Shaha v. State

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No. 100,902

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

RATON K. SHAHA,
Appellant,

v.

STATE OF KANSAS,
Appellee.


SYLLABUS BY THE COURT

1.
K.S.A. 75-4351 et seq. is analyzed and applied.

2.
In appointing an interpreter, the trial court should make appropriate findings
concerning the qualification of the proposed interpreter as provided for in K.S.A. 75-
4353.

Appeal from Sedgwick District Court; REBECCA L. PILSHAW, judge. Opinion filed August 6,
2010. Affirmed.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for the appellant.

Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and
Steve Six, attorney general, for the appellee.

Before CAPLINGER, P.J., PIERRON, J., and BRAZIL, S.J.

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PIERRON, J.: Raton Shaha appeals the district court's denial of the relief requested
in his K.S.A. 60-1507 motion. He alleges the court failed to follow K.S.A. 75-4351 et
seq. in the appointment of an interpreter at the trial and the evidentiary hearing. Shaha
also challenges the district court's rejection of his ineffective assistance of counsel claim.
Specifically, Shaha contends the district court erred in finding his counsel's pretrial
meetings with him were adequate. We affirm.

Shaha was charged in the alternative with rape and aggravated indecent liberties
with a child and was convicted of aggravated indecent liberties with a child. The district
court sentenced him to serve 77 months in prison. Shaha appealed his conviction, which
was affirmed by this court in State v. Shaha, No. 89,964, unpublished opinion filed
March 19, 2004, rev. denied 278 Kan. 851 (2004).

On March 14, 2005, Shaha filed a motion under K.S.A. 60-1507, alleging several
instances of ineffective assistance of trial counsel, including counsel's alleged failure to
conduct adequate pretrial preparation with Shaha. Further, in his 60-1507 motion, Shaha
directly challenged the trial court's failure to insure that his interpreter was properly
qualified under K.S.A. 75-4353. Following a nonevidentiary hearing with appointed
counsel, the district court denied Shaha's request for relief. In Shaha v. State, No. 95,676,
unpublished Court of Appeals opinion filed May 25, 2007, this court affirmed the denial
of the motion. However, in the order granting Shaha's petition for review, the Kansas
Supreme Court reversed and remanded the case for a full evidentiary hearing, with
directions to address the issues raised in the motion as required by Supreme Court Rule
183(j) (2009 Kan. Ct. R. Annot. 251).

The district court held a hearing on May 16, 2008. Shaha; his trial interpreter,
Manjur Alam; and his trial attorney, John Henderson, testified at the hearing. Following
the hearing, the court again denied Shaha's request for relief. Shaha appeals.

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On appeal, Shaha challenges the district court's rejection of his allegation that the
trial court erred in failing to require compliance with K.S.A. 75-4353 before appointing
an interpreter for Shaha in his criminal trial. Shaha also challenges the district court's
failure to require compliance with this statute at the evidentiary hearing on his K.S.A. 60-
1507 motion. Finally, Shaha contends the district court erred in rejecting his claim of
ineffective assistance of counsel with respect to counsel's failure to conduct adequate
pretrial meetings with Shaha and his failure to consistently meet with Shaha with an
interpreter present.

DISTRICT COURT'S FAILURE TO COMPLY WITH K.S.A. 75-4353

Shaha first contends that the district court erred in failing to conclude that his
"claim regarding the failure of the interpreter to be statutorily vetted and deficient was a
basis for a new trial." Shaha argues the record demonstrates Alam's lack of qualifications,
and Shaha suggests Alam's lack of qualifications constituted structural error, requiring
reversal of his conviction and a new trial.

Shaha concedes that this issue was first raised in his K.S.A. 60-1507 motion but
contends the issue is properly before the court as resolution of the issue is necessary to
serve the ends of justice or prevent the denial of a fundamental right. Shaha also contends
that he had no ability to determine whether his interpreters were interpreting correctly,
which makes it incumbent upon the district court to ensure that the interpreter is
qualified.

