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Minnesota, Appellant, vs. Mark Ajaak Cham.
Filed June 1, 2004
William A. Lemons, Nobles County, Assistant Attorney
-Bill Lemons, UNI '96(?) former student.
The Minnesota Court of Appeals issued its decision in my interpreter case, the one that I wrote the 27 page brief on.  It is a published decision (as opposed to an unpublished one - published decisions can be cited as binding precedent; unpublished are merely pursuassive and special rules apply to citing it)  Most opinions by the ct of appeals are unpublished.  My name is found at the beginning where the attorneys are listed.  Anyway, just thought that I would pass it on, in case you are at all interested.

-Bill Lemons, UNI '96(?) former student.

STATE OF MINNESOTA IN COURT OF APPEALS
                                              A03-1239
                                          State of Minnesota, Appellant,
                                                 vs.
                                          Mark Ajaak Cham, Respondent.
                                          Filed June 1, 2004
                                       Reversed and remanded
                                           Anderson, Judge
                                      Nobles County District Court
                                          File No. K9-01-663

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

Gordon L. Moore, III, Nobles County Attorney, William A. Lemons, Assistant County Attorney, 1530 Airport Road,
Suite 400, Worthington, MN  56187 (for appellant)

Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN
55113-3724 (for respondent)

Considered and decided by Hudson, Presiding Judge; Anderson, Judge; and Stoneburner, Judge.

                                    S Y L L A B U S

   1.      It is within the discretion of the district court to appoint an interpreter for a defendant who is handicapped in
      the English language.

   2.      The district court may evaluate the defendant’s competency in the English language, and therefore the
      defendant’s need for an interpreter, by considering, on a nonexclusive basis, the complexity of the proceedings
      or indicators such as the defendant’s mispronunciations, pauses, facial expressions, gestures, comprehension
      of proceedings, communication with counsel, or communications with the presiding judicial officer.

                                       O P I N I O N

            G. BARRY ANDERSON, Judge
            On appeal from the district court’s dismissal of the charges against respondent Mark Ajaak Cham, the state
argues that the district court improperly concluded that Cham was denied his right to a speedy trial.  The state also
argues that the district court abused it discretion by (1) appointing an interpreter for Cham; (2) dismissing the charges
without requiring Cham to make an offer of proof that the witnesses he intended to call required an interpreter and
that their testimony would have been relevant; and (3) considering the cost of the proceeding in dismissing the
charges.  Because we conclude that Cham was not denied his right to a speedy trial, we reverse.

                                            FACTS

            In October 2001, Kirk Honius, a Worthington police officer, responded to a report of a disturbance in
progress in a parking lot.  When Honius arrived on the scene, he found an eight-month pregnant woman, Abang Ojullu,
standing in the parking lot.  She told Honius that Cham, her boyfriend, had assaulted her.  Ojullu also told Honius that
Cham had been drinking and that he had driven away when he heard police sirens.

            Honius provided information concerning the assault to Tim Gaul, another police officer who knew Cham from
previous contact.  Approximately one hour later, Gaul located Cham at a Texaco Food Mart and noticed that Cham
was intoxicated.  Gaul placed Cham under arrest for domestic assault and for driving under the influence.

            Cham is an immigrant from Africa and speaks limited English.  His native language is Anuak, a language
spoken by a small group of people located in Sudan and western Ethiopia.  When Gaul read Cham the implied consent
advisory, Cham requested an Anuak interpreter.  But Gaul could not obtain an Anuak interpreter.  When Cham began
to be disruptive Gaul restrained Cham and finally brought him to the Worthington jail.

            Scott Berger, an investigator for the Worthington police, conducted two interviews with Cham.  Cham told
Berger that he did not need an interpreter.  During the interviews, Cham spoke English unassisted, and Cham admitted
both that he had assaulted Ojullu and that he had driven the car on the day of the incident.  But Cham denied that he had
been drinking.

