State of Tennessee v. Sarioglo Serghei ( 2022 )

09/15/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 10, 2022 Session
STATE OF TENNESSEE v. SARIOGLO SERGHEI1
Appeal from the Criminal Court for Sumner County
No. 2020-CR-389 Dee David Gay, Judge
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No. M2021-00776-CCA-R3-CD
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Sarioglo Serghei, Defendant, was issued a citation alleging that he “failed to move
over for officer traffic stop (lights on).” Following a bench trial, the trial court found
Defendant guilty of violating Tennessee Code Annotated Section 55-8-132(b), a Class B
misdemeanor, and imposed a sentence of thirty days suspended to unsupervised probation
and a fine of one hundred dollars. Following a thorough review of the record and
applicable law, we determine that Defendant had limited English proficiency, that the trial
court failed to comply with Tennessee Supreme Court Rule 42, and that proceeding with
the trial when Defendant did not have the necessary means to communicate violated his
constitutional right to testify and to be heard. We reverse the judgment of conviction and
remand for a new trial consistent with this opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
and Case Remanded for New Trial
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and JOHN W. CAMPBELL, SR., JJ., joined.
Stanley F. LaDuke, Knoxville, Tennessee, for the appellant, Sarioglo Serghei.
Herbert H. Slatery III, Attorney General and Reporter; Richard D. Douglas, Senior
Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and
Gregory Dale Sweeney, Assistant District Attorney General, for the appellee, State of
Tennessee.
1
Defendant testified that his first name is Serghei and that his last name was Sarioglo. However,
he was indicted as “Sarioglo Serghei,” and the judgment was entered in the name Sarioglo Serghei. We
will use the name in the indictment in this opinion.
1
OPINION
On June 1, 2021, Defendant filed a motion pursuant to Tennessee Rules of Criminal
Procedure 28 and Tennessee Supreme Court Rule 42 seeking to have the trial court
“approve and/or appoint a Russian interpreter” for his trial scheduled to begin June 11,
2021. In the motion, Defendant claimed that his “primary language is Turkish and [that]
he speaks and understands the Russian language” and that, when Defendant “was present
in [c]ourt on November 12, 2020, [he had] difficulty understanding and answering the
[c]ourt’s questions to him because he has a limited ability to speak and understand the
English language.”
Trial
At the outset of the bench trial, the trial court noted that Defendant did not secure
the services of a court reporter. The court moved the trial to a courtroom equipped to
record testimony of preliminary hearings under Rule 5.1(a)(3) of the Tennessee Rules of
Criminal Procedure. The trial was contemporaneously recorded on two CD-R discs, and
pursuant to Tennessee Rule of Appellate Procedure 24(b), a transcript of the trial was
prepared by a certified court reporter from the CD-R discs. Both the transcript and the two
CD-R discs are included in the appellate record.
The trial court also noted that Defendant “ha[d] mentioned a problem with language
in that [D]efendant requested a Russian interpreter,” that the Administrative Office of the
Courts (AOC) “had difficulty in finding one, and [D]efendant ha[d] not been able to
procure a Russian translator.”
State’s Proof
Westmoreland Police Sergeant Kenneth Witte testified that he was traveling
downhill in the southbound lane of U.S. Highway 31E (“US 31E”) to back up another
Westmoreland police officer who was performing a traffic stop. The other Westmoreland
police officer, who did not testify and was not identified by name in the record, was parked
at the bottom of the hill in the shoulder of the northbound lane of US 31E near the
intersection of Lake Road with the emergency lights of his marked police cruiser activated.
Sergeant Witte testified that, as he “was approaching southbound, [he] observed an 18-
wheeler going northbound” that “passed by my officer without crossing over.” Sergeant
Witte said that he “got [Defendant] on radar doing 47 in a 45” and that “[t]here was nobody
else in front of [Sergeant Witte’s] vehicle towards [Defendant’s] vehicle.” Sergeant Witte
said that the 18-wheeler “never broke over the double yellow line” as it passed by the
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location of the traffic stop.2 When the State asked Sergeant Witte if Defendant slowed
down, Sergeant Witte answered, “No, ma’am. It was at a same speed of 47 miles an hour.”
He said that, at the location of the traffic stop, US 31E was a straight, two-lane highway,
that the weather was “59 degrees and sunny,” and that there was nothing “that would have
hindered [Defendant’s] eyesight of the officer’s blue lights.”
On cross-examination, Sergeant Witte said that he was “just north of Bentel Drive,”
“roughly about a quarter mile” from the location of the traffic stop, when he saw the 18-
wheeler. The following dialogue is from the cross-examination of Sergeant Witte:
[DEFENSE COUNSEL:] Okay, and you’re saying that -- is it your
opinion that [Defendant] in the tractor trailer should have crossed over the
centerline when he passed the officer on the traffic stop?
