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COURT OF APPEALS DECISION DATED AND RELEASED September 21, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
Nos. 95-0782-CR-NM
95-0783-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MAI LEE VUE,
Defendant-Appellant.
APPEALS from judgments
of the circuit court for La Crosse County:
PETER G. PAPPAS, Judge. Appeal
No. 95-0782-CR-NM affirmed; Appeal No. 95-0783-CR-NM dismissed.
SUNDBY,
J. Mai Lee Vue was present at a house when police officers
executed a search warrant. She
consented to a search of her purse, and officers found a handgun in it. She was charged with carrying a concealed
weapon, a misdemeanor. After Vue missed
a court appearance, she was also charged with misdemeanor bail jumping. The cases were tried together to a
jury. The jury found Vue not guilty of
bail jumping, and a judgment of acquittal was entered. The jury found Vue guilty of carrying a
concealed weapon, and the court fined Vue $350.
Vue filed a notice of
appeal in both matters.[1] However, since she was acquitted of bail
jumping, she is not aggrieved and lacks standing to appeal. Therefore, that appeal is dismissed.
In Appeal No.
95-0782-CR-NM, Vue's appellate counsel, Attorney Margarita Van Nuland, has
filed a no merit report pursuant to Rule
809.32, Stats., and Anders
v. California, 386 U.S. 738 (1967).
Vue was served with a copy of the report and advised of her right to
file a response. Vue has not done
so. This court has conducted the independent
review of the record that is required by Anders, and concludes
that there are no arguable appellate issues.
Therefore, we affirm the judgment of conviction.
Vue is Hmong and speaks
little, if any, English. At a pretrial
conference, Vue's attorney informed the court that an interpreter for Vue would
be needed. On the morning of trial, the
assistant district attorney questioned whether a second interpreter was needed
for witnesses, and informed the court that, in her experience, "it's
standard practice to have a separate one so there is not going to be any issues
created about people understanding things and to avoid any other
problems." Vue's counsel, however,
did not request a different interpreter for witnesses, and did not object when
the court ruled that one interpreter would be used.
In the no merit report,
appellate counsel concludes that any challenge to the lack of a second
interpreter would be without merit.
This court agrees. While the
right of a non-English speaking defendant to an interpreter is well-settled, State
v. Neave, 117 Wis.2d 359, 344 N.W.2d 181 (1984), there is no
requirement that a separate interpreter be provided when witnesses also do not
speak English. Since Vue did not
request a separate interpreter, and the record does not suggest that a separate
interpreter was needed, an appeal on this question would be frivolous.
The second part of the
no merit report addresses the competency of the interpreter. In closing argument, the State asked the
jury to watch Vue to determine whether she appeared to be understanding the
proceedings. That line of argument was
designed to counter Vue's theory of defense on the bail jumping charge, that
she did not understand a scheduling order.
Vue did not object during closing argument.
After the jury had been
sworn and begun deliberations, Vue's counsel advised the court that the
interpreter had been unable to translate the jury instructions to Vue. Counsel moved for a mistrial, or that the
jury be informed that Vue was not completely understanding the
proceedings. The trial court denied
Vue's motion because Vue had never told the court that the interpreter was
inadequate and counsel did not object during closing argument.
An appeal on this
question would lack arguable merit. An
objection to the competence of an interpreter "must be made as soon as any
incapacity or deficiency becomes apparent." State v. Besso, 72 Wis.2d 335, 343, 240 N.W.2d 895,
899 (1976). Because Vue did not alert
the trial court to any problem with the interpreter when the translation
problems occurred, this issue is waived.
Additionally, appellate
counsel indicates that Vue's son, who speaks and understands English, was
present during the trial and told Vue's attorney after trial that the
interpreter had not correctly translated parts of the trial. Appellate counsel notes that she intended to
file a postconviction motion on that basis. However, Vue has failed to respond to appellate counsel's
inquiries, and counsel feels she cannot pursue such a motion without the
cooperation of her client and the client's family. Vue has failed to respond to her attorney, and she did not
respond to the no merit report. If she
wanted to pursue the matter, she, or some member of her family, could have
filed a response with this court. Vue's
silence is further evidence of waiver.
Based on an independent
review of the record, this court finds no basis for reversing the judgment of
conviction in No. 95-0782-CR-NM. Any
further appellate proceedings would be without arguable merit within the
meaning of Anders and Rule
809.32, Stats. Accordingly, the judgment of conviction in
Appeal No. 95-0782-CR-NM is affirmed.
For reasons stated above, Appeal No. 95-0783-CR-NM is dismissed. Attorney Van Nuland is relieved of any
further representation of the defendant on this appeal.
By the Court.—Judgment
affirmed in Appeal No. 95-0782-CR-NM; Appeal No. 95-0783-CR-NM dismissed.