Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 12-CF-265

                         MELVIN ANDRADE, APPELLANT,

                                        v.

                            UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                           of the District of Columbia
                                 (CF3-21612-09)

                        (Hon. Michael Ryan, Trial Judge)

(Argued February 12, 2014                                  Decided April 3, 2014)

      Craig N. Moore for appellant.

      John P. Gidez, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney, and Elizabeth Trosman, Assistant United States
Attorney, were on the brief, for appellee.

      Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and REID,
Senior Judge.

      REID, Senior Judge: A jury convicted appellant, Melvin Andrade, of the

lesser-included offense of assault with a dangerous weapon, aggravated assault

while armed, assault with significant bodily injury, and carrying a dangerous

weapon.   Mr. Andrade challenges his convictions mainly on the basis of the
                                         2



prosecutor‟s negative comments about his use of an interpreter and the trial court‟s

alleged failure to protect his right to an interpreter and a fair trial. Because we

conclude that the trial court properly handled questions and comments by the

prosecutor that appeared to express her personal opinion about Mr. Andrade‟s

veracity, and that tended to denigrate and disrespect Mr. Andrade‟s right to and use

of an interpreter to understand the proceedings against him, we affirm the judgment

of the trial court.



                                FACTUAL SUMMARY



       The government presented evidence through several witnesses, including the

victim, Elmer Cabrera. The evidence showed that Mr. Andrade and other young

men, including S.T. and his uncle, were involved in a confrontation and altercation

on September 12, 2009, with Mr. Cabrera and two brothers, Victor and Juan Carlos

Rodriguez.     The confrontation took place because S.T. had tried to take Mr.

Cabrera‟s cell phone from him on September 9, 2009, and Mr. Cabrera had

complained to a nearby policeman that the young men wanted to attack him, to take

his phone and to rob him; the police stopped S.T. and another young man on the

same day.
                                          3



      The confrontation on September 12 began when S.T. asked why Mr. Cabrera

had approached the police on September 9 and threatened to “finish” him. Mr.

Cabrera thought S.T. had a knife, and prepared to defend himself by taking off his

jacket and belt. S.T. took the belt and Mr. Cabrera began to run. S.T. shouted,

“stab him, stab him.” Mr. Andrade stabbed Mr. Cabrera in the neck and arm. Dr.

Juliet Lee, a general surgeon and trauma surgeon at George Washington University

Hospital, treated Mr. Cabrera on September 12, 2009. She determined that he was

stabbed in the neck/chest area, “just to the right of the sternal notch.” Both of his

lungs had collapsed and he was admitted to the intensive care unit.1



      During his testimony, Mr. Andrade stated that he was twenty-one years of

age, was born in El Salvador, had journeyed to the United States at age fifteen, and

      1
        Mr. Andrade was the only defense witness. He testified that his friend
Charlie, S.T. and his uncle were riding their bicycles. Mr. Andrade was behind the
others. Soon he saw S.T. standing and apparently arguing with others. S.T.‟s
uncle took out a knife, and Mr. Cabrera and Juan Rodriguez took off their belts. As
Mr. Andrade rode up, Juan Rodriguez went over to him, struck him, and threw him
to the ground. Everyone started hitting and beating him. He started bleeding.
When Mr. Cabrera told the Rodriguez brothers to pull out a pistol and point it at him,
Mr. Andrade feared for his life, and in order to defend himself, he grabbed the knife
from the ground that S.T.‟s uncle had dropped when Juan Carlos hit his hand. Mr.
Andrade stabbed Mr. Cabrera with the knife. Mr. Andrade went to the hospital and
received twelve stitches.
                                         4



received his high school diploma from the Bell Multicultural High School. Before

trial began, the trial judge inquired about Mr. Andrade‟s need for an interpreter.

