State of Missouri v. Harry J. William , 505 S.W.3d 344 ( 2016 )

MISSOURI COURT OF APPEALS
WESTERN DISTRICT
STATE OF MISSOURI, )
) WD78202
Respondent, )
v. ) OPINION FILED:
)
HARRY J. WILLIAM, ) November 8, 2016
)
Appellant. )
Appeal from the Circuit Court of Clay County, Missouri
Honorable Shane Terril Alexander, Judge
Before Division One: Thomas H. Newton, P.J.,
Cynthia L. Martin, and Edward R. Ardini, Jr., JJ.
Mr. Harry J. William appeals his conviction in Clay County Circuit Court
following a jury trial for first-degree statutory rape, § 566.032, 1 for which he was
sentenced to eighteen years in the Department of Corrections. He argues that the circuit
court abused its discretion in denying his request for an interpreter and in denying his
motion to dismiss when an interpreter could not be found due to the rarity of his native
language. Comparing the lack of an interpreter to other structural trial defects, suc h as
the absence of counsel or a biased court, he claims that his constitutional rights of due
process, equal protection, meaningful participation in trial, and counsel were violated.
We affirm.
1
Statutory references are to RSMo (2000), as supplemented through March 2012, unless otherwise
indicated.
1
The State charged Mr. William with first-degree statutory rape in March 2012
for an incident that allegedly occurred in Clay County, Missouri, involving a child
younger than age 14 between May and June 2010. 2 Mr. William grew up on a small
Micronesian island where fewer than 2,000 people, including Mr. William, s peak
Pingelapese, an oral language that is neither taught in schools nor used to conduct
official government business. 3 Mr. William filed a motion seeking an interpreter for
the Pingelapese language in December 2011. The court granted the motion, and a
Micronesian interpreter was appointed and served from December 2011 until April
2013. This individual was sworn in and was present during four pre-trial hearings in
2012. A nun, Sister Agnes, who speaks Pohnpeian, a Micronesian language with some
Pingelapese overlaps, was sworn in to interpret for Mr. William during four hearings
in early 2013. In April 2013, Mr. William filed an application for the appointment of
a male defense interpreter who could speak Pingelapese. The court granted the motion.
Between March 2012, when Mr. William was arraigned, and September 2014,
when his trial began, the court conducted thirty-three hearings, during just eight of
which an interpreter was sworn in. 4 Mr. William does not contend that his rights were
violated due to the absence of an interpreter during these pre -trial hearings at which he
was always represented by counsel. During only one of these hearings—the March
2012 arraignment—Mr. William stated on the record that he could not understand what
the court had said. During a hearing in October 2012 at which a motion for continuance
2
We view the facts in the light most favorable to the verdict. State v. Buckler, 350 S.W.3d 848, 850
(Mo. App. W.D. 2011).
3
The official and common language of Micronesia is English.
4
Appendix A contains a complete list of the hearings, noting at which ones an interpreter appeared and
what occurred.
2
was addressed, Mr. William stated that he was able to understand what the court and
counsel had been talking about. During an April 2013 hearing that similarly concerned
a motion for continuance, Mr. William agreed that he was able to communicate with
counsel in English and could understand what was being said during that hearing.
The State filed a motion in August 2013 for a qualified court interpreter or the
waiver of a qualified interpreter. Mr. William refused to waive the appointment of a
qualified interpreter for trial and expressed via counsel his dissatisfaction with Sister
Agnes who spoke a dialect he claimed he did not always understand and was not trained
to interpret during court proceedings. The court granted his request for a continuance
and removed the case from the trial docket so efforts to locate a Pingelapese interpreter
could continue.
The State filed a motion in March 2014 regarding the use of an interpreter,
seeking to make a record given the parties’ inability to locate a suitable interpreter and
the possiblity that Mr. William had a sufficient grasp of the English language that an
interpreter might not be required. During a hearing on the motion, the police detective
who questioned Mr. William in 2011 as part of the investigation, Mr. William’s brother,
who is the alleged victim’s stepfather, and Mr. William’s sister-in-law, the alleged
victim’s mother, testified for the State.
