       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                     HENRY MENDEZ-MARTINEZ,
                            Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D16-3541

                          [December 13, 2017]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Lawrence M. Mirman, Judge; L.T. Case No.
432014CF00696.

  Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

KUNTZ, J.

    The Defendant appeals his conviction for attempted sexual battery on
a victim twelve years of age or older and burglary of a dwelling with an
assault or battery. He raises two issues on appeal, and we affirm as to the
first without further comment. For his second issue, he argues the court
erred when it allowed the investigating officer who interviewed him to
translate his video-taped confession while she was a witness on the stand.
We agree with the Defendant, reverse his conviction, and remand for a new
trial.

                              Background

   After an evening out, the victim’s father and the Defendant returned to
the victim’s home to continue drinking. Eventually the victim’s father left
the residence with another friend to buy beer. The Defendant remained
on the front-porch, but he was not given permission to enter the home.
However, shortly after the victim’s father left, the victim heard the front
door open and the Defendant was soon seated on his bed, attempting to
engage in sexual acts with him. At some point, while attempting to stop
the sexual advances, the victim whispered that his father had returned
and the advances stopped. The father found the Defendant buttoning his
pants as he exited the victim’s room and the victim in tears. The father
followed the Defendant to the front porch and instructed the other friend
to hold him while he checked on the victim. The friend, using physical
force, required the Defendant to remain until the police arrived.

   Sergeant Carde, from the Martin County Sheriff’s Office, was the
responding officer, and she conducted a recorded interview with the
Defendant.    The interview was conducted in Spanish and lasted
approximately one-hour. The Defendant eventually admitted to certain
facts forming the basis of the charges against him. Unfortunately, the
interview was not translated into English prior to trial.

     At trial, the State expressed its concern to the court about questioning
Sergeant Carde about the video because it was not translated and was
entirely in Spanish. The State told the judge that “if they object, then
[Sergeant] Carde wouldn’t be able to do it.” The judge questioned counsel
for the State and the Defendant as to why it would be objectionable to
allow Sergeant Carde to translate the recording from Spanish as it was
being played, and the State interjected “I can’t do it without a stipulation
from the Defense. The case law is really bad on that” and “I can’t have
[Sergeant] Carde translate from Spanish to English and English to
Spanish.” The court disagreed with the State and the State responded by
pointing out that “the translation hinges on impartiality. And because
she’s the person that did the interview, she couldn’t be considered as being
impartial by doing a translation.” Ultimately, the court disagreed and
stated “so [Sergeant] Carde spoke to the Defendant in Spanish. Regardless
if it was recorded or not—if the recording had disappeared, she’d still be
able to come in and say I spoke with him in Spanish, I asked him these
questions and this is what he said, period.”

    The State played the video of the interview, the Sergeant translated the
conversation from Spanish to English as it was played to the jury, and
counsel for the Defendant objected to “this whole procedure” and to the
translation itself on multiple occasions. The Defendant’s objections were
overruled and, in response to an objection that stated “I’m going to object
to the fact that—,” his counsel was told to “take a chill pill.”

   The jury found the Defendant guilty of both charges, and he appeals.




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                                 Analysis

   A court’s decision to admit testimony translating evidence from Spanish
to English is reviewed for abuse of discretion. Fernandez v. State, 21 So.
3d 155, 157 (Fla. 4th DCA 2009). That discretion, however, is limited by
the rules of evidence, and is abused “if the interpreter is not qualified,
sworn, and impartial.” Gopar-Santana v. State, 862 So. 2d 54, 55 (Fla. 2d
DCA 2003). Further, when the State seeks to admit into evidence a
recording in Spanish, generally “a sworn interpreter must be provided to
translate such conversations as may be necessary to preclude the
potential of prejudice.” Hernandez v. State, 723 So. 2d 857, 859 (Fla. 4th
DCA 1998); see also Hutchens v. State, 469 So. 2d 924, 925 (Fla. 3d DCA
1985) (finding the court erred in allowing the State to admit audio
recordings into evidence “without having such recording translated into
English for the jurors by an interpreter sworn to give a faithful and
accurate translation”).

   In prior cases, courts have allowed a State’s witness to translate a
recording. However, in such cases, courts either required a certified
translation or employed certain procedural safeguards. For example, in
Hutchens, the court required “an interpreter sworn to give a faithful and
accurate translation.” 469 So. 2d at 925. We required similar protections
in Hernandez. See 723 So. 2d at 859.

    Two additional cases are instructive. In Fernandez, though the State’s
witness was employed by the State and therefore could not be certified as
an independent translator, she testified that she was not involved in the
investigation of the case and was not influenced by the investigating
officers. 21 So. 3d at 156. Accordingly, we did not require a certified
interpreter because her testimony as to her experience and the exact
translation process combined were sufficient to satisfy the required
procedural safeguards. Id.

   In Lopez v. State, 153 So. 3d 927 (Fla. 2d DCA 2014), “[o]utside the
presence of the jury, the judge required the lead officer to testify that the
documents represented accurate translations. The judge also considered
extensive evidence as to the lead officer’s experience and competence in
Spanish, as well as the team method by which the translations were
created.” Id. at 932–33. There, our sister district found the “trial judge
essentially made a gatekeeper decision that the translations were of
sufficient quality and that their accuracy should be a jury question under
the new instruction.” Id. at 933. The court also concluded that “we
continue to believe that allowing an officer who is so directly involved in
an arrest or interrogation to provide a quick translation on such a

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videotape or to be a translator at trial is bad practice and unnecessary.”
Id.

   Here, the procedural safeguards approved in prior cases were not
satisfied when the court allowed the Sergeant to translate the video of her
interview with the Defendant while on the witness stand. The translator
did not provide a translation before testifying. Importantly, the translator
was the person responsible for the investigation. Defense counsel objected
three times during the impromptu translation, asserting that the
translation was inconsistent with his understanding of the Spanish
language. Beyond that, the State itself stated that the Sergeant could not
provide the testimony ultimately given, telling the court, “I can’t have
[Sergeant] Carde translate from Spanish to English and English to
Spanish.” The court simply did not agree and allowed testimony both the
State and the Defendant believed improper. 1

                                 Conclusion

    While testifying before the jury, the court allowed the investigating
officer to translate her own interview with the Defendant. This was done
without hearing testimony outside of the jury’s presence, which could have
permitted the court to assess whether the State presented sufficient
evidence as to the accuracy of the translation. This testimony was also
permitted after the State and the Defendant both asserted it was improper.
Because the State did not present sufficient testimony or evidence to allow
the court to satisfy its gatekeeping role, the court abused its discretion in
allowing the testimony. The Defendant’s convictions are reversed and the
matter is remanded for a new trial.

    Reversed and remanded.

LEVINE and FORST, JJ., concur.

                             *         *         *

    Not final until disposition of timely filed motion for rehearing.




1Notably, the State began by asking for additional time to allow a transcript to
be prepared. Therefore, the creation of a certified transcript was certainly
possible.

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