            After the complaint against Cham was properly filed, the court administrator set an omnibus hearing for
November 2001.  But the hearing was rescheduled to December 2001 after the interpreter that had been scheduled
for Cham failed to appear.  The omnibus hearing went forward in December 2001 with an interpreter.  In February
2002, Cham appeared for arraignment.  Although no interpreter was present, Cham pleaded not guilty to the charges
against him and requested a jury trial and an Anuak interpreter for that trial.  A jury trial and an interpreter were
scheduled for July 2002.  For administrative reasons, however, the jury trial was continued to October 2002.

            In October 2002, the district court issued an order allowing Cham to proceed with an interpreter who would
interpret those aspects of the proceeding that Cham did not understand, rather than translating every word.  The trial
was continued to January 2003, however, and then again to April 2003, because the interpreter was unavailable.

            One day before the April 2003 trial was scheduled to begin, the interpreter contacted the court administrator
to say she would not attend.  Because another interpreter was not available, the trial was again rescheduled for late
August 2003.  In June 2003, Cham moved to dismiss the charges against him, arguing that he had been denied his right
to a speedy trial.  The district court denied the motion.

      In mid-August 2003, the interpreter scheduled to appear at trial cancelled the appearance; no other Anuak
interpreters were available for the August 2003 trial.  On August 20, 2003, the district court, on its own motion,
dismissed the case, reasoning that Cham’s right to a speedy trial had been violated.  The state now appeals the
dismissal of the charges.

                                            ISSUES

       I.                    Did the district court err in concluding that the state violated Cham’s right to a speedy trial?

      II.                 Did the district court abuse its discretion by appointing an interpreter for Cham pursuant to Minn. Stat.
            §§ 611.30-.34 (2002)?

                                         ANALYSIS
  I.

            The state argues that Cham’s right to a speedy trial was not violated because (1) the delay in this case was
caused by extraordinary difficulties in obtaining an interpreter rather than by the fault of the prosecution; (2) Cham
never exercised his right to a speedy trial by demanding a speedy trial; and (3) Cham was not prejudiced by the delay
between his arrest and the ultimate dismissal.  We agree.

              All criminal defendants have a constitutional right “to a speedy and public trial.”  Minn. Const. Art. I, § 6;
State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999).      Minnesota courts consider four factors in determining
whether a defendant’s right to a speedy trial has been violated.  State v. Widell, 258 N.W.2d 795, 796 (Minn. 1977).
These four factors include: (1) the length of the delay; (2) the reason for the delay; (3) whether and when the
defendant asserted his right to a speedy trial; and (4) the prejudice to the defendant caused by the delay.  Barker v.
Wingo,407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972); Widell, 258 N.W.2d at 796.  None of the factors is “either a
necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial.  Rather, they are related
factors and must be considered together with such other circumstances as may be relevant.”  Windish, 590 N.W.2d at
315 (citing Barker, 407 U.S. at 533, 92 S. Ct. 2182 at 2193).

            The district court did not rely on the Barker four-factor test in concluding that Cham’s right to a speedy trial
had been violated.  Instead, the court reasoned that the cost of the matter had exceeded reasonable limits, that
numerous attempts at obtaining an interpreter had failed, and that “based upon the inability of the Court to obtain an
interpreter, the Defendant’s right to a speedy trial has been denied.”

            Both parties cite State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989), for the proposition that the decision
of the district court that Cham’s right to a speedy trial has been violated is reviewed using an abuse-of-discretion
standard.  But Friberg does not state a standard of review.  See Friberg, 435 N.W.2d at 515 (concluding merely that
“[c]onsidering the Barker factors in light of all the circumstances, we find that the trial court did not abuse its
discretion by ruling that there was good cause for the delay and that defendants were not denied their right to a speedy
trial”).  Because appellate courts review constitutional questions de novo and Cham’s claim raises a constitutional
question, we conclude that the district court’s speedy trial determination is subject to de novo review.  State v.
Wiegand, 645 N.W.2d 125, 129 (Minn. 2002) (“We review de novo a lower court’s ruling on constitutional
questions.”); State v. Sewell, 595 N.W.2d 207, 211 (Minn. App. 1999) (“We review constitutional issues de novo.”),
review denied (Minn. Aug. 25, 1999).