[SERGEANT WITTE:] Either that or slow down safe enough for the
officer if he walked down the street not to get hit, yeah.
[DEFENSE COUNSEL:] So –
[SERGEANT WITTE:] He had plenty of room to pull over and
nobody was in his way.
[DEFENSE COUNSEL:] So you’re saying in your opinion
[Defendant] should have crossed the centerline when he passed the officer
and the vehicle?
[SERGEANT WITTE:] Yes, sir.
[DEFENSE COUNSEL:] Is that [] considered a safe maneuver in an
18-wheeler?
[SERGEANT WITTE:] Yes, sir.
[DEFENSE COUNSEL:] You realize that you’re coming down
towards him a quarter of a mile away and you want him to come over into
your lane of traffic head on?
2
A video taken by defense counsel from a vehicle traveling north on US 31E, entered as Exhibit 4,
shows a broken yellow centerline at the intersection of Lake Road. The double yellow line ended a short
distance south of the intersection.
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[SERGEANT WITTE:] Would not have had a problem with that.
They do it all the time. Because I would also slow down and move to the
right and go on the shoulder and give them the leeway to come that way.
[DEFENSE COUNSEL:] What about any vehicles behind you that
see you slow down and pull over?
[SERGEANT WITTE:] They would - - sir, I see it all day long and
they pull over to the shoulder and let the people go on - - cross over the line.
I see it all the time.
[DEFENSE COUNSEL:] It’s possible [] they could try to go around
you or run into you, isn’t it?
....
[SERGEANT WITTE:] There’s a possibility I could run off the side
of the road too, yes. Okay.
The following exchange concerned whether there were other vehicles in front of
Defendant:
[DEFENSE COUNSEL:] What other vehicles did you see in the
roadway going northbound?
[SERGEANT WITTE:] There were no other vehicles northbound.
Not in front of [D]efendant’s vehicle, no.
[DEFENSE COUNSEL:] You remember -- do you have a specific
memory of what cars were approaching -- oncoming towards you?
[SERGEANT WITTE:] Approaching the officer on the side of the
road or approaching me?
[DEFENSE COUNSEL:] Well, going northbound on 31.
[SERGEANT WITTE:] My concern was with the 18-wheeler which
I was approaching.
[DEFENSE COUNSEL:] What specific memory do you have of any
other vehicle that was present?
[SERGEANT WITTE:] I don’t now. I don’t.
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[DEFENSE COUNSEL:] You don’t remember any other vehicle?
[SERGEANT WITTE:] No, sir.
Sergeant Witte agreed that his radar would pick up the closer of two approaching
vehicles. Sergeant Witte stated that he did not “lock” Defendant’s speed on his radar,
explaining that “there was no reason to lock in if they’re going two miles over the limit.”
Sergeant Witte said that he made a “U-turn” at Bentel Drive, pursued the 18-wheeler north,
and stopped it near the crest of the hill. Sergeant Witte said that there was also an unmarked
Westmoreland police vehicle stopped at the stop sign where Bentel Drive intersects US
31E and that this officer, who did not testify and was not named in the record, turned north
and followed him to where he stopped Defendant.
Defendant’s Proof
Part, and occasionally all, of Defendant’s responses to questions asked by defense
counsel, the State, or the trial court, are characterized by the court reporter as
“(indiscernible)” at forty-nine places in the approximately sixteen pages of transcript
containing Defendant’s testimony. Although we cannot ascertain from the transcript alone
why Defendant’s testimony was indiscernible, it is apparent from the CD-R recording that
it relates directly to Defendant’s limited ability to speak or understand the English
language. Although much of Defendant’s testimony is indiscernible, we will summarize
the Defendant’s testimony as best as we can based on the transcript and audio recording.
Defendant testified that his last name was Sarioglo and that he had worked in the
United States since 2013 driving “18-wheeler, car hauler.” Although he was born in
Russia, he said that he was Turkish. He said that his primary language was Turkish and
that his secondary language was Russian.
Defendant testified that he was driving a 2016 Volvo tractor pulling a fully-loaded
car hauler trailer with a combined weight of 80,000 pounds when he was stopped.
Defendant said that, after stopping at a four way stop at the intersection with Austin Peay
Highway, he crested a hill and proceeded downhill in a northerly direction on US 31E.
Defendant said that there was a small pickup truck traveling north in front of him. He said
that he saw the police vehicle in the right-hand shoulder with its emergency lights activated.
He said that there was no one outside of the police car or the other vehicle. He testified
that he slowed down and moved his “18-wheeler” to the left so that his driver’s side tires
were on or near the centerline of the highway. He said that the reason he did not cross into
the other lane was because there was a vehicle coming downhill towards him and that he
could not make quick turns because he had a full load of cars on the trailer and could “flip”
over.
