at 2433,

129 LE2d 476. During a statement made to a DEA agent, the declarant implicated

himself as a courier in a drug trafficking scheme along with an unidentified

accomplice and the defendant. Later, the declarant disavowed part of his story,

while continuing to implicate the defendant as an accomplice. 512 US at 597, 114

6. SDCL 19-16-32 (Rule 804(b)(3)) provides:

A statement which was at the time of its making so far contrary to the
declarant’s pecuniary or proprietary interest, or so far tended to subject him
to civil or criminal liability, or to render invalid a claim by him against
another, that a reasonable man in his position would not have made the
statement unless he believed it to be true, is not excluded by § 19-16-4 if the
declarant is unavailable as a witness. A statement tending to expose the
declarant to criminal liability and offered to exculpate the accused is not
admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement.

-21-
#24137

SCt at 2433, 129 LE2d 476. The declarant was unavailable to testify at trial. Id. at

597, 114 SCt 2434, 129 LE2d 476.

[¶43.] Under the Rule 804(b)(3) hearsay exception, the government offered

the DEA agent’s testimony, as to the declarant’s confession, implicating the

defendant in the scheme, in addition to those parts of the declarant’s statement in

which he implicated himself. Id. at 597-98, 114 SCt 2434, 129 LE2d 476. The

defendant was ultimately convicted on the strength of the DEA agent’s hearsay

testimony. The United States Supreme Court overturned the conviction. Id. at 605,

114 SCt 2437-38, 129 LE2d 476. The Court held that under Rule 804(b)(3), those

parts of an unavailable declarant’s statement that inculpate a third party are not

properly admitted as evidence, against the third party as part of a holistic

statement that includes those parts in which the declarant inculpates himself. Id.

at 604, 114 SCt at 2437, 129 LE2d 476. The Court reasoned that the character of

being against penal interest that tends to make a self-inculpatory statement

indicative of truthfulness and thus admissible under Rule 804(b)(3), does not cloak

a statement inculpating a third party, made in proximity with the self-inculpatory

statement, in the same truthfulness. Id. at 600-01, 114 SCt at 2435, 129 LE2d 476.

In analyzing this issue, the Court observed that the advisory committee notes to

Rule 804(b)(3) noted that such statements might simply be made to curry favor with

law enforcement. Id. at 601, 114 SCt at 2436, 129 LE2d 476 (quoting Rule

804(b)(3), advisory committee notes exception (3)).

[¶44.] The facts in Hazelett parallel those in Williamson. Again, the

government apprehended a declarant who implicated herself as a courier in a drug

-22-
#24137

trafficking scheme along with the defendant. Id. at 1314-15. The declarant was

later unavailable to testify at the defendant’s trial. Id. at 1315. The government

offered her entire statement under Rule 804(b)(3) including those parts that

inculpated the defendant. Citing the holding in Williamson, the trial court

overturned the defendant’s conviction. Id. at 1318-19.

[¶45.] Although the defendant’s conviction was upheld in Chapman on the

strength of other evidence, the facts in this case too, were much like those in

Williamson and Hazelett. See Chapman, 345 F3d at 632. While citing Williamson

in finding the trial court erred by admitting the government’s hearsay testimony

inculpating the defendant under Rule 804(b)(3), the trial court stated, “by [the

declarant] casting himself as a mere mule and serving up [the defendant as the]

repeat buyer [of large quantities of marijuana], [the declarant] could reasonably

assume that he would be minimizing his criminal liability.” Id. at 633 (citation

omitted).

[¶46.] Prior to the holding in Crawford, the door was left ajar by Ohio v.

Roberts, 448 US 56, 100 SCt 2531, 65 LEd2d 597 (1980) (overruled by Crawford,

541 US 36, 124 SCt 1354, 158 LEd2d 177), which conditioned the admissibility of all

hearsay on whether it fell under a “firmly rooted hearsay exception” or bore

“particularized guarantees of trustworthiness.” Id. at 66, 100 SCt at 2539, 65

LEd2d 597. Thus, if a declarant’s statement did not fall within some “firmly rooted

hearsay exception,” it might still be admissible if it were judicially determined to

bear adequate “indicia of reliability.” However, Crawford overruled Roberts holding

that where an out-of-court statement by a witness is testimonial, it is barred, under

-23-
#24137

the Confrontation Clause, unless the witness is unavailable and the defendant had

a prior opportunity to cross-examine the witness, regardless of whether the

statement is deemed reliable by the trial court. Crawford, 541 US at 67, 124 SCt at

1373, 158 LEd2d 177. Crawford, included statements given during the course of a

police interrogation as those that fall within the ambit of those considered to be

“testimonial.” 7 541 US at 52, 124 SCt at 1364, 158 LE2d 177.

7. In Crawford, the Court endeavored to establish context for the term
“testimonial.” 541 US at 51-53, 124 SCt at 1364-65, 158 LE2d 177. The
Court opined that testimonial statements included:

“ex parte in-court testimony or its functional equivalent-
that is, material such as affidavits, custodial examinations,
prior testimony that the defendant was unable to cross-
examine, or similar pretrial statements that declarants
would reasonably expect to be used prosecutorially,”
“extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions, prior
testimony, or confessions,” “statements that were made under
circumstances which would lead an objective witness
reasonably to believe that the statement would be available
for use at a later trial[.]” These formulations all share
a common nucleus and then define the Confrontation
Clause’s coverage at various levels of abstraction around
it. Regardless of the precise articulation, some statements
qualify under any definition-for example, ex parte testimony
at a preliminary hearing.
Statements taken by police officers in the course of
interrogations are also testimonial under even a narrow
standard. Police interrogations bear a striking resemblance
to examinations by justices of the peace in England. The
statements are not sworn testimony, but the absence of
oath was not dispositive. . . . Under the Marian statutes,
witnesses were typically put on oath, but suspects were
not. Yet Hawkins [in 2 W. Hawkins, Pleas of the Crown,
ch 46, § 3, pp. 603-604 (T. Leach 6th ed. 1787)] and
others went out of their way to caution that such unsworn
confessions were not admissible against anyone but the
confessor.
(continued . . .)
-24-
#24137