Detective Matt Brantner testified that he spoke with Mr. William for about an
hour after giving him Miranda warnings. Mr. William had written the word “yes” on a
document that asked if he could read and write English. While the detective
acknowledged that he sometimes had difficulty understanding Mr. William due to his
heavy accent and had to repeat certain words in English or find other words for Mr.
3
William to understand what he was saying, he agreed that Mr. William did not “have
any trouble understanding English or speaking English.” Mr. Mike William testified
that he did not grow up with his brother, who had remained on Pingelap, while he was
raised on Pohnpei. Mr. Mike William indicated, however, that Pingelapese was the
language spoken in the home or among friends, and that English was spoken and taught
in the schools, particularly on Guam, where the Defendant had spent at least one year
while growing up. He also testified that the Defendant had come to the United States
in 1996, or eighteen years earlier. 5 Ms. Cecelia William testified that she had met the
Defendant in 2005 when both of them were working in a nursing home as certified
nursing assistants. 6 According to Ms. William, who does not speak Pingelapese, the
Defendant spoke English with her and her children, including the victim, and at work.
She agreed that Mr. William could speak English and that he could communicate with
her. The State introduced the police interview video, emphasizing that it was conducted
entirely in English.
Addressing the State’s motion in April 2014, the court opined that Mr. William’s
command of the English language was likely sufficient for trial, but indicated a
5
Mr. William was born in June 1978, which means that he was about 18 years old when he came to the
United States. Without any evidence indicating that he had lived anywhere else between 1996 and
when this hearing took place in March 2014, we can infer that he had spent approximately half his life
in Micronesia and half in the United States.
6
While the State made no effort to show what qualifications Mr. William would need to be employed
in a nursing home as a certified nursing assistant, we would note that section 198.082 imposes some
training requirements on such individuals, including a formal prog ram teaching “basic nursing skills,
clinical practice, resident safety and rights, the social and psychological problems of residents, and the
methods of handling and caring for mentally confused residents such as those with Alzheimer’s disease
and related disorders.” § 198.082.3(1). Under the Missouri Code of State Regulations, nursing
assistants are required to complete a basic course consisting of 75 hours of classroom training, 100
hours of on-the-job training, and a final examination. M O . C ODE R EGS . A NN ., tit. 19, § 30.84.010(1)(A)
(2001).
4
willingness to give him more time to locate a Pingelapese interpreter. 7 Mr. William’s
counsel stated during this hearing that the responses given during the police interview
were monosyllabic and argued that “[t]here is a difference between b eing able to
understand a little bit of English that’s going on around him and being able to articulate
his own thoughts in that second language.” Eight pre-trial hearings occurred after this
one, and four of them were devoted to a discussion about whethe r an interpreter could
be found for Mr. William’s trial. During a May 2014 pre-trial hearing, defense counsel
conceded that it would be impossible to locate a Pingelapese interpreter; he indicated
to the circuit court that he had agreed with the State that the case should be set for trial
and placed back on the schedule.
On the first day of trial (September 22, 2014), Mr. William made a motion to
dismiss the charge “based upon the interpeter problem.” He claimed that his
7
In this regard, the court stated,
Well, as I indicated in chambers, after the hearing on the State’s motion the Court has
been leaning strongly toward granting it out of a belief that there simply wasn’t the
possibility of obtaining a certified interpreter, and I think everyone has perhaps reached
that conclusion.
It’s the Court’s opinion that if all else fails, the defendant’s command of
English is, would be sufficient in order for the jury trial to take place. That said, I
think that the defendant should be granted the opportunity to investigate the possibility
of finding a qualified Pingelapese interpreter, the challenge always being here that this
is a very rare language, especially in this area of the country, that this is a language
that is only spoken, and there just aren’t, for lack of a better term, there just aren’t that
many people around here that speak it.
I think everyone involved in the case has spent a lot of time searching and
trying to find a certified interpreter. I want to say I sincerely appreciate the efforts
expended by the State and by the defense to find one. At some point in time we just
have to accept the fact that there is not one and proceed.
As I said, though, now that the defendant is dropping his objection to anything
but an officially certified Pingelapese interpreter and is asking for time to instead try
to find someone qualified to act as an interpreter. I think that is a reasonable request.
Out of an abundance of caution we should allow the defendant to explore that one last
avenue.
