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                 THE SUPREME COURT OF NEW HAMPSHIRE

                             ___________________________


Rockingham
No. 2013-075


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                                    THOMAS JUR


                              Argued: January 9, 2014
                             Opinion Issued: May 8, 2014

      Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney
general, on the brief and orally), for the State.

      James B. Reis, assistant appellate defender, of Concord, on the brief and
orally, for the defendant.

       LYNN, J. Following a jury trial, the defendant, Thomas Jur, was
convicted of operating a motor vehicle while certified as a habitual offender.
RSA 262:23 (Supp. 2012). On appeal, he argues that the Superior Court
(Delker, J.) erred by denying his pretrial request for an interpreter, thus
violating his right to a fair trial and effective assistance of counsel under both
the State and Federal Constitutions. In the alternative, the defendant argues
that the trial court’s failure to appoint an interpreter at trial sua sponte was
error. We affirm.
                                                 I

       The pertinent facts are as follows. In February 2012, the defendant was
indicted on the habitual offender charge. On March 13, 2012, his defense
counsel filed a motion requesting that the trial court provide the defendant
with an interpreter. In support of the motion, counsel stated that the
defendant is from Sudan, that his primary language is Dinka, and that he has
difficulty understanding the English language. The State did not object. The
trial court granted the motion on March 28, 2012.1 On August 13, 2012, the
clerk of court mailed a letter to a prospective interpreter, informing her of the
need for her services and the dates of both the pretrial conference and the trial.
However, as of November 26, 2012, the date the court held a final pretrial
hearing, neither the court nor the parties had been able to secure a Dinka
interpreter. The trial court had been notified of the lack of an interpreter a
week prior to the hearing, and had informed defense counsel that it would
engage in a colloquy with the defendant to determine whether he needed an
interpreter for trial.

       At the beginning of the hearing, both the State’s attorney and defense
counsel discussed their efforts to find an interpreter. The State stated that it
had tried to contact two different organizations to secure an interpreter, but
had been unable to reach either. Defense counsel stated that the defendant
had identified an interpreter at one point – the individual whom the clerk of
court attempted to contact via letter on August 13, 2012 – but had been unable
to get in touch with her during the several months prior to the hearing.2

        The court next engaged in a colloquy with the defendant to assess his
English language abilities. It began by asking the defendant, “[T]here’s some
question about how much English you understand and I want to talk to you a
little bit about that, okay?” The defendant assented, and the trial court asked
a series of background questions: where the defendant was from; when he first
came to the United States; whether he was a United States citizen; and where
he had been living since he moved to New Hampshire. The defendant answered
these questions with one-word or short responses. The trial court then asked

1 The State did not object to the motion for appointment of an interpreter, and it appears that the

court granted the motion without conducting a hearing or making any specific factual findings
regarding the defendant’s need for an interpreter.

2 Although the trial court’s colloquy and determination on whether to proceed without an
interpreter was apparently prompted by the difficulty in obtaining a Dinka language interpreter,
we emphasize that we do not rely on this fact in concluding that the trial court did not err in
proceeding to trial without one. Difficulty in obtaining an interpreter does not constitute a
permissible basis for denial of an interpreter to a defendant who requires one in order to
reasonably understand the proceedings and receive a fair trial, although it may inform a court’s
exercise of discretion in determining the manner in which necessary interpreter services will be
provided.



                                                 2
whether the defendant had worked at any point. The defendant stated that he
had done “a lot” of work and specified that, for example, he had been a
machine operator in Manchester for six years. The colloquy continued as
follows:

     THE COURT: Okay. So before you came to the United States, did you go
     to school in the Sudan?

     THE DEFENDANT: Yes.

     THE COURT: How long, how many years did you go to school there?

     THE DEFENDANT: Four or five years, and then I stopped because of
     war.

     THE COURT: Okay.

     THE DEFENDANT: And I go to Ethiopia.

     THE COURT: Okay.

     THE DEFENDANT: I started school for one year. I go in the army, then I
     stopped . . . .

      The trial court next inquired about the defendant’s native language,
which the defendant stated was Dinka. The trial court asked whether the
defendant had ever taken English language courses in Sudan or Ethiopia, to
which the defendant responded, “No.” The trial court then asked how he
learned to speak English once he arrived in the United States:

     THE COURT: [D]id you take classes, English as a Second Language, or
     how did you go about learning English here?

     THE DEFENDANT: I go to the Congregation Church.

     THE COURT: Okay.

     THE DEFENDANT: In Manchester.

     THE COURT: All right. And do they have classes there?