[¶47.] Crawford, however, is not an absolute bar to out-of-court testimonial

statements made by an unavailable declarant whom the defendant had no prior

opportunity to cross-examine. The case of State v. Prasertphong, (Prasertphong II),

114 P3d 828 (Ariz 2005) is illustrative of this point. Prasertphong II involved a case

of two co-defendants tried and convicted for the robbery-murder of three pizza-

parlor employees. Id. at 829. The declarant made self-inculpatory statements,

admitting to all three murders, and also inculpated the defendant by alleging acts

that attributed substantial responsibility in the crime to the defendant. Id. at 829-

30. At trial, the defendant, under Arizona’s version of Rule 804(b)(3), sought to

admit only the self-inculpatory portions of the declarant’s written statement that

tended to exculpate the defendant. Id. at 829. The prosecution agreed that these

statements where admissible. However, the prosecution argued that under

________________________
(. . . continued)

That interrogators are police officers rather than magistrates
does not change the picture either. Justices of the peace
conducting examinations under the Marian statutes were
not magistrates as we understand that office today, but
had an essentially investigative and prosecutorial function.
England did not have a professional police force until the
19th century, so it is not surprising that other government
officers performed the investigative functions now associated
primarily with the police. The involvement of government
officers in the production of testimonial evidence presents
the same risk, whether the officers are police or justices
of the peace. In sum, even if the Sixth Amendment is not
solely concerned with testimonial hearsay, that is its primary
object, and interrogations by law enforcement officers fall
squarely within that class.

Id. (internal citations omitted) (first and third emphasis added,
second emphasis original).
(continued . . .)

-25-
#24137

Arizona’s version of the “rule of completeness,” Rule 106, 8 those parts of the co-

defendant’s statement, inculpating the defendant should also be admitted if the

defendant sought to introduce into evidence those statements that tended to

exculpate him. Id. at 829-30. The defendant in Prasertphong II argued that

admitting the whole statement including those inculpating him in the crime

violated his Sixth Amendment right to confrontation. Id. at 830. The trial court

disagreed with the defendant citing Rule 106.

[¶48.] In affirming the judgment, the Arizona Supreme Court pointed out the

limitation of the holding in Crawford. Id. at 834. The court acknowledged that

while a statement may be admissible under a hearsay exception, it still may run

afoul of Confrontation Clause requirements. Id. at 831 (citations omitted).

Significantly for our analysis of the instant case, the court noted that because the

defendant proffered selected portions of the co-defendant’s statement, his Sixth

Amendment right to confrontation was not implicated.

[¶49.] In analyzing the “rule of completeness” the Arizona court noted that

the language of Rule 106 does not mandate that an entire statement necessarily be

admitted, but rather those parts that are “necessary to explain or place into context

________________________
(. . . continued)

8. SDCL 19-9-13 (Rule 106) is functionally identical to Arizona’s version of Rule
106 and provides as follows:

When a writing or recorded statement or part thereof is introduced by a
party, an adverse party may require him at that time to introduce any other
part or any other writing or recorded statement which ought in fairness to be
considered contemporaneously with it.

-26-
#24137

the portion already introduced.” Id. (citing United States v. Branch, 91 F3d 699,

728 (5thCir 1996) (quoting United States v. Pendas-Martinez, 845 F2d 938, 944

(11thCir 1988))). As a consequence, the court held that when a defendant makes

the tactical decision to admit a fragmentary part of an accomplice’s conversation

under Rule 804(b)(3), the government cannot simultaneously be precluded from

introducing other evidence from the conversation. Id. at 832 (citing State v. Soto-

Fong, 928 P2d 610, 618 (Ariz 1996) (holding that a defendant’s introduction of an

informant’s statement to police recounting a conversation with an accomplice, who

made self-inculpatory statements, precluded the defendant from resisting the

prosecution’s introduction of a statement, made during the same conversation, that

inculpated the defendant). The court then observed its holding was consistent with

other jurisdictions’ and federal courts’ interpretations of “the rule of completeness.”

Id. at 832-33 (citing State v. Roberts, 14 P3d 713, 718 (Wash 2000); Ramirez v.

State, 739 So2d 568, 580 (Fla 1999); Carr v. State 655 So2d 824, 835 (Miss 1995);

Kennard v. State, 531 So2d 934, 935, 937 (Ala 1986); Burke v State, 484 A2d 490,

496-97 (Del 1984); United States v Moussaoui, 382 F3d 453, 481-82 (4thCir 2004);

United States v. Washington, 12 F3d 1128, 1137 (DCCir 1994).

[¶50.] Finally, the Arizona court cited Crawford itself for the proposition that

Rule 106 stands intact post-Crawford, as an exception to the Confrontation Clause,

because the admittance of evidence under the “rule of completeness” is not

predicated on a showing of reliability.

[T]he Roberts test allows a jury to hear evidence, untested
by the adversary process, based on a mere judicial
determination of reliability. It thus replaces the
constitutionally prescribed method of assessing reliability

-27-
#24137

with a wholly foreign one. In this respect, it is very different
from exceptions to the Confrontation Clause that make
no claim to be a surrogate means of assessing reliability.
For example, the rule of forfeiture by wrongdoing (which
we accept) extinguishes confrontation claims on essentially
equitable grounds; it does not purport to be an alternative
means of determining reliability.

Id. at 834 (emphasis added) (citing Crawford, 541 US at 62, 124 SCt at 1354, 158

LEd2d 177 (citation omitted)).

