STATE OF NEW JERSEY v. ALMIR DESOUZA

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3885-02T43885-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALMIR DESOUZA,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 19, 2005 - Decided

Before Judges Weissbard and Francis.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

92-06-0880.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Ruth A. Harrigan,

Designated Counsel, of counsel and on

the brief).

John Kaye, Monmouth County Prosecutor,

attorney for respondent (Mark P. Stalford,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Almir DeSouza appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We reverse and remand for an evidentiary hearing addressing defendant's claim that an interpreter should have been provided for him at his 1993 trial.

Defendant was indicted for first-degree murder, third-degree possession of a weapon for an unlawful purpose and fourth-degree unlawful possession of a weapon. The victim of the offense was Michelle Hansen, defendant's girlfriend. At the time of her death on January 11, 1992, defendant had been living with her for several years. The allegation, supported by proof at trial, was that defendant stabbed Hansen with a kitchen knife. After a nine-day trial, defendant was convicted on all three counts and sentenced on April 8, 1993 to sixty years in prison, with a thirty-year period of parole ineligibility. On defendant's direct appeal, we affirmed in an unpublished opinion of July 6, 1995. None of the issues raised on appeal touched on the issue of defendant's need for an interpreter. Defendant's petition for certification was denied on October 23, 1995.

On January 17, 1988, defendant filed a timely PCR. That pro se petition raised five issues, including that his trial without the benefit of an interpreter deprived him of due process of law, and the denial of his right to the effective assistance of counsel based on, among other things, his trial attorney's failure to request an interpreter and his appellate counsel's failure to raise the issue on direct appeal. The PCR hearing was before a different judge than had presided over the trial. On January 27, 1999, the judge rejected, without an evidentiary hearing, defendant's claim concerning his need for an interpreter at trial. By opinion of December 14, 2000, we dismissed defendant's appeal because he failed to provide a copy of the January 27, 1999 proceedings, as required by R. 2:5-3(a). In addition, we noted that defendant's PCR counsel had not appeared on January 27, 1999. As a result, the dismissal was "without prejudice to defendant's endeavor to seek a new hearing before the trial court on his petition to press the points he would have made." Consequently, on August 1, 2001, defendant filed a new petition which raised only the interpreter issue. On September 27, 2002, defendant and his assigned counsel appeared for argument. On November 15, 2002, the PCR judge placed on the record his reasons for denying the petition. This appeal follows, in which defendant presents the following issues for our consideration:

POINT I

DEFENDANT WAS DEPRIVED OF DUE PROCESS AND EFFECTIVE ASSISTANCE OF BOTH TRIAL AND APPELLATE COUNSEL UNDER FEDERAL AND STATE LAW WHEN HE WAS TRIED WITHOUT THE SERVICES OF AN INTERPRETER.

POINT II

DEFENDANT IS ENTITLED TO RESENTENCING BECAUSE HIS SENTENCING TERM WAS ENHANCED ON THE BASIS OF FACTS NOT PROVED TO A JURY BEYOND A REASONABLE DOUBT IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS.

At the outset, we reject defendant's sentencing argument which is based on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Blakely does not apply to murder, an offense which has no presumptive term. State v. Abdullah, 184 N.J. 497, 510-12 (2005).

Turning to defendant's first issue, we begin with the January 27, 1999 proceedings. At that time, the PCR judge stated:

Defendant also contends that counsel was ineffective for failure to demand an interpreter for the Defendant.

A Defendant has a constitutional right to an interpreter when he is unable to speak or understand the English language. State v. Kounelis, [248 N.J. Super., 420, 427-28 (App. Div.), certif. denied, 133 N.J. 429 (1992)].

Next, I'm satisfied that the Defendant spoke and understood the English language. At no time during his trial did the Defendant request an interpreter.

In fact several witnesses testified at trial as to Defendant's command of the English language, including the arresting officers and several lay witnesses who spoke with the Defendant socially.