     THE DEFENDANT: Yeah. Teacher Sue.

     THE COURT: Okay. And how long did you take those, how long did you
     go to those classes?



                                     3
      THE DEFENDANT: Sometime I go, sometime I’m working. Sometime I
      work that shift, so I sleep all day. Sometimes school is stopped for
      second shift. So maybe for two years.

The trial court next asked the defendant whether he understood the charges.
The defendant responded in the affirmative, stating, “Yes, what happened.”
When asked to explain himself more particularly, the defendant stated, “I’m
driving no license” and when asked, said that this was a crime because of a
previous DUI. Based upon the defendant’s response, the trial court then
inquired into his past experience with the criminal justice system. In response
to those questions, the defendant stated that he had had prior charges that
had gone to trial. However, when asked whether there had been a jury of
twelve people, the defendant stated “no” and, upon further questioning,
explained: “My lawyer go and talk to the lady . . . and give him the paper I
signed. That’s it.” The colloquy continued as follows:

      THE COURT: Okay. Did you have an interpreter in those other cases,
      the past cases?

      THE DEFENDANT: Yes.

      THE COURT: Okay. And how about in talking with [defense counsel] in
      this case; have you and he used an interpreter or have you been able to
      talk to him without an interpreter?

      THE DEFENDANT: Before we have one (indiscernible).

      THE COURT: Okay.

      THE DEFENDANT: But now I talk to him. I understand some of those
      words, but some big words I don’t know. And he showed me example so
      I understand, yes.

      THE COURT: Okay. All right. So it sounds like it takes a little bit of
      communication back and forth with you and [defense counsel] to
      understand all of the words that he’s using; is that correct?

      THE DEFENDANT: Yes, a lot.

When asked whether there were still things that the defendant did not
understand, the defendant responded, “Yes, a little bit.” The trial court asked
some follow-up questions to determine what the defendant meant by this
response, but stopped when the defendant’s answers began to reveal trial
strategy.




                                       4
       After speaking with the defendant, the trial court asked the State what
its case consisted of in terms of witnesses and evidence. The State explained
that it had two witnesses – the arresting officer and the hearings officer who
certified the defendant as a habitual offender – and that their testimony would
be “two hours at most.” At this point, the trial court asked the defendant the
following:

       Let me ask you this . . . . If I made sure that you had enough time
       to talk to [defense counsel], do you feel comfortable asking him, if
       there are things that the witnesses say that you don’t understand,
       to be able to have time to consult with him about those issues to
       make sure you understand everything that’s going on?

The defendant responded, “Yes.” The trial court continued: “And if you have
any questions along the way that he cannot answer for you, do you feel
comfortable letting me know that you’re having difficulty understanding what’s
happening in the trial?” Again, the defendant responded, “Yes.” The trial court
then asked defense counsel whether there was someone from his office who
could assist him, so that the defendant could communicate with someone while
defense counsel cross-examined witnesses. Defense counsel stated that he
was sure he could find someone to assist him during trial. 3

      At that point, the trial court stated that the trial would proceed without
an interpreter:

       I think that [in] talking to [the defendant] today that his English is
       sufficient to ensure that . . . his due process rights and his right to
       hear what the witnesses say and understand what they say can be
       protected by making sure we conduct this trial in a way that he
       has an adequate opportunity to talk with [defense counsel] and/or
       anyone who is helping him to make sure the Defendant
       understands all the issues. . . . But I think talking to [the
       defendant] I’ve been able to communicate, I think, with him quite
       effectively. . . . English isn’t his first language, but he seemed to
       understand questions I’ve asked and I seem to understand his
       responses to those questions. And so I think given the fairly
       simple nature of these charges and the limited testimony that the
       State intends to introduce, that this case can go forward without
       an interpreter.




3 The trial record reflects that defense counsel did have another person present to assist him and
the defendant during the trial.



                                                5
       Defense counsel objected to the ruling, stating that an interpreter would
be in the defendant’s best interest. The trial court responded that it would
make sure that defense counsel had “enough time between directs and crosses
to talk or even if during the course of the testimony [the defendant] has
questions that he wants to talk to you about or doesn’t understand, we can
break even during a direct or cross” so that defense counsel could address
those issues. When defense counsel asked whether it had the trial court’s
permission to take breaks when necessary, the trial court responded,
“Absolutely.”