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On cross-examination, when asked by the State why he did not “scoot over,”
Defendant answered, “I did, middle line as soon as possible. (indiscernible) pulled my
truck middle line. I did what I can. Because other vehicle coming on (indiscernible). I
was (indiscernible). I can’t do like quick turn.” When asked why he did not slow down,
Defendant said, “I slowed down. (Indiscernible) on my truck, it’s not electronic.
(Indiscernible) or I can’t exactly see how many miles like an electronic (indiscernible), you
know.”
After defense counsel completed his redirect examination, the trial court questioned
Defendant extensively. The trial court asked Defendant, “Can you slow your tractor trailer
down some?” Defendant answered, “I (indiscernible) when I -- when I -- before police
officer was still on the shoulder, before that vehicle -- a lot of vehicles oncoming
(indiscernible).” The court asked Defendant if he “significantly slow[ed] down[,]” and
Defendant answered, “I slowed down.” The court stated, “That’s not my question. Did
you significantly slow down?” Defendant answered, “I don’t understand (indiscernible).”
The court then asked Defendant if he “ma[d]e every effort to go as slow as [he] could[,]”
and Defendant answered, “[Y]es.” The trial court then stated, “You heard the officer testify
that you didn’t and you were on radar. So let me remind you you’re under oath. My
question was did you slow down?” Defendant answered, “I did slow down.”
Findings of Fact and Conclusions of Law of the Trial Court
After the trial court accredited the testimony of Sergeant Witte, the court made the
following findings:
1. Defendant “did not proceed with due caution, the caution due to an officer on the
side of the road in a rural area with lights flashing, and that he did not reduce the speed of
the vehicle.”
2. Sergeant Witte’s testimony is corroborated by radar showing that Defendant was
going over the speed limit and never slowed down.
3. There were no weather conditions or road conditions that would hinder a vehicle
slowing down in this situation.
4. Defendant did not maintain a safe speed for road conditions under that particular
situation.
5. Changing lanes at the location of the traffic stop was not impossible or unsafe.
6. Defendant’s testimony that there were other vehicles on the road is discredited in
light of the testimony of the Sergeant Witte who said there were no vehicles on the road.
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7. Defendant’s testimony that he touched the centerline is discredited.
8. The State has proven all the elements of the traffic violation of Tennessee Code
Annotated section 55-8-132.
The trial court found Defendant guilty of violating Tennessee Code Annotated
section 55-8-132 and imposed a sentence of thirty days in jail suspended to unsupervised
probation and a fine of one hundred dollars. Defendant timely appealed.
Analysis
On appeal, Defendant claims that the trial court: erred or abused its discretion in its
participation in the trial; erred by failing to consider Defendant’s limited ability to
understand English; abused its discretion by sustaining four objections to witness
testimony regarding the issue of safety; erred in accepting and relying on radar evidence
alone with no corroborating evidence; and abused its discretion in its assessment of the
credibility of witnesses. Defendant also claims that the evidence was insufficient to sustain
a guilty verdict beyond a reasonable doubt. The State responds that: Defendant failed to
establish plain error concerning the trial court’s examination of Defendant; the trial court
properly exercised its discretion by not appointing an interpreter; the trial court properly
sustained the objections to witness testimony, and that the radar evidence was corroborated
by Sergeant Witte’s testimony that Defendant failed to reduce his speed. The State also
claims and that the evidence is sufficient to sustain Defendant’s conviction.
Limited Ability to Speak or Understand the English Language
Defendant argues that, although the trial court “had notice that [Defendant] had
difficulty understanding English, both from his motion requesting a Russian Interpreter
and his appearance before the [t]rial [c]ourt on November 12, 2020,” the court “made no
attempt to determine if Defendant had limited ability to speak and understand English.”
Many persons who come before the courts are partially or completely
excluded from full participation in the proceedings due to limited English
proficiency (“LEP”). It is essential that the resulting communication barrier
be removed, as far as possible, so that these persons are placed in the same
position as similarly situated persons for whom there is no such barrier.
Tenn. Sup. Ct. R. 41 (Preamble), see Tenn. Sup. Ct. R. 42 §2(4) (an LEP person is defined
as “a participant in a legal proceeding who has limited ability to speak or understand the
English language”). The communication barrier directly impacts an LEP person’s right to
testify and to be heard. The right to testify is “a fundamental constitutional right guaranteed
both by Article I, section 9 of the Tennessee Constitution and by the Fifth and Fourteenth
Amendments to the United States Constitution.” Momon v. State, 18 S.W.3d 152 (Tenn.
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1999). The Tennessee Constitution provides that “the accused hath the right to be heard
by himself and his counsel[.]” Tenn. Const. art. I, § 9.
