Players: Judges Blackburne-Rigsby, Thompson and Reid. Opinion by Judge Reid. Craig N. Moore for appellant. Trial judge: Michael Ryan.
Facts: Melvin Andrade was tried on assault and weapons charges for stabbing a man. Mr. Andrade, who emigrated from El Salvador at fifteen and spoke some English, was appointed an interpreter to help him understand the trial proceedings. He testified that he stabbed the complainant in self-defense. On cross-examination, Mr. Andrade stated that he was confused and having trouble understanding or making himself understood by the prosecutor as she pressed him about his version of events. The prosecutor responded, “You were there, if you need a different interpreter . . . you tell me because [you are] not going to hide behind translation.” She also inquired about whether Mr. Andrade discussed the content of his testimony with defense counsel prior to trial. In closing, the prosecutor insinuated that Mr. Andrade had feigned confusion, arguing that his claim not to have discussed his testimony with counsel prior to trial was “not believable” and that he “trie[d] to hide behind the interpretation,” even though her “questions were very simple,” “Spanish is not a very complicated language,” and “these are certified [c]ourt [r]eporters [sic].”
Issue: Did the trial court’s failure to take corrective action in response to the prosecutor’s comments violate Mr. Andrade’s rights to an interpreter and to a fair trial?
Holding: Not in this case. “[T]he prosecutor arguably transcended the bounds of permissible comment” by using her questions and remarks about Mr. Andrade’s discussions with defense counsel and his hiding behind interpretation in order to express her opinion about his veracity. Her remarks about the complexity of the Spanish language and the interpreters’ qualifications were also “disrespectful” and “insensitive,” if not improper, particularly after all present had recognized problems with the quality of interpretation at an earlier stage of trial. Op. at 13-15. Nevertheless, these errors did not meet the “stringent plain error standard” that applies when there has been no objection to improper prosecutorial comments. Op. at 12, 16 (citation omitted). The prosecutor’s questions about Mr. Andrade’s conversations with defense counsel, to which counsel did object, likewise did not meet the “substantial prejudice” standard for preserved prosecutorial improprieties. This prejudice analysis turned in significant part on the Court’s opinion that the trial judge had taken adequate steps to ensure “that in her zeal to obtain a conviction, the prosecutor did not unduly infringe” on Mr. Andrade’s right to use an interpreter by: barring an interpreter who had trouble early in trial, allowing for the correction of possibly mistranslated testimony, sustaining an objection to a question that directly accused Mr. Andrade of lying, and admonishing the prosecutor not to engage in narrative while cross-examining Mr. Andrade. Op. at 15-16.
Of Note: The Court pointed out that both “‘non-English [and] limited-English speaking’” defendants are entitled by statute to a “‘qualified interpreter,’” Op. at 9 (quoting D.C. Code §§ 2-1902(a) (2012 Repl.), 2-1901(2)), and that a lack of effective interpretation may “substantially undermine” the defense and pose “a serious possibility of grave injustice,” id. (citation omitted). It also noted that prosecutors may not express personal opinions on witness credibility, argue negative inferences from a defendant’s decision to consult with counsel, or make comments directed at jurors’ emotions or assumed prejudices. Op. at 11-12. Defense counsel should object, citing these principles, when a prosecutor makes disparaging comments about a defendant’s need for, or use of, an interpreter.
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