5
constitutional rights of due process and equal protection, to confront witnesses and
meaningfully participate, and to counsel would be violated if the charge were not
dismissed. Defense counsel conceded that Mr. William could “get by” as a non -English
speaker “for everyday uses,” but further stated, “I do not believe he adequately
understands the legal ins and outs of his predicament. I’m concerned also that under
the unique circumstances, even judicial inquiry into this defendant’s understanding
cannot remedy the situation.”
The trial judge, who had presided over every hearing since the charges had been
filed and had had the opportunity to observe the Defendant, ruled that Mr. William’s
understanding of English was “sufficient for Constitutional purposes for him to be able
to understand the proceedings against him and participate in his own defense such that
no interpreter is necessary in order to protect his constitutional rights.” Thereafter,
when discussing plea offers that had been made and not accepted, defense counsel
pointed out that the State had offered a non-sex misdemeanor with credit for time
served, which Mr. William had not accepted. Asked by the court about the plea offers,
Mr. William agreed that he had rejected them and had been given sufficient time to
consider them.
During the colloquy about Mr. William’s decision not to testify at trial, Mr.
William indicated that he had not had enough time to think about whether he would
testify, but when questioned further and informed by the court that the jury would be
instructed that no adverse inference could be drawn from his silence, he indicated that
he did not want to testify, stating, “Well, I think I’m going to not testify.”
6
Mr. William filed a motion for judgment of acquittal at the close of the State’s
evidence and, in arguing it, renewed his objection to the lack of an interpreter. The
court denied the motion. Mr. William did not present any evidence. A jury convicted
Mr. William of first-degree statutory rape and recommended an eighteen-year sentence,
which the court imposed after denying his motion for judgment of acquittal or new
trial.
Regarding that motion, defense counsel argued again that his client’s rights were
violated because he was a non-English speaker. 8 The court reiterated that it remained
convinced that Mr. William’s grasp of the English language was sufficient for the trial
to proceed and that he had understood the offers but rejected them.
After sentencing, the court questioned Mr. William about the representation his
attorney had provided and whether he understood his post-trial rights. Among other
matters, Mr. William stated during this colloquy, “[W]hen I first got here I asked for a
speedy trial, but as we stuck on that translator, [defense counsel] came back and he
said, well, we cannot do that because we cannot locate a translator.” When asked if he
had been satisfed with the search for an interpreter, Mr. William stated, “I’m okay with
8
In this regard, counsel stated,
I would emphasize that the problem with the language, I believe, created an inhibition
on the part of my client to testify in his own behalf, and that’s understandable. While
a person may understand enough English to have conversation in private with his
attorney where things can be repeated and rephrased and with a lot of time, that’s a
much different setting than one in which he is going in front of an audience but, even
more critically, being cross examined by people who are professionally trained to
question others in that context. And so I think that language problem is a barrier in
particular when it came to his decision to not testify on his own b ehalf.
The other thing is perhaps as an evidence that he may not have understood the
situation, we went on the record and indicated what the last plea offer was, and it was
to a misdemeanor with sexual language taken out of it and an offer of credit for time
served, which he had already far exceeded the maximum range of sentence on an A
misdemeanor, and he refused to accept that offer. I’m not sure that he understood it.
7
it, but at the end it’s not, it’s not fair to me to sit in the courtroom when I don’t
understand what’s going on.” He also spontaneously asked if he could appeal the case.
Mr. William timely filed this appeal.
Legal Analysis
Mr. William raises a single point on appeal, that is, whether the circuit court
abused its discretion and violated his constitutional rights in denying his motions for a
Pingelapese interpreter and overruling his motion to dismiss when an interpreter could
not be found. Because the record does not support his claim that the circuit court
denied his request for an interpreter, we will address only whether the court erred in
overruling his motion to dismiss, an issue preserved before and during trial and in Mr.
William’s motion for judgment of acquittal or in the alternative for new trial. 9
A circuit court’s denial of a motion for new trial is reviewed for abuse of
discretion, and we will reverse only where “its ruling is clearly against the logic of the
existing circumstances and is so arbitrary and unreasonable as to shock the sense of
justice and indicate a lack of careful consideration.” State v. Rios, 314 S.W.3d 414,
418 (Mo. App. W.D. 2010). We review the denial of a motion for judgment of acquittal
by viewing “the evidence in the light most favorable to the verdict and disregard[ing]
all contrary evidence and inferences.” State v. Buckler, 350 S.W.3d 848, 850 (Mo. App.