Judge Locascio made findings with respect to the issue determining that the Defendant understood the English language.

Although an interpreter is used while Defendant testified, the defense counsel specifically stated on the record, that the interpreter was there not to show that Mr. De Souza does not understand English, but to assist the Jurors in understanding him because his accent sometimes was difficult to understand.

Again, in my opinion, the Defendant has not established by a preponderance of the evidence that he was unable to understand English.

Defendant responded in English. He understood English. His only difficult it appears was writing in English. The Defendant was able to submit a pro se Appellate brief written in English.

This case is distinguishable from Keeney v. Tamayo-Reyes, [ 504 U.S. 1, 112 S. Ct. 1715, 118 L. Ed. 2d 318 (1992)].

In that case Keeney had very little knowledge of the English language and repeatedly requested an interpreter. Not so here.

Giving the Defendant every favorable inference to which he's entitled, I still can not find that he has met his prima facie burden in accordance with the Preciose decision that would mandate further evidentiary hearing in this matter.

The Defendant immigrated from Brazil to the United States at sixteen years old.

The Defendant was at least forty years old at the time of trial. He had resided in the United States for twenty-four years.

He spoke the English language as evidenced by the numerous contacts that he had with police authorities.

He's even briefed this case in English. His argument therefore is without merit.

We made reference to these findings in our December 14, 2000 opinion, but specifically said that we were not deciding the issue on its merits. However, we noted that defendant's position "would clearly have merit" if he was tried without an interpreter "while unable to understand the proceedings and what was being said."

In his verified petition of August 1, 2001, defendant asserted that he had never been provided with a copy of the January 27, 1999 proceedings. He went on to cite a letter he had written, dated February 16, 1993, several weeks before his trial began, addressed to the judge who ultimately heard the PCR application, but who was not the trial judge, requesting an interpreter. That letter reads in full as follows:

Dear Judge

My name is Almir Penheiro De Souza

, I DON'T SPEAK OR READ ENGLISH VERY WELL, AFTER WAITING MONTHS I RECEIVED THE DISCOVERY ABOUT MY CASE.

I HAVE TRIED HARD WITH MY LANGUAGE LIMITATION TO UNDERSTAND THE ENGLISH LANGUAGE, BUT I CAN'T UNDERSTAND IT FULLY.

I AM RESPECTFULLY REQUESTING ALL LEGAL DOCUMENTS ABOUT MY CASE BE TRANSLATED FROM THE ENGLISH LANGUAGE TO PORTUGUESE.

ALSO, I NEED AN INTERPRETER, BECAUSE I CAN NOT EXPLAIN THE NECESSARY IMPORTANT FACTS TO MY PUBLIC DEFENDER TO PREPARE MY DEFENSE.

THANK YOU FOR YOUR CONSIDERATION IN THIS MATTER.

In the petition, defendant addressed two findings by the PCR judge in his January 27, 1999 ruling: (a) that defendant "had resided in the United States for twenty-four years"; and (b) that defendant had "even briefed this case in English." Concerning those statements, defendant averred:

13. Contrary to [the judge's] erroneous determination, an accurate development of the facts would have established that (1) petitioner came to the United States in 1969, but left in 1970 and did not return until 1986, and, therefore, petitioner was not in the United States for twenty-four years; (2) that, on the cover-page of the pro-se brief submitted by petitioner, filed in the Superior Court of Monmouth County on February 17, 1998, it states, "Mr. DeSouza Received Assistance On The Memorandum of Law," said assistance being provided by an inmate paralegal at the New Jersey State Prison, namely inmate Messam, #217418.

14. The improper factual findings relied upon by [the judge], as well as the absence of assigned PCR counsel at the hearing deprived petitioner of a reliable determination and was a denial of due process and equal protection of law contrary to the dictates of the Fourteenth Amendment of the Constitution of the United States and Article 1, Paragraph 10 of the Constitution of the State of New Jersey and the Fundamental Fairness Clause of the New Jersey Common Law.