The government announced that it had its own interpreter so that it could

communicate with its own witnesses. Defense counsel announced that he did not

need an interpreter to communicate with Mr. Andrade. The trial judge concluded

that an interpreter was needed so that Mr. Andrade would “understand what

transpires in the courtroom,” and also for witnesses who only spoke Spanish. The

deputy clerk announced that two interpreters had been ordered – one for the

witnesses and one for Mr. Andrade. The next morning, the trial judge revealed that

he had spoken with the head of Superior Court interpreting who indicated that Mr.

Andrade was not using the interpreter. Defense counsel explained that “[a]lthough

he does speak English, [Mr. Andrade] believes his English is not good enough to

understand everything that is going on in the court and the terms and the language.”

Therefore, “[h]e prefers to have a Spanish interpreter” even if he did not use the

interpreter consistently. The judge responded that he was “not trying to penalize

[Mr. Andrade] in any way,” but was “just trying to make sure that [he] shepherd[ed]

the court‟s resources appropriately.”



      During the direct examination of Victor Rodriguez on August 17, the

interpreter interrupted to explain to the judge that Mr. Rodriguez had used the word
                                           5



“navaja,” which has several meanings. The judge suggested that the prosecutor

might want to make a more specific inquiry concerning Mr. Rodriguez‟ use of the

word, and the prosecutor asked for a description of the knife that had been

referenced. Later, the interpreter who relieved the first interpreter informed the

court that the previous interpreter had initially and incorrectly interpreted a word as

meaning “punch” rather than “to prick or to stab,” before correcting the error. Near

the end of the day, the prosecutor informed the trial judge that the interpreter had not

fully translated a response by Mr. Rodriguez to a question on cross-examination.

The judge informed the prosecutor that she could handle the matter during rebuttal.

The prosecutor brought out the full response during rebuttal examination.



      When Mr. Andrade testified, the interpreter interrupted several times to ask

for clarification or repetition. During a bench conference, the judge and both

counsel agreed that there were problems with the interpretation.            The judge

commented that the current interpreter was “very good” and that he had asked the

interpreter‟s office not to permit the previous day‟s interpreter to return. The judge

instructed the prosecutor to go back over testimony that had just been given to

clarify what was said.
                                          6



                                    ANALYSIS



        Mr. Andrade‟s arguments on appeal center on interpreter issues, including the

prosecutor‟s alleged prejudicial statements during cross-examination and in closing

argument, and the alleged failure of the trial court to safeguard his right to an

interpreter and a fair trial. Before setting forth the legal standard and the legal

principles that will guide our review, we identify particular statements made by the

prosecutor that, Mr. Andrade argues, infringed on his right to an interpreter and a

fair trial.



        First, during the prosecutor‟s rigorous cross-examination concerning Mr.

Andrade‟s account of events, Mr. Andrade stated that either he did not understand

well or the prosecutor did not understand him, and that he was “all confused.” He

complains about the following statement by the prosecutor:



                    You were there, if you need a different interpreter,
              if you‟re not comfortable, you tell me because [you are]
              not going to hide behind translation. You initially said
              you were pulled off your bike when you were approached
              and now you‟re saying there‟s an entire knife fight and
              then you were riding by and then for no reason they came
              and got you. Which is it?
                                          7



Defense counsel did not object. Mr. Andrade now argues that the prosecutor‟s

statement “disparaged [him] and his testimony, clearly suggesting that it was false,”

and the statement constituted “a gratuitous, unsupported, and unjustified attack on

the credibility of a Spanish-speaking defendant.”



      Second, in the midst of cross-examining Mr. Andrade about his account of the

alleged attack on his person by the Rodriguez brothers and Mr. Cabrera, the

prosecutor posed questions about Mr. Andrade‟s discussion with his lawyer,

including the following:



                   [D]id you talk about the questions you‟d be asked
             by your lawyer before you came to court?



The trial court overruled defense counsel‟s objection, and the cross-examination

continued as follows:




             Q: Did your lawyer . . . tell you what questions he was
             going to ask you in court?

             A: He just told me to tell the truth and that was it.

             Q:   And you never discussed with your lawyer what
                                           8



             you‟re going to say in court?