[¶51.] The facts of the instant case parallel those of Prasertphong II. The

absent Vallejo’s statement, made to Duprey during the course of his interrogation,

was clearly testimonial as defined by Crawford. Selalla sought to elicit the

exculpatory parts through Duprey’s testimony. The trial court agreed to allow this

line of questioning under our Rule 804(b)(3). However, consistent with our Rule

106, it determined that it would also allow the State to “complete the picture” by

eliciting testimony from Duprey about Vallejo’s statements inculpating Selalla in

the Sioux Falls drug trade. In the context of Vallejo’s admissions and her arrest in

a motel room she had rented with Selalla, which contained substantial quantities of

methamphetamine and drug paraphernalia, her statement inculpating Selalla in

the drug trade was explanatory as to why he had a scale for measuring drugs in his

vehicle and was obviously trying to evade police that were waiting for him at the

motel late on the night of July 26, 2005. Nevertheless, Selalla objected claiming

that the ruling violated his Sixth Amendment right to confrontation. Selalla now

has offered Williamson, Hazelette, Chapman and Crawford to support this claim

that the “rule of completeness” is subordinate to his right to confrontation.

-28-
#24137

[¶52.] What Selalla overlooks is that in each of those cases the prosecution

introduced inculpatory hearsay evidence against a defendant. Those cases are

distinguishable from the case where a defendant seeks to use Rule 804(b)(3) as a

shield, to introduce exculpatory parts of an unavailable declarant’s statement, while

simultaneous using the Confrontation Clause as a sword, as was attempted

previously by the defendant in Prasertphong II and again today by Selalla, to

exclude those parts that inculpate the defendant. Prasertphong II, 114 P2d at 834-

35 (citations omitted). If this Court were to reverse Selalla’s conviction on these

grounds, we would eviscerate the “rule of completeness.” The result would be to set

up unfair outcomes arising out of not-so-hypothetical scenarios such as that of the

declarant who confesses to the police that he murdered two people, but then

subsequently, during the same interview, says that the defendant forced him to do

it. Applying Rule 804(b)(3), the defendant could introduce the first portion of the

declarant’s statement to the police because it was a statement against interest; then

trumping the State’s right to introduce the second statement under Rule 106 by

invoking the Confrontation Clause under the banner of Crawford. See id. We

refuse to establish that unfair precedent. Accordingly, we find that the trial court

acted within its discretion in ruling that the introduction of favorable hearsay by

Selalla would properly enable the State to complete the picture by eliciting other

evidence from the rest of Vallejo’s statement to Duprey.

[¶53.] Affirmed.

[¶54.] MEIERHENRY, Justice, concurs.

[¶55.] SABERS and ZINTER, Justices, concur specially.

-29-
#24137

[¶56.] KONENKAMP, Justice, dissents.

SABERS, Justice (concurring specially).

[¶57.] The issue is not whether the trial court abused its discretion in

appointing an interpreter for the Defendant, but whether the trial court abused its

discretion in forcing the Defendant to share his interpreter with the State.

[¶58.] I agree with the majority opinion that the trial court abused its

discretion by failing to make a record “to support the trial court’s dismissal of the

second interpreter.” Supra ¶32. The key question is whether confidential

communications between Defendant and his attorney had occurred prior to the

“forced sharing” of Defendant’s interpreter and whether that “forced sharing”

resulted in prejudice to Defendant’s case. Because the record is void of any showing

of actual prejudice in that respect, I join in the affirmance of these convictions.

ZINTER, Justice (concurring specially).

[¶59.] I concur and write to include some clarifying points relating to Selalla’s

entitlement to two interpreters. I also write to discuss the standard of review

concerning the trial court’s failure to require simultaneous interpreting of the

preliminary jury instructions.

Two Interpreters

[¶60.] First, in my view, the nature of Selalla’s case for interpretive services

has been mischaracterized. Notwithstanding the other writings, the record does not

support the special concurrence’s characterization that this is the type of case in

-30-
#24137

which the court “forced sharing” of Selalla’s interpreter in order to assist the court.

See supra ¶58. Nor does the record support the dissent’s characterization that this

is the type of case in which the trial judge “commandeer[ed],” “borrowed,”

“confiscate[d],” “seize[d]” and “appropriated” Selalla’s interpreter to “work for the

court.” See infra ¶¶73-74, 76, 80, n20. Those types of cases involve a trial court’s

actual use of a defendant’s interpreter to simultaneously interpret for the defendant

and the court, jury, or other participant in the trial. See State v. Gonzales-

Morales, 91 WashApp 420, 422, n1, 958 P2d 339, 340 (WashApp 1998) (explaining

that because the trial court was unable to find a second interpreter, it “borrowed”

defendant’s interpreter to simultaneously interpret a Spanish-speaking witness for

the prosecutor, jury, and other courtroom participants while also facilitating

communication between defendant and his counsel). 9

[¶61.] This is a case in which Selalla’s public defender arranged for one

publicly financed interpreter on his own. In addition, for reasons not explained in

the record, the circuit court administrator also arranged to have yet another

interpreter present. It appears that Judge Lieberman was not aware of these

9. The Washington Court of Appeals described the “borrowing” situation as
follows:

In Jairo Gonzales-Morales’s trial for second degree assault, the court
appointed an interpreter to facilitate Gonzales-Morales’s
communications with his attorney. When a Spanish-speaking witness
for the State testified, the court “borrowed” Gonzales-Morales’s court-
appointed interpreter to translate the State’s witness’s testimony. If
Gonzales-Morales wished to speak to his attorney during this time, he
was to request a recess from the court.

Gonzales-Morales, 91 Wash App at 421, 958 P2d at 339.

-31-
#24137

arrangements because when both interpreters appeared that first morning of trial,

he conducted an off-the-record discussion with counsel. Following that discussion,

he made a determination on the record expressly finding that “the only person in

this courtroom who will need an interpreter is the defendant.” Thereafter, for the

first time, Selalla’s trial counsel indicated that he would like both interpreters: an

“official interpreter” for the trial and a “personal interpreter” in case Selalla had

any questions during the trial or during breaks. Because both interpreters were

publicly financed, this is a case where defense counsel asked the trial court to

appoint a personal interpreter in addition to a trial interpreter. 10 Selalla did not,

however, make any factual showing suggesting the need for two such interpreters

because of any language difficulty.

