State v. Aziz ( 2018 )

2018 UT App 14THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ADEL ADNAN ABDUL AZIZ,
Appellant.
Opinion
No. 20150946-CA
Filed January 25, 2018
Third District Court, West Jordan Department
The Honorable Mark S. Kouris
No. 131400411
Rebecca Hyde Skordas and Kaytlin Virginia Beckett,
Attorneys for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.
TOOMEY, Judge:
¶1 Adel Adnan Abdul Aziz appeals from his convictions of
aggravated assault with serious bodily injury, a second
degree felony, see Utah Code Ann. § 76-5-103(3)(a) (LexisNexis
Supp. 2017), and intoxication, a class C misdemeanor, see id.
§ 76-9-701(1), (7) (2012). Aziz contends he did not receive a fair
trial because of alleged errors in the interpretation of an Arabic-
speaking witness’s trial testimony. Aziz also contends the
district court erred in excluding a portion of his medical expert’s
testimony. We affirm.
State v. Aziz
BACKGROUND
¶2 In March 2013, Aziz went to a bar with his friend (Friend).
After they began pushing one another, the two men caught the
attention of several bar security personnel. Two of these security
guards approached the men to speak to them about their scuffle.
Aziz responded aggressively: first by making a gun gesture with
his hand and placing it against his head and pulling the trigger,
and then by pushing one of the security guards (M.C.). The
second security guard (Victim) stepped in and attempted to
escort Aziz away from the dance floor. But Aziz pulled Victim
toward him, and the two began to struggle. As Aziz and Victim
struggled, M.C. grabbed Friend and began pulling him toward
the exit.
¶3 After Aziz and Victim struggled for a few seconds, Aziz
latched onto Victim’s cheek with his teeth. When Aziz would not
release the bite, Victim became concerned that Aziz “was going
to rip off a piece of [his] face.” Following the intervention of
another security guard (T.S.), Aziz finally released his bite. But
the damage was already done. Aziz had bitten off a quarter-
sized piece of flesh from Victim’s cheek.1 Victim and T.S. then
escorted Aziz outside and held him there until the police
arrived.
¶4 When the police arrived, Aziz told a different story.
According to Aziz, Victim “came up from behind him” and
wrapped his arm around Aziz’s neck, so he bit Victim. Although
Victim did not deny that he put Aziz in a chokehold, he testified
that it did not happen until after Aziz had bitten him. Aziz was
later found to have a blood alcohol level of .212.
1. The State’s medical expert testified that the bite went through
Victim’s skin and fat and into the muscle. As a result, Victim has
undergone several surgeries.
20150946-CA 2 2018 UT App 14State v. Aziz
¶5 Friend testified at Aziz’s preliminary hearing. Friend told
the court that he had brought a friend with him to serve as an
interpreter. But because Friend’s interpreter was not certified
and because Friend appeared to have a good grasp of the
English language, the court decided to proceed without the aid
of a court interpreter for Friend, unless it became clear that
Friend needed one. Except for one question that required
clarification, Friend did not have trouble testifying in English.
Friend testified that, as Aziz was being escorted outside, he saw
two security guards grabbing, pushing, and punching Aziz.
Friend did not testify that he saw either the chokehold or the bite
and said he did not see Aziz’s face near Victim’s face.
¶6 At trial, Aziz was assigned a court-appointed Arabic
interpreter. Aziz did not testify, but Friend did. Although Friend
had little difficulty testifying in English at the preliminary
hearing, defense counsel said Friend needed an interpreter
during his trial testimony and suggested that Aziz’s interpreter
provide interpretation. The court was somewhat hesitant about
the arrangement, but neither party objected to it.2 The State did,
however, ask Aziz to raise his hand if he had any difficulty
hearing the interpretation.
¶7 Friend’s trial testimony, through the interpreter, was
consistent with his preliminary hearing testimony. On direct
examination, Friend testified that security personnel “grabbed”
and “captured” Aziz. Defense counsel asked Friend to elaborate
on how the security team captured Aziz. Friend explained,
through the interpreter, “They took him, . . . they grabbed him
by hands and . . . they control[led] him and they took him
outside.” Friend then testified that he followed them outside and
that one of the security guards “captured” and “grabbed” him as
2. Although the record is somewhat unclear, it appears that the
interpreter was the only court-certified or court-approved Arabic
interpreter available.