             A: No, no. He just told me to tell the truth.



Mr. Andrade argues that his “discussion[] with his attorney about anything related to

his defense was out-of-bounds.”



      Third, Mr. Andrade complains about the prosecutor‟s statements during his

attempt to explain his side of the story. For example, after establishing that Mr.

Andrade did not know and had not spoken with Juan Carlos Rodriguez or Mr.

Cabrera, and that he did not know Victor Rodriguez, the prosecutor declared:



                    Well, I think what‟s important is that Victor and
             Juan Carlos, you‟re saying, I believe, were running from
             knives, had nothing against you, and instead decided to
             attack you off your bicycle.



Defense counsel did not object.2


      2
          Later, the trial court sustained defense counsel‟s objection to the
prosecutor‟s statement: “[I]t might be that it‟s hard to remember when it‟s not true;
isn‟t that right?” In addition, the judge eventually told the prosecutor that he was not
interested in narrative and that the procedure should be “Question, answer, question,
answer.” But, Mr. Andrade insists that by that time, “[t]he damage had been done.”
                                           9



      Fourth, Mr. Andrade asserts that the prosecutor‟s closing argument contained

improper statements; that “the impropriety of the prosecutor‟s closing argument was

inextricably tied to the errors inherent in the cross-examination and to errors directly

involving the interpreters; and that the prosecutor‟s “misconduct was sufficiently

egregious to warrant reversal.” Specifically, he cites as improper the prosecutor‟s

statement that jurors should “imagine being put in [Mr. Cabrera‟s] position”; that

Mr. Andrade‟s statement that his lawyer told him “to tell the truth” “is not

believable”; that Mr. Andrade “tries to hide behind the interpretation”; and that

“Spanish is not a very complicated language.”



      Our analysis is guided by the following legal principles. “If a defendant who

is unable to speak and understand English is compelled to face criminal charges

without access to effective translation of the proceedings by a competent and

impartial interpreter, then his ability to present a defense may be substantially

undermined, and there is a serious possibility of grave injustice.” Ramirez v.

United States, 877 A.2d 1040, 1043 (D.C. 2005) (quoting Ko v. United States, 722

A.2d 830, 834 (D.C. 1998) (en banc)) (internal quotation marks omitted). Under

District law, a “communication-impaired person,” including “a non-English or

limited-English speaking person,” is entitled to a “qualified interpreter.” D.C.

Code § 2-1902 (a) (2012 Repl.); D.C. Code § 2-1901 (2). A “non-English or
                                           10



limited-English speaking person” is defined as “a person who is unable to readily

understand oral and written communications in the English language or who cannot

communicate effectively in the spoken or written English language.” D.C. Code §

2-1901 (4). A “qualified interpreter” is one “who is listed by the [District‟s] Office

of Court Interpreter Services or the United States Department of State as being, or

[who] is “otherwise found by the [trial] court to be, skilled in the language or form of

communication needed to communicate fluently with a communication-impaired

person and to translate or interpret information accurately to and from the

communication-impaired person.” D.C. Code § 2-1901 (5).



      Issues pertaining to the need for and use of an interpreter, including the

appointment and competence of an interpreter, generally are committed to the sound

discretion of the trial court, and this court will not disturb the trial court‟s rulings,

unless the court abuses its discretion. See Gonzalez v. United States, 697 A.2d 819,

825 (D.C. 1997) (discussing the trial court‟s role in determining the competence of

interpreters and the decision to appoint an interpreter); see also Torres v. United

States, 929 A.2d 880, 888 (D.C. 2007). “[I]f the defendant . . . make[s] the court

aware of any difficulties with the translator, then the court must take corrective

action.” Guevara v. Unted States, 77 A.3d 412, 424 (D.C. 2013) (internal quotation

marks and citation omitted).
                                          11



      While this court‟s “function [is] to review the record for legal error or abuse of

discretion by the trial judge, not counsel,” Irick v. United States, 565 A.2d 26, 33

(D.C. 1989), the challenged comments of a prosecutor often determine whether the

trial court responded properly – where an appellant claims on appeal that his

conviction should be reversed because of improper cross-examination questions by

the prosecutor and improper prosecutorial comments during closing arguments.