[¶62.] The court determined that because Selalla was the only person in the

courtroom in need of an interpreter, there was no need for two interpreters.11 The

10. The dissent disputes this point on the semantic argument that defense
counsel did not ask the trial court to “appoint” both interpreters, noting that
“defense counsel’s interpreter was hired under the public defender’s separate
budget, not the court’s budget.” See infra ¶75. This technicality does not,
however, change the fact that defense counsel asked to have two publicly
financed interpreters. More fundamentally, the extent of the constitutional
right to publicly financed interpretive services is not dependent on the public
budget from which the interpreter is paid.

11. The dissent suggests that the trial court dismissed the second interpreter for
economic reasons, see infra ¶73. The dissent also suggests that without two
interpreters, trial counsel was unable to communicate with his client. See
infra ¶73 (stating that after the court removed the second interpreter,
defense counsel responded that without both interpreters he could not
communicate with his client). Neither suggestion is correct. The transcript,
when viewed in context, reveals that the second interpreter was dismissed
and economics were mentioned because there was no showing of need. The
transcript further reflects that defense counsel’s concerns about client
(continued . . .)
-32-
#24137

________________________
(. . . continued)
communication were hypothetical, but in any event, they were resolved,
without objection, by the court’s protective procedures.

The entire transcript on these issues is terse, but it reflects that the court’s
decision to deny two interpreters was based on need, and therefore, there was
no reason to pay for two interpreters. The court raised this matter as the
very first order of business, and began the discussion only mentioning need:

We have had discussions off the record as to the fact that there are two
interpreters here. I have determined that the only person in this
courtroom who will need an interpreter is the defendant; therefore the
Court does not see any reason for two interpreters.

After the off-record hearing and ruling, the court provided defense counsel an
opportunity to make a record. In making a record, defense counsel did not
make any showing of need for two interpreters. Instead, defense counsel
explained that his general practice in some “other cases” was to use two
interpreters. Counsel argued:

[A]s I have done in other cases involving the need for an interpreter
where I -- where we wanted an interpreter for a person that doesn't
speak English fluently, I have hired Daya Thorin, who is here [today],
just to interpret for my client should he have any questions during the
trial as frequently happens or during breaks while the jury is outside
the courtroom here and just to have a way of speaking with my client
during trial.

Counsel then noted that the other interpreter was also present that morning
as a result of the court administrator, and counsel continued:

[A]s I said I have done in cases in the past, [the one interpreter] is here
under the Court's direction through Court administration to interpret
from the witnesses, from the Court, from the attorneys; and [the other
interpreter] is here, more as a personal interpreter so my client and I
can communicate because otherwise we can't.

The trial court then responded that it would provide accommodations so
Selalla’s publicly financed interpreter could interpret and facilitate
communications between Selalla and counsel. The court informed Selalla
that if he felt uncomfortable, that it would take a recess. It also told trial
counsel that if he needed to visit with Selalla during a witness’s testimony, to
inform the court, and that the court would stop the testimony so counsel
could visit with Selalla. Following this offer, trial counsel did not object to
(continued . . .)

-33-
#24137

court ordered Selalla’s interpreter to remain to assist Selalla and his attorney, and

the second interpreter was excused. There is no dispute that thereafter, Selalla’s

interpreter was not actually used by the court (“borrowed”) to interpret for the

court, jury, any witness, or for anyone other than Selalla. 12 Because the record

does not reflect that Selalla’s interpreter was ever used to simultaneously interpret

for the court and for the defendant, and because it appears that Selalla’s own

interpreter remained continuously available throughout the trial for Selalla and his

counsel, this is not a borrowing or commandeering case.

[¶63.] Furthermore, even if this were a “borrowing” case, the court utilized

the appropriate procedure to ensure that Selalla’s constitutional rights were

protected. See Gonzales-Morales, 91 WashApp at 424-27, 958 P2d at 341-42

(collecting cases that have approved similar protective procedures). The Gonzales-

Morales court noted with approval that although that trial court borrowed the

defendant’s interpreter to interpret a state witness, it also made the necessary

accommodations for the defendant to consult and communicate with his attorney.

The trial court in Gonzales-Morales informed the defendant:

________________________
(. . . continued)
the court’s ruling or accommodation. Most importantly, thereafter, counsel
never indicated to the court that the court's ruling or accommodation was
causing a language difficulty for counsel or Selalla. In sum, the dissent is
incorrect in suggesting that the second interpreter was dismissed solely
because of economics and that without the second interpreter, counsel was
unable to communicate with Selalla.

12. The trial transcript does not indicate that any Spanish speaking witness
testified, which would require the assistance of an interpreter for the court,
counsel, or the jury.

-34-
#24137

I am going to allow the interpreter to remain there at the
defense table and she can interpret [the prosecutor’s] question,
which she would be doing anyway, and can interpret the answer
in Spanish for the court. The defendant will be able to
understand the answer himself anyway because he speaks the
same language as the witness. . . .

[The interpreter] should stay there at the defense table and if
the defendant has any question to ask counsel, then he can just
let us know and we’ll interrupt the questions and answers being
given so that he can communicate freely and thoroughly with his
attorney.

Id. at 422, 958 P2d at 340. Gonzales-Morales concluded that there was no

constitutional violation in light of the case law and this protective procedure. The

court did so even though it was “mindful of the serious constitutional dimensions

surrounding a non-English speaking criminal defendant’s right to have meaningful

access to counsel.” Id. at 428, 958 P2d at 343.

[¶64.] In Selalla’s case, the trial court employed the same protective

procedure even though this interpreter was not borrowed to simultaneously

interpret for the defense and for the court. The court informed Selalla and counsel:

[T]here is only one person in the courtroom [Selalla] who needed
an interpreter, and if at any point during the trial you feel
inhibited, in any way whatsoever, I will work with you and take
a recess. . . . We have interpreters so that as the witnesses are
testifying, your client will be interpreted to and if you need to
visit with your client, just state that to me because you can’t
listen to the witnesses, and your client can’t listen to the
witnesses while talking. If you need to visit, just state that to
me and I’ll be glad to stop the testimony and give you an
opportunity to do that.