       At the start of the trial, during its preliminary jury instructions, the trial
court informed the jury that it would take more frequent breaks than usual
because the defendant’s native language was not English, and it wanted to
ensure that defense counsel had enough time to confer with the defendant.
After the trial court concluded its instructions, defense counsel –at the bench –
stated that the defendant’s understanding of the instructions was that “the
jury should be listening to see if he’s guilty or not guilty.” However, defense
counsel noted that the defendant did not understand what the trial court was
saying as it was speaking, because it was speaking too fast. The trial court
noted that counsel had received a written copy of the preliminary instructions
prior to trial, and indicated that it would take a break to allow counsel to speak
to the defendant about the instructions. The trial court also stated that it
would be mindful to speak more slowly going forward, and reminded the State’s
attorney to do the same. The trial then commenced.

       Several times during the trial, the rate of speech of the State’s attorney
and witnesses was identified as an issue. At the beginning of the first witness’s
testimony, defense counsel interrupted, approached the bench, and informed
the trial court that the State’s attorney was speaking too quickly. The State’s
attorney responded that she would slow her pace. In addition, the trial court
also asked the witness to slow down, as he, too, was speaking very quickly.
The witness agreed, and the direct examination continued. On another
occasion, at the beginning of the direct examination of the second witness, the
State’s attorney asked the witness to slow down, acknowledging that she
herself had also been speaking quickly. A few moments after the witness
resumed her testimony, defense counsel asked the witness to slow down “a bit
more.” The witness agreed and completed her testimony without any further
objections or interruptions from defense counsel.

       The trial court asked defense counsel on three occasions whether he
would like to recess to consult with the defendant: after the direct examination
of the first witness; after the State rested; and before defense counsel began his
redirect examination of the defendant. Defense counsel accepted all three
offers.




                                         6
      The defendant testified in his own defense at trial. During direct
examination, defense counsel inquired into how much he had understood of
the testimony of the State’s two witnesses:

      DEFENSE COUNSEL: Okay. By the way, Thomas, when you’re sitting
      here and the police officer testified, did you understand most of what he
      said or some of what he said?

      DEFENDANT: A little bit.

      DEFENSE COUNSEL: A little bit.

      DEFENDANT: Yes.

      DEFENSE COUNSEL: Okay. When the [hearings officer] was testifying
      . . . did you understand what she was saying?

      DEFENDANT: A little bit.

In total, the defendant provided extensive testimony that spans sixty-three
pages of transcript of the two-day trial.

       Ultimately, the jury convicted the defendant of operating a motor vehicle
after certification as a habitual offender. This appeal followed.

                                        II

       The defendant argues that the trial court’s pretrial ruling to proceed to
trial without a Dinka interpreter was error, as the colloquy showed that his
ability to understand English was compromised to such an extent that an
interpreter was necessary to protect his constitutional rights. He argues
further that, even if the pretrial ruling was proper, the trial court erred by not
appointing an interpreter during the trial, when the defendant’s limited English
proficiency became more “pronounced” and “obvious.” For these reasons, the
defendant asserts that the trial court violated his rights to a fair trial and
effective assistance of counsel under Part I, Article 15 of the New Hampshire
Constitution and the Sixth and Fourteenth Amendments to the United States
Constitution.

      We first address his claims under the State Constitution, and rely upon
federal law only to aid our analysis. See State v. Ball, 124 N.H. 226, 231-33
(1983). Given that we have never specifically considered when a criminal
defendant is constitutionally entitled to a court-appointed interpreter under the
New Hampshire Constitution, that there is no state statute addressing the
matter, and that the trial here took place prior to our recent adoption of the



                                        7
New Hampshire Judicial Branch Language Services Plan,4 we find the decisions
of federal courts and other state courts addressing similar issues to be of great
assistance to our analysis.

       “As a constitutional matter, in determining whether an interpreter is
needed, the trial court must balance the defendant’s rights to due process,
confrontation of witnesses, effective assistance of counsel, and to be present at
his trial against the public’s interest in the economical administration of
criminal law.”5 United States v. Edouard, 485 F.3d 1324, 1338 (11th Cir.
2011) (quotation omitted). At one end of the spectrum, it is settled federal law
that a foreign-born defendant who speaks fluent English and is “completely
aware of all the proceedings” does not have a constitutional right to an
interpreter. United States v. Carrion, 488 F.2d 12, 14 (1st Cir. 1973)
(quotation omitted). At the opposite end of the spectrum, and notwithstanding
that the United States Supreme Court has not specifically weighed in on the
issue,6 it seems equally clear that “a defendant whose fluency in English is so
impaired that it interferes with his right to confrontation or his capacity, as a
witness, to understand or respond to questions has a constitutional right to an
interpreter.” United States v. Lim, 794 F.2d 469, 470 (9th Cir. 1986); see
Carrion, 488 F.2d at 14 (“Clearly, the right to confront witnesses would be
meaningless if the accused could not understand their testimony, and the
effectiveness of cross-examination would be severely hampered.”); Ko v. United
States, 722 A.2d 830, 834 (D.C. 1998) (“When the accused cannot understand
the proceedings, then the trial, to him, is no more than a babble of voices, and
he cannot fairly be said to be present at his own trial.”) (quotation and citation
omitted); State v. Faafiti, 513 P.2d 697, 699 (Haw. 1973) (“It is general law that
where a defendant cannot understand and speak English, the judge is required
to appoint an interpreter . . . .”); Joung Youn Kim v. State, 331 S.W.3d 156,
162 (Tex. App. 2011) (explaining that a criminal defendant has a right to be


