People v. Ovalle

411 Mich. 478 (1981)

307 N.W.2d 685

PEOPLE v. OVALLE

Docket No. 64813.

Supreme Court of Michigan.

Decided July 13, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Linda Berns Wright, Appellate Prosecuting Attorney, for the people.

State Appellate Defender (by Stuart B. Lev) for defendant.

PER CURIAM:

The defendant raises several questions regarding the use of an interpreter to translate between Spanish and English during his guilty plea proceeding. We conclude that the procedure used was improper and reverse.

I

There is no dispute that the defendant severely beat his ex-wife on February 24, 1978, fatally injuring her. He was charged with murder. The defendant filed a notice of insanity defense, and a psychiatric examination was ordered. At the ensuing competency hearing, the circuit judge found the defendant competent to stand trial on the condition that an interpreter be available to translate between English and Spanish if necessary because of the defendant's difficulty with the English language.

On May 30, 1978, the defendant pled guilty of second-degree murder, and was thereafter sentenced to 15 to 30 years in prison. The Court of Appeals affirmed, and the defendant applied for leave to appeal.

II

In issue is the manner in which the defendant was advised of the rights that he waived by pleading *480 guilty. GCR 1963, 785.7(1)(g). The trial judge began the plea proceeding by stating the plea bargain, advising the defendant as to the maximum sentence, inquiring as to the defendant's criminal record, and explaining that the plea to this charge could lead to his being found in violation of probation. The judge then began to advise the defendant of the rights that would be waived by his plea, but expressed concern about the defendant's understanding and decided that it would be better to have the rights translated into Spanish. The transcript records the English-language portion of this colloquy as follows:

"The Court: If I accept this plea that he will not have a trial of any kind and that he would give up his rights that he would have at a trial.

"Mr. Vargas:[[1]] He doesn't want a jury, he wants to plead guilty.

"The Court: But he understands paragraph (g) [of the court rule]. And I'll make a copy of this for the file. And we will refer to it as (g).

"Mr. Vargas: (g)(i). I'll tell him (g)(ii) now. I'll explain paragraph (g)(iii).

"All right. I explained (g)(iii) to him.

"The Court: And does he indicate that he understands?

"Mr. Vargas: Yes, he understands.

"The Court: And he understands (i) and (ii) also?

"Mr. Vargas: Yes, he does. He says he understands paragraph (g)(iv).

"He understands (g)(v).

"He says he understands (g)(vi).

"He understands (g)(vii).

"He says he understands (g)(viii).

*481 "The Court: (g)(ix).

"Mr. Vargas: (g)(ix).

"He says he understands (g)(x).

"The Court: All right. The record will show that the paragraph number that we're referring to is a guilty plea form that the court has for its own benefit that I will make a photocopy of and keep with the file in this matter."

The trial judge then asked the defendant in English if he understood that by pleading guilty he was waiving the rights explained by the interpreter, to which the defendant replied in the affirmative. The factual basis for the plea was also taken in English.

III

GCR 1963, 785.7 places the responsibility for determining that the defendant's plea is understanding, voluntary, and accurate on the trial judge. As to the requirements of rule 785.7(1)(g), the trial judge is to speak directly to the defendant and advise him of the consequences of his plea. That was not done in this case.[2] There are times, as here, when a defendant's lack of command of the English language requires the use of an interpreter. However, the interpreter's function is to translate the trial judge's statements to the defendant *482 and the defendant's responses.[3] Here, the effect of the procedure was to delegate to the interpreter the trial judge's responsibility to determine that the plea is an understanding one. This was improper, despite the fact that the interpreter was a lawyer.

Accordingly, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the judgments of the Court of Appeals and the circuit court and remand to the circuit court for further proceedings.

COLEMAN, C.J., and KAVANAGH, WILLIAMS, LEVIN, FITZGERALD, RYAN, and BLAIR MOODY, JR., JJ., concurred.

[1] The interpreter, Mr. Vargas, was also a lawyer, although the defendant was represented by another attorney during the proceeding.

[2] Sometimes the failure of the trial judge to personally give all of the required advice to the defendant does not require reversal. See Guilty Plea Cases, 395 Mich 96, 114; 235 NW2d 132 (1975). However, in those cases, the record demonstrates that the information involved was provided to the defendant in another way. In the present case, the lack of a record of the conversations in Spanish between the defendant and the interpreter precludes such a finding.

[3] See MRE 604:

"An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation that he will make a true translation."

We note that in this case the interpreter was not sworn as required by the rule.