Under the overwhelming weight of authority, this procedure sufficiently protected

Selalla’s constitutional rights to confrontation, counsel, and due process even if the

trial court had borrowed his interpreter. See Gonzales-Morales and its collected

-35-
#24137

authorities, 91 WashApp at 428, 958 P2d at 343 (citing six federal and four state

court decisions affirming use of a single interpreter over claims of entitlement to

two interpreters as long as an opportunity for recess and consultation were

provided).

[¶65.] Nevertheless, Selalla’s trial and appellate counsel have asserted that a

non-English speaking defendant is entitled to two interpreters as a matter of law:

one to interpret for the defendant and one to facilitate communication between the

defendant and counsel. With the possible exception of two cases that are not

relevant here, this asserted right to two interpreters is not supported by any case

cited by Selalla or the dissent. It is also unsupported generally. See infra ¶67.

Because Selalla’s interpreter was not borrowed or commandeered, and because

Selalla made no factual showing of need for two interpreters, it is my view that the

trial court did not abuse its discretion in limiting Selalla to one publicly financed

interpreter.

[¶66.] I also disagree with the dissent’s premise that Selalla’s level of

understanding the English language is “irrelevant in the context of this case and

should be no part of our analysis.” Infra ¶74. On the contrary, the right to an

interpreter does not simply hinge on a request: it is dependent upon a showing of

an actual language disability. United States v. Arthurs, 73 F3d 444, 447 (1stCir

1996). Although many of the federal cases have been decided in the context of the

federal statutory right to an interpreter, the point at which the need arises is the

same.

Yet how high must the language barrier rise before a defendant
has a right to an interpreter? It is well settled that there is no

-36-
#24137

right to an interpreter if the foreign-born defendant speaks
fluent English and is “completely aware of all the proceedings”.
Cervantes v. Cox, 350 F2d 855 (10thCir 1965). The status of the
right becomes less certain, however, where, as in the present
case, the defendant has some ability to understand and
communicate, but clearly has difficulty.

Because the determination is likely to hinge upon various
factors, including the complexity of the issues and testimony
presented during trial and the language ability of the
defendant’s counsel, considerations of judicial economy would
dictate that the trial court, coming into direct contact with the
defendant, be granted wide discretion in determining whether
an interpreter is necessary. See Perovich v. United States, 205
US 86, 91, 27 SCt 456, 51 LEd 722 (1907); United States v.
Barrios, 457 F2d 680 (9thCir 1972); United States v. Sosa, 379
F2d 525, 527 (7thCir 1967), cert. denied, 389 US 845, 88 SCt 94,
19 LEd2d 111 (1967). It would be a fruitless and frustrating
exercise for the appellate court to have to infer language
difficulty from every faltering, repetitious bit of testimony in the
record. But precisely because the trial court is entrusted with
discretion, it should make unmistakably clear to a defendant
who may have a language difficulty that he has a right to a
court-appointed interpreter if the court determines that one is
needed, and, whenever put on notice that there may be some
significant language difficulty, the court should make such a
determination of need.

United States v. Carrion, 488 F2d 12, 14-15 (CA 1973) (emphasis added).

Ultimately:

[b]ecause the determination is likely to hinge upon various
factors, including the complexity of the issues and testimony
presented during trial and the language ability of the
defendant’s counsel, considerations of judicial economy would
dictate that the trial court, coming into direct contact with the
defendant, be granted wide discretion in determining whether
an interpreter is necessary.

Id. (citing Perovich, 205 US at 91, 27 SCt 456, 51 LEd 722; Barrios, 457 F2d 680;

Sosa, 379 F2d 525, 527).

-37-
#24137

[¶67.] In today’s case, there is no dispute that Selalla needed some level of

interpretive services, and one publicly financed interpreter was provided. There is

also no dispute that trial counsel did not put the court on notice that Selalla was

having any language difficulty that required two interpreters. 13 Because Selalla

did not make any showing of need, his appellate argument is in essence that

interpretation of witnesses and communication with counsel requires two

interpreters as a matter of law. As was previously mentioned, however, the

overwhelming consensus of authority does not support that claim. See Gonzales-

Morales, 91 WashApp at 428, 958 P2d at 343 (collecting cases). See also Carrion,

488 F2d at 15 (noting that the court must be put on notice of some significant

language difficulty, and that protective procedures are sufficient to satisfy

constitutional requirements).

13. The dissent suggests defense counsel should not have to justify why it was
necessary to have a personal interpreter for his client. Infra ¶75. That is
not, however, the issue. The issue in this case is the need for two
interpreters, and as is explained in ¶66, supra, the court must be put on
notice of that alleged need. Therefore, if there was an actual (as opposed to
hypothetical) need for two interpreters in this case, trial counsel had an
obligation to make that showing.

The dissent excuses the absence of a showing suggesting that the trial judge
made his decision before defense counsel had an opportunity to make a
showing. Infra ¶73 (stating that defense counsel was allowed by the judge to
make a record after the judge announced his decision). The record, however,
reflects that the issue was argued in chambers, out of the presence of the
jury, off the record, and following that discussion, the judge went on the
record allowing counsel to make a showing. If an actual need had been
demonstrated in the off-the-record discussion, it was counsel's obligation to
replicate that showing on the record. Counsel failed to do so, and without an
adequate showing, two interpreters cannot be justified.

-38-
#24137

[¶68.] In summary, Selalla failed to make any showing that his interpreter

was borrowed by the court. Even if his interpreter was borrowed at any point in the

trial, the court employed the appropriate protective procedure. Moreover, Selalla

did not show that the trial court’s ruling rendered him unable to understand the

proceedings, unable to communicate with counsel, unable to assist in his defense, or

unable to cross-examine the witnesses. Finally, Selalla has failed to show that a

defendant in his circumstances has a legal right to two interpreters. Therefore, his

claim fails both factually and as a matter of law.