Here, Mr. Andrade argues that some of the prosecutor‟s cross-examination

questions and parts of her closing argument relating to the cross-examination

questions were “sufficiently egregious to warrant reversal” of his convictions.



      We turn to legal principles governing what the prosecutor may and may not

do or say. “[A] prosecutor may make reasonable comments on the evidence and

argue all reasonable inferences from the evidence adduced at trial.” Portillo v.

United States, 62 A.3d 1243, 1257 (D.C. 2013) (citing Clayborne v. United States,

751 A.2d 956, 969 (D.C. 2000)) (internal quotation marks omitted). “[C]ounsel

may not express a personal opinion as to a witness‟s credibility or veracity” because

“[i]t is for the jury to decide whether a witness is truthful and an attorney may not

inject personal evaluations and opinions as to a witness‟[s] veracity.” Diaz v.

United States, 716 A.2d 173, 179 (D.C. 1998) (citing Dyson v. United States, 418

A.2d 127, 130 (D.C. 1980)) (internal quotation marks omitted). Nor may counsel
                                           12



“ask the jury to draw a negative inference from an accused‟s decision to consult with

counsel.” Id. at 179 (citing Henderson v. United States, 632 A.2d 419, 433 (D.C.

1983)). In addition, the prosecutor may not “make comments directed to the

emotions and [assumed] prejudices of the jury.” Id. at 180 (citing Powell v. United

States, 455 A.2d 405, 410 (D.C. 1982)).



      If there is no objection to the prosecutor‟s alleged improper question or

comment, “we apply the „stringent‟ plain error standard to determine if the trial

court‟s failure to cure the allegedly improper comments was „so clearly prejudicial

to substantial rights as to jeopardize the very fairness and integrity of the trial.‟”

Ball v. United States, 26 A.3d 764, 772 (D.C. 2011) (quoting McGrier v. United

States, 597 A.2d 36, 41 (D.C. 1991)). Where there is an objection and the question

or comment is improper, we will affirm the conviction unless we conclude “looking

at the gravity of the [impropriety], [its] direct relationship to the issue of guilt, the

effect of specific corrective instructions by the trial court, and the strength of the

government‟s case, that the defendant suffered substantial prejudice.”           Fox v.

United States, 11 A.3d 1282, 1290 (D.C. 2011) (internal quotation marks and

citations omitted). “There is no substantial prejudice if we can say, with fair

assurance, after pondering all that happened without stripping the erroneous action

from the whole, that the judgment was not substantially swayed by the error.” Id. at
                                         13



1290-91 (internal quotation marks and citations omitted).



      In this case, the prosecutor‟s cross-examination of Mr. Andrade and her

closing argument were intense and zealous.         We have recognized that “the

government may prosecute vigorously and zealously,” but “the prosecutor is

expected to know and abide by the rules of the court and [her] profession.” Diaz,

supra, 716 A.2d at 180 (citing Powell, supra, 455 A.2d at 408) (internal quotation

marks omitted). Although the prosecutor may cast doubt on the veracity of a

defendant through rigorous cross-examination, she may not “inject personal

evaluations and opinions as to a witness‟ veracity.” Id. at 179.



      Our examination of the record constrains us to conclude that the prosecutor

arguably   transcended    the   bounds   of   permissible   comment   by   raising

cross-examination questions about Mr. Andrade‟s discussions with his attorney,

making comments during cross-examination about his use of an interpreter and then

using these parts of the cross-examination during closing argument to express an

opinion about Mr. Andrade‟s veracity. In her cross-examination, the prosecutor

commented on Mr. Andrade‟s use of an interpreter by telling him, “you are not

going to hide behind translation.” She also posed questions about whether his

lawyer informed him about the “questions he was going to ask [him] in court,” and
                                          14



elicited the response, “[h]e just told me to tell the truth and that was it.” As she

delivered her closing argument, the prosecutor said, in part:



                   [W]hen I was asking questions [Mr. Andrade] was
             sort of like oh, this is confusing. I don‟t really know.
             Can I just start from the beginning?