The standard cited by Shaha is appropriate for consideration of nonevidentiary
issues raised for the first time on appeal. See State v. Hawkins, 285 Kan. 842, 845, 176
P.3d 174 (2008). However, Shaha's challenge to the court's appointment of Alam as his
interpreter at trial was not raised in his direct criminal appeal but in his motion for habeas
corpus relief under K.S.A. 60-1507. Where a trial error of constitutional stature is
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challenged in a motion under K.S.A. 60-1507, the movant must demonstrate exceptional
circumstances that excused the failure to raise the issue in the direct criminal
proceedings. Kansas Supreme Court Rule 183(c) (2009 Kan. Ct. R. Annot. 251); Trotter
v. State, 288 Kan. 112, 125, 200 P.3d 1236 (2009) (noting distinction between raising an
issue for the first time on appeal and raising the issue for the first time in a motion under
K.S.A. 60-1507).

Here, Shaha has articulated no exceptional circumstances excusing his failure to
raise the issue concerning Alam's qualifications in his direct criminal proceedings.
Importantly, with respect to the appointment of an interpreter, Shaha does not allege his
trial counsel was ineffective in failing to object to the appointment of Alam. Nor does
Shaha allege his appellate counsel was ineffective for failing to raise the issue in his
direct criminal proceedings. Finally, Shaha does not allege that newly discovered
evidence or an unforeseen change in circumstances or the law prevented him from
perceiving the issue during his direct criminal proceedings. See Bledsoe v. State, 283
Kan. 81, 88-89, 150 P.3d 868 (2007). Therefore, the issue is not properly before this
court in this collateral proceeding.

However, even if this issue were properly before us, we would find that the facts
of this case clearly show that any error committed by the district court as alleged would
not form a basis for the relief requested by Shaha. The appointment of an interpreter is
governed by K.S.A. 75-4351 et seq. Construction of a statute is a question of law, over
which an appellate court possesses unlimited review. State v. Jefferson, 287 Kan. 28, 33,
194 P.3d 557 (2008).

In applicable part, K.S.A. 75-4353(c) provides:

"In appointing a qualified interpreter for a person whose primary language is
other than English pursuant to the provisions of K.S.A. 75-4351 et seq., and amendments
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thereto, the appointing authority shall appoint: (A) A qualified interpreter who meets the
following criteria . . . .

(1) A general understanding of cultural concepts, usage and expressions of the
foreign language being interpreted, including the foreign language's varieties, dialects
and accents;

(2) the ability to interpret and translate in a manner which reflects the educational
level and understanding of the person whose primary language is other than English;

(3) basic knowledge of legal rights of persons involved in law enforcement
investigations, administrative matters and court proceedings and procedures, as the case
may be; and

(4) sound skills in written and oral communication between English and the
foreign language being translated, including the qualified interpreter's ability to translate
complex questions, answers and concepts in a timely, coherent and accurate manner."

Shaha correctly asserts that the district court failed to record its findings regarding
these criteria for the interpreter it appointed at his trial as well as the interpreter appointed
at the 60-1507 hearing. While the statute does not specifically mandate that the district
court make its findings on the record, the better practice would be to articulate findings
regarding each of these criteria to enable an appellate court to review those findings. See
State v. Robinson, 281 Kan. 538, 546-47, 132 P.3d 934 (2006) (imposing requirement
that findings regarding indigent defendant's ability to pay BIDS attorney fees be placed
on the record despite absence of specific statutory mandate).

Nevertheless, Shaha's argument that the district court's error is structural, requiring
his conviction to be reversed and a new trial to be held, is not persuasive. The Kansas
Supreme Court has found structural error in the absence of a necessary interpreter during
a critical stage of the criminal proceedings. State v. Calderon, 270 Kan. 241, 253, 13 P.3d
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871 (2000). However, the trial in Calderon is distinguishable from Shaha's criminal trial
because Shaha was provided with an interpreter throughout his criminal proceedings; he
merely challenges the adequacy of his interpreter. See State v. Engelhardt, 280 Kan. 113,
124, 119 P.3d 1148 (2005) (limiting Calderon's structural error analysis to the facts of
that case).