20150946-CA 3 2018 UT App 14State v. Aziz
well. Defense counsel asked Friend, “Did you ever see [Aziz]
bite anyone?” Friend’s answer, through the interpreter, was
unresponsive.3 Nevertheless, defense counsel did not repeat the
question, and the State did not ask about it on cross-
examination.
¶8 Aziz’s defense rested on the theory that Victim choked
Aziz before the bite occurred and that the bite was either in self-
defense or that the chokehold put him in a seizure-like state,
causing him to bite Victim involuntarily. Friend’s testimony was
used to demonstrate self-defense. And Aziz called a medical
expert (Expert) to testify that the bite could have been
involuntary and that the nature of the wound suggested it was
defensive. The court allowed Expert to testify about how the bite
could have occurred involuntarily, but because Expert was not a
forensic dentist, it did not allow him to testify that the nature of
Victim’s wound suggested a defensive bite.
¶9 After closing arguments, the jury returned guilty verdicts
on both charges. One month later, before sentencing, Aziz filed a
motion to arrest judgment or, in the alternative, for a new trial
on the ground that critical portions of the interpretation of
Friend’s trial testimony were defective and that an accurate
translation would have “given rise to reasonable doubt in the
minds of the jury as to the element of intent.” To support his
claim, Aziz attached a purported corrected interpretation
performed by an individual referred to in this opinion as J.A.
J.A. did not identify himself as an interpreter—certified or not—
3. Friend’s response, through the interpreter, was: “When—
when I saw the—[Aziz] and the security leaning over him, I
came with the other guy, he’s grabbing me and then I tried—and
he punched me on the face and so—so I fall down on the ground
with the guy that he’s catching.”
20150946-CA 4 2018 UT App 14State v. Aziz
or as being fluent in Arabic; he merely stated that he “listened to
the [testimony] and translated it to the best of [his] knowledge.”4
¶10 Although J.A. took issue with several portions of the
interpretation of Friend’s testimony, only two portions are
material. First, when defense counsel asked Friend what he
meant by “captured,” the court-appointed interpreter
interpreted Friend’s response as saying, “They grabbed [Aziz]
by their hands, like they—like a hug or they grabbed him by
hand.” According to J.A., Friend actually used an Arabic word
meaning “strangled.”
¶11 Second, when defense counsel asked Friend to describe
how Aziz was captured, according to the court-appointed
interpreter, Friend said,
They took him, they grabbed him by hands and
they had—like they—they control him and they
took him outside. And then when I left the door,
there was one security behind the door and he
captured me, too, and grabbed me from the side.
J.A.’s interpretation states that Friend instead said,
They strangled him and took him just like they
strangled and controlled him and went out with
him and when I followed out he was flat on the
ground and they are [beating] him up. At that time
4. After the State filed its opposing memorandum in which it
questioned J.A.'s credentials, Aziz filed an affidavit, signed by
J.A., stating that J.A. had obtained "a certification from the Utah
Department of Health for completing 'Bridging the Gap' a 40-
hour training in medical interpreting" and that he was
"competent in both English and Arabic." The district court did
not mention this affidavit in rendering its decision.
20150946-CA 5 2018 UT App 14State v. Aziz
another one was behind the door and when I was
out he grabbed me.
J.A.’s interpretation did not include an interpretation of Friend’s
response to defense counsel’s question about whether he saw
Aziz bite anyone.
¶12 The State opposed Aziz’s motion, arguing that (1) J.A. did
not establish that he was qualified to interpret Arabic, (2) J.A.
failed to identify the precise Arabic words that were purportedly
misinterpreted, (3) Aziz did not overcome the presumption that
the court-appointed interpreter correctly interpreted the
testimony, (4) Aziz and Friend each spoke English and Arabic
and would most certainly have objected to an incorrect
interpretation but did not, (5) Friend’s preliminary hearing
testimony was consistent with his trial testimony, and (6) there
was no evidence that Friend saw Aziz bite Victim.
