 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                                     NO. 28,090

 5 WALLACE LEE SANCHEZ,

 6        Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 Thomas J. Hynes, District Judge

 9 Gary K. King, Attorney General
10 Anita Carlson, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Hugh W. Dangler, Chief Public Defender
14 Mary A. Barket, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant


17                              MEMORANDUM OPINION

18 VANZI, Judge.

19        Defendant appeals from his conviction for driving while intoxicated. As there

20 is no evidence of record to support Defendant’s arguments that his conviction should
 1 be reversed based on an inadequate interpretation of his trial and, as we reject

 2 Defendant’s argument that the district court judge’s refusal to recuse himself

 3 constituted fundamental error, we affirm.

 4 BACKGROUND

 5        Defendant, who is deaf-mute, required the aid of a deaf interpreter at trial. Four

 6 interpreters were present on his trial date—two hearing interpreters, who would

 7 interpret the proceedings into sign language, and two deaf interpreters who would

 8 interpret the sign language into a form that would be more comprehensible to

 9 Defendant. After voir dire, opening statements, and the testimony of the State’s first

10 witness, the interpreters informed the district court that they did not believe they were

11 communicating effectively with Defendant and that this had been an ongoing problem.

12 The interpreters said they were no longer willing to participate in the proceedings

13 because they did not believe that Defendant was being afforded his constitutional right

14 to be linguistically present at trial. Rather than taking any steps to inquire into

15 whether Defendant had in fact understood the translation—by, for example, holding

16 a short evidentiary hearing and asking Defendant through his interpreters what had

17 taken place or asking the interpreters specifically why they believed that Defendant

18 had not adequately understood them—the district court simply threatened to jail the

19 interpreters for contempt of court.



                                               2
 1        Defense counsel did not request an evidentiary hearing to determine whether

 2 Defendant had understood the translation up until that point and did not move for a

 3 mistrial based on any alleged failure of Defendant to be linguistically present for the

 4 first part of the trial. Defense counsel did state her prospective concern that if there

 5 was no one to interpret for the rest of the trial, the district court would have to dismiss

 6 the case or grant a mistrial. The district court pointed out that this would lead to a

 7 delay in Defendant’s trial, causing him to spend more time in pretrial incarceration,

 8 and asked, “How about the family members interpreting?”                 Defense counsel

 9 responded “That was what we–I was going to try if the certified interpreters weren’t

10 able to do it.” When the district court asked defense counsel if she was still seeking

11 a mistrial, defense counsel specifically stated that she had not actually asked for a

12 mistrial so long as there was an interpreter present for the remainder of the trial, and

13 she agreed to have Defendant’s daughter serve as an interpreter.

14        Defendant’s daughter was sworn in and interpreted the remainder of the trial.

15 Defendant was convicted of one count of driving under the influence of alcohol.

16 Defendant appeals.

17 DISCUSSION

18        Defendant raises two claims of error relating to the interpretation of his trial and

19 one claim relating to the alleged bias of the district court judge. Before we address



                                                3
 1 Defendant’s claims about the interpretation, we discuss a few of the facts relevant to

 2 Defendant’s arguments and the authorities on which he relies.

 3        First, we note that Defendant’s entire trial was translated—through the first

 4 witness by the certified court reporters and from there to the end of the trial by

 5 Defendant’s daughter. Therefore, this case is distinguishable from cases in which no

 6 interpreter was provided and from cases in which an interpreter was provided but the

 7 interpreter did not interpret all parts of the trial. On the facts before us, the issue is not

 8 whether Defendant’s rights were violated by a failure to provide a complete

 9 interpretation, but whether the complete interpretation Defendant received was legally

10 sufficient. Second, neither Defendant nor his attorney ever sought a determination by

11 the district court about whether the interpretation provided by the certified interpreters

12 was adequate and did not object to the use of Defendant’s daughter as an interpreter.