Structural Error not Applicable and Plain Error not Established

[¶69.] I finally disagree with the dissent’s assertion that the failure to

interpret the preliminary jury instructions at the time they were first read to the

jury resulted in structural error. See infra ¶81. As previously noted, these

questions involving interpreters are fact sensitive, discretionary matters for the

trial court. Supra ¶66; United States v. Khehra, 396 F3d 1027, 1030 (8thCir 2005);

Luna v. Black, 772 F2d 448, 451 (8thCir 1985) (citing United States v. Carrion, 488

F2d at 14-15); State v. Hernandez, 820 P2d 380, 382 (IdahoApp 1991). Because

these decisions are discretionary and involve complex factual situations that differ

in every trial setting, structural error analysis is ill-fitted to appellate review.

[¶70.] Indeed, rather than applying structural error analysis, this issue is

reviewed for plain error, which requires a showing of prejudice. See United States

ex rel. Negron v. State of New York, 310 FSupp 1304, 1308 (DCNY 1970) (applying

prejudice/harmless error analysis to the alleged deprivation of the right to an

interpreter); Arthurs, 73 F3d at 447 (concluding that in applying plain error

-39-
#24137

analysis: “From what we can ascertain, we cannot say that his language problems

were of such a magnitude as to have deprived him of a fair trial.”) (citing United

States v. Olano, 507 US 725, 736-37, 113 SCt 1770, 1779, 123 LEd2d 508 (1993));

United States v. Taylor, 54 F3d 967, 972-73 (1stCir 1995) (discussing “raise-or-

waive” rule and exception for plain error); State v. Saldana, 310 Minn 249, 252, 246

NW2d 37, 39 (“The test . . . is whether the failure to appoint an interpreter

hampered the accused in the presentation of his defense.”); State v. Perez, 404

NW2d 834, 838 (MinnApp 1987) (citing test in Saldana). Plain error analysis is

more appropriate in this type of case because:

[t]he absence of an objection on this ground left the district court
without notice of any claim that language difficulties bothered
defendant to the extent now claimed on appeal. Had the court
been so notified, it could have made further inquiry and, if
necessary, taken steps to deal with the alleged problem. We
cannot say, on the basis of the record now before us, that the
court committed any error, much less one that “seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.”

Arthurs, supra, 73 F3d at 447 (citing United States v. Olano, 507 US 725, 736, 113

SCt 1770, 1779, 123 LEd2d 508).

[¶71.] Selalla cannot, however, establish plain error because he makes no

showing of prejudice; i.e., that he was denied the interpretive services necessary to

understand and effectively use the pretrial instructions. He simply asserts error as

a matter of law. 14 Under these circumstances, where there has been no showing of

14. The dissent suggests that “hearing and understanding the preliminary
instructions would have assisted the defendant in alerting his counsel to
matters that could have assisted him in establishing reasonable doubt.”
(continued . . .)
-40-
#24137

an actual denial of effective or meaningful participation in the trial, plain error is

not established, and Selalla waived the right to object to this issue. See Gonzalez v.

People of Virgin Islands, 109 F2d 215, 217 (3rdCir 1940); People v. Ramos, 26 NY2d

272, 274, 258 NE2d 197, 198, 309 NYS2d 906, 908 (NY 1970).

[¶72.] The dissent’s reliance on State v. Calderon, 270 Kan 241, 13 P3d 871

(Kan 2000) is misplaced. In that case, without consulting counsel or stating a

reason, the trial judge instructed the interpreter to not interpret the closing

arguments. 270 Kan at 246, 13 P3d at 875. At that point in the trial, the court's

decision effectively denied the defendant of any meaningful opportunity to

participate in closing argument. Thus, Calderon involved the complete denial of

interpretation in a critical part of the trial, and therefore, that court

understandably applied structural error analysis. In this case, however, the

question only involves the impact that a delay in interpretation of preliminary

instructions may have had, and there was no showing that any delay at this

preliminary stage denied Selalla the opportunity to participate in the trial or

communicate with counsel. Because Selalla’s claims are factual in nature, Calderon

does not support structural error analysis.

________________________
(. . . continued)
Infra ¶84. There is, however, no evidence to suggest that this contingency
occurred.

The dissent also emphasizes that the failure to orally read jury instructions
is reversible error. Infra ¶84, n22 (citing State v. Nelson, 1998 SD 124, ¶20,
587 NW2d 439, 447). The dissent fails to note that Nelson only applied this
rule to the final jury instructions. Nelson expressly acknowledges the statute
providing that preliminary instructions need not even be given: it is a matter
(continued . . .)

-41-
#24137

KONENKAMP, Justice (dissenting).

I.

[¶73.] When non-English speaking people bring their own interpreters to

court to assist them in communicating with their lawyers and comprehending the

proceedings, can judges commandeer those interpreters to work for the court in

interpreting testimony? That is the question we face here. Defense counsel thought

it important enough to have a personal interpreter for his client during trial that he

hired one specifically to assist in interpreting all communications between himself

and his client. When counsel and client arrived in the courtroom, however, the trial

judge, citing economics, appropriated the defense interpreter to work for the court.

Upon being allowed by the judge to make a record after the judge announced his

decision, defense counsel told the court that he needed the interpreter he hired “to

have a way of speaking with my client during the trial.” He explained: “the

separate [interpreter] is here, more as a personal interpreter, so my client and I can

communicate because otherwise we can’t.” Nonetheless, the court dismissed its

interpreter and forced the defense to provide its retained interpreter for client

communication and witness interpretation. 15

________________________
(. . . continued)
of discretion. Nelson, 1998 SD 124, ¶9, 57 NW2d at 443-44 (citing SDCL 15-
6-51(a)).

15. As defense counsel on appeal explains it, “The trial court sent away the
court’s interpreter, who would have been paid by state funds, and declared
that the interpreter defense counsel had retained [and paid with county
public defender funds] would [interpret] the proceedings.”