            The district court erred by failing to apply the Barker test, but because we review de novo whether Cham’s
right to a speedy trial was violated, we will apply the Barker test to the facts in this case.

1. The length of delay

            We evaluate the length of delay to determine if further review of a defendant’s speedy-trial claim is
warranted.  Barker, 407 U.S. at 530, 92 S. Ct. at 2192.  We measure the length of delay from the time when the
police arrest the defendant.  State v. Jones, 392 N.W.2d 224, 235 (Minn. 1986).    Here, there was a delay of 23
months from the date of arrest until the district court dismissed the charges.  A delay of this length creates the
presumption that Cham’s right to a speedy trial was violated and triggers further inquiry.  See State v. Corarito, 268
N.W.2d 79, 80 (Minn. 1978) (concluding that delay of six months is sufficient to trigger further inquiry in the speedy
trial analysis).

2. The reason for delay

            We next consider the reasons for the delay.  Barker,407 U.S. at 531, 92 S. Ct. at 2192.  Barker places the
primary burden of ensuring a speedy trial on the state and the court andrecognizes that different weights will be
assigned to different reasons for delay.  Id. at 529, 531, 92 S. Ct. at 2192, 2191.  In this case, administrative
difficulties at the district court caused one continuance.  But the on-going problem of obtaining an interpreter for
Cham caused the majority of the delay.  This delay had nothing to do with the district court administrator’s effort to
locate an interpreter, and the state was in no way responsible for the delay.  Under these circumstances, despite the
unusually long delay, and because the prosecution did not act in bad faith to delay the proceeding, the reason for delay
weighs in favor of the state.  See State v. Sap, 408 N.W.2d 638, 640 (Minn. App. 1987) (under similar facts, denying
appellant’s claim that he was denied a speedy trial).

3. Whether and when the defendant asserted his right to a speedy trial

            Cham never moved for a speedy trial, but he twice moved to dismiss the case based on violation of his right to
a speedy trial.  When a defendant moves for dismissal, but does not move for a speedy trial, this factor will not favor
the defendant.  See e.g., Sap, 408 N.W.2d at 640 (concluding that Sap’s failure to move for a speedy trial, but instead
for a dismissal, did not favor Sap in the speedy trial analysis).

4. The prejudice to the defendant caused by the delay

            We consider three factors in determining if a defendant was prejudiced by the delay: “(1) preventing
oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) preventing the
possibility that the defense will be impaired.”  Windish, 590 N.W.2d at 318.  Cham asserts that he suffered prejudice
because he was incarcerated for the DUI charge that was eventually dismissed for lack of probable cause, he suffered
anxiety by having to appear again and again for a trial that never happened, and he knew that the alleged victim had
recanted her testimony and therefore that the testimony was of doubtful admissibility.  Only the claim that he
experienced anxiety as a result of the delay supports Cham’s claim of prejudice.  See Windish, 590 N.W.2d at 318
(stating that minimizing the anxiety of the accused is a factor in determining whether the defendant was prejudiced by
the delay).  This prong of the speedy-trial analysis thus weighs in Cham’s favor, if only slightly.

            In conclusion, after applying the Barker test de novo to these facts, we conclude that the dismissal of the
charges against Cham based on a violation of his right to a speedy trial was error.  We reverse the determination of
the district court and remand with instructions to reinstate the complaint against Cham and to conduct proceedings
not inconsistent with this opinion.[1]

                                                 II.

