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People v. Gonzalez-Raymundo

Supreme Court of Michigan

April 10, 2015

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
ELIAS GONZALEZ-RAYMUNDO, Defendant-Appellee

COA: 316744; 319718. Wayne CC: 12-009127-FH.

Robert P. Young, Jr., Chief Justice. Stephen J. Markman, Mary Beth Kelly, Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein, Justices. YOUNG, C.J., would grant leave to appeal. MARKMAN, J. (dissenting).

Order

On order of the Court, the application for leave to appeal the November 18, 2014 judgment of the Court of Appeals is considered, and it is DENIED, because we

Page 618

are not persuaded that the question presented should be reviewed by this Court.

Young, C.J., would grant leave to appeal.

DISSENT

Markman, J. ( dissenting ).

I respectfully dissent from this Court's order denying leave to appeal and would instead grant leave to assess whether defendant, a non-English-language speaker, is entitled to a new trial because his counsel and not defendant waived his right to a simultaneous translation. Defendant was provided an interpreter by the trial court, but on the first day of trial, his counsel stated on the record that

I want to avoid the chance of any prejudice, so we'd like to preserve the right to waive the interpreter during the course of the proceedings and explain things to the defendant on break. And you can hear straight from the defendant's mouth if you like, Your Honor, that this is indeed our wish.

The trial court assented, and consequently defendant received the assistance of an interpreter throughout trial, but the interpreter did not provide simultaneous translation. Defendant was convicted of four counts of third-degree criminal sexual conduct.

At a Ginther [1] hearing, defense counsel testified that " [a]ll I know is that this was the strategy I recommended to [defendant] and he went along with it to the point that I don't recall him making any objection." Defendant did not testify at the hearing. Nonetheless, the trial court granted defendant a new trial because he did not personally waive his right to simultaneous translation, and the Court of Appeals affirmed. People v Gonzalez-Raymundo, 308 Mich.App. 175 (2014) (Docket Nos. 316744 and 319718).

" '[W]aiver is the " intentional relinquishment or abandonment of a known right." '" People v Carines, 460 Mich. 750, 762; 597 N.W.2d 130 n 7 (1999), quoting United States v Olano, 507 U.S. 725, 733; 113 S.Ct. 1770; 123 L.Ed.2d 508 (1993). " While the defendant must personally make an informed waiver for certain fundamental rights such as the right to counsel or the right to plead not guilty, for other rights, waiver may be effected by action of counsel." People v Carter, 462 Mich. 206, 218; 612 N.W.2d 144 (2000). For the following reasons, I question whether the lower courts correctly ruled that a new trial is warranted under the present circumstances.

First, neither the right to an interpreter nor the right to simultaneous translation have yet been deemed to be constitutional rights by either this Court or by the United States Supreme Court, much less to constitute extraordinary " structural" constitutional rights. Accordingly, when a rule of automatic reversal for failure to obtain the defendant's personal waiver has only been applied to violations of " a narrow class of foundational constitutional rights" such as the right to counsel and the right to plead not guilty, People v Vaughn, 491 ...


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