MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 10 2015, 10:13 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael D. Gross Gregory F. Zoeller Lebanon, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jose Eduardo Vazquez-Paz, February 10, 2015
Appellant-Defendant, Court of Appeals Case No. 06A01-1407-CR-279 v. Appeal from the Boone Superior State of Indiana, Court Honorable Rebecca S. McClure, Appellee-Plaintiff. Judge Cause No. 06D02-1402-FD-46
Robb, Judge.
Case Summary and Issue [1] Following a jury trial, Jose Vazquez-Paz was convicted of operating a vehicle
with an alcohol concentration of at least 0.15, a Class D felony, and resisting Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015 Page 1 of 8 law enforcement, a Class A misdemeanor. Vazquez-Paz appeals those
convictions, raising one issue for review: whether the services provided by an
interpreter at Vazquez-Paz’s trial were adequate to protect his due process right
to understand the proceedings. Concluding Vazquez-Paz’s due process rights
were not violated, we affirm.
Facts and Procedural History [2] On February 2, 2014, Joshua Mullins and his fiancée, Sarah Jones, were
driving down State Road 39 in Lebanon, Indiana. A car driven by Vazquez-
Paz began tailgating Mullins’s vehicle. Vazquez-Paz sped up and slowed down
several times before finally passing Mullins and almost striking Mullins’s
vehicle. Vazquez-Paz then turned the wrong way down a one-way street and
hit a snow embankment. He stopped briefly but then continued driving.
[3] Mullins followed Vazquez-Paz while Jones called 911 to report a possible drunk
driver. Lebanon Police Department Officers Taylor Nielsen and Brad Bailey
responded to Jones’s emergency call. The officers watched Vazquez-Paz pull
into a parking lot and hit a curb, at which point the officers activated their
emergency lights and initiated a traffic stop.
[4] Officer Nielson approached the vehicle, and Vazquez-Paz was in the driver’s
seat. Officer Nielson noticed a strong odor of alcohol and of cologne coming
from Vazquez-Paz. Officer Nielson asked Vazquez-Paz where he was heading,
and he responded in English that he was going to rent a movie. Noticing that
Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015 Page 2 of 8 Vazquez-Paz was Hispanic, Officer Nielson inquired as to how well Vazquez-
Paz spoke and understood English, to which he responded that he spoke “good
English.” Transcript at 179. After obtaining Vazquez-Paz’s identification,
Officer Nielson asked him to step out of the vehicle to perform field sobriety
tests.
[5] Officer Nielson first conducted a horizontal gaze nystagmus test. She then
began explaining the walk-and-turn test to Vazquez-Paz, at which time he told
the officer that he needed someone who spoke Spanish. Officer Tyson
Warmoth, who was on scene, gave Vazquez-Paz instructions in Spanish for the
walk-and-turn test and also for the one-leg stand test. Believing that Vazquez-
Paz may be intoxicated, Officer Warmoth informed him of Indiana’s implied
consent law and provided him with a card written in Spanish. Vazquez-Paz
refused to give a straight answer as to whether he would consent to a chemical
test, so the officers began the process of obtaining a warrant.
[6] While waiting for the officers to secure a warrant, Vazquez-Paz made several
aggressive movements toward Officer Warmoth, prompting the officers to place
him in handcuffs. When the officers attempted to handcuff Vazquez-Paz, he
attempted to pull away and pull his arms back in front of him.
[7] The officers eventually obtained a search warrant and transported Vazquez-Paz
to a nearby hospital for a blood draw. Vazquez-Paz yelled at the officers in
both Spanish and English while riding in the police car on the way to the
hospital. While at the hospital, Vazquez-Paz was calmer and conversed in
Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015 Page 3 of 8 English with several of the arresting officers. Vazquez-Paz’s blood was drawn,
and it was later determined that he had a blood alcohol concentration of 0.17.
[8] On February 3, 2014, the State charged Vazquez-Paz as follows: Count 1,
operating a vehicle while intoxicated and endangering another person, a Class
A misdemeanor; Count 2, operating a vehicle with an alcohol concentration of
at least 0.15, a Class A misdemeanor; and Count 3, resisting law enforcement, a
Class A misdemeanor. The State also filed a request to enhance Count 2 to a
Class D felony due to Vazquez-Paz’s prior conviction for operating a vehicle
while intoxicated.