            The state argues that the district court abused its discretion by appointing an interpreter for Cham because (1) the
evidence—including evidence that in a prior case Cham was not found to be handicapped in the English language—indicates that
Cham is not handicapped in the English language, and therefore, is not entitled to an interpreter; and (2) the interpreter statute does
not entitle Cham to have “somebody available in the event of a possible question”; it applies only to people so handicapped in the
English language that they do not understand any of the proceedings.

            The interpreter statute requires the appointment of an interpreter for a criminal defendant when that defendant
is “handicapped in communication” because the defendant has “difficulty in speaking or comprehending the English
language, cannot fully understand the proceedings or any charges made against the person . . . or is incapable of
presenting or assisting in the presentation of a defense.”  Minn. Stat. §§ 611.30, .31 (2002).  Whether an interpreter
shall be appointed for a defendant is within the discretion of the district court.  State v. Perez, 404 N.W.2d 834, 838
(Minn. App. 1987), review denied (Minn. May 20, 1987).  We review the district court’s decision to appoint or not
appoint an interpreter under an abuse of discretion standard.  State v. Saldana, 246 N.W.2d 37, 39 (Minn. 1976).

            Here, the district court implicitly found that Cham was “handicapped in communication” and therefore needed
an interpreter present during the proceedings.    Although the state’s evidence that Cham was not handicapped in his
ability to understand and speak English is compelling, we afford the district court “broad discretion based on its
first-hand view” of indicators that a person is handicapped in communication, including: “mispronunciations, pauses,
facial expressions, and gestures.”  See State v. Yang, 627 N.W.2d 666, 676 (Minn. App. 2001) (finding, in the
context of a witness who had already begun to testify, that the district court did not abuse its discretion in refusing to
appoint an interpreter for the witness), review denied (Minn. July 24, 2001).  Other indicators that a district court
may consider, on a nonexclusive basis, in evaluating whether a person is handicapped in the English language include
whether a “party’s comprehension of the proceedings or communication with counsel or the presiding judicial
officer” are inhibited.  See 28 U.S.C. § 1827 (d)(1) (discussing factors a presiding judicial officer may consider in
assessing a party’s need for an interpreter).  The district court may also consider the complexity of the proceedings in
evaluating the defendant’s need for an interpreter.  United States v. Febus, 218 F.3d 784, 791 (7th Cir. 2000).  The
district court should consider these factors, as well as other indicia of language competency, in evaluating whether an
interpreter is required.  The district court may wish to consider the possibility of a pre-trial hearing devoted, at least
in part, to language competency issues.  Here, because the standard of review for the appointment of interpreters is
abuse of discretion, and because it does not appear that the district court abused its discretion, we affirm the district
court’s determination that Cham was entitled to an interpreter under Minnesota statute.

                                     D E C I S I O N

             We reverse the order of the district court dismissing the complaint against Cham.  We remand with
instructions to reinstate the complaint against Cham and proceed with the disposition of Cham’s case.  Because we
reverse and remand the district court’s dismissal of the action against Cham on this basis, we do not reach the state’s
remaining arguments for reinstatement of the complaint against Cham.

      We affirm the district court’s conclusion that Cham is entitled to an interpreter.

            Reversed and remanded.
 

[1] Because we conclude that Cham was not denied his right to a speedy trial, and reverse the determination of the
district court on this ground, we do not reach the state’s other challenges to the district court’s dismissal of the
charges against Cham, specifically: that the district court abused its discretion by dismissing the charges against
Cham based on the court’s inability to secure interpreters for witnesses that Cham intended to call during trial
without requiring Cham to (1) make an offer of proof demonstrating that the witnesses he intended to call are
handicapped in communication; and (2) make an offer of proof demonstrating that those witnesses would provide
testimony that would be helpful to Cham.  Although we decline to address those issues directly here, the district court
is not precluded from reevaluating those issues at trial under the standards set forth in State v. Yang, 627 N.W.2d
666, 676 (Minn. App. 2001), review denied  (Minn. May 8, 2001) and State v. Lavastida, 366 N.W.2d 677, 680-81
(Minn. App. 1985).