¶13 In response to the State’s opposing memorandum, Aziz
filed a supplemental exhibit to his motion, which included a
third interpretation of Friend’s testimony. The third
interpretation was conducted by a certified American
Translators Association Arabic-English interpreter (M.A.). M.A.
certified that he had fifteen years of experience, that he had
interpreted in several Utah courts, and that he had “taken the
court interpreter test . . . and [was] waiting for the result.” M.A.’s
interpretation undermined J.A.’s interpretation and aligned with
the court-appointed interpreter’s version. Where the court-
appointed interpreter used the term “grabbed him by hands,”
M.A. used the term “held him ‘with arms around him.’” In
addition, M.A. never used the word “strangle.” And most
significantly, where the court-appointed interpreter’s translation
of Friend’s response was unresponsive to defense counsel’s
question whether Friend saw Aziz bite anyone, M.A.’s was not.
According to M.A.’s interpretation, Friend first answered the
question by saying, “I didn’t see him,” before switching subjects.
20150946-CA 6 2018 UT App 14State v. Aziz
¶14 After holding a hearing on the motion, the district court
denied Aziz’s motion. It concluded that, even if there were
inaccuracies in the interpretation, correcting them would not
have resulted in a different outcome because the evidence did
not show that the bite occurred after the chokehold. The court
also emphasized that, if an error occurred in the translation, Aziz
and Friend had ample opportunities to call it to the attention of
the court, but they did not.
¶15 Aziz was sentenced to an indeterminate term of one to
fifteen years in prison for aggravated assault and one year in jail
for intoxication. The court credited Aziz for the days he had
already served5 and placed him on thirty-six months of
probation. Aziz timely appealed.
ISSUES AND STANDARDS OF REVIEW
¶16 Aziz contends alleged inaccuracies in the interpretation of
Friend’s testimony violated his right to a fair trial. Aziz first
raised this argument in a combined motion for arrest of
judgment or for a new trial after he was convicted but before
sentencing. “When reviewing any challenge to a [district] court’s
denial of arrest of judgment, . . . [w]e will sustain the [district]
court’s decision unless the jury verdict is so inconclusive or so
inherently improbable as to an element of the crime that all
reasonable minds must entertain a reasonable doubt.” State v.
Colwell, 2000 UT 8, ¶ 11, 994 P.2d 177. “When reviewing a
[district] court’s denial of a motion for a new trial, we will not
reverse absent a clear abuse of discretion by the [district] court.”
Id. ¶ 12 (citation and internal quotation marks omitted).
5. The record is unclear as to how many days Aziz had served,
but it appears that he had served approximately one year in jail.
20150946-CA 7 2018 UT App 14State v. Aziz
¶17 Second, Aziz argues for the first time on appeal that he
received ineffective assistance of counsel when his counsel failed
to object to the allegedly inaccurate interpretation of Friend’s
trial testimony. “When a claim of ineffective assistance of
counsel is raised for the first time on appeal, there is no lower
court ruling to review and we must decide whether [the]
defendant was deprived of the effective assistance of counsel as
a matter of law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336
P.3d 587 (alteration in original) (citation and internal quotation
marks omitted).
¶18 Third, Aziz contends the district court erred when it
limited the scope of Expert’s testimony.6 District courts have
“wide discretion in determining the admissibility of expert
testimony, and such decisions are reviewed under an abuse of
discretion standard.” State v. Larsen, 865 P.2d 1355, 1361 (Utah
1993). “Under this standard, we will not reverse unless the
decision exceeds the limits of reasonability.” Id.
6. Aziz raises two additional arguments, but because we
determine they are inadequately briefed we do not consider
them. See Bank of America v. Adamson, 2017 UT 2, ¶ 11, 391 P.3d
196. In the first of these, Aziz argues for the first time on appeal
that a portion of the State’s questioning of Expert amounted to
prosecutorial misconduct. Although a defendant may raise such
an argument under the doctrine of plain error, Aziz merely
mentions plain error in passing and does not mention, much less
analyze, the required elements to prevail on such a claim. See
Utah R. App. P. 24(a)(8) (requiring an appellant’s brief to
“explain, with reasoned analysis supported by citations to legal
authority and the record, why the party should prevail on
appeal) (amended 2017). He also raises a cumulative error
argument but cites no authority to support this claim or provide
any reasoned analysis. See id.; Adamson, 2017 UT 2, ¶ 11.