-42-
#24137

[¶74.] At the outset, it must be noted, this is not a case where the defendant’s

need for an interpreter can be questioned. Obviously, the trial judge believed the

defendant needed an interpreter because he originally arranged for a court

interpreter and then “borrowed” the defendant’s interpreter for the trial. This

Court’s comment in its opinion that the defendant knew some conversational

English is irrelevant in the context of this case and should be no part of our

analysis. As any first-year law student can attest, the language of the law is an

alien tongue to those untrained in its obscurities. 16 It is unreasonable to imply that

someone who knows some English would be able to make any sense of, much less

fully understand, all the legal colloquies and language subtleties in the hurly burly

atmosphere of a criminal trial. 17

[¶75.] This is not a case where defense counsel asked the court to “appoint” a

personal interpreter in addition to a trial interpreter. If he had, a showing of

16. The trial court took for granted there was a language disability. Indeed, it
never required a hearing on the necessity for an interpreter. In their
appellate briefs, both the defense and the State agree that the defendant was
“not fluent” in English. At trial, defense counsel made it clear to the trial
court that his client did not “speak English fluently.” Since the trial judge
was face-to-face with the defendant and accepted the need for an interpreter,
how can we hedge on that now?

17. A non-English-speaking person is “any principal party in interest or witness
participating in a legal proceeding who has limited ability to speak or
understand the English language.” Model Court Interpreter Act § 2B (1995).
“Although the term ‘translate’ is frequently used interchangeably with or
instead of ‘interpret,’ the activities are distinct and require different skills.
Interpreting is oral rendering of one spoken language into another, while
translation is the rendering of a written document from one language into a
written document in another language. The Model Act recognizes that court
interpreters will be required to perform sight translations, which involves
reading and orally translating a written document.” Id. at endnote 4.

-43-
#24137

necessity for two court-appointed interpreters at public expense would have been

required. See Martinez Chavez v. State, 534 NE2d 731, 737 (Ind 1989). But here,

when defense counsel hired a personal interpreter under the public defender’s

funds, why should counsel have to justify why it was necessary to have such an

interpreter for a client? It bears stressing: defense counsel’s interpreter was hired

under the public defender’s separate budget, not the court’s budget.

[¶76.] Effective assistance of counsel “contemplates open communication

unencumbered by unnecessary impediments to the exchange of information and

advice.” Frazer v. United States, 18 F3d 778, 782 (9thCir 1994) (citation omitted).

It should make no difference in our analysis whether the interpreter was hired by

private defense counsel or, as here, hired by the public defender, under the public

defender’s budget. Criminal defendants have the constitutional right to confront

and cross-examine witnesses against them. The rights to confront and cross-

examine would be pointless if the accused could not understand the testimony. See

Commonwealth v. Robichaud, 264 NE2d 374, 376 (Mass 1970) (citation omitted)

(discussing a defendant’s right to be present at every stage of the trial). Courts,

therefore, have a constitutional obligation to provide interpreters for those accused

who do not sufficiently understand the English language. See, e.g., United States v.

Carrion, 488 F2d 12, 14 (1stCir 1973) (per curiam), cert. denied, 416 US 907, 94 SCt

1613, 40 LEd2d 112 (1974). That obligation does not fall on the accused. If counsel

hires a personal interpreter for a client, a court should not be able to confiscate that

interpreter to act for the court.

-44-
#24137

[¶77.] This case illustrates what may become a continuing problem in our

courts if we fail to allow necessary safeguards for the protection of non-English

speaking people. It would behoove us now to deal with this type of maneuvering

lest it result in more deprivations of constitutional rights in the future. As the

State concedes, this is a matter of first impression for South Dakota. We have

never had a decision explaining the nature and scope of a non-English speaking

criminal defendant’s right to an interpreter.

[¶78.] Unfortunately, South Dakota has no uniform standards for the

regulation, qualification, and appointment of courtroom interpreters. 18 There

certainly is a need. Census figures for the year 2000 indicate a rising number of

South Dakota residents likely have limited English proficiency. All our more

populous circuits have experienced increased usage of language interpreters. But

the problem is more acute in Minnehaha County, where this trial occurred. In the

1990 census, 960 Minnehaha County residents reported that they spoke only

Spanish at home. Ten years later, in 2000, 3,136 residents indicated that the only

language spoken in their homes was Spanish. More significantly, over half the

18. The only statute dealing with appointment of interpreters for those who do
not speak or understand English is SDCL 23A-22-11 (Rule 28): “A court may
appoint an interpreter or translator of its own selection and may set
reasonable compensation for him.” But there are few safeguards: “At least
thirty-three states presently have statutes expressly extending privilege to
interpreters if the communication is covered by attorney-client privilege.”
Charles M. Grabau and Llewellyn Joseph Gibbons, Protecting the Rights of
Linguistic Minorities: Challenges to Court Interpretation, 30 NewEngLRev
227, 270 (Winter 1996) (citation omitted). South Dakota has no such
statutory protection in spoken language interpretation. The privilege
extended by our statutes is only for sign language interpreters and relay
service operators for the hearing impaired. SDCL 19-13-31.

-45-
#24137

Spanish speaking residents in Minnehaha County reported that they spoke English

less than “very well.” That was double the number of Spanish speaking people who

self-gauged their English proficiency in 1990. Similar percentages were reported by

Minnehaha County residents speaking Asian languages. Only slightly lesser

percentages were counted for residents speaking languages of Indo-European

origin. 19 Since 2000, undoubtedly, the number of non-English speaking people in

South Dakota has increased substantially.

[¶79.] Several courts have considered the question whether criminal

defendants have rights to personal interpreters, in addition to court interpreters.

