Convicted by jury of involuntary manslaughter and reckless driving, Ismail Takow appeals from his motion to set aside the verdict. He asserts the trial court deprived him of adequate interpreter services and erred in concluding that he understood the process of his trial, in violation of his due process rights. We affirm.
On May 19, 2003, appellant, a native of
A.
TRIAL
Appellant's trial was continued three times before proceeding on April 26, 2004. None of the continuance orders found in the record reflect that the case was continued so appellant could retain an interpreter.
On day one of the four-day trial, the trial court attempted to determine whether or not appellant spoke English well enough to understand the trial process. During an exchange with both appellant and his counsel, the trial judge ascertained the following: 1) appellant has resided in the United States since 1997; 2) he knew English well enough to obtain and hold a driver's license; 3) he followed directions given by his employer which are written in English; 4) he conversed with passengers in English; and 5) he accepted and made change in U.S. currency. Appellant himself answered the judge's questions pertaining to the last three points. Counsel responded that the language problem centered more on appellant speaking, rather than appellant's understanding of English.
Thereafter, the trial court asked if anyone present in the courtroom, which at the time contained many individuals of Somali descent, “could help [the defendant] understand what's going on.”Mohamed Ali Hassan responded that appellant was a friend of his, and he would help him throughout the trial. The judge instructed him to come forward, take a seat, and “promise to do a good job.”Hassan told the judge that he had been in the
Later that same day, appellant's counsel expressed concern that Hassan was paraphrasing and needed to translate verbatim. The trial court asked Hassan, “To the extent that you can, would you do that? Can you do that for him?”Hassan responded, “Yes, that's fine. I don't know nothing about technical likeness translating.”The next day, appellant's counsel informed the trial court that he had spoken with Hassan to make sure that future translations would be verbatim. Counsel admitted that Hassan spoke “both languages [ ] quite well.”
*2 The following recounts the witnesses called by the Commonwealth during day one of the trial and a brief synopsis of their testimony: 1) Mary Bielefed testified about her close relationship with Albert Davis, her visit to the hospital on the day of the accident, and Davis' death eleven days later; 2) Darren Smith explained the closed-circuit television system which captured the accident; 3) Christopher McKay testified as an eyewitness to the accident; and 4) Avery Kent, also an eyewitness, testified as to her observations.FN1At no time during the testimony of these witnesses did appellant ask for clarification or express that he did not understand the testimony, nor did counsel express any such concern.
FN1.FN1. Also on day one, the Commonwealth introduced into evidence both still photographs of the accident scene and a CCTV video depicting the accident. [ A Richmond VA Lawyer can assist you with Motor Vehicle cases around the metro area.]
Finally, Detective Doug Johnson of the Arlington Police Department appeared as a witness on day one of trial. He testified that while working off-duty for a security company, he witnessed the collision between appellant's vehicle and
Q: Did you notice that he had any trouble speaking English?
A: That was a situation we broached right from the beginning, and I tried to explain to him that if we came to that road where we couldn't understand each other that we'd try to make other arrangements, and he continued to speak English with me the entire time I spoke to him.
Q: Kind of, broken English?
A: I wouldn't necessarily say broken, if there was something that was not necessarily said, in context I just rephrased it so it was understandable.
Q: Okay.
A: But the entire interview was in English.
On day three of trial, the Commonwealth presented stipulations of fact “upon which the Commonwealth and the Defendant have agreed.”FN2The stipulation of facts included references to photos of the accident scene, a surveillance video that by happenstance had recorded the accident, and the distance between impact and the stopping point of the vehicle. It also recited that appellant “would get his fares through dispatch from the Red Top Cab Company and from roaming the roads.”That stipulation concluded with the following:
FN2.FN2. Day two consisted of convening the jury for a view of the accident scene.
My name is Ismail Takow, and I am the defendant in this case. On May 19, 2003, I was driving a Yellow Cab taxi on
I have read this Stipulation, and my attorney has read this Stipulation to me. I speak and understand English, and I understand the factual statement set out above and agree to the accuracy of those facts.
(Emphasis added). Appellant signed the above statement.
*3 Appellant thereafter presented a motion to strike. At no point during his argument did appellant's counsel mention the interpreter or appellant's failure to understand the proceedings. After denying Takow's motion to strike, and as appellant prepared to testify, the trial judge stated, “Mr. Takow, let me know if anything that I say is not clear to you or you do not understand.”Appellant responded, through Hassan, “I can tell you, sir.”
Appellant testified at length in his own defense. Hassan translated this testimony from Somali into English.FN3During this testimony, the Commonwealth objected to the relevance of several background questions. At a bench conference outside the hearing of the jury, appellant's counsel argued that he should be able to “ask how long he's been speaking English, how long he's been in this country.”The trial court responded,
FN3.FN3. As previously noted, appellant advised the trial court that he understood English but had some difficulty expressing himself in English. Takow testified in Somali through the interpreter and obviously heard the immediate interpretation of his testimony into English. At no time during his testimony did appellant ever suggest or claim that the English translation of his testimony was inaccurate or misleading, nor did he ever offer any corrections to the same.
Well, I don't see any problem-well, okay, with that. But that's going to open up the Commonwealth to go into matters that cut the other way. I mean, he did take a driver's test. It was in English. He's spoken in English. He communicated with people in English.
He works in an area that requires to be familiar with highway signs, English. He translates-I mean, he communicates in English. So, all that's opened up, if you want to go there.
Thereafter, counsel asked appellant “how good is your command of English?”Appellant responded, through Hassan, “My understanding is much better than responding. I have difficulty of [sic] responding.”
Marvin Carroll, a safety investigator for Transportation General, Inc., appeared as a rebuttal witness and testified about an interview he conducted in English with appellant after the accident. The Commonwealth asked Carroll if he asked appellant “if he had any explanation at all as to why he did not see this man in the intersection.”Carroll responded that appellant told him that “he had no explanation for that.”Again, at the conclusion of Carroll's testimony, neither appellant nor counsel maintained that his testimony was not understood.
The jury convicted appellant of involuntary manslaughter and reckless driving. The jury sentenced him to three years imprisonment on the first charge and twelve months with a $2,500 fine on the second charge.FN4
FN4.FN4. At no time during the trial did appellant's trial counsel claim that his client was deprived of constitutional due process rights because of language differences; that is, while there may have been difficulties, those difficulties did not rise to constitutional dimension.
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