[9] At a pre-trial hearing on February 25, 2014, the trial court recalled that an
interpreter was present at Vazquez-Paz’s initial hearing but that the interpreter
was not used because Vazquez-Paz conversed with the trial court in English.
Vazquez-Paz then told the interpreter at the pre-trial hearing that he
“understands everything but he doesn’t know how to respond.” Tr. at 3.
[10] Vazquez-Paz filed a pre-trial request for a defense interpreter, which the trial
court granted. A jury trial was set to begin on April 15, 2014, but the defense
interpreter, Karen Garza, was not present. Garza informed the trial court that
defense counsel told her that she was not needed at trial, but defense counsel
denied telling Garza she was not needed. The trial court ordered another
interpreter who was present to assist Vazquez-Paz by translating during the jury
trial, and the jury trial continued as scheduled. The interpreter sat at the
Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015 Page 4 of 8 defense table for the duration of the trial. The jury found Vazquez-Paz guilty of
all charges.
[11] On June 3, 2014, the date of the sentencing hearing, Vazquez-Paz made a
motion for a new trial on the grounds that the services of the interpreter at trial
were inadequate. The trial court suggested that the motion may not be timely
because a final judgment had not yet been ordered, and the court then pointed
out that an interpreter was with Vazquez-Paz during the jury trial. The trial
court also noted that Vazquez-Paz turned to the interpreter only a few times
during trial. Vazquez-Paz was sentenced to concurrent terms of three years for
operating a vehicle with an alcohol concentration of at least 0.15 and 244 days
for resisting law enforcement. This appeal followed.
Discussion and Decision I. Standard of Review [12] Vazquez-Paz argues that the interpreter’s assistance during his jury trial was
insufficient to preserve his right to due process. The Due Process Clause of the
Fourteenth Amendment to the United States Constitution provides that no
State shall “deprive any person of life, liberty, or property, without due process
of law.” U.S. Const. amend. XIV, § 1. “The fundamental requisite of due
process of law is the opportunity to be heard . . . at a meaningful time and in a
meaningful manner.” Goldberg v. Kelly,
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 10 2015, 10:13 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael D. Gross Gregory F. Zoeller Lebanon, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jose Eduardo Vazquez-Paz, February 10, 2015
Appellant-Defendant, Court of Appeals Case No. 06A01-1407-CR-279 v. Appeal from the Boone Superior State of Indiana, Court Honorable Rebecca S. McClure, Appellee-Plaintiff. Judge Cause No. 06D02-1402-FD-46
Robb, Judge.
Case Summary and Issue [1] Following a jury trial, Jose Vazquez-Paz was convicted of operating a vehicle
with an alcohol concentration of at least 0.15, a Class D felony, and resisting Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015 Page 1 of 8 law enforcement, a Class A misdemeanor. Vazquez-Paz appeals those
convictions, raising one issue for review: whether the services provided by an
interpreter at Vazquez-Paz’s trial were adequate to protect his due process right
to understand the proceedings. Concluding Vazquez-Paz’s due process rights
were not violated, we affirm.
Facts and Procedural History [2] On February 2, 2014, Joshua Mullins and his fiancée, Sarah Jones, were
driving down State Road 39 in Lebanon, Indiana. A car driven by Vazquez-
Paz began tailgating Mullins’s vehicle. Vazquez-Paz sped up and slowed down
several times before finally passing Mullins and almost striking Mullins’s
vehicle. Vazquez-Paz then turned the wrong way down a one-way street and
hit a snow embankment. He stopped briefly but then continued driving.
[3] Mullins followed Vazquez-Paz while Jones called 911 to report a possible drunk
driver. Lebanon Police Department Officers Taylor Nielsen and Brad Bailey
responded to Jones’s emergency call. The officers watched Vazquez-Paz pull
into a parking lot and hit a curb, at which point the officers activated their
emergency lights and initiated a traffic stop.