Most have concluded that the appointment of “a separate interpreter is not

necessary, so long as the defendant can confer effectively with counsel throughout

the proceedings and understands the proceedings.” See Patricia Walther Griffin,

Beyond State v. Diaz: How to Interpret “Access to Justice” for Non-English Speaking

Defendants?, 5 DelLRev 131, 148 (2002) (citing cases). A number of other decisions

have labored with whether judges infringe on constitutional rights during trial

when they “borrow” interpreters appointed for non-English speaking defendants to

interpret the testimony of non-English speaking witnesses. See cases cited in State

v. Gonzales-Morales, 958 P2d 339, 341-42 (WashCtApp 1998). With proper

safeguards, these decisions have found no violation of the defendant’s Sixth

Amendment right to counsel. By offering a recess for counsel to consult with non-

English speaking clients, courts balance “confrontation and due process against the

19. Source: CensusScope, Census 2000 analyzed by the Social Science Data
Analysis Network (SSDAN).

-46-
#24137

public’s interest in the economical administration of criminal law.” United States v.

Bennett, 848 F2d 1134, 1141 (11thCir 1988) (quoting United States v. Martinez, 616

F2d 185, 188 (5thCir 1980), cert. denied, 450 US 994, 101 SCt 1694, 68 LEd2d 193

(1981)).

[¶80.] But, of course, all these cases dealt with requests for court-appointed

personal interpreters or the borrowing of court-appointed interpreters, not

interpreters specially retained by defense counsel, as in this case. 20 Courts should

have no right to seize personally retained interpreters for court use.

II.

[¶81.] Compounding its error, the trial court told the interpreter not to

interpret for the defendant its preliminary instructions as they were read for the

jury. The court said the instructions could be later interpreted for the defendant.

The record is void, however, on whether these preliminary instructions were ever

translated for the defendant into Spanish. The record is also silent on whether the

opening statements, final jury instructions, and closing arguments were interpreted

for the defendant. As this Court notes, the State concedes that the trial court erred

in not having the preliminary instructions contemporaneously interpreted for the

defendant. But the Court disposes of the issue by concluding that the defendant

failed to show prejudice. Such a conclusion might be correct if we used a plain error

analysis. Here the error was more serious: it was a structural error. A “structural”

20. This is not an argument for the “right” to two interpreters. No, but when
defense counsel retains a separate interpreter for a client, a trial judge
should not be able to dismiss the court’s interpreter, who it is obligated to
provide, and then appropriate defense counsel’s retained interpreter.

-47-
#24137

error is a “defect affecting the framework within which the trial proceeds, rather

than simply an error in the trial process itself.” Arizona v. Fulminante, 499 US

279, 310, 111 SCt 1246, 1265, 113 LEd2d 302 (1991). When a structural error

occurs it is not subject to harmless error analysis based on proof of prejudice.

Structural errors are presumptively prejudicial. State v. Lamere, 112 P3d 1005,

1013 (Mont 2005).

[¶82.] The Confrontation Clause of the Sixth Amendment and the Due

Process Clause of the Fourteenth Amendment require a defendant’s presence at

every critical stage of a trial. Kost v. State, 344 NW2d 83, 84 (SD 1984) (citations

omitted). Article VI, sec. 7 of the South Dakota Constitution provides: “In all

criminal prosecutions, the accused shall have the right to defend in person and by

counsel. . . .” And SDCL 23A-39-1 states that “[a] defendant shall be present . . . at

every stage of his trial. . . .” When criminal trial proceedings are not interpreted for

a non-English speaking defendant, that defendant is effectively absent from the

trial. This constitutes a structural error.

[¶83.] The Kansas Supreme Court dealt with a similar question in ruling

that failure to interpret closing arguments was reversible error. There, the court

wrote that “[t]he right to be present at one’s criminal trial is a fundamental right.”

State v. Calderon, 13 P3d 871, 879 (Kan 2000). Such fundamental “right to be

present includes a right to have trial proceedings translated into a language that

[the defendant] understands so that he or she can participate effectively in his or

her own defense.” Id. at 879. Because the defendant’s attorney did not object to the

trial court’s failure to provide an interpreter during closing arguments, the court

-48-
#24137

examined whether it should apply the stringent plain error standard. It ruled that

it should not apply. Id. at 875-79. It concluded that

the trial court denied Calderon a meaningful presence during
closing argument, an error which implicates the basic
consideration of fairness. Under these circumstances, this court
is not permitted to determine that it was harmless beyond a
reasonable doubt even though the error might have had little, if
any, likelihood of having changed the result of the trial.

Id. at 879.

[¶84.] Here, as in Calderon, the defendant was denied “a meaningful

presence at a critical stage of his trial.” See id. at 879. This was no case of mere

“delay” in the interpretation of the court’s instructions. After the judge instructed

the interpreter not to simultaneously interpret his instructions but to do it later,

the record is barren of any indication that these instructions were ever interpreted

for the defendant. Although we presume a court acted properly where there is a

silent record, the presumption in favor of regularity at trial must give way when

irregularity is clearly shown. See People v. Rodriquez, 213 CalApp2d 555, 560

(CalCtApp 1963). As the Kansas court noted, perhaps a failure to interpret closing

arguments would be unlikely to change the outcome. After all, the evidence was in.

Nonetheless, the court felt compelled to reverse. In our case, hearing and

understanding the preliminary instructions and the opening statements in his own

language would have assisted the defendant in alerting his counsel to matters that

could have assisted him in establishing reasonable doubt. 21 How can a non-English

21. It must be remembered that we have previously held that failure to orally
read jury instructions is reversible error. See State v. Nelson, 1998 SD 124,
¶20, 587 NW2d 439, 447.

-49-
#24137

speaking defendant meaningfully participate in a trial if the defendant cannot

understand the court’s legal directions that will ultimately help to decide guilt or

innocence?

[¶85.] Even the Attorney General’s appellate brief concedes that “the State is

uncomfortable with the manner in which the trial court dealt with the appointment

and use of an interpreter. . . .” We should be more than uncomfortable. By

upholding the improper procedure in this case, this Court perpetuates unfair and

unconstitutional treatment of non-English speaking people.

-50-