W.D. 2011). To the extent that the appellant argues “that his conviction was barred by
law, the legal issue is reviewed de novo.” Id.
9
As indicated above, the court actually twice granted Mr. William’s applications fo r the appointment
of a Pingelapese interpreter.
8
The Legislature adopted section 476.803 in 2004; it states, “[t]he co urts shall
appoint qualified interpreters and translators in all legal proceedings in which the non -
English speaking person is a party or a witness.” § 476.803.1. Section 476.800(3)
defines a “non-English speaking person,” in part, as “any person involve d in a legal
proceeding who cannot readily speak or understand the English language.” 10 Before
these provisions were enacted, the only statutory reference to interpreters was in
section 476.060, which remains in effect. Dating back at least to 1825, this section
states, “The courts may, from time to time, appoint interpreters and translators to
interpret the testimony of witnesses, and to translate any writing necessary to be
translated in such court, or any cause therein.” R.S. 1825 p. 274 § 17. In case s applying
section 476.060, our trial courts have been accorded discretion to decide whether an
interpreter was needed. See, e.g., State v. Aguelera, 33 S.W.2d 901, 904 (Mo. 1930);
State v. McGinnis, 59 S.W. 83, 86-87 (Mo. 1900); see also Stanley v. State, No.
ED102812, slip op. at 6 (Mo. App. E.D. May 24, 2016) (observing that a language
barrier denies a defendant “the right to be present at his own trial, which right stems
from the constitutional commands of due process and from the Sixth Amendment’s
guarantees of the right to confront and cross-examine adverse witnesses,” court finds
that record refuted defendant’s post-conviction, ineffective-assistance “claim that the
motion court’s determination that he was capable of communicating with his lawyer
and understanding the proceedings against him was clearly arbitrary, unwarranted, or
erroneous”).
10
The parties have not cited and we have been unable to locate any Missouri cases applying these
sections.
9
We believe that because the definition of a non-English speaking person requires
a determination that the individual “cannot readily speak or understand the English
language,” the circuit court has discretion to decide at the outset whether the individual
is a non-English speaking person and thus whether a qualified interpreter “shall” be
appointed in a particular legal proceeding. §§ 476.800(3), 476.803.1. Mr. William
suggests that the circuit court overruled his motion because an interpreter could not be
found, and while the court mentioned this difficulty, it specifically ruled that Mr.
William’s ability to speak and understand the English language was sufficient for
constitutional purposes and that no interpreter was necessary to protect his rights. 11
Accordingly, we will address this issue and analyze it as a matter of circuit court
discretion.
Mr. William proposes a number of factors that should be considered in
determining whether a non-English speaking defendant can “readily speak or
understand the English language” under section 476.800. Nowhere in the record does
it show that Mr. William asked the circuit court to adopt and apply these factors or that
he introduced evidence to demonstrate his inability to readily speak and understand
English on the basis of these factors, so we could simply decline to address them on
the basis of waiver. Even if we were to address the merits as a legal issue requiring de
novo review, we would decline the invitation because Mr. William’s factors go far
beyond the standards applied to any other defendant in a criminal proceeding. Among
11
The parties have not cited any case law, nor has this Court found any, addressing the effect on a
criminal defendant’s rights when a court cannot appoint an interpreter as requested, and one is needed
due to the defendant’s inability to speak English, because an interpreter speaking an extremely rare
dialect cannot be located. See cases collected at J ean F. Rydstrom, Right of Accused to Have Evidence
or Court Proceedings Interpreted, 36 A.L.R. 3d 276 (1971, as updated by cumulative supplement).
Because this was not the basis for the court’s decision and the parties have not argued it, we do not
further consider the matter.
10
other matters, Mr. William asks that court-certified interpreter requirements be applied
to non-English speaking defendants. These requirements include a grasp of a language
other than English sufficient to accurately translate proceedings; a “[n]ative or native -
like proficiency in all working languages”; “[k]nowledge and use of a broad range of
vocabulary, including legal terminology, subject-specific terminology, and slang”; and
a “[k]nowledge and use of cultural nuances, regional variations, idiomatic expressions,
and colloquialisms in all working languages.” 12 This level of rigor goes well beyond
the statutory requirement of readily understanding and speaking the English language ,
so we decline to adopt these factors and cannot conclude that the circuit court erred in
not applying them.