4See N.H. Sup. Ct. Order of Dec. 24, 2013, adopting the New Hampshire Judicial Branch
Language Services Plan.

5 A criminal defendant in federal court also has a statutory right to an interpreter under the Court

Interpreters Act, 28 U.S.C. § 1827(d)(1)(2012), under the following circumstances:

       [I]f the presiding judicial officer determines on such officer’s own motion or on the
       motion of a party that such party (including a defendant in a criminal case) . . .
       speaks only or primarily a language other than the English language . . . so as to
       inhibit such party’s comprehension of the proceedings or communication with
       counsel or the presiding judicial officer . . . .

6 The United States Supreme Court has not recognized a constitutional right to a court-appointed
interpreter, but has stated that whether to appoint an interpreter is a matter within the discretion
of the trial court. United States v. Si, 333 F.3d 1041, 1043 n.3 (9th Cir. 2003); see Perovich v.
United States, 205 U.S. 86, 91 (1907) (stating that the matter of appointing an interpreter “largely
rest[s] in the discretion of the trial court”).



                                                 8
present at his trial and that presence includes not only physical attendance
but also comprehension of the proceedings).

       We conclude that the rights afforded by the New Hampshire Constitution
are consistent with the law of other jurisdictions as articulated above.
Regardless of where born, a criminal defendant who is fluent in English and is
aware of the proceedings against him has sufficient “presence” at, and
opportunity to participate in, his trial to satisfy the requirements of Part I,
Article 15 of the State Constitution. See State v. Cosme, 157 N.H. 40, 42
(2008); cf. State v. Decato, 165 N.H. 294, 297 (2013) (reciting two-prong
standard for competency to stand trial: (1) sufficient present ability to consult
with and assist counsel with a reasonable degree of rational understanding;
and (2) a rational as well as factual understanding of the proceedings).
Similarly, there can be no doubt that a defendant whose English language
abilities are so impaired as to prevent comprehension of what is occurring
cannot, in any realistic sense, be deemed to be “present” at the trial so as to
confront his accusers, assist his counsel with his defense, or receive the fair
trial that our State Constitution demands. Cosme, 157 N.H. at 42.

        “The status of the right [to an interpreter] becomes less certain, however
. . . [when] the defendant has some ability to understand and communicate,
but clearly has difficulty.” Carrion, 488 F.2d at 14. Many courts have stated
that a trial court’s determination as to whether an interpreter is needed when a
defendant speaks some English, albeit imperfectly, will depend upon a variety
of factors. See id.; United States v. Johnson, 248 F.3d 655, 661 (7th Cir.
2001); Nur v. State, 869 N.E.2d 472, 478 (Ind. Ct. App. 2007); Com. v. Garcia,
399 N.E.2d 460, 470 (Mass. 1980). These factors include: “the complexity of
the issues and testimony presented during trial,” Carrion, 488 F.2d at 14; “the
language ability of the defendant’s counsel,” id.; and “the defendant’s
knowledge of English,” Johnson, 248 F.3d at 661 (quotation omitted).
Moreover, “considerations of judicial economy . . . dictate that the trial court,
coming into direct contact with the defendant, be granted wide discretion in
determining whether an interpreter is necessary.” Carrion, 488 F.2d at 14; see
United States v. Mayans, 17 F.3d 1174, 1179 (9th Cir. 1994) (“[The]
fundamental question of whether an interpreter is necessary has been
consigned to the wide discretion of the trial court.” (quotation omitted)); Garcia,
399 N.E.2d at 470 (stating that the decision to appoint an interpreter is
“uniquely within the province of the trial judge,” who must be given “wide
discretion”). Thus, federal and state appellate courts review a trial court’s
decision as to the need to appoint an interpreter using the abuse of discretion
standard. See, e.g., Edouard, 485 F.3d at 1337; Nur, 869 N.E.2d at 480.

