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Mendez-Martinez v. State

Florida Court of Appeals, Fourth District

December 13, 2017


         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; Lawrence M. Mirman, Judge; L.T. Case No. 432014CF00696.

          Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

          KUNTZ, J.

         The Defendant appeals his conviction for attempted sexual battery on a victim twelve years of age or older and burglary of a dwelling with an assault or battery. He raises two issues on appeal, and we affirm as to the first without further comment. For his second issue, he argues the court erred when it allowed the investigating officer who interviewed him to translate his video-taped confession while she was a witness on the stand. We agree with the Defendant, reverse his conviction, and remand for a new trial.


         After an evening out, the victim's father and the Defendant returned to the victim's home to continue drinking. Eventually the victim's father left the residence with another friend to buy beer. The Defendant remained on the front-porch, but he was not given permission to enter the home. However, shortly after the victim's father left, the victim heard the front door open and the Defendant was soon seated on his bed, attempting to engage in sexual acts with him. At some point, while attempting to stop the sexual advances, the victim whispered that his father had returned and the advances stopped. The father found the Defendant buttoning his pants as he exited the victim's room and the victim in tears. The father followed the Defendant to the front porch and instructed the other friend to hold him while he checked on the victim. The friend, using physical force, required the Defendant to remain until the police arrived.

         Sergeant Carde, from the Martin County Sheriff's Office, was the responding officer, and she conducted a recorded interview with the Defendant. The interview was conducted in Spanish and lasted approximately one-hour. The Defendant eventually admitted to certain facts forming the basis of the charges against him. Unfortunately, the interview was not translated into English prior to trial.

         At trial, the State expressed its concern to the court about questioning Sergeant Carde about the video because it was not translated and was entirely in Spanish. The State told the judge that "if they object, then [Sergeant] Carde wouldn't be able to do it." The judge questioned counsel for the State and the Defendant as to why it would be objectionable to allow Sergeant Carde to translate the recording from Spanish as it was being played, and the State interjected "I can't do it without a stipulation from the Defense. The case law is really bad on that" and "I can't have [Sergeant] Carde translate from Spanish to English and English to Spanish." The court disagreed with the State and the State responded by pointing out that "the translation hinges on impartiality. And because she's the person that did the interview, she couldn't be considered as being impartial by doing a translation." Ultimately, the court disagreed and stated "so [Sergeant] Carde spoke to the Defendant in Spanish. Regardless if it was recorded or not-if the recording had disappeared, she'd still be able to come in and say I spoke with him in Spanish, I asked him these questions and this is what he said, period."

         The State played the video of the interview, the Sergeant translated the conversation from Spanish to English as it was played to the jury, and counsel for the Defendant objected to "this whole procedure" and to the translation itself on multiple occasions. The Defendant's objections were overruled and, in response to an objection that stated "I'm going to object to the fact that-, " his counsel was told to "take a chill pill."

         The jury found the Defendant guilty of both charges, and he appeals.


         A court's decision to admit testimony translating evidence from Spanish to English is reviewed for abuse of discretion. Fernandez v. State, 21 So.3d 155, 157 (Fla. 4th DCA 2009). That discretion, however, is limited by the rules of evidence, and is abused "if the interpreter is not qualified, sworn, and impartial." Gopar-Santana v. State, 862 So.2d 54, 55 (Fla. 2d DCA 2003). Further, when the State seeks to admit into evidence a recording in Spanish, generally "a sworn interpreter must be provided to translate such conversations as may be necessary to preclude the potential of prejudice." Hernandez v. State, 723 So.2d 857, 859 (Fla. 4th DCA 1998); see also Hutchens v. State, 469 So.2d 924, 925 (Fla. 3d DCA 1985) (finding the court erred in allowing the State to ...

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