20150946-CA 8 2018 UT App 14State v. Aziz
ANALYSIS
I. Interpretation of Friend’s Trial Testimony
¶19 Aziz contends he did not receive a fair trial because of
several alleged errors in the interpretation of Friend’s trial
testimony. It does not appear that Aziz challenges the court’s
appointment of the interpreter. Indeed, neither he nor the State
mentions the court-appointed interpreter’s qualifications.
Rather, Aziz complains only that the alleged deficiencies in a
portion of Friend’s trial testimony rendered his trial unfair. Key
to this appeal, Aziz did not complain about the interpretation
until he filed a post-trial motion to arrest judgment and for a
new trial.
¶20 The “[f]undamental question with respect to court
interpreters is normally one of qualification, not of veracity or
fidelity, and, in the absence of special circumstances, the latter
qualities are assumed.” 21 C.J.S. Courts § 131 (2017); see also State
v. Van Pham, 675 P.2d 848, 860 (Kan. 1984) (stating “[t]here is a
rebuttable presumption an interpreter in the performance of his
official duty has acted regularly”). The question of whether a
court-appointed interpreter’s performance was deficient, raised
for the first time in a post-trial motion, is a matter of first
impression in our courts.7
7. In State v. Fung, 907 P.2d 1192 (Utah Ct. App. 1995), we were
presented with a similar issue of first impression: whether a
district court abused its discretion in overruling a defendant’s
objection to the court’s appointment of an interpreter. Id. at 1193.
There, we stated that, to demonstrate the court abused its
discretion, the defendant was required “to show that he was
somehow denied a fair trial by the interpreter’s deficiencies.” Id.
at 1194 (citation and internal quotation marks omitted).
20150946-CA 9 2018 UT App 14State v. Aziz
¶21 In the present case, although the district court heard
arguments about whether the interpreter’s performance was
deficient, it did not make any specific findings; rather, it focused
on prejudice and concluded that, because Friend did not see the
bite occur, any errors in the interpretation could not have
prejudiced the defense. Because the court did not make findings
as to the interpreter’s performance per se, we do not address it.8
8. We note that other jurisdictions have addressed challenges to
an interpreter’s performance. Notably, the Nevada Supreme
Court promulgated an approach that we do not adopt but
identify as a potential aid to litigants and courts. When a party
challenges the performance of an interpreter for the first time in
a motion for a new trial, the Nevada Supreme Court requires the
following three-step procedure:
First, each party should have its own interpreter
review the translated testimony for discrepancies.
If discrepancies exist, [t]he party seeking a new
trial has the burden of demonstrating the
inaccuracy of the statements and that it
fundamentally alters the substance of the
testimony. Second, the district court should
appoint an independent and, if available, certified
court interpreter to review the translations. To
determine whether the moving party has met its
burden, the district court must consider the
disputed versions of the testimony to determine
whether alleged inaccuracies or omissions
fundamentally alter the context of the testimony
and whether the inaccuracies prejudiced the
defendant such that a new trial is warranted.
Third, the district court should preserve a copy of
each translation for the record on appeal.
(continued…)
20150946-CA 10 2018 UT App 14State v. Aziz
¶22 We conclude that any inaccuracies in the interpretation of
Friend’s trial testimony did not prejudice the defense. First,
Friend’s preliminary hearing and trial testimony were consistent
that he did not see Aziz bite Victim. Consequently, he could not
shed any light on Aziz’s theory that he did not voluntarily bite
Victim. Second, Aziz’s statement to the police following the
incident undermines his theory. He told police that Victim came
from behind him and wrapped his arms around his neck. Aziz
never explained how, given Victim’s position behind him, he
was able to bite Victim’s face. Moreover, Aziz never claimed in
his statement to the police that he involuntarily bit Victim, and
he did not call any witnesses who saw the bite occur to support
that theory. Accordingly, the district court did not err in denying
Aziz’s motion for arrest of judgment or for a new trial.