      Although the defendant urges us to employ de novo review in light of the
constitutional implications of the trial court’s decision, we decline to do so. As




                                        9
the court aptly observed in In re Ejoel M., 824 N.Y.S.2d 660, 662 (N.Y. App.
Div. 2006),

      The determination whether a court-appointed interpreter is
      necessary lies within the sound discretion of the trial court, which
      is in the best position to make the fact-intensive inquiries
      necessary to determine whether there exists a language barrier
      such that the failure to appoint an interpreter will deprive the
      defendant of his or her constitutional rights.

(Quotation omitted). We agree that trial courts are in the best position to
determine when a defendant has need for the services of an interpreter and
that appellate courts are ill-equipped to second-guess such decisions.
Accordingly, we conclude that the trial court’s handling of the interpreter issue
in this case is subject to review under our unsustainable exercise of discretion
standard. Cf. State v. Lambert, 147 N.H. 295, 296 (2001) (“Because the ‘abuse
of discretion’ standard may carry an inaccurate connotation, we will hereafter
refer to it as the ‘unsustainable exercise of discretion’ standard.”). “To show
that the trial court’s exercise of discretion was unsustainable, the defendant
bears the burden of establishing that the decision was clearly unreasonable to
the prejudice of his case.” State v. Morrill, 154 N.H. 547, 550 (2006).

                                       III

       We first consider whether the trial court unsustainably exercised its
discretion when it determined, at the pretrial hearing, that the trial could
proceed without providing the defendant with an interpreter. During the
pretrial hearing, the court properly engaged in a colloquy with the defendant to
determine his English language abilities. See Johnson, 248 F.3d at 661
(stating that “the defendant’s knowledge of English” is a factor for the trial
court to consider when deciding whether an interpreter is needed). The
colloquy covered a variety of topics, including: the defendant’s immigration to
the United States from Sudan; his schooling in Africa; the English language
classes he took in New Hampshire; his understanding of the proceedings
against him; and his past experience with the New Hampshire criminal justice
system.

       The trial court posed many questions to the defendant: some were
phrased so as to require only “yes” or “no” answers, while others required more
specific or detailed responses. In general, we are not convinced that the
defendant’s “yes” or “no” responses necessarily indicated a sufficient level of
English proficiency. While they were responsive to the questions in a technical
sense, they did not show the defendant’s level of understanding with regard to
each question. However, while these “yes” or “no” responses were common
throughout the colloquy, there were also answers that were more detailed and



                                       10
lengthy. We find that these detailed responses – all of which were responsive to
the questions posed – were indicative of the defendant’s English language
proficiency, in that they showed a deeper comprehension and command of
English than was evidenced by his simple “yes” or “no” answers.

       We agree with the Supreme Court of South Dakota that “there is perhaps
no better indication for an appeals court that a defendant can speak and
understand English than when the record reflects that he gave testimony or
offered some other oral statement.” State v. Selalla, 744 N.W.2d 802, 810 (S.D.
2008). In light of the hearing record, we are satisfied with the trial court’s
conclusion – based upon its face-to-face conversation and interaction with the
defendant – that although “English isn’t [the defendant’s] first language, . . . he
seemed to understand questions [the trial court] asked and [the trial court]
seem[ed] to understand his responses to those questions.” We also are
reassured by the fact that the defendant and defense counsel communicated
with each other in English, and that counsel does not allege that he requested
an interpreter to assist him in pretrial preparation sessions with the defendant.
See Mui v. United States, No. 99 CV 3627 (55)(RER), 2013 WL 6330661, at *19
(E.D.N.Y. Dec. 5, 2013) (finding that defendant’s failure to request an
interpreter to assist him in communicating with counsel pretrial “speaks
volumes” about his ability to communicate in English). According to the
defendant, they were able to communicate successfully by going back and forth
a lot, with defense counsel using examples to explain things to the defendant.
“Even though a defendant might not speak grammatically correct English,
where the record satisfactorily demonstrates that such defendant [had] a
sufficient command of the English language to understand questions posed
and answers given, there has been no abuse of discretion in refusing to appoint
an interpreter.” State v. Topete, 380 N.W.2d 635, 636 (Neb. 1986) (citation
omitted).

       In addition to examining the defendant’s English language ability, the
trial court also asked the State about the testimony and evidence it would
introduce at trial. See Carrion, 488 F.2d at 14 (stating that the “complexity of
the issues and testimony presented at trial” are factors for the trial court to
consider when deciding whether an interpreter is necessary). The State
indicated that it would call only two witnesses, and estimated that their
testimony would take two hours at most. Based on this information, as well as
the nature of the charge, we agree with the trial court’s characterization of the
case as “fairly simple.”