15. The refusal of assigned trial counsel to have an interpreter assigned resulted in a denial of effective assistance of counsel

constructive denial of counsel, in that, assigned trial only came to see me on three (3) occasions prior to trial. On the first occasion, counsel was accompanied with a putative interpreter, whom I could not understand because he did not speak my native tongue of Portuguese. On the second and third visits, assigned counsel did not attempt to use an interpreter, rather counsel attempted to decipher my broken English on his own. At trial, counsel employed an interpreter, not to assist me by allowing me to have the questions presented to me in my language of Portuguese, and to give me the opportunity to respond in my native tongue, but instead, the "interpreter" was used to repeat the answer that I was forced to give in my broken English in an effort to aid the jury's comprehension.

16. Additionally, prior to trial, during the visits, I told assigned counsel that during the time I was being questioned by the police, I repeatedly told the police that I wanted a lawyer and that the lady who was typing should be called to testify at the hearing. Counsel, not only, did not call this lady as a witness, but did not allow me to testify at the hearing.

When the petition was argued on September 27, 2002, a Portuguese interpreter was present. In addition, PCR counsel noted that he had been assigned to the matter "specifically because I am fluent in the Portuguese language. And I have been able to communicate with my client only in Portuguese at all times." After noting the two significant errors in the judge's January 27, 1999 ruling, defense counsel said:

We're not disputing that Mr. DeSouza has a basic understanding of the English language. He can certainly understand and respond to basic questions. He was certainly able to respond to the police when he gave a statement back in 1992.

But to be able to understand simple questions, and to be able to respond to basic type of questions is much different than being able to understand what's going on in a trial. It's much different than being able to cooperate and to assist his attorney in a defense.

Now, during the trial below an interpreter was brought into the case for a part of the trial. But even that was really only made to assist the jury, and not to assist Mr. DeSouza when he took the witness stand.

Judge, I think that based on that key piece of information as to the length of his stay in the United States, that that certainly would give the defense, that the Court should give the defense an opportunity to present evidence with regard to the knowledge of the English language, the contacts that Mr. DeSouza had with individuals back in 1992, and the extent to which he could or could not understand fully the proceedings that were going on at the ten day trial back in 1993.

I think, Judge, that one of the reasons that I was assigned this case, besides the fact that I could speak fluently in Portuguese with him, is really that I understand that there is a very big difference in being able to communicate on a lay type of basis with a person, hello, how are you, what happened, that type of basic information, versus the understanding and the comprehending of a criminal trial in the United States.

Certainly, I came to the United States when I was ten years-old. I went to grade school, high school, college and law school in the United States. And certainly I can go to Portugal and I can hold a conversation with someone who speaks Portuguese or Brazilian with not too much difficulty.

But the terms used in the law here in the United States, the procedures, the elements of crimes, the potential defenses, those are all very highly technical type of language idiosyncrasies.

I certainly would not be able to explain, in his native language, what an imperfect self-defense might be; what elements of a particular crime might be.

And that's why an interpreter who can translate all the terms of a trial, not just the basic language that one might be able to understand and speak, was a necessity in this case.

In response to counsel's reliance on defendant's February 16, 1993 letter and counsel's stated assumption that a letter addressed to the wrong judge would be forwarded to the correct judge, the PCR judge simply noted that the letter had been sent to him, not to the trial judge. The State essentially relied on the facts that it deemed apparent from the trial record concerning defendant's ability to speak and understand English in his personal life, the trial judge's findings on a Miranda hearing, and the fact that experienced trial counsel did not discern the need for an interpreter; except insofar as it would assist a jury in understanding defendant's trial testimony. In his oral ruling of November 15, 2002, the PCR judge stated, in part:

The defense wants an evidential hearing to explore his knowledge of English at the time of the trial; his extent of understanding in 1993; his knowledge of the idiosyncrasies of the English language; to explore the unique language requirements in explaining the elements of the crime and potential defenses.