13 Therefore, this case is distinguishable from those cases in which a defendant or his

14 attorney raised an argument about or sought a remedy for an allegedly insufficient

15 interpretation in the first instance in the district court, and cases employing an abuse

16 of discretion standard are inapplicable. With these facts in mind, we turn to

17 Defendant’s claims.

18 The District Court’s Failure to Grant a Mistrial Due to Defendant’s Alleged
19 Inability to Understand the First Part of the Trial




                                                 4
 1        Defendant relies on a number of state and federal statutes and constitutional

 2 provisions for his assertion that the district court committed reversible, fundamental,

 3 or structural error in failing to grant a mistrial based on Defendant’s inability to

 4 understand the first part of his trial. The grant or denial of a mistrial is generally

 5 reviewed for an abuse of discretion. See State v. Henderson, 2006-NMCA-059, ¶ 22,

 6 139 N.M. 595, 136 P.3d 1005. However, here Defense counsel specifically stated that

 7 she had not moved for a mistrial. We therefore review this claim for fundamental

 8 error. See State v. Gallegos, 2009-NMSC-017, ¶ 26, 146 N.M. 88, 206 P.3d 993

 9 (reviewing for fundamental error a district court’s failure to declare a mistrial on its

10 own motion).

11        This Court exercises its discretion to employ the fundamental error exception

12 “very guardedly” and will use it “only under extraordinary circumstances to prevent

13 the miscarriage of justice.” See State v. Silva, 2008-NMSC-051, ¶ 13, 144 N.M. 815,

14 192 P.3d 1192 (internal quotation marks and citation omitted). We will reverse a

15 conviction based on fundamental error only if (1) “the defendant’s guilt is so

16 questionable that upholding [his] conviction would shock the conscience,” or (2)

17 “where, notwithstanding the apparent culpability of the defendant, substantial justice

18 has not been served. Substantial justice has not been served when a fundamental

19 unfairness within the system has undermined judicial integrity.”          Id. (internal

20 quotation marks and citation omitted). Defendant does not argue that his guilt is so

                                              5
 1 questionable that upholding his conviction would shock the conscience. Therefore,

 2 we look to whether a fundamental unfairness occurred at his trial that was sufficient

 3 to undermine judicial integrity and constitute a miscarriage of justice.

 4        On the record before us, we cannot conclude that such an unfairness occurred.

 5 Although Defendant’s interpreters stated that they believed their translation was not

 6 effective in assuring Defendant’s linguistic presence at trial, the interpreters did not

 7 explain what facts supported their belief, and Defendant was not questioned about the

 8 issue. Therefore, there is simply no factual basis on which this Court can conclude

 9 that Defendant did not in fact understand the proceedings. It was defense counsel’s

10 obligation to present evidence to the district court so the court could make an

11 informed determination about whether the interpretation provided was or was not

12 adequate. See State v. Cabodi, 18 N.M. 513, 518, 138 P. 262, 263 (1914) (“[W]here

13 it appears that the complaining party is aware at the time, that the interpretation of the

14 evidence is not correct, it is incumbent upon him to call the court’s attention to such

15 erroneous translation and ask to have it corrected, and where he has not such

16 knowledge at the time, but afterward becomes aware of the fact, he must set out all the

17 facts in his motion for a new trial, pointing out therein specifically the evidence

18 erroneously translated, and support such contention by affidavit or proof, so that the

19 trial court can intelligently pass upon the question.”); State ex rel. Children, Youth &

20 Families Dep’t v. William M., 2007-NMCA-055, ¶ 41, 141 N.M. 765, 161 P.3d 262

                                               6
 1 (“[A]s a constitutional matter, the appointment of interpreters and the existence of a

 2 language barrier are matters left to the discretion of the trial court.”). Defendant did

 3 not seek such a ruling from the district court, and we cannot conclude that

 4 fundamental error occurred where, as here, there is no evidence that the translation

 5 provided did not in fact ensure Defendant’s linguistic presence at trial.

 6        Defendant argues that the interpreters’ assertions that they were not able to

 7 communicate with Defendant were themselves sufficient to show that the proceedings

 8 were not translated in a manner that Defendant could understand. We disagree.

 9 Although the interpreters’ statements might provide relevant evidence of Defendant’s

10 inability to understand, these statements were never actually introduced as evidence

11 for the district court’s consideration, since Defendant did not seek to have the district

12 court make a factual determination about whether Defendant had understood the

13 proceedings up until that point. Cf. State v. Vallejos, 118 N.M. 572, 578, 883 P.2d

14 1269, 1275 (1994) (prosecutor’s unsworn statements in a hearing did not constitute

15 competent evidence); Archuleta v. Goldman, 107 N.M. 547, 551, 761 P.2d 425, 429

16 (Ct. App. 1987) (stating that for purposes of establishing a dispute of material fact in

17 summary judgment proceedings, statements in unsworn briefs are not evidence).