As well, courts in other jurisdictions have more persuasively applied the test for
mental capacity in determining whether a non-English speaking person was unable to
participate in his or her defense. See, e.g., Murillo v. State, 163 P.3d 238, 241 (Idaho
Ct. App. 2007) (stating that test used to decide whether a defendant has the mental
capacity to stand trial is “whether the defendant has sufficient present ability to consult
with his or her own lawyer with a reasonable degree of rational understanding and
whether the defendant has a rational, as well as factual, understanding of the
proceedings against him or her,” and applying test in the context of a non-English
speaking person) (citing U.S. v. Cirrincione, 780 F.2d 620, 633-34 (7th Cir. 1985)
(holding that due process requires that what is told to defendant is comprehensible,
translation’s accuracy and scope is not subject to grave doubt, nature of proceeding is
explained in a manner that ensures full comprehension, or credible claim of incapacity
12
During oral argument, counsel stated that a non -English speaking defendant should be able to pass
the same certification exam required of court -certified interpreters.
11
to understand due to language difficulty is not made); U.S. ex rel. Negrón v. N.Y., 434
F.2d 386, 389 (2d Cir. 1970) (in criminal case involving Spanis h-speaking defendant,
court discusses essence of the right to be present as defendant having a reasonable
degree of rational understanding and the ability to consult with counsel); Gonzalez v.
Phillips, 195 F. Supp. 2d 893, 902-03 (E.D. Mich. 2001) (in ruling counsel ineffective
for failing to request an interpreter for his client, court finds “little difference between
trying a mentally, incompetent defendant and trying a defendant who cannot understand
the proceedings against him because he does not understand the language”)). We can
thus distill the right accorded a defendant with certain limitations, including language,
as the ability to consult with counsel and to understand the proceedings against him or
her.
The other factors Mr. William proposes that circuit courts consider when
deciding whether a defendant can readily speak and understand English include the
complexity of the proceedings, issues, and testimony. His main focus is on the
circumstances in this case, which he characterizes as a “he-said/she-said case,” where
the weight of his “testimony would hinge upon every word he said. That adds to the
complexity of his testimony, the importance of his ability to understand questions asked
of him during testimony, and his ability to answer in the language in which he is best
able to express himself.” He also suggests that even the concept of statutory rape
“requires legal knowledge to understand.” Mr. William does not contend that the
circuit court did not fully consider these issues in making its decision about his English-
speaking ability, but he argues that applying them leads to the conclusion that he “did
not understand enough court-related English to be able to effectively participate in his
12
defense.” We disagree. We are unaware of any case law requiring that, for due process
purposes, a criminal defendant must understand “court-related English.” Nor has Mr.
William cited any.
Reviewing the circuit court’s discretionary determination that Mr. William
would not be denied his constitutional rights without the assistance of an interpreter at
trial, we can find no court error rising to a level that shocks the sense of justice or
indicates a lack of careful consideration. Mr. William had been in this country for some
eighteen years, or half of his life, when he was tried, and three witnesses indicated that
he spoke English on the job and communicated in English with them. Defense counsel
argued that, with just one exception—evidently when explaining the plea offers to Mr.
William—his client was able to communicate with counsel in English, albeit at a slower
pace than trial. Mr. William has not argued that he did not understand the charges or
the proceedings, and, in fact, when he spoke at any length, particularly during
sentencing, was clearly able to articulate his thoughts and concerns in English. The
circuit court, which had Mr. William before it through at least thirty -three pre-trial
hearings and took evidence on the question of his grasp of the English language, was
in the best position to form an opinion on whether, to the extent of being able to
communicate with counsel and understand the proceedings against him, he could
readily speak and understand English.
