Argued January 9, 2014
Petition for certiorari filed at, 07/31/2014
Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire reports.
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. DALIANIS, C.J., and HICKS, CONBOY and BASSETT, JJ., concurred.
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.
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. 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.
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 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?
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 ...