18 Furthermore, even if the interpreters’ unsworn statements constitute evidence that this

19 Court may properly rely upon on appeal, the statements that Defendant was “having

20 a hard time understanding” his interpreters, that “getting [Defendant] to understand

                                               7
 1 has been an ongoing problem,” and that Defendant was “not fully able to participate

 2 in his defense” alone fail to demonstrate to this Court that Defendant was actually

 3 deprived of his right to be linguistically present. These statements simply indicate that

 4 the interpreters were of the opinion that Defendant did not understand the proceedings

 5 as much as the interpreters believed appropriate—a standard that might or might not

 6 be the same as any standard imposed under the law. In the absence of any explanation

 7 of what facts supported these conclusions or any evidence from Defendant himself

 8 about his comprehension, we are unwilling to rely on these statements alone as a basis

 9 for concluding that fundamental error occurred. The mere possibility that Defendant

10 did not have a constitutionally adequate understanding of the proceedings is not

11 sufficient to demonstrate the sort of prejudice required to show fundamental error.

12 See State v. Holly, 2009-NMSC-004, ¶¶ 41-42, 145 N.M. 513, 201 P.3d 844 (finding

13 no fundamental error where the defendant could not demonstrate actual prejudice);

14 State v. Nguyen, 2008-NMCA-073, ¶ 18, 144 N.M. 197, 185 P.3d 368 (same), cert.

15 denied, 2008-NMCERT-004, 144 N.M. 47, 183 P.3d 932.

16        To the degree that Defendant asserts that the interpreters’ statements were

17 sufficient to put the district court on notice that there may have been a problem, such

18 that the district court was required to inquire further on its own, Defendant has not

19 established that reversal is required on this basis. Defendant cites no authority to

20 support his argument that when a defendant fails to ask the district court to make a

                                               8
 1 determination about whether interpreters have provided a legally adequate translation

 2 and there is no showing on appeal that Defendant did not in fact have a legally

 3 adequate understanding of the proceedings, reversal is required solely based on the

 4 district court’s failure to sua sponte employ procedures—such as an evidentiary

 5 hearing—that might have determined whether the defendant’s rights had or had not

 6 been protected. Even if, as Defendant asserts, a judge has an obligation to raise legal

 7 issues overlooked by the parties, we are unwilling to say that the district court’s

 8 failure to do so in this case constitutes fundamental error requiring reversal. While

 9 we believe it would have been better for the district court to take a more active role

10 in ensuring that Defendant had an adequate understanding of the proceedings, this

11 alone does not demonstrate fundamental error on appeal. Defendant made no record

12 below of any inadequacy in the interpretation or of any failure on his part to

13 comprehend.     Therefore, Defendant cannot demonstrate prejudice sufficient to

14 constitute fundamental error.

15        Defendant claims that his inability to understand the beginning of his trial

16 constitutes structural error. A structural error is one “that goes to the heart of the

17 adversarial process,” and is not subject to a claim of harmless error. State v.

18 Pettigrew, 116 N.M. 135, 143, 860 P.2d 777, 785 (Ct. App. 1993). Even if we were

19 to assume that Defendant’s linguistic absence from court during the first part of his

20 trial would constitute structural error, cf. State v. Rodriguez, 114 N.M. 265, 268, 837

                                              9
 1 P.2d 459, 462 (Ct. App. 1992) (stating that a defendant’s involuntary absence from

 2 trial during crucial testimony might constitute structural error), for the reasons stated

 3 above, we cannot conclude from the record before us that Defendant was in fact

 4 linguistically absent. Therefore, there is no evidence to support Defendant’s claim of

 5 structural error.

 6        In the absence of a factual basis for the interpreters’ opinions or any other

 7 factual evidence in the record, this Court cannot conclude that Defendant was unable

 8 to understand the first part of the trial. Accordingly, this issue is more appropriately

 9 raised in a post-conviction proceeding. See State v. Gomez, 112 N.M. 313, 315, 815

10 P.2d 166, 168 (Ct. App. 1991) (holding, in a similar case, where a defendant attacked

11 the adequacy of the interpretation of the trial proceedings, that a post-conviction

12 proceeding—rather than a direct appeal—was the most appropriate form of relief

13 because of the absence of essential facts in the record).

14 The Appointment of Defendant’s Daughter as an Interpreter

15        Defendant contends that the district court violated a number of state and federal

16 statutory and constitutional provisions, and thereby committed reversible,

17 fundamental, or structural error, in appointing Defendant’s daughter to interpret the

18 portions of his trial remaining after his interpreters refused to continue interpreting.