A court3 has a duty “to determine whether a participant in a legal proceeding has a
limited ability to understand and communicate in English.” Tenn. Sup. Ct. R. 42, § 3 (a);
see also State v. Thien Duc Le, 743 S.W.2d 199, 202 (Tenn. Crim. App. 1987) (stating that
it is the duty of the court to provide the necessary means for the defendant to communicate
to the court). “If the court determines that a participant has such limited ability, the court
should appoint an interpreter pursuant to this rule.” Tenn. Sup. Ct. R. 42, §3(a). “A
summary of the efforts made to obtain a certified or registered interpreter . . . should be
made in open court.” Tenn. Sup. Ct. R. 42, §3(f). Although the appointment of an
interpreter is a matter of judicial discretion,” the failure to appoint an interpreter may
undermine the fairness of the proceeding, Sud v. Man Keng Ho, No. E2011-01555-COA-
R3-CV, 2012 WL 1079896, at *8 (Tenn. Ct. App. Mar. 30, 2012), and violate the
defendant’s “constitutional right to be heard.” Thien Duc Le, 743 S.W.2d at 202.
“The recognition of the need for an interpreter may arise from a request by a party
or counsel, the court’s own voir dire of a party or witness, or disclosures made to the court
by parties, counsel, court employees or other persons familiar with the ability of the person
to understand and communicate in English.” Tenn. Sup. Ct. R. 42, § 3 (b). “The interpreter
has a twofold duty: 1) to ensure that the proceedings in English reflect precisely what was
said by the LEP person, and 2) to place the LEP person on an equal footing with those who
understand and speak English.” Tenn. Sup. Ct. R. 41, Canon 1 (A).
The record on appeal does not include any written or oral order addressing
Defendant’s June 1, 2021 motion seeking to have the trial court “approve and/or appoint a
Russian interpreter.” The record does not show that the trial court addressed whether or
not Defendant was an “LEP person.” Tenn. Sup. Ct. R. 41, 42, § 2 (4). The record does
not show that Defendant, if he was an LEP person, waived the services of an interpreter
pursuant to Tennessee Supreme Court Rule 42, § 4 (b). The trial court did not provide a
summary of its “efforts made to obtain a certified or registered interpreter,” other than
mentioning that the AOC had difficulty finding a Russian interpreter. See Man Keng Ho,
2012 WL 1079896, at *8 (stating that “[t]here is nothing in the record to establish that any
effort was made to find a credentialed interpreter and the use of Ho as interpreter who was
a party to the proceeding, undermined the fairness of the proceeding”).
In State v. Young Bok Song, No. M2004-02885-CCA-R3-CD, 2005 WL 2978972,
at *6 (Tenn. Crim. App. Nov. 4, 2005), this court noted that, “when reviewing the trial
court’s decision not to appoint an interpreter, we must look at the information the trial court
had to rely on in making its decision.” Id. As mentioned previously, the word
“indiscernible” is used at forty-nine places in the transcript prepared by the certified court
3
Rule 42 applies to all courts in Tennessee. Tenn. Sup. Ct. R. 42, §1.
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reporter from the audio recording of the trial to characterize testimony of Defendant that
could not be understood. Moreover, it is apparent from listening to the contemporaneously
recorded CD-R that Defendant’s limited ability to speak or understand the English
language led to his testimony being characterized as indiscernible.
The trial court was responsible for determining whether Defendant had a limited
ability to understand and communicate in English. Tenn. Sup. Ct. R. 42, § 3 (a). Based on
the pretrial motion filed by Defendant, the court knew that Defendant claimed to have
limited English proficiency. Defendant struggled to speak in discernible English as the
trial progressed, especially when confronted with what Defendant describes as the trial
court’s “excessive cross-examination [which] reached the zenith of intensity and
forcefulness, even hostility, as if the [t]rial [c]ourt was trying to make [] Defendant ‘break’
or ‘confess,’ after the State failed to accomplish this result.” Proceeding with the trial when
Defendant did not have the necessary means to communicate violated his constitutional
right to testify and to be heard, Thien Duc Le, 743 S.W.2d at 202; was unreasonably
prejudicial to Defendant’s case, Van Tran v. State, 864 S.W.2d 465, 476; undermined the
fairness of the proceeding, Sud, 2012 WL 1079896, at *8; and caused an injustice to
Defendant. State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997).
Conclusion
We reverse the conviction and remand for a new trial in accordance with Tennessee
Rule of Criminal Procedure 28 and Tennessee Supreme Court Rule 42. Because our ruling
on this issue is dispositive of this cause, we need not address the remaining issues presented
by the parties. State v. Turco, 108 S.W.3d 244, 245 (Tenn. 2003).
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ROBERT L. HOLLOWAY, JR., JUDGE
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