"No error in either the admission or the exclusion of evidence and no error or
defect in any ruling or order or in anything done or omitted by the court or by any of the
parties is ground for granting a new trial or for setting aside a verdict or for vacating,
modifying or otherwise disturbing a judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial justice. The court at every stage of the
proceeding must disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties." K.S.A. 60-261.

Although the district court did not specifically address the criteria of K.S.A. 75-
4353(c), the court asked the parties whether they had any questions regarding Alam's
qualifications. Defense counsel indicated that Alam was the only person that the defense
could locate who was qualified to interpret and that Alam had been involved in the
preliminary hearing. Defense counsel raised no objection during the pretrial motions
hearing or at any time during trial. Consequently, appellate review of Shaha's challenge
to Alam's adequacy as an interpreter is hampered by the lack of a record. Moreover, as
mentioned, Shaha does not challenge the effectiveness of his counsel with respect to the
failure to object to the interpreter's lack of qualifications.

"Only if the defendant makes any difficulty with the interpreter known to the court
can the judge take corrective measures. To allow a defendant to remain silent throughout
the trial and then, upon being found guilty, to assert a claim of inadequate translation
would be an open invitation to abuse." Valladares v. United States, 871 F.2d 1564, 1566
(11th Cir. 1989); see also State v. Vasquez, 272 Kan. 692, 699, 36 P.3d 246 (2001)
(rejecting a challenge to a translator for the first time on appeal as a basis for withdrawing
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a plea); State v. Crane, 260 Kan. 208, 218, 918 P.2d 1256 (1996) ("The purpose of
requiring the objection is to allow the trial court to correct an error, if one occurred.").

In the present case, the record reflects very few indications that Alam's
qualifications as an interpreter might be substandard. While Alam admitted that he
possessed no prior experience as an interpreter, he indicated he spoke the language,
"Bala," well. Alam later testified that Bala was his native language and he possessed an
adequate mastery of English. On two occasions, Alam stopped the examining attorney to
request that the attorney rephrase a question because the concepts did not translate easily
into Bala.

Appellate review of the adequacy of an interpreter is limited. Absent some
contrary showing, courts presume that an interpreter exercising his or her official duties
has acted properly. A showing that an interpreter has had some difficulty translating a
question or response is not sufficient to rebut the presumption because courts have
recognized that languages may not translate directly. A literal translation is not essential
so long as the answers of the interpreter conveyed the same meaning expressed by the
witness. State v. Pham, 234 Kan. 649, 663, 675 P.2d 848 (1984).

Shaha contends that Alam's inadequacy as an interpreter was demonstrated by his
performance during the trial, specifically: (1) Alam failed to begin interpreting until the
prosecutor brought the district court's attention to the fact that Alam was not interpreting
and (2) Alam told Shaha that he would not continue to interpret if Shaha talked too much.

After Alam was sworn in at the pretrial motions hearing, the district court
requested that the attorneys make a record of Shaha's ability to understand English.
Henderson expressed his belief that Shaha spoke very little English and an interpreter
was essential. At this point, the prosecutor noted that Alam was not interpreting.

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Under the circumstances, Alam's failure to begin interpreting for Shaha during the
pretrial motions hearing did not establish Alam's inadequacy as an interpreter. Because
the district court indicated that it wished to address Shaha's ability to understand English,
Alam might understandably have believed that he was not expected to begin interpreting.
Moreover, the passage of time between Alam's oath as an interpreter and the prosecutor's
comment was very brief, the intervening discussion involved only arguments by the
attorneys regarding the necessity of an interpreter, and Shaha was not prejudiced by his
inability to understand this portion of the proceedings because the district court ultimately
appointed Alam to interpret. Alam's failure to interpret that brief part of the proceedings
neither deprived Shaha of substantial justice nor reflected any language deficiency on
Alam's part.