                    So I said, well, you know what, you knew what
             your attorney was going to ask you, right, versus my
             questions? Do you know what he said? He said no. My
             attorney never talked to me about the facts of this case or
             what I was going to say in court. His attorney gave an
             entire opening statement, summarizing everything that
             man was going to say on the stand. But he tells you, no, I
             didn‟t talk to him at all. He just told me to tell the truth.
             That is not believable.

                    And then he tries to hide behind the interpretation,
             maybe, maybe she doesn‟t translate for you. My
             questions were simple and they were direct and Spanish is
             not a very complicated language. And these are certified
             [c]ourt [r]eporters.



      By concluding that “[t]hat is not believable” and “he tries to hide behind the

interpretation,” arguably the prosecutor injected her personal evaluation and opinion

about Mr. Andrade‟s veracity. See Harrison v. United States, 76 A.3d 826, 843-44

(D.C. 2013).    While the prosecutor‟s comments about Spanish not being a

complicated language and about the interpreters being certified court reporters may

not have risen to the level of impermissible comment, they not only were
                                          15



unnecessary and disrespectful to the trial court‟s appointment of the interpreters and

the right of a limited-English speaking person to an interpreter, but the words also

ignored the fact that there were clear problems with and questions about the

interpretation that the trial court recognized and about which the court took

corrective action. In addition, the prosecutor was quite insensitive to the fact that

Mr. Andrade was born in El Salvador, arrived in the United States at age fifteen, and

hence, did not have longstanding experience with the English language, even though

he had a high school diploma and could converse in English. The record shows that

he apparently had had no previous contact with the criminal justice system and may

not have been familiar with its language and procedures. Indeed the trial judge

recognized that Mr. Andrade needed an interpreter so that he would “understand

what transpires in the courtroom.”



      Nevertheless, Mr. Andrade did not object to most of the questions and

comments about which he complains on appeal, including the comments by the

prosecutor during closing argument. Moreover, the record reveals that the trial

court conscientiously endeavored to make sure that competent interpreters were

assigned to translate, and even informed the Officer of Court Interpreter Services not

to send one of the interpreters back to the courtroom. Where the translation

possibly was in error, the trial judge ordered the parties to repeat certain questions
                                          16



and answers, or allowed the prosecutor to correct the record during rebuttal

examination. When the prosecutor said to Mr. Andrade, “it might be hard to

remember when it‟s not true, isn‟t that right,” the trial judge sustained defense

counsel‟s objection. And, after the prosecutor continued to make comments during

cross-examination, the trial judge eventually admonished her about her narrative,

and instructed her to follow the procedure of “[q]uestion, answer, question, answer.”

In short, we are satisfied that the trial judge in this case took steps to make certain

that in her zeal to obtain a conviction the prosecutor did not unduly infringe on the

right of a person whose first language is not English, and who has been in the

country for a relatively short period of time, to use an interpreter to understand

technical and other unfamiliar language spoken during a criminal trial on serious

charges. Under these circumstances, and given the government‟s evidence against

Mr. Andrade, that the jury could weigh and credit, we discern no clear prejudice to

Mr. Andrade‟s substantial rights as to jeopardize the very fairness and integrity of

his trial, with respect to issues about which no objection was made in the trial court.

Nor do we see any “substantial prejudice” with regard to questions about Mr.

Andrade‟s discussions with his attorney – to which there was an initial objection.

See Ball, supra, 26 A.3d at 772; Fox, supra, 11 A.3d at 1290.
                                          17



         Accordingly, for the foregoing reasons, we affirm the judgment of the trial

court.


                                        So ordered.
