final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Lawrence M. Mirman, Judge; L.T. Case No.
Haughwout, Public Defender, and Jessica A. De Vera, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for
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.
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.
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.
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."
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."
jury found the Defendant guilty of both charges, and he
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 ...