      Furthermore, prior to its ruling, the trial court proposed various
accommodations to enhance the defendant’s ability to understand the
proceedings. It asked the defendant whether he felt comfortable notifying
defense counsel if he did not understand a witness, so that the trial court
could give him time to consult with counsel. The court also asked whether the



                                        11
defendant felt comfortable letting it know when he was having a difficult time
understanding what was happening. The defendant responded affirmatively to
both questions. The trial court then assured defense counsel that he could
take breaks whenever necessary, and suggested finding someone with whom
the defendant could communicate when defense counsel was otherwise
engaged. These accommodations undertaken by the trial court are similar to
those employed in other cases where courts have upheld decisions not to
appoint an interpreter for the defendant. See Carrion, 488 F.2d at 15 (no
abuse of discretion by not appointing an interpreter where, among other
factors, “the court told the appellant that if, at any point in the proceedings,
there was something he did not understand, he need only raise his hand and
the testimony would be repeated”).

       Overall, we are satisfied that the trial court’s pretrial decision to proceed
without an interpreter was a sustainable exercise of discretion and did not
violate any of the defendant’s rights under the State Constitution. As the
Federal Constitution offers the defendant no greater protection than the State
Constitution under these circumstances, as discussed above, we also find no
violation of the Federal Constitution.

                                                IV

       The defendant next argues that, regardless of the correctness of its
pretrial determination not to appoint an interpreter, the trial court
unsustainably exercised its discretion by not reconsidering that decision and
appointing an interpreter in light of what actually occurred during the trial.
We disagree.

      Initially, we agree with the defendant that the court’s pretrial ruling did
not end its responsibility with respect to this issue. Rather, similar to its
responsibility to ensure that a defendant found mentally competent before trial
remains so throughout the trial, see State v. Bertrand, 123 N.H. 719, 726
(1983),7 the trial court was under a continuing obligation to assess whether the
absence of an interpreter had the effect of denying the defendant a fair trial,
see Commonwealth v. Pana, 364 A.2d 895, 898 (Pa. 1976). Therefore, “if it
[became] apparent that an interpreter [was] necessary during the trial, the



7 A defendant has a right not to be tried if he is mentally incompetent. See State v. Champagne,
127 N.H. 266, 270 (1985); see also Pate v. Robinson, 383 U.S. 375, 378 (1966) (stating that the
conviction of an accused person while legally incompetent violates due process, and state
procedures must be adequate to protect this right). “To protect this guarantee a defendant also
enjoys the procedural advantage that if sufficient doubt exists of his competency to stand trial the
trial court must sua sponte inquire into his competency.” Bertrand, 123 N.H. at 725 (citation
omitted). “A court's failure under such circumstances to inquire as to the defendant's competency
deprives him of his constitutional right to a fair trial.” Id. (quotation omitted).



                                                12
court should [have], on its own motion or on a motion of a party, [made] an
interpreter available.” Id.

       The defendant points to various events at trial that he argues triggered
the trial court’s obligation to appoint an interpreter: the trial court’s
preliminary jury instructions; the rate of speech of the trial court, the State’s
attorney, and witnesses at certain points; and the defendant’s limited
understanding of the testimony. We address each in turn.

       In its preliminary instructions, the trial court advised the jury that it
would take more frequent breaks to allow defense counsel time to confer with
the defendant, whose primary language was not English. In making this
statement, the court specifically told the jury that it should not “hold it against
the Defendant or his attorneys that we’re taking more breaks.” That the trial
court believed it necessary to give this instruction adds nothing to the
defendant’s argument, which we have already rejected, that the court’s pretrial
ruling to proceed without an interpreter was erroneous. The defendant does
not claim that anything occurred between the time the court made its pretrial
ruling and the time it gave this instruction that should have caused it to
reconsider its decision, nor does the defendant suggest that the instruction
itself was improper or prejudicial. The instruction simply informed the jury
that English was not the defendant’s first language and of the procedures the
court would follow to accommodate this circumstance, and cautioned the jury
that any delays resulting therefrom should not be held against the defendant.

       The defendant next points to his complaint about the trial court’s rate of
speech during its preliminary instructions, arguing that his difficulty
understanding them required the trial court to reconsider its decision not to
appoint an interpreter. Although defense counsel’s statement that the
defendant did not understand what the trial court said as it was speaking was
undoubtedly a matter of concern, counsel also acknowledged that the
defendant did seem to comprehend the import of the instructions: that the
jury’s role was to listen and determine whether or not the defendant was guilty.

