Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  April 10, 2015                                                                     Robert P. Young, Jr.,
                                                                                                Chief Justice

  150813-4                                                                            Stephen J. Markman
                                                                                          Mary Beth Kelly
                                                                                           Brian K. Zahra
                                                                                   Bridget M. McCormack
  PEOPLE OF THE STATE OF MICHIGAN,                                                       David F. Viviano
            Plaintiff-Appellant,                                                     Richard H. Bernstein,
                                                                                                     Justices
  v                                                        SC: 150813-4
                                                           COA: 316744; 319718
                                                           Wayne CC: 12-009127-FH
  ELIAS GONZALEZ-RAYMUNDO,
             Defendant-Appellee.
  _________________________________________/

        On order of the Court, the application for leave to appeal the November 18, 2014
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the question presented should be reviewed by this Court.

           YOUNG, C.J., would grant leave to appeal.

           MARKMAN, J. (dissenting).

          I respectfully dissent from this Court’s order denying leave to appeal and would
  instead grant leave to assess whether defendant, a non-English-language speaker, is
  entitled to a new trial because his counsel and not defendant waived his right to a
  simultaneous translation. Defendant was provided an interpreter by the trial court, but on
  the first day of trial, his counsel stated on the record that

           I want to avoid the chance of any prejudice, so we’d like to preserve the
           right to waive the interpreter during the course of the proceedings and
           explain things to the defendant on break. And you can hear straight from
           the defendant’s mouth if you like, Your Honor, that this is indeed our wish.

  The trial court assented, and consequently defendant received the assistance of an
  interpreter throughout trial, but the interpreter did not provide simultaneous translation.
  Defendant was convicted of four counts of third-degree criminal sexual conduct.

         At a Ginther 1 hearing, defense counsel testified that “[a]ll I know is that this was
  the strategy I recommended to [defendant] and he went along with it to the point that I
  don’t recall him making any objection.” Defendant did not testify at the hearing.
  Nonetheless, the trial court granted defendant a new trial because he did not personally
  waive his right to simultaneous translation, and the Court of Appeals affirmed. People v
  Gonzalez-Raymundo, 308 Mich App ___ (2014) (Docket Nos. 316744 and 319718).



  1
      People v Ginther, 390 Mich 436 (1973).
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        “ ‘[W]aiver is the “intentional relinquishment or abandonment of a known
right.” ’ ” People v Carines, 460 Mich 750, 762 n 7 (1999), quoting United States v
Olano, 507 US 725, 733 (1993). “While the defendant must personally make an
informed waiver for certain fundamental rights such as the right to counsel or the right to
plead not guilty, for other rights, waiver may be effected by action of counsel.” People v
Carter, 462 Mich 206, 218 (2000). For the following reasons, I question whether the
lower courts correctly ruled that a new trial is warranted under the present circumstances.

       First, neither the right to an interpreter nor the right to simultaneous translation
have yet been deemed to be constitutional rights by either this Court or by the United
States Supreme Court, much less to constitute extraordinary “structural” constitutional
rights. Accordingly, when a rule of automatic reversal for failure to obtain the
defendant’s personal waiver has only been applied to violations of “a narrow class of
foundational constitutional rights” such as the right to counsel and the right to plead not
guilty, People v Vaughn, 491 Mich 642, 655-657 (2012), what is the rationale for
imposing such an unyielding rule in the present context?

        Second, the right to an interpreter and the right to simultaneous translation are
fundamentally distinct. Once the trial court has appointed an interpreter to assist the
defense, the specific use of the interpreter-- whether to provide simultaneous translation
or otherwise-- would seem to be a matter of trial strategy that does not require that the
defendant’s personal assent be given to the court. That is, as numerous courts have
recognized, the trial court satisfies its obligation, imposed by court rule and statute in
Michigan, by appointing an interpreter to assist the defense, and the particular use to
which the interpreter is put at trial is determined by counsel’s judgment. See Markiewicz
v State, 109 Neb 514, 520-521 (1922) (“The defendant and his attorney were furnished
the means by which the defendant could be fully apprised with knowledge of the
proceedings and the course of the testimony, and it was for them to determine how far
they should avail themselves of the services of the interpreter furnished.”); Suarez v
State, 481 So 2d 1201, 1204 (Fla, 1985) (citing Markiewicz); State v Casipe, 5 Hawaii
App 210, 216 (1984) (citing same). See also People v Alvarez, 14 Cal 4th 155, 209
(1996) (“We cannot conclude . . . that the superior court denied defendant any right he
had to the assistance of an interpreter. It made an interpreter available to assist him
throughout the proceedings.”). Respectfully, the lower courts have taken no cognizance
of this distinction.

       Third, although new MCR 1.111 was not in effect at the time pertinent to this case,
the Court of Appeals’ decision will impose duties on trial courts significantly beyond
those required by that court rule, which provides, in relevant part:

              (B) Appointment of a Foreign Language Interpreter.
                                                                                        3

             (1) If a person requests a foreign language interpreter and the court
      determines such services are necessary for the person to meaningfully
      participate in the case or court proceeding, or on the court’s own
      determination that foreign language interpreter services are necessary for a
      person to meaningfully participate in the case or court proceeding, the court
      shall appoint a foreign language interpreter for that person if the person is a
      witness testifying in a civil or criminal case or court proceeding or is a
      party.

                                          * * *

             (C) Waiver of Appointment of Foreign Language Interpreter. A
      person may waive the right to a foreign language interpreter established
      under subrule (B)(1) unless the court determines that the interpreter is
      required for the protection of the person’s rights and the integrity of the
      case or court proceeding. The court must find on the record that a person’s
      waiver of an interpreter is knowing and voluntary. When accepting the
      person’s waiver, the court may use a foreign language interpreter.

Under the Court of Appeals’ decision, a trial court must now not only appoint an
interpreter when required to do so by court rule, but it must also monitor the use of the
interpreter by the defense during trial to ensure that the defendant either receives
simultaneous translation or else personally waives his or her right to do so. Neither of
these requirements can be found in MCR 1.111, which already stands as an exceedingly
broad rule. In my view, a trial court’s compliance with MCR 1.111 is sufficient to
protect the rights of a defendant needing interpreter assistance. Cf. People v Williams,
470 Mich 634, 646-647 (2004) (“The record reflects that the trial court conscientiously
complied with every requirement of MCR 6.005(D) . . . . The trial court satisfied all of
the waiver-of-counsel procedure required under MCR 6.005(D) and did not err in
granting defendant’s request to waive counsel . . . .”).

      Finally, the record fails to support a conclusion that a new trial is necessary.
Defense counsel’s Ginther hearing testimony does not suggest that defendant opposed
waiving his right to simultaneous translation or that defendant was inclined to, or would
                                                                                                               4

have, exercised his right to simultaneous translation at the original trial had he been
directly questioned. Given this absence, it is not clear to me why defendant should now
be granted a second trial, the only apparent rationale for which is to afford defendant a
second (or third) opportunity to assert what may be nothing more than a non-right to a
personal waiver.

       Accordingly, I would grant leave to appeal to assess whether defense counsel’s
waiver of the right to simultaneous translation on behalf of his client should be accorded
respect by this Court.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         April 10, 2015
       d0407
                                                                             Clerk