19 Defendant asserts that his daughter was not certified, that she was sixteen, that she

20 was unqualified, and that she was an interested party. Because Defendant agreed to

                                              10
 1 the use of his daughter as an interpreter and did not raise an argument in the district

 2 court that she should not be permitted to interpret for him, we review Defendant’s

 3 claim only for fundamental or structural error.

 4        Defendant developed no evidence below that his daughter translated anything

 5 inaccurately or that Defendant could not understand her. Accordingly, we find no

 6 fundamental error on the record before us based on any problem with Defendant’s

 7 understanding of his daughter’s interpretation. See id. To the degree that Defendant

 8 argues it is fundamental or structural error to permit a minor child who has not

 9 finished high school and has not been trained as an interpreter to interpret the criminal

10 proceedings against her father, regardless of the accuracy of the child’s translation,

11 there is no evidence in the record regarding the daughter’s age, education, or

12 qualifications. This Court will not base its decision on evidence that is not of record.

13 See State v. Hunter, 2001-NMCA-078, ¶ 18, 131 N.M. 76, 33 P.3d 296 (“Matters not

14 of record present no issue for review.”).

15        Although Defendant cites several cases for the proposition that an interpreter

16 should be disinterested, the only cases he cites in which reversal was required based

17 on the bias of an interpreter are cases in which the relations between the parties were

18 such that the interpreter was likely to be biased against, rather than in favor of, the

19 defendant. In this case, there was no evidence of record to suggest that Defendant’s

20 daughter was biased against him. To the degree that she was likely to have been

                                               11
 1 biased in his favor, Defendant has cited no authority that such bias warrants reversal.

 2 Therefore, the evidence presented to this Court on direct appeal demonstrates neither

 3 fundamental nor structural error. Defendant is always free to develop any relevant

 4 evidence he believes he may have and to present it in a post-conviction proceeding.

 5 See Gomez, 112 N.M. at 315, 815 P.2d at 168.

 6 The District Court Judge’s Failure to Recuse Himself

 7        Defendant contends that fundamental error occurred at his trial when the district

 8 court judge failed to sua sponte recuse himself based on improper bias. Defendant

 9 does not argue that the judge’s improper bias constitutes structural error.      A    s

10 Defendant is aware, “[i]n order to require recusal, bias must be of a personal nature

11 against the party seeking recusal,” and must “stem from an extrajudicial source and

12 result in an opinion on the merits on some basis other than what the judge learned

13 from his participation in the case.” State v. Ruiz, 2007-NMCA-014, ¶ 15, 141 N.M.

14 53, 150 P.3d 1003 (internal quotation marks and citations omitted). In this case,

15 Defendant asserts that it was fundamental error for the judge not to recuse himself

16 after he made statements indicating that he had prejudged Defendant’s guilt prior to

17 trial. Defendant contends that

18        Judge Hynes’[s] numerous statements to the effect that an interpreter was
19        unnecessary as [Defendant] was clearly guilty required him to recuse
20        himself because they demonstrate a bias existed before trial, before the
21        judge made decisions regarding the sufficiency of the interpreter, and


                                             12
 1        before the judge made numerous other decisions that then led to
 2        conviction.

 3        The comments that Defendant points to include the following exchanges,

 4 among others. On the original trial date, when Defendant’s interpreters failed to

 5 appear, Judge Hynes seemed to believe that the trial might be able to take place

 6 without the interpreters, based on the weight of the facts against Defendant:

 7        THE JUDGE:         What’s the defense?

 8        MS. WHEELER: The defense is that he wasn’t driving. His wife had
 9        driven there and his wife was going to drive back.

10        THE JUDGE:        Well, what–can his wife–he was behind it, behind the
11        wheel, the motor was running, he had a beer between his legs.

12        ....

13        MS. WHEELER: Yes.

14        THE JUDGE:         So he’s in actual physical control of the vehicle.

15        MS. WHEELER: That’s up to a jury to decide.

16        THE JUDGE:         No, but what’s your defense to show that he wasn’t?

17        MS. WHEELER: My defense was the only reason he turned on the car
18        was because it was the first week of March and it was cold outside–

19        THE JUDGE:         That’s not a defense.

20        MS. WHEELER: –and snowing.

21        THE JUDGE:         That’s not a defense.



                                            13
 1       MS. WHEELER: And he didn’t drive there; he wasn’t going to drive
 2       back.