In the evidentiary hearing on Shaha's K.S.A. 60-1507 motion, Shaha testified that
Alam told him not to speak too much and threatened to stop interpreting if Shaha
continued to talk too much. Shaha did not provide the context for these alleged comments
by Alam; however, because Shaha stated that he wanted Alam to object, the challenged
comments presumably occurred during the trial. An interpreter's admonition to a criminal
defendant who is interfering with the interpreter's performance of his or her duty by
asking questions or making requests of the interpreter does not necessarily reflect
inadequate interpretation. Without more evidence from Shaha, this court cannot
determine whether his allegations, if true, demonstrated improper conduct by the
interpreter.

Alam also testified at the evidentiary hearing. Although he did not specifically
refute Shaha's allegations regarding the admonition to avoid talking, Alam indicated that
he was able to communicate effectively with Shaha and believed that Shaha was
cooperative with the defense. Alam further stated that Shaha never indicated that Alam's
services were inadequate.

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Even if Alam presented Shaha with an ultimatum as suggested by Shaha, Shaha
fails to explain how Alam's conduct prejudiced his substantial rights. Shaha does not
indicate upon what ground Shaha wished Alam to object and does not allege how the trial
would have been different had his objections been voiced. At the hearing on the K.S.A.
60-1507 motion, Shaha's attorney told Shaha to tell the court anything concerning his
complaints about the trial. Shaha's interpreter replied, "[T]here is like a lot of stuff he
wants to tell, but he's so excited, he can't actually express it right now."

In a K.S.A. 60-1507 proceeding, the movant bears the burden of establishing
errors sufficient to demonstrate the movant's entitlement to relief. Rule 183(g); Wright v.
State, 5 Kan. App. 2d 494, 495, 619 P.2d 155 (1980). The mere allegation that Alam told
Shaha to refrain from talking too much during the trial is insufficient to warrant a new
trial.

Shaha also challenges the use of an interpreter at the evidentiary hearing on his
K.S.A. 60-1507 motion without establishing the interpreter's qualifications according to
the statutory criteria in K.S.A. 75-4353(c). The record is clear that the district court made
no findings on the record regarding the interpreter's qualifications.

However, the record is also clear that Shaha did not raise any objections to his
interpreter at the hearing. It is inappropriate for this court to decide the interpreter's
qualifications in the first instance unless the district court's findings are unreasonable.
Pham, 234 Kan. at 664 ("[T]he competency of an interpreter is for the trial court to
determine, [citation omitted]. Further, it is for the court to determine whether a challenge
to an interpreter's competency at trial has been justified. [Citation omitted.]"); see
Valladares, 871 F.2d at 1566. Consequently, the issue is not properly presented to this
court for the first time on appeal. See Vasquez, 272 Kan. at 699; Crane, 260 Kan. at 218.

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Shaha fails to carry his burden of establishing that any deficiencies in the
interpretation affected his ability to present evidence in support of his claims for relief.
Shaha's primary complaint about his interpreter during the evidentiary hearing is that the
interpreter failed to provide a literal, word-for-word interpretation of Shaha's comments
but, instead, often summarized Shaha's responses and spoke in the third person.

"There is a rebuttable presumption an interpreter in the performance of his
official duty has acted regularly. People v. DeLarco, 142 Cal. App. 3d [294,] 307[, 190
Cal. Rptr. 757 (1983)]. Merely because an interpreter has had some problems in
translating is not sufficient to rebut this presumption. 142 Cal. App. 3d at 307. Courts
have recognized, as is all too evident from this case, that words in one language may not
have an exact companion in another language and it is therefore impossible in certain
circumstances for an interpreter to convey the precise language of the witness to the
court. In Seniuta v. Seniuta, 31 Ill. App. 3d 408, 334 N.E.2d 261 (1975), the Illinois
Court of Appeals declared an interpreter's account of the answers of a witness need not be
literal as long as the answers of the interpreter and the witness amounted to the same
thing. 31 Ill. App. 3d at 417. Indeed, there are situations in which the interpreter may
testify to the sense in which he or she understood the witness. 31 Ill. App. 3d at 417. See
also United States v. Guerra, 334 F.2d 138, 142-43 (2d Cir.), cert. denied 379 U.S. 936
(1964). The California Supreme Court in People v. Jackson, 53 Cal. 2d 89, 346 P.2d 389
(1959), found no error where an interpreter employed an irregular technique in answering
in the third person, and in some instances editing, explaining or interpolating the
questions and answers. 53 Cal. 2d at 95. No substantial deviation was observed between
the interpreter's answers and other testimony in the case. 53 Cal. 2d at 95." Pham, 234
Kan. at 663.