       We are, moreover, reassured by the trial court’s response to this concern.
First, it pointed out that counsel had received a written copy of the instructions
prior to the trial, and so had the opportunity to go over the instructions with
the defendant before the trial began. Second, it offered to recess immediately
so that defense counsel could explain the instructions to the defendant, an
offer that counsel declined. And third, it reassured defense counsel that it
would be mindful to speak more slowly throughout the remainder of the trial,
showing an ongoing commitment to providing accommodations for the
defendant. We are not persuaded that this incident required the trial court to
revise its earlier ruling regarding the defendant’s need for an interpreter. We
find that the court’s response to the defendant’s concern was adequate, both



                                        13
by ensuring that the defendant had the opportunity to understand what the
court had said to the jury and by agreeing to moderate its rate of speech
thereafter.

       The defendant also argues that, given his limited English proficiency, the
rate of speech used by the State’s attorney and the State’s witnesses impaired
his understanding of the proceedings. The record does not support this claim.
During the direct examination of the State’s first witness, Officer Nathan
Goard, defense counsel asked the prosecutor to slow her speaking pace. The
prosecutor immediately agreed to do so. In addition, the court then addressed
the witness – whose speaking pace had not been the subject of complaint – and
instructed him to articulate and speak more slowly. The witness agreed, and
there were no further objections or comments from the defense or the court
concerning the speaking pace of either the prosecutor or Officer Goard during
the remainder of the officer’s examination.

      Defense counsel objected once to the rate of speech of the second
witness, motor vehicle hearings officer Brenda Hume, at the beginning of
Hume’s direct examination. Defense counsel also briefly mentioned the rate of
speech during Hume’s cross-examination, in which counsel implied – but did
not directly assert – that she had spoken rapidly during her direct examination.
At no point during Hume’s testimony did counsel seek a recess or request any
other relief. We note that defense counsel and the defendant had both agreed
to notify the trial court if the defendant did not understand a witness. Thus,
given the absence of an objection to the trial court’s effort to address the
concerns expressed by counsel during Officer Goard’s testimony, as well as the
single objection posed during Hume’s testimony, we are not persuaded that
these events should have caused the court to reassess the defendant’s need for
an interpreter.

        To the contrary, the record reflects that during the course of the short
trial, the trial court offered the defendant multiple opportunities for a recess so
that his counsel could ensure that he understood the proceedings. Defense
counsel took advantage of most of these offers, but never asked for additional
recesses or stated that he needed more time to ensure that the defendant
understood what was happening at trial – accommodations that the trial court
had made clear it would “absolutely” allow. In this regard, the present case is
similar to Selalla. In that case, the trial court offered to stop the proceedings at
any time so that the defendant and counsel could confer. Selalla, 744 N.W.2d
at 812-13. In affirming the trial court’s decision to dismiss a second
interpreter, the Supreme Court of South Dakota emphasized that “on not one
occasion during the proceedings did either [the defendant] or defense counsel
take the trial court up on its offer to suspend the proceedings so that they
might counsel together.” Id. at 813. Therefore, the court found “no basis upon




                                        14
which to conclude that [the defendant] was in any way prejudiced” by the trial
court’s actions. Id.

        The most significant factor demonstrating that the trial court did not err
in failing to appoint an interpreter is the lengthy record of the defendant’s own
trial testimony. “There is perhaps no better indication for an appeals court
that a defendant can speak and understand English than when the record
reflects that he gave testimony . . . .” Id. at 810. “Even though a defendant
might not speak grammatically correct English, where the record satisfactorily
demonstrates that such defendant had a sufficient command of the English
language to understand questions posed and answers given, there has been no
abuse of discretion in refusing to appoint an interpreter.” Topete, 380 N.W.2d
at 636.

        The defendant presented extensive testimony in his own defense. It is
true that during his direct examination, when he was asked whether he
understood the two witnesses who had testified for the State, he replied, “A
little bit.” And when counsel asked, “If someone talks fast in English, do you
understand it well or no?”, the defendant replied, “No.” However, in
considering the credibility of this testimony as it bore on the defendant’s need
for an interpreter, the trial court could properly consider the fact that the
defendant’s defense hinged upon his inability to understand English.
Specifically, the defendant’s defense at trial was that, due to his language
deficiency, he did not understand that he had been certified as a habitual
offender, and therefore did not knowingly violate the law. Thus, the court
could have found that the defendant had a motive to embellish the extent of his
inability to understand English.8 In any event, based upon our review of the
defendant’s testimony, we are satisfied that he had a sufficient command of
English to understand the proceedings, see Luna v. Black, 772 F.2d 448, 451
(8th Cir. 1985), assist in his defense, see Perez, 404 N.W.2d at 838, and convey
his thoughts to the jury, see Faafiti, 513 P.2d at 699-700. The following
colloquy relating to the circumstances surrounding the defendant’s initial
arrival in New Hampshire well demonstrates the point:

        DEFENSE COUNSEL: What happened when you stepped off the plane in
        Manchester?

