        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                        MARLON JOEL RIVERA,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D14-1824

                            [January 6, 2016]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Stephen    A.    Rapp,     Judge;  L.T.    Case    No.
502012CF012498AXXXMB.

  Carey Haughwout, Public Defender, and Peggy Natale, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, C.J.

   The appellant challenges his convictions for numerous crimes,
arguing that he was deprived of his constitutional rights to counsel and
due process when the trial court did not dedicate a Spanish-language
interpreter to sit at the defense table throughout the trial and thereby
interpret and facilitate communications between the appellant and his
attorney. We find that, given the circumstances in this case, the trial
court fashioned an accommodation that comported with the appellant’s
rights to counsel and due process.

   A Spanish-language interpreter was appointed to interpret the trial
proceedings for the appellant. Just prior to the testimony of the first of
two victims, both of whom spoke Spanish but not English, the state
asked to use the defendant’s interpreter during the victims’ testimony.
Defense counsel expressed the following concern:

      I did not realize that the state would be using my interpreter.
      My client has . . . participated in these proceedings and he’s
      very detail oriented. And when I went to sit back down I
      wanted to communicate with my client in reference to what
      this witness would be saying, like I would do in any trial.
      And by having the Spanish interpreter to go and stand next
      to the state’s witness through the testimony, my client would
      be denied the opportunity to actually communicate with his
      attorney.

   Defense counsel requested the court either “get a second interpreter
so that my client will not be denied access to his attorney,” or “provide
some type of accommodations . . . because . . . we want to be able to
communicate and write down notes together.” The state explained that it
had attempted to secure its own interpreter but “they use one interpreter
for both.” The state then proposed the following accommodation: “[The
appellant] can take notes, and then after we’re done he can go back and
discuss his notes with his attorney.” Defense counsel unsuccessfully
objected to the proposal.

   Early on during the first victim’s testimony, defense counsel asked for
“a moment with the interpreter,” and a recess was taken. At the
conclusion of the recess, the court asked if everyone was ready, and
defense counsel said, “Yes.” Defense counsel did not ask for any more
breaks to confer with the appellant during the first victim’s testimony,
and the transcript does not indicate that she asked for any type of break
or recess prior to beginning cross-examination. At the end of cross-
examination, the trial court granted defense counsel’s request for a
moment with the interpreter. During the testimony of the second victim,
again, defense counsel did not ask for any breaks, and the trial
transcript does not reflect that she took an opportunity to confer with the
appellant through the interpreter prior to cross-examination of the
second victim.

    “The use of an interpreter at trial is a matter within the trial court’s
discretion.” Fernandez v. State, 21 So. 3d 155, 157 (Fla. 4th DCA 2009)
(citations omitted); see also Flores v. State, 406 So. 2d 58, 59 (Fla. 3d
DCA 1981) (“Under Florida law, whether the use of an interpreter is
required during trial or certain pre-trial proceedings in order to preserve
the defendant’s right to due process is within the sound discretion of the
trial judge.”).

   The appellant relies on the right to counsel provisions of the United
States and Florida Constitutions in arguing that his rights were violated
by the court’s failure to appoint a second interpreter. He also relies on
the due process provision of the Florida Constitution in support of his

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argument.1

    “A non-English speaking defendant has the right to an interpreter, a
right grounded on due process and confrontation considerations of the
Constitution.” Tehrani v. State, 764 So. 2d 895, 898 (Fla. 5th DCA 2000)
(citation omitted); see also Mendoza v. U.S., 755 F.3d 821, 827 (7th Cir.
2014) (“A criminal defendant is denied due process when he is unable to
understand the proceedings due to a language difficulty. And a criminal
defendant has a due process right to communicate with counsel.”
(internal citations omitted)). The issue raised here is whether the
accommodation made by the trial judge satisfied these constitutional
protections. We are not aware of any Florida cases on point, and the
parties have not directed our attention to any such cases. However,
federal case law provides guidance.

   In U.S. v. Bennett, 848 F.2d 1134 (11th Cir. 1988), superceded by rule
on other grounds as recognized in U.S. v. Moore, 504 F.3d 1345, 1347
(11th Cir. 2007), three Spanish-speaking defendants were tried with two
other defendants. Only one of the three Hispanic defendants was
represented by an attorney who spoke fluent Spanish; and the trial court
appointed one interpreter to serve all three. The interpreter sat near the
witness stand and interpreted the testimony of English-speaking
witnesses by speaking into a microphone that fed into headsets worn by
the three Hispanic defendants. On appeal of their convictions, the three
Hispanic defendants argued that the trial court’s failure to appoint
individual interpreters violated their rights under the Court Interpreters
Act2 and the Sixth Amendment, as they were prevented from

1  “The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his
defence.’” McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). The counsel clause in
Article I, section 16 of the Florida Constitution provides that “[i]n all criminal
prosecutions the accused shall, upon demand . . . have the right to . . . be
heard in person, by counsel or both . . . .” Article I, section 9 of the Florida
Constitution provides in pertinent part that “[n]o person shall be deprived of
life, liberty or property without due process of law.”