And counsel alleges now that this breakdown in understanding required at least a request by trial counsel for interpretation. The failure of counsel to do so requires a hearing on whether or not this constitutes ineffective assistance of counsel.

The State takes the position that the trial Court and the Appellate Division on direct appeal, addressed the issues now submitted to this Court by PCR. During a Miranda hearing, the Court concluded that the defendant knew and understood the Miranda warnings. He lived with someone who spoke English as a primary language. A number of witnesses, I guess, I trust at that hearing, testified about defendant's

ability to speak English.

The Troopers who testified acknowledged the importance of a need for bilingual concerns. And that the matter was fully explored pretrial and during trial by the original trial Judge . . . .

The Appellate Division evidently obtained a transcript of the January 27, 1999 hearing. And did note in their opinion dated December 14th 2000, that the trial Judge made certain findings with respect to defendant's ability to speak the English language. Paraphrasing the trial Judge, he said that he was satisfied the defendant spoke and understood the English language. He also notes that at no time during the trial did defendant request an interpreter.

The trial Judge noted that several witnesses testified at trial as to the defendant's command of the English language, including the arresting officers and several lay witnesses who spoke with the defendant socially.

It was the trial Judge's opinion that the defendant had not established evidence that he was unable to understand the English language. Defendant responded in English. It's also noted that the defendant was able to submit a pro se appellate brief written in English.

Giving the defendant every favorable inference to which he was entitled, the trial Judge opined that he could not find that he met his prima facie burden in accordance with the Preciose [State v. Preciose, 129 N.J. 451 (1992)] decision that would mandate further evidentiary hearings on the issue of interpretation.

Counsel at this present PCR proceeding did cite that the trial Judge cited a more lengthy residence of the defendant in the United States, and perhaps that was in error. But it certainly doesn't obviate or depreciate the substantial findings that the trial Judge made with respect to defendant's understanding of the English language.

After reciting the Strickland standards, the judge concluded:

Certainly, under the circumstances of this case, given the findings of the trial Judge, given the details of the trial, the fact that no request for interpretation was made, I am satisfied that counsel understood that he did not need interpretation. I am

satisfied over the long months of preparation that if counsel had gleaned any benefit to interpretation it would have been requested.

From the facts known to me by the findings of the trial and/or the PCR Judge initially back in 1999, counsel's performance, considering the circumstances and the findings with respect to defendant's knowledge of the English language, was adequate and within the wide range of professional law assistance.

This is a late claim of ineffective assistance of counsel. I adopt from what I know of the case based upon the moving papers and otherwise, the findings that, the clear indications are that defendant understood the English language. He even filed a PCR brief in English, pro se.

This is not a claim of ineffective assistance of counsel based on inadequate-preparation. Representation of a criminal defendant entails certain basic duties, including pretrial consultation. Simply, the attorney understood the defendant. The defendant understood the attorney, from all appearances. And the certain basic duties of a lawyer were recognized and no request for interpretation was made. There's no indication that this failure constitutes ineffective assistance of counsel.

* * * *

There's no evidence to suggest the defendant could not speak and understand English. And the application for a evidentiary hearing is denied. Thank you and good day.