8 In denying the defendant’s motion for a directed verdict, the court made the following statement:

“I think that whether the jury accepts or doesn’t accept Mr. Jur’s testimony, and whether they
think that he was exaggerating his English skills, or their lack thereof, and, you know, the
credibility of what to believe . . . I think those are issue’s [sic] that the jury needs to resolve.” We
agree with the trial court on this point and note that, although the evidence of the defendant’s
alleged inability to understand the proceedings that led to his certification as a habitual offender
is relevant to his claim that the trial court erred in failing to appoint an interpreter, the only issue
before us is the correctness of the interpreter appointment decision. The defendant does not
challenge the sufficiency of the evidence to establish beyond a reasonable doubt that he knowingly
violated the habitual offender statute, and thus we have no occasion to address that matter.



                                                  15
      DEFENDANT: Natalie, she come.

      DEFENSE COUNSEL: Natalie?

      DEFENDANT: Yes.

      DEFENSE COUNSEL: Did you know who this person was?

      DEFENDANT: I don’t know.

      DEFENSE COUNSEL: Okay. So Natalie – a person came to meet with
      you?

      DEFENDANT: Yeah, she had my picture and my name, and too many
      people were in the airplane, and she came, she called, “Thomas, come.”
      And then called me, we go in the car, then bring me to Manchester at
      Laurel Street, 213, Apartment 6, at 2003. So they put me in the house.
      I have a bed to sleep, I have food. That’s it.

      DEFENSE COUNSEL: So for those first few months that you lived on
      Laurel Street, what did you do?

      DEFENDANT: Go to church, at (indiscernible) church. I see some
      Africans there, and three weeks, I see one guy, his name is Don Lear
      (phonetic). He worked in my father’s church, and he said yeah, your
      dad’s church is here, by the Pine Street. I say oh, I don’t know that. I
      then we go in the church and we pray, you know. So he talks to the
      friends he know to get me work. I got and work at CCT, Bedford.

 “Aside from some syntactical errors, [the defendant’s] testimony on the whole
. . . appear[s] to be very responsive and indicative of [his] ability to speak and
understand English.” Luna, 772 F.2d at 451. We do not doubt that the
defendant would have been more comfortable, and better able to communicate,
had he been able to speak in Dinka, his native language. However, that is not
the question before us. See Vargas v. State, 627 S.W.2d 785, 787 (Tex. App.
1982) (“[T]he mere fact that [the defendant] might have been able to express
himself a little better in Spanish did not require the use of an
interpreter . . . .”). Instead, we must determine whether the defendant had a
sufficient command of English to assist in his defense, understand the
questions posed, and express himself to the jury. In addition to various
lengthy responses during direct examination, the defendant also admitted on
cross-examination that he had never had a valid driver’s license because he
had never taken the test, and that it is “not okay” to drive without a license.




                                       16
      Overall, then, we are satisfied that the record shows that the defendant
did have a sufficient command of English. Accordingly, we hold that the trial
court did not unsustainably exercise its discretion in failing to appoint an
interpreter during the trial. As the Federal Constitution offers the defendant
no greater protection than the State Constitution under these circumstances,
as discussed above, we reach the same result under the Federal Constitution
as we do under the State Constitution.

                                       V

       Notwithstanding our analysis herein, we take this opportunity to remind
trial courts of the obligations imposed upon them pursuant to our Language
Services Plan, adopted after the trial in this case. Although the Plan does not
eliminate the need for trial judges and other court personnel to make often
difficult determinations concerning whether a person needs the services of an
interpreter, it does ameliorate this burden to a significant degree by providing
that “[w]hen it appears that an individual has any difficulty communicating, it
is the [New Hampshire Judicial Branch’s] policy to err on the side of providing
an interpreter to ensure full access to the court.” N.H.J.B. Language Services
Plan, section V(B).

                                                 Affirmed.

      DALIANIS, C.J., and HICKS, CONBOY and BASSETT, JJ., concurred.




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