2   The court in Bennett elaborated on the Act:

        The Court Interpreters Act was enacted in 1978 to require the
        federal courts to appoint interpreters in certain cases. The Act is
        triggered:

        [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

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communicating with counsel.           The Eleventh Circuit rejected the
argument. Id. at 1140. The court first characterized the defendants’
argument as one requiring courts to appoint two interpreters for each
defendant – “one to translate the proceedings, and one to translate any
communication between the defendant and his attorney.” Id. at 1141.
The court recognized that the Congress envisioned the use of one
interpreter in multi-defendant criminal cases. The court also reasoned
that the defendants had “ample opportunity to consult with their
attorneys” during breaks in the proceedings during which they were
allowed to consult with their attorneys through the interpreter. Id. The
court also found that the use of one interpreter did not violate the
defendants’ Sixth Amendment rights: “As a constitutional matter the
appointment of interpreters is within the district court’s discretion.
Here, the trial court’s use of the interpreter represented a proper
balancing of appellants’ constitutional rights to confrontation and due
process against the public interest in the economical administration of
criminal law.” Id. (internal citations omitted).

    The Seventh Circuit cited favorably to Bennett in United States v.
Johnson, 248 F.3d 655 (7th Cir. 2001). There, three of four defendants
tried together argued on appeal that the trial court abused its discretion
and violated their Fifth and Sixth amendment rights by not providing an
additional court-appointed interpreter to sit at the defense table. As in

      defendant in a criminal case), or a witness who may present
      testimony in such action –

      (1) speaks only or primarily a language other than the English
      language; or

      (2) suffers from a hearing impairment (whether or not suffering
      also from a speech impairment)

      so as to inhibit such party’s comprehension of the proceedings or
      communication with counsel or the presiding judicial officer, or so
      as to inhibit such witness’ comprehension of question and the
      presentation of such testimony.

Bennett, 848 F.2d at 1140 (quoting 28 U.S.C. § 1827(d)); see also 28 U.S.C. §
1827(d)(1) (2012). Although there is a Florida statute that addresses the
appointment of interpreters to translate for non-English speaking or otherwise
language-impaired witnesses, see § 90.606, Fla. Stat. (2012), there is no Florida
statute addressing the appointment of interpreters for defendants in criminal
proceedings.



                                       4
Bennett, one interpreter had been appointed to translate the proceedings
from English to Spanish for the three Spanish-speaking defendants.
During trial, the defense attorneys informed the court that the
defendants could not communicate with counsel without an additional
interpreter. One of the attorneys proposed taking breaks before and after
cross-examination of each witness so that the defendants could
communicate with counsel through the interpreter. Id. at 659-60. The
court added that the defendants should take notes in Spanish, “and then
you can simply ask for a few moments while the interpreter reviews with
you the notes.” Id. at 660. On appeal, the court found no violation of
the Court Interpreters Act, id. at 663, and also concluded there was no
constitutional violation:

      While we do read the Constitution as ensuring a defendant’s
      right to communicate with his or her counsel, we do not read
      the Constitution as mandating the appointment of an
      additional interpreter to sit at the defense table.        The
      solution adopted by the district court to allow the defendants
      to use the court-appointed interpreter to communicate with
      their counsel during breaks fulfilled the defendants’ right to
      communicate with counsel. The record reflects that the
      defendants’ communication with counsel was not
      constitutionally infirm.

Id. at 664.

   In Mendoza, 755 F.3d 821, the court provided the Spanish-speaking
defendant with an interpreter who sat at the defense table. The defense
attorney did not speak Spanish. The interpreter was pulled away from
the table in order to interpret for a Spanish-speaking witness. In a
postconviction proceeding, the defendant argued that he was denied due
process when the court moved the interpreter away from the defense
table as it deprived him of the ability to communicate with counsel. The
court rejected the claim, reasoning that a second interpreter sat at the
defense table during the entirety of the witness’ testimony. Id. at 825-26.
Relying on Johnson, the court opined, in dicta, that even if a second
interpreter had not been seated at the defense table during the witness’
testimony, the defendant’s due process claim would still fail:

      [N]either the Constitution nor the [Court Interpreters Act]
      guarantees simultaneous interpretation of attorney-client
      communications. Even assuming that no interpreter had
      been sitting at the defense table to enable Mendoza to
      communicate with counsel during [the witness’] testimony,

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      [the two interpreters] were available for that purpose at all
      other times that second day of trial. Indeed, interpreters
      were available to interpret for Mendoza throughout the trial,
      including breaks. The court took a lunch break after [the
      witness’] testimony; Mendoza could have communicated with
      counsel before or during that break.

Id. at 829 (internal citation omitted).

   We agree with the federal courts’ constitutional analyses with respect
to a criminal defendant’s right to an interpreter. The appellant was
provided an interpreter, who was apparently interpreting the English-
speaking witnesses’ testimony as well as communications between the
appellant and his attorneys. That interpreter was pulled from the
defense table when the Spanish-speaking victims testified, so that the
court, jurors, and defense counsel could understand their testimony.
The court directed the appellant to take notes and offered to allow the
appellant and counsel to confer through the interpreter during breaks,
but defense counsel did little to take advantage of this accommodation.
Under the circumstances of this case, the trial court’s accommodation
was not an abuse of discretion.

   Affirmed.

GROSS and GERBER, JJ., concur.

                            *         *      *

   Not final until disposition of timely filed motion for rehearing.




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