The record on appeal reveals no suggestions that Shaha's testimony was
misrepresented to the court by the interpreter at the K.S.A. 60-1507 hearing. Therefore,
the district court's error in failing to consider the interpreter's qualifications on the record
constitutes harmless error. See K.S.A. 60-261; State v. Gunby, 282 Kan. 39, 144 P.3d 647
(2006) (applying a harmless error analysis to the failure to provide a limiting instruction
when K.S.A. 60-455 evidence is admitted at trial).
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DENIAL OF INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

Shaha also challenges the district court's denial of his ineffective assistance of
counsel claim, contending that the district court's factual findings were not supported by
the record. At the hearing, Shaha raised several grounds for ineffective assistance of
counsel other than those possibly connected with the interpreter issue. However, on
appeal, Shaha challenges the district court's ruling only with regard to attorney
Henderson's interaction with Shaha prior to trial. Consequently, as the State contends, the
remaining allegations of ineffective assistance of counsel are deemed abandoned. State v.
Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007) ("An issue not briefed by the appellant
is deemed waived or abandoned.").

When a person convicted of a crime seeks relief from his or her conviction based
upon ineffective assistance of counsel, he or she must establish that counsel's
performance fell below an objective standard of reasonable representation and that the
deficient representation prejudiced his or her ability to obtain a fair trial. Harris v. State,
288 Kan. 414, 416, 204 P.3d 557 (2009).

"Judicial scrutiny of counsel's performance must be highly deferential. There is a
strong presumption that counsel's conduct fell within the wide range of reasonable
professional assistance. In order to show prejudice, a defendant must show a reasonable
probability that, except for counsel's deficient performance, the result of the trial would
have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. A court considering a claim of ineffective assistance of
counsel must consider all the evidence before the judge or jury. [Citation omitted.]"
Harris, 288 Kan. at 416.

Shaha challenges the district court's findings with respect to Henderson's trial
preparation with Shaha. The district court specifically found:
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"The evidence presented here today demonstrates movant's attorney met with him no
fewer than twelve times prior to trial. He utilized the services of an interpreter during
those visits which enabled him to conduct an appropriate preliminary interview and
review the evidence with movant."

Shaha takes issue with the district court's finding that Henderson utilized the
services of an interpreter during each of Henderson's pretrial visits with Shaha. The State
does not contend the trial court's statement was correct, but instead points out that Shaha
does not challenge the essence of the district court's finding—i.e., that counsel conducted
adequate pretrial preparation with Shaha. Indeed, the State concedes that the record does
not support the trial court's finding that an interpreter was present at each of counsel's 12
pretrial meetings with Shaha. Rather, the State points out that the record reflects that trial
counsel visited Shaha at the jail with the interpreter on at least six different occasions for
an extended period of time. Additionally, the State notes that the record shows that trial
counsel's legal assistant also visited Shaha on one occasion and conducted pretrial
preparation, along with the interpreter.

In addition to counsel's and the interpreter's testimony regarding pretrial visits and
preparation, trial counsel also testified that Shaha was actively involved in his own case
and worked with counsel by sending him approximately 20 "kites" to identify witnesses
and discuss issues. Moreover, trial counsel testified that he and Shaha reviewed the
details of the case together page by page. Finally, we find it significant that Shaha does
not allege that he was prejudiced by trial counsel's failure to have an interpreter present at
each pretrial meeting with his client.

Thus, we conclude that although the district court erred in finding that trial counsel
was accompanied by an interpreter at each visit with Shaha, substantial competent
evidence supports the district court's determination that trial counsel engaged in adequate
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pretrial preparation with Shaha. See Bellamy v. State, 285 Kan. 346, 354-55, 172 P.3d 10
(2007).

Affirmed.