[4] Officer Nielson approached the vehicle, and Vazquez-Paz was in the driver’s
seat. Officer Nielson noticed a strong odor of alcohol and of cologne coming
from Vazquez-Paz. Officer Nielson asked Vazquez-Paz where he was heading,
and he responded in English that he was going to rent a movie. Noticing that
Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015 Page 2 of 8 Vazquez-Paz was Hispanic, Officer Nielson inquired as to how well Vazquez-
Paz spoke and understood English, to which he responded that he spoke “good
English.” Transcript at 179. After obtaining Vazquez-Paz’s identification,
Officer Nielson asked him to step out of the vehicle to perform field sobriety
tests.
[5] Officer Nielson first conducted a horizontal gaze nystagmus test. She then
began explaining the walk-and-turn test to Vazquez-Paz, at which time he told
the officer that he needed someone who spoke Spanish. Officer Tyson
Warmoth, who was on scene, gave Vazquez-Paz instructions in Spanish for the
walk-and-turn test and also for the one-leg stand test. Believing that Vazquez-
Paz may be intoxicated, Officer Warmoth informed him of Indiana’s implied
consent law and provided him with a card written in Spanish. Vazquez-Paz
refused to give a straight answer as to whether he would consent to a chemical
test, so the officers began the process of obtaining a warrant.
[6] While waiting for the officers to secure a warrant, Vazquez-Paz made several
aggressive movements toward Officer Warmoth, prompting the officers to place
him in handcuffs. When the officers attempted to handcuff Vazquez-Paz, he
attempted to pull away and pull his arms back in front of him.
[7] The officers eventually obtained a search warrant and transported Vazquez-Paz
to a nearby hospital for a blood draw. Vazquez-Paz yelled at the officers in
both Spanish and English while riding in the police car on the way to the
hospital. While at the hospital, Vazquez-Paz was calmer and conversed in
Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015 Page 3 of 8 English with several of the arresting officers. Vazquez-Paz’s blood was drawn,
and it was later determined that he had a blood alcohol concentration of 0.17.
[8] On February 3, 2014, the State charged Vazquez-Paz as follows: Count 1,
operating a vehicle while intoxicated and endangering another person, a Class
A misdemeanor; Count 2, operating a vehicle with an alcohol concentration of
at least 0.15, a Class A misdemeanor; and Count 3, resisting law enforcement, a
Class A misdemeanor. The State also filed a request to enhance Count 2 to a
Class D felony due to Vazquez-Paz’s prior conviction for operating a vehicle
while intoxicated.
[9] At a pre-trial hearing on February 25, 2014, the trial court recalled that an
interpreter was present at Vazquez-Paz’s initial hearing but that the interpreter
was not used because Vazquez-Paz conversed with the trial court in English.
Vazquez-Paz then told the interpreter at the pre-trial hearing that he
“understands everything but he doesn’t know how to respond.” Tr. at 3.
[10] Vazquez-Paz filed a pre-trial request for a defense interpreter, which the trial
court granted. A jury trial was set to begin on April 15, 2014, but the defense
interpreter, Karen Garza, was not present. Garza informed the trial court that
defense counsel told her that she was not needed at trial, but defense counsel
denied telling Garza she was not needed. The trial court ordered another
interpreter who was present to assist Vazquez-Paz by translating during the jury
trial, and the jury trial continued as scheduled. The interpreter sat at the
Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015 Page 4 of 8 defense table for the duration of the trial. The jury found Vazquez-Paz guilty of
all charges.
[11] On June 3, 2014, the date of the sentencing hearing, Vazquez-Paz made a
motion for a new trial on the grounds that the services of the interpreter at trial
were inadequate. The trial court suggested that the motion may not be timely
because a final judgment had not yet been ordered, and the court then pointed
out that an interpreter was with Vazquez-Paz during the jury trial. The trial
court also noted that Vazquez-Paz turned to the interpreter only a few times
during trial. Vazquez-Paz was sentenced to concurrent terms of three years for
operating a vehicle with an alcohol concentration of at least 0.15 and 244 days
for resisting law enforcement. This appeal followed.