There is no doubt that a defendant who is unable to understand the court proceedings is constitutionally entitled to the assistance of an interpreter. In support of that proposition, we need not review ground already comprehensively covered in our prior opinions. See State v. Guzman, 313 N.J. Super. 363, 377-79 (App. Div.) (collecting authorities), certif. denied, 156 N.J. 424 (1998); State v. Kounelis, 258 N.J. Super. 420 (App. Div.), certif. denied, 133 N.J. 429 (1992); see also State v. Rodriguez, 294 N.J. Super. 129 (Law Div. 1996); State v. Linares, 192 N.J. Super. 391 (Law Div. 1983). "'The general standard for the adequate translation of trial proceedings requires continuous word for word translation of everything relating to the trial a defendant conversant in English would be privy to hear.'" Guzman, supra, 313 N.J. Super. at 379 (quoting United States v. Joshi, 895 F.2d 1303, 1309 (11th Cir.), cert. denied, 498 U.S. 986, 111 S. Ct. 523, 112 L. Ed. 2d 534 (1990)). In Rodriguez, Judge Fuentes took note of the "low threshold for appointment of a court interpreter" provided by the Federal Court Interpreters Act, 28 U.S.C.A. 1827, as "a useful guide by which the New Jersey trial judge may properly gauge how best to exercise [his or her 'sound discretion']" in deciding whether a defendant requires an interpreter. Rodriguez, supra, 294 N.J. Super. at 138. The federal statute requires use of an interpreter when a party "speaks only or primarily a language other than the English language . . . so as to inhibit such party's comprehension of the proceeding or communication with counsel or the [judge]." 28 U.S.C.A. 1827 (d)(1).

In the present case, we are satisfied that defendant presented a prima facie case sufficient to warrant an evidentiary hearing. See Guzman, supra, 313 N.J. Super. at 376 (evidentiary hearing conducted on defendant's PCR petition alleging need for interpreter at trial). Defendant's native language is Portuguese. He had only been in the United States for about six years before his trial. The PCR judge's initial finding that he had been here twenty years was, as the judge later conceded, erroneous. In his November 2002 ruling, the PCR judge did, however, continue to find, as he did in January 1999, that defendant had been "able to submit a pro se appellate brief written in English." However, there was no support for the judge's implicit conclusion that defendant himself had written the brief. To the contrary, in his verified petition defendant asserted that the brief was, in fact, written by another prisoner. Further, the judge made no reference to defendant's letter to him several weeks before trial seeking assistance of an interpreter nor did the judge seek to explain why that letter was not forwarded to the trial judge or, if it was, why it did not trigger some inquiry from the trial judge. The PCR judge placed substantial reliance on the trial judge's conclusion that defendant possessed an adequate command of English to understand and waive his Miranda rights. In fact, we are unable to locate any such finding by the trial judge. While there certainly was testimony by several witnesses as to defendant's ability to converse in and understand English in everyday life, we find no support for the PCR judge's statement that, "[p]araphrasing the trial judge, he said that he was satisfied the defendant spoke and understood the English language." In any event, such a finding, even if made, would not be determinative of defendant's need for an interpreter at trial. The standards are demonstrably different.

It is true that defendant himself did not ask for an interpreter at trial nor did his attorney, except to assist the jury in understanding defendant when he testified. Defendant will likely have to explain why he did not make such a request, but that will be but one factor for the PCR court to weigh in its final determination. So too, counsel will likely be called upon to testify concerning his and defendant's ability to communicate with each other. However, if it is determined that defendant qualified for an interpreter, his attorney's failure to request one is not only not dispositive, it constitutes ineffective assistance of counsel.

In conclusion, we do not agree with the State that "it is impossible for defendant to prove by a preponderance of the credible evidence that he could not understand trial proceedings, and thus had a constitutional right to an interpreter." Defendant presented more than sufficient evidence to require a hearing. Since the PCR judge whose decision we review has now twice ruled on defendant's petition, and made findings, some of which were erroneous, we conclude that it would be best that defendant's PCR application, and the evidentiary hearing we have ordered, be assigned to a different judge. State ex rel. J.D.H., 336 N.J. Super. 614, 628 (App. Div. 2001), rev'd on other grounds, 171 N.J. 475 (2002).

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

The other PCR issues involved claimed errors in the jury instructions. The PCR judge ruled that these issues either were raised and rejected on direct appeal, R. 3:22-5, or could have been, R. 3:22-4.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984).

(continued)

(continued)

6

A-3885-02T4

November 29, 2005