County Criminal Court: APPELLATE PROCEDURE –Preservation of Error – Even had Appellant objected to the lack of an interpreter for his accuser, any error was harmless.  Affirmed.  Jerry Rollins Oglesby v. State, No. CRC10000993CFAWS, (Fla. 6th Cir.App.Ct. March 31, 2011).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

JERRY ROLLINS OGLESBY,     

                     Appellant,

                                                              UCN:            512010CF000993A000WS

v.                                                           Case No:           CRC1000993CFAWS

                                                              Lower No:    09-6504-MMAWS

 

 

STATE OF FLORIDA,                                     

                     Appellee.                                             

_____________________________/

Appeal from Pasco County Court

County Judge Marc H. Salton

 

Lynda Beth Barack, Esq.

for Appellant

 

Chris Sprowls, A.S.A.

for Appellee

 

 

 

ORDER AND OPINION

 

          Appellant argues that the trial court violated the confrontation clause of the Sixth Amendment by denying him his right to confront and cross-examine his accuser without the assistance of an interpreter.  Appellant now asserts that the victim should have been given an interpreter.  Even had Appellant preserved this issue for appellate review, any error was harmless.  Therefore, this Court affirms the trial court as set forth below.

 

FACTUAL BACKGROUND

On August 30, 2009, Appellant was arrested and later charged with domestic battery against Marie Veszprimi, the mother of his nine year old daughter.  A trial was held before Judge Salton, on February 3, 2009.  An interpreter was requested for trial on behalf of Maria Veszprimi; however, no interpreter was available on the day of trial. Prior to her testimony, the prosecutor told the court that the interpreter was unable to make it and that he already informed defense counsel.  The prosecutor stated that he spoke to Ms. Veszpremi and believed that she would be okay without an interpreter.  Ms. Veszpremi told him that it had been so long since she has spoken Hungarian that she was not sure that an interpreter would help at all.  Defense counsel never commented on the lack of an interpreter, instead asked the court to invoke the rule of sequestration.   

Marie Veszpremi testified that on August 30, 2009, Appellant, her ex-boyfriend, came over to her house at about two o’clock in the afternoon.  They argued about food stamps and supporting their daughter.  Appellant had been sitting, but then he got up and cursed at her.   Appellant was angry and pushed Ms. Veszpremi down using both hands, hurting her knees and bruising her ankle.  She may have also broken her hand, but could not afford to go to a doctor.  Ms. Veszpremi was only 5’1” and Appellant was 6’3”.  She never tried to hit or grab Appellant.  Ms. Veszpremi was scared that Appellant was so angry.  Ms. Veszpremi asked Appellant to leave.  Her daughter Kelly told Appellant not to hurt her mom and called 911.  Kelly was nearby in the living room when it happened.  Her older daughter, Marie, wrote her statement to the police for her because she could not write in English. 

  Marie Veszpremi, Jr. was the victim’s 23 year old daughter, who lived with her mother, nine year old sister Kelly, and brother.  She was in her room watching television when she heard her mother arguing with Appellant about food stamps.  Marie saw her mother fall to the ground, but did not see the beginning of the altercation or how she came to fall.  Marie did not see her mother closely, but thought that she had tripped.  Appellant and her mother were standing, and Marie tried to intervene by holding them both back from getting in each other’s faces.  Appellant was angry and being aggressive.  Appellant had his hands in his pockets the entire time.  Marie demonstrated how Appellant was moving his shoulders toward her mother.  Marie testified that her mother was about 5’2” and Appellant was about 6’2”.  Her mother had a bruise on her knee and told her that her ankle hurt; however, her mother did not mention any injury to her hand.  Marie was not the one who called 911, but she did tell him to leave, which he did.  Marie spoke with the deputy.  She also filled out the written statements because her mother cannot write, and her younger sister did not want to write anything.  When Marie wrote the statement, her mother spoke in Hungarian and Marie translated it into English.      

Kelly Oglesby testified that she was in the living room with her mother when her father, Appellant, came over.  Her older sister, Marie, was in her room.  Kelly demonstrated how Appellant pushed her mom.  Kelly could not remember if Appellant’s hands were in his pockets.  Her mother hurt her leg when she fell.  Her mother never tried to hit her father.  Kelly called 911 because she did not want her mother to have to go to the doctor because she was bruised.  Kelly told her sister what she wanted her to write on the statement to the police.

Deputy Sean Smith was first to arrive and investigate the domestic violence incident.  Appellant was gone, but he spoke to the mother and two children.  Deputy Smith took pictures of Ms. Veszpremi’s injuries, which were introduced into evidence.  Deputy Smith testified that Ms. Veszpremi stated that she received the shin injury by hitting it on a table as she fell from being pushed.  He does not recall Ms. Veszpremi stating that her right hand was hurt.  At no point during the investigation did any of the witnesses indicate that Ms. Veszpremi ever attacked Appellant.  When he interviewed Ms. Veszpremi, he could understand her without an interpreter.  Deputy Smith was present as Marie wrote the statement for her mother.  He could not remember whether Ms. Veszpremi was speaking in Hungarian or English.  Ms. Veszpremi’s English was a little broken, and her daughter understood her clearer.  It was not that Ms. Veszpremi could not speak clearly in English; rather, it was that she could not write it clearly.  Deputy Smith could not remember who wrote Kelly’s statements. 