Discussion and Decision I. Standard of Review [12] Vazquez-Paz argues that the interpreter’s assistance during his jury trial was
insufficient to preserve his right to due process. The Due Process Clause of the
Fourteenth Amendment to the United States Constitution provides that no
State shall “deprive any person of life, liberty, or property, without due process
of law.” U.S. Const. amend. XIV, § 1. “The fundamental requisite of due
process of law is the opportunity to be heard . . . at a meaningful time and in a
meaningful manner.” Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (citations and
quotation marks omitted). As it pertains to non-English speaking litigants, our
supreme court has said that “due process must include not only the opportunity Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015 Page 5 of 8 to be heard but also the opportunity to hear.” Ponce v. State, 9 N.E.3d 1265, 1268
(Ind. 2014) (emphasis in original). “An indigent defendant who cannot speak
or understand English has a right to have his proceedings simultaneously
translated to allow for effective participation.” Martinez Chavez v. State, 534
N.E.2d 731, 736 (Ind. 1989).
[13] “The court’s decision as to whether an interpreter is needed should be based on
factors such as the defendant’s understanding of spoken and written English,
the complexity of the proceedings, issues, and testimony, and whether,
considering those factors, the defendant will be able to participate effectively in
his defense.” Arrieta v. State, 878 N.E.2d 1238, 1243 (Ind. 2008) (quoting Nur v.
State, 869 N.E.2d 472, 479 (Ind. Ct. App. 2007, trans. denied)). A trial court’s
decision whether to appoint an interpreter is reviewed for an abuse of
discretion. Nur, 869 N.E.2d at 480.
II. Vazquez-Paz’s Interpreter [14] In this case, an interpreter was present and sat with Vazquez-Paz at the defense
table throughout the jury trial. On appeal, however, Vazquez-Paz contends the
interpreter did not actually perform his duty to interpret the entire proceeding.
[15] Vazquez-Paz refers us to a comment made by the trial court at sentencing, in
which the trial court said it noticed Vazquez-Paz turn to the interpreter only six
times during the trial. He argues that the trial court’s statement implicitly
indicates that the interpreter “was only there to answer questions and not to
interpret the proceedings in total for [Vazquez-Paz].” Brief of Appellant at 7.
Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015 Page 6 of 8 However, the context of the trial court’s remark indicates that the trial court
was stating its belief that Vazquez-Paz did not need the interpreter during the
trial. Vazquez-Paz provides no citation to the record demonstrating that the
interpreter sitting next to him was not actually interpreting, and defense counsel
never objected or stated a belief that the interpreter’s performance was
inadequate. Consequently, we do not believe Vazquez-Paz has met his burden
of showing that the interpreter provided by the trial court was insufficient to
preserve his right to due process.1
[16] In addition to the fact that Vazquez-Paz was provided an interpreter, there are
several portions of the record that suggest an interpreter may not have been
necessary. There is no question that Vazquez-Paz spoke English. When he
was first pulled over by police, he told them his English was “good.” Tr. at
179. He conversed in English with officers at the hospital. He also spoke in
English with the trial court at an initial hearing without using an interpreter.
Furthermore, Vazquez-Paz told an interpreter at a pre-trial hearing that he
understood everything the trial court was saying.
1 Vazquez-Paz’s brief relies entirely on our supreme court’s recent decision in Ponce, supra. In Ponce, the court granted Ponce’s petition for post-conviction relief after concluding that an interpreter inaccurately translated portions of his guilty plea hearing. 9 N.E.3d at 1274. Unlike the circumstances in Ponce, there is no evidence that Vazquez-Paz’s interpreter provided inaccurate translation.
Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015 Page 7 of 8 [17] Considering the circumstances of this case and the lack of evidence showing
Vazquez-Paz’s interpreter performed deficiently, Vazquez-Paz was not denied
his right to procedural due process.
Conclusion [18] Concluding the interpreter provided to Vazquez-Paz was sufficient to protect
his due process rights, we affirm.
[19] Affirmed.
Bailey, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 06A01-1407-CR-279| February 10, 2015 Page 8 of 8