 3       THE JUDGE:          But he was in actual physical control of the car while
 4       he was–

 5       MS. WHEELER: If the jury decides he was, then yes.

 6       THE JUDGE:           Well, let’s let them decide. Why do we need an
 7       interpreter for that?

 8 Trial counsel pointed out that Defendant would not be able to understand the

 9 proceedings without an interpreter, but this did not seem to present a concern for

10 Judge Hynes:

11       THE JUDGE:          What does he need to know? What is he–is he going
12       to testify?

13       MS. WHEELER: It’s his right to have a fair trial, and he may testify.
14       He has a right to testify.

15       THE JUDGE:           Well, you want to get to that point, and if he’s going
16       to testify, I don’t know.

17       MS. WHEELER: Judge, he has a constitutional right to be present, to
18       confront the witness–

19       THE JUDGE:          People have a right to be safe on the highway.

20       ....

21       MS. WHEELER: . . . Judge, the point of trials is–I mean, the jury gets
22       to make that decision. You don’t get to decide whether there’s defenses
23       or not.

24       THE JUDGE:          Well, I obviously don’t and that’s why we’ve got a
25       jury here today to do that.

                                             14
 1 The judge made similar comments at trial (outside of the presence of the jury) when

 2 the interpreters expressed their concern that they were not able to communicate

 3 effectively with Defendant.

 4         While we agree with Defendant that Judge Hynes’s statements were

 5 objectionable, Defendant’s argument seems to conflate the problem of bias with a very

 6 different problem—that Judge Hynes appeared to believe that if the facts as admitted

 7 by defense counsel seemed to weigh heavily against Defendant, due process

 8 protections were unnecessary. Judge Hynes’s statements about the evidence were

 9 based on information obtained during the proceedings, not from some other source,

10 and they do not reflect personal animosity against Defendant. See id. ¶¶ 15-17.

11 Therefore, they do not reflect the sort of improper bias that requires recusal. See id.

12 ¶ 19.

13         Although we conclude that Judge Hynes’s statements did not demonstrate an

14 improper bias, we caution the judge that his suggestion that a defendant’s rights may

15 be limited when the judge believes that the weight of the evidence is against him, is

16 not supported by law and would tend to undermine the public’s confidence in the

17 fairness of the court system. A defendant has no obligation to present any defense at

18 trial, as it is always the prosecution’s burden to prove the defendant’s guilt beyond a

19 reasonable doubt. State v. Sutphin, 2007-NMSC-045, ¶ 11, 142 N.M. 191, 164 P.3d

20 72 (“[T]he Due Process Clause protects the accused against conviction except upon

                                             15
 1 proof beyond a reasonable doubt of every fact necessary to constitute the crime with

 2 which he is charged.” (internal quotation marks and citation omitted)). The judge’s

 3 comments about Defendant’s lack of a defense appeared to improperly shift the

 4 burden at trial— although we note that these comments were not made in the presence

 5 of the jury, the judge properly instructed the jury on the burden of proof, and

 6 Defendant points to no evidence that the judge’s opinion about the likely verdict on

 7 the undisputed evidence had any impact on the jury’s determination in the case.

 8        We recognize that many of Judge Hynes’s statements seem to express the

 9 judge’s pragmatic concern for what the judge thought to be Defendant’s welfare: the

10 judge believed that based on the undisputed evidence, a jury was likely to convict

11 Defendant and that therefore any delay would not only postpone the inevitable, but

12 would also force Defendant to suffer additional pretrial incarceration without good

13 time credits. Nevertheless, the judge’s suggestion that Defendant’s constitutional and

14 statutory rights to an interpreter could be curtailed based on these considerations was

15 inappropriate, and we encourage Judge Hynes to be more circumspect in his

16 comments.



17 CONCLUSION

18        Because Defendant has failed to present evidence on direct appeal to support

19 his claim that fundamental or structural error resulted from the interpretation he

                                             16
1 received at trial, we find no such error. Furthermore, as the evidence does not show

2 that the district court judge was biased against Defendant, we find no fundamental

3 error in the judge’s failure to sua sponte recuse himself. Accordingly, we affirm

4 Defendant’s conviction.

5       IT IS SO ORDERED.




6                                                    ___________________________
7                                                    LINDA M. VANZI, Judge


8 WE CONCUR:



 9 ______________________________________
10 MICHAEL D. BUSTAMANTE, Judge



11 ______________________________________
12 CELIA FOY CASTILLO, Judge




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