II. Ineffective Assistance of Counsel
¶23 Aziz contends he received ineffective assistance of
counsel. Specifically, he argues his counsel should have objected
to the alleged inaccurate interpretation of Friend’s trial
testimony.
¶24 To prevail on his claim of ineffective assistance of counsel,
Aziz “must show that counsel’s performance was deficient” and
that “the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the
first element of the test, he “must overcome the strong
presumption that [his] trial counsel rendered adequate
assistance.” See State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162(alteration in original) (citation and internal quotation marks
omitted). “With respect to prejudice, a challenger must
(…continued)
Ouanbengboune v. State, 220 P.3d 1122, 1126 (Nev. 2009)
(alteration in original) (citations and internal quotation marks
omitted).
20150946-CA 11 2018 UT App 14State v. Aziz
demonstrate ‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.’” Harrington v. Richter, 562 U.S. 86, 104 (2011)
(quoting Strickland, 466 U.S. at 694).
¶25 Aziz argues his counsel’s “failure to object to the subpar
translation was objectively deficient” because “integral pieces of
information were lost in translation.” To support this contention,
Aziz claims that Friend’s trial testimony “included references to
[Aziz] being forced, jumped, strangled, and beaten by security
staff prior to and concurrent with the biting incident.”
¶26 There is no indication from the record that Aziz’s counsel
spoke or understood Arabic. And although Aziz and Friend had
familiarity with English and were fluent in Arabic, neither
complained at trial that the interpretation was inaccurate.
Notwithstanding, Aziz claims his counsel should have known
the interpretation was faulty because counsel “had the benefit of
[Friend’s] preliminary hearing testimony transcript in which he
testified clearly and descriptively without an interpreter.” But
Friend’s preliminary hearing testimony weakens, not
strengthens, Aziz’s argument that his counsel rendered deficient
performance. Friend’s preliminary hearing and trial testimony
were consistent: neither described the security personnel’s force
as “strangling” or “choking.” Rather, Friend used the word
“grabbed” in both instances. Without something more, we
cannot conclude that counsel’s failure to object to the
interpretation of Friend’s trial testimony constituted deficient
performance. Accordingly, Aziz was not deprived of the
effective assistance of counsel.
III. Scope of Expert’s Testimony
¶27 Aziz contends the district court abused its discretion
when it did not allow Expert to testify to the nature of the bite
wound itself. But this piece of testimony was only one portion of
Expert’s opinion. Indeed, the court allowed Expert to testify
20150946-CA 12 2018 UT App 14State v. Aziz
about how a chokehold could have caused Aziz to suffer a
seizure, thereby causing an involuntary bite. But because Expert
was not a forensic dentist,9 the court did not allow him to testify
that the nature of Victim’s wound suggested a defensive bite.
¶28 District courts “have wide discretion in determining the
admissibility of expert testimony.” State v. Kelley, 2000 UT 41,
¶ 11, 1 P.3d 546. “The critical factor in determining the
competency of an expert is whether that expert has knowledge
that can assist the trier of fact in resolving the issues before it.”
Id. ¶ 12 (citation and internal quotation marks omitted).
¶29 During trial, Expert admitted, “I’m not a forensic dentist
and the police did not employ a forensic dentist in this case, so
I’m not an expert in this field.” Following this admission, the
State objected to Expert opining about the nature of the bite
wound, and the court sustained the objection. Given Expert’s
admission, we conclude the district court did not abuse its
discretion in limiting the scope of Expert’s testimony.
CONCLUSION
¶30 We conclude the district court did not abuse its discretion
in denying Aziz’s motion for arrest of judgment or for a new
trial based on alleged inaccuracies in the interpretation of
Friend’s trial testimony. We also conclude Aziz did not receive
ineffective assistance of counsel when his attorney did not object
to the interpretation of Friend’s testimony. Lastly, we conclude
the district court did not abuse its discretion in limiting the scope
of Expert’s testimony. Accordingly, we affirm.
9. Expert testified that he was an emergency room and family
medicine physician. He also testified that he was a medical
examiner.
20150946-CA 13 2018 UT App 14