Mr. William also argues that the lack of an interpreter constituted a structur al
error under Arizona v. Fulminante, 499 U.S. 279, 311 (1991), and is not amenable to a
harmless-error analysis. No court has apparently yet stated unequivocally that
proceeding to trial without an interpreter constitutes a structural error, nor must we do
13
so, given our determination that the trial court did not abuse its discretion in proceeding
to trial after ruling that Mr. William readily spoke and understood English. Mr. William
further contends that he was prejudiced by the language barrier in that he chose not to
testify because, as his counsel stated, he was not confident of his ability to fully and
accurately express himself in English in reponse to questions. 13 He cites no case law
that supports his claim that his choice not to testify in his ow n defense for language
reasons compromised his constitutional rights. With any number of reasons that an
individual might not wish to testify, including a fear of public speaking, a speech
defect, or a significant stutter, we are unconvinced that an accen t or the need for extra
time to formulate a response are such liabilities that a due process violation necessarily
results from not accommodating them. This point is denied.
Conclusion
Because the circuit court did not abuse its discretion in ruling that Mr. William
readily spoke and understood the English language and thus the appointment of an
interpreter was not required to protect his constitutional rights, we affirm.
/s/THOMAS H. NEWTON
Thomas H. Newton, Judge
Martin, and Ardini, JJ. concur.
13
Mr. William did not address this issue before the trial court when engaging in a thorough colloquy
about his decision to forego testifying in his own defense.
14
Appendix A
No interpreter; PD indicates Pingelapese interpreter needed; re -arraignment
scheduled when defendant indicates in response to court query that he does not
understand what court is saying
March 22, 2012
Micronesian interpreter sworn in; continuances granted
April 5, 2012
April 19, 2012
May 24, 2012
June 28, 2012
No interpreter; defense claims unneeded for granting of continua nce; defendant
indicates ability to understand what is being said (Tr. 16-17)
October 5, 2012
Sister Agnes, Pohnpeian interpreter, sworn in; motions in limine heard involving
prior bad acts of defendant and victim, and Rape Shield law
January 9, 2013
February 1, 2013
April 5, 2013
No interpreter; motion filed for Pingelapese interpreter at trial; while Pohnpeian is
related language, not close enough for defendant to understand; defendant agrees that
he knows enough English to communicate with counsel and understood what
occurred during hearing (Tr. 57-58)
April 18, 2013
Pohnpeian interpreter sworn in; defendant indicates he can understand interpreter,
Sister Agnes; ready to set case for trial
May 2, 2013
No interpreter; motions for continuance; Sister no longer available
June 7, 2013
July 18, 2013
No interpreter; State asks for qualified court interpreter for trial and defendant
refuses to waive; defendant claims Pohnpeian is not adequate and he cannot always
understand Sister Agnes; defendant has been in custody for two years; court
acknowledges problems getting qualified interpreter (Tr. 72)
August 14, 2013
No interpreter; State and defense still looking; continuances granted
September 12, 2013
October 3, 2013
1
October 24, 2013
November 14, 2013
No interpreter; acknowledgement that certified interpreter probably unavailable;
Pingelapese is a rare dialect and not a written language; still looking for interpreter;
continuance granted
December 12, 2013
No interpreter; State and defense unsuccessful in locating one; continuances granted
January 16, 2014
January 30, 2014
February 20, 2014
March 6, 2014
No interpreter; State motion as to need for interpreter heard; Detective who spoke
with defendant, defendant’s brother, and victim’s mother testify as to def endant’s
apparent use and understanding of English
March 20, 2014
No interpreter; defendant drops request for court-certified interpreter of Pingelapese,
but seeks funding to locate and compensate qualified and competent interpreter; court
finds defendant’s understanding of English is probably good enough for trial but
allows more time to find Pingelapese interpreter
March 27, 2014
No interpreter; still looking for one; court rules on various motions and agrees to
continue trial
April 3, 2014
No interpreter; defense has a few leads; case continued
April 10, 2014
April 24, 2014
No interpreter; lack of success locating one, parties agree to get case back on trial
schedule (Tr. 142)
May 1, 2014
No interpreter; no talk about finding one; new trial dates
May 15, 2014
May 16, 2014
August 21, 2014
No interpreter; no talk about finding one; States seeks continuance; no objection
September 2, 2014
2
No interpreter; trial begins; defendant files motion to dismiss due to lack of
interpreter; court rules that interpreter not needed (Tr. 163)
September 22, 2014
No interpreter; court denies motion for new trial; defendant sentenced
December 5, 2014
3