Appellant testified that he met Ms. Veszpremi in 1999.  Appellant lived with Ms. Veszpremi less than three months after their daughter Kelly was born and remained in a romantic relationship off and on thereafter.  On August 30, 2009, Appellant went to Ms. Veszpremi’s house around four o’clock in the afternoon and stayed for about an hour.  Appellant walked in the house because he is “one of the family.”  He went into the kitchen to see what was for dinner.  Appellant was not invited for dinner, but had a standing invitation.  Ms. Veszpremi seemed upset the moment he arrived.  When Appellant opened the refrigerator door, Ms. Veszpremi pushed the door shut, and asked him why he had not applied for food stamps and why he had not paid child support.  Appellant tried to avoid the accusations and did not want to tell her that he had not yet applied because he did not want to get into it and all it would do was inflame her.  Ms. Veszpremi had asked him before to apply for food stamps.  Ms. Veszpremi qualified for child support, but Appellant refused to pay. 

After the argument started in the kitchen, Appellant testified that he sat on the sofa in the living room.  Kelly sat next to him on the sofa.  Ms. Veszpremi also sat in the living room.  They continued arguing.  When Appellant told Ms. Veszpremi that he was going to go for custody of Kelly, she got up, came across the room, and put her hands around Appellant’s throat.  Appellant told her, “That’s the way to go to jail.”  Ms. Veszpremi stood up between the sofa and the table.  Appellant reached out for Kelly.  Ms. Veszpremi told Appellant that he is not taking her daughter anywhere.  Ms. Veszpremi slapped Appellant and asked him, “What do you want to do?  You want to take her overnight where you can f’ her?”  Appellant responded by putting his hands in his pockets, as he always does in those types of situations with her.  Appellant testified that he would never strike Ms. Veszpremi in front of his daughter or do anything else “except to subdue her” by pushing his weight against her with his hands in his pockets.  Appellant never used his hands to push Ms. Veszpremi.  He pushed against her with his hands in his pockets, and she landed on the couch.  Appellant testified that he did not push Ms. Veszpremi down; he merely pinned her down with his hands in his pockets.  Appellant agreed that how Kelly demonstrated he pushed Ms. Veszpremi down was a different gesture than he had claimed.  Appellant testified that he was 6’1” and weighed around 200 pounds; while Ms. Veszpremi was “five foot nothing” and weighed “a hundred and nothing.”  While Appellant had Ms. Veszpremi pinned down, he told her that she needed to go to bed and he would take Kelly so that she could relax. 

Appellant further testified that Marie came into the living room and asked what the matter was.  Ms. Veszpremi got up from the sofa; Kelly was behind her; Appellant was in front of Ms. Veszpremi lined up within about a three-foot area.  Marie lined up behind Appellant.  Appellant was standing his ground with his hands in his pockets.  Ms. Veszpremi said she was going to call the police, and Appellant told her that she needed to go to jail.  Appellant testified that Ms. Veszpremi stepped over the corner of the coffee table and tripped.  Once Ms. Veszpremi fell, Kelly started screaming.  Maria was crying.  Kelly told Appellant to go.  Since Appellant left, he did not know who called the police.  Kelly had been trained by Appellant, her mother, and her school to call 911 in the case of an emergency.  Kelly thought it was an emergency and was afraid that her mother was going to have to go the hospital.    

At the end of the trial, the jury returned a verdict of guilty to domestic battery.  Appellant was ordered to serve 45 days in jail and followed by one year of probation.  Appellant filed a timely notice of appeal on February 12, 2009.

 

   

LAW AND ANALYSIS

          Appellant argues that the trial court violated the confrontation clause of the Sixth Amendment by denying Appellant his right to confront and cross-examine his accuser without the assistance of an interpreter.  A Hungarian interpreter was scheduled for trial to translate the victim’s testimony, but no interpreter appeared.  Defense counsel did not object to Ms. Veszpremi testifying without an interpreter.  Appellant never objected, even after Ms. Veszpremi took the stand.  Thus, Appellant did not preserve this issue for appellate review.   

          Even had Appellant objected, the trial court did not err.  It is within the trial court’s discretion whether to appoint an interpreter. Gopar-Santana v. State, 862 So. 2d 54, 55 (Fla. 2d DCA 2003); Ortega v. State, 721 So. 2d 350, 351 (Fla. 2d DCA 1998).  We find that the trial court did not abuse that discretion in not appointing an interpreter.  It is clear that Ms. Veszpremi adequately understood English.  It is also reasonable to assume that Appellant could understand Ms. Veszpremi’s testimony, as he has had a relationship with her for over a decade.  Appellant’s own testimony established that he could converse with Ms. Veszpremi, even over complicated matters.  Deputy Smith also testified that that he had no problem communicating with her.  Although Ms. Veszpremi spoke broken English, the record displays no instance in which she was not obviously understood—and very few instances in which Ms. Veszpremi asked for clarification of questions posed to her.  She could comprehend the questioning adequately, give appropriate responses, and respond with sufficient clarity as to allow meaningful examination.  At no time did defense counsel raise any issue with understanding Ms. Veszpremi or move for a continuance to get a translator.  In short, there is no evidence indicating that the judge, jury, counsel, or Appellant was unable to understand Ms. Veszpremi’s testimony.

          Any error, if any, was not fundamental.  Had the defense objected and insisted on an interpreter, the State could have proceeded with the testimony of Kelly Oglesby alone.  Her unimpeached testimony was enough to establish that Appellant touched or struck Ms. Veszpremi against her will.  Appellant failed to establish that his Sixth Amendment right was violated when the trial court allowed the victim to speak in English, Appellant’s native language, and that such failure constituted fundamental error.       

It is therefore,

          ORDERED AND ADJUDGED that Appellant’s conviction and sentence is hereby AFFIRMED.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 31st day of March 2011.

          Original order entered on March 31, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.