Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       NO. 65495-1-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
                      v.                    )
                                            )
JOHN BIEL,                                  )       UNPUBLISHED OPINION
                                            )
                      Appellant.            )       FILED: March 12, 2012
                                            )

       Lau, J.  --  John Biel challenges his second degree rape conviction, arguing 

(1) denial of a fair trial because his interpreters were incompetent and (2) the court 

improperly limited cross-examination of a material witness.  Finding no error, we affirm.

                                            FACTS

       At trial, witnesses testified to the following facts.  Fourteen-year-old IC identified 

John Biel as the man who raped her.  She first testified about the events leading to the 

rape.  She testified that she asked Biel for a cigarette outside a gas station store and 

he asked her why she was alone outside.  She told him she had nowhere to go, and he 

invited her to his place to sleep.  She walked with him to a nearby apartment complex.  

Two other men were in the apartment.  IC and Biel sat in a bedroom, drank alcohol, and 

talked, and the other two men entered and then left the room at various times.  Biel left  

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the room and IC fell asleep.  Biel reentered the room, laid down behind IC on the bed,

and tried to pull her close.  IC told him to stop but instead he had sex with her.  One of 

the other men in the apartment knocked on the bedroom door, and Biel left the room.  

IC put on her shorts and shoes and ran from the apartment.  

       IC reported the rape to Kent Police Officer Peter Stewart.  IC described her 

attacker as a tall, skinny black male with very dark skin, a strong African accent, and a 

scar on his left cheek.  He wore a white tank top and a baseball cap with white stripes.  

IC also described the other two men who were in the apartment that night.  

       Stewart drove IC to the apartment complex, and she pointed out the exact 

apartment where the incident occurred.  IC then went with her father to the hospital.

Simon Bol lived in the apartment where Biel was staying.  When Biel allowed Stewart 

into the apartment, Stewart found Biel sleeping on the floor in the bedroom on a pile of 

blankets, one with multiple colors.  There was a red blanket with yellow stitching on the 

bed.  Beer bottles and a large bottle of whiskey were scattered around the bedroom.  

       Stewart contacted IC at Valley Medical Center for details about the room where 

the rape occurred.  IC described the blanket on the bed as red with yellow lines, and 

said that there was a colorful blanket or rug on the floor.  IC also said that the room 

contained beer bottles and a whiskey bottle.  

       It appeared Biel had been drinking, and Stewart had a hard time rousing him.  

Biel was skinny and wore a white tank top.  A black baseball cap was next to him on the 

floor and had a pattern "similar to [IC's] description." RP (Nov. 2, 2009) at 29.  Biel had 

a "strong African accent." RP (Nov. 2, 2009) at 29.  Stewart arrested Biel.  

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       Kent Police Detective Lillian Melton met IC at Valley Medical Center.  IC told 

Melton that the man who raped her wore a gold necklace with a round pendant and a 

tank top with stripes on the straps. 

       Melton then went to the Kent city jail, where she contacted Biel.  He wore a white 

tank top with black and red stripes.  His jail property contained a gold chain with a 

pendant similar to IC's description.  Melton spoke to Biel in English and asked if he 

could understand.  Biel said yes, and Melton could also understand Biel.  Biel 

responded promptly and appropriately to Melton's questions.  Biel "denied being in the 

company of a female." RP (Oct. 29, 2009) at 149.  He confirmed that the tank top he 

was wearing was the same one he wore the night before (when IC testified the rape 

occurred). 

       Bol testified at trial that he found Biel in the bedroom on the night in question 

with a girl and that they were talking, laughing, and drinking beer.  Nothing seemed 

wrong, and Biel went to bed.  

       Forensic scientist Jennifer Reid examined evidence collected in this case.  One 

item tied Biel to IC -- stains on Biel's tank top near the bottom tested positive for blood 

with a profile that matched IC.  Nurse Anna Hulse, who examined IC at the hospital, 

testified that IC was having her menstrual period and blood was found in her genital 

area.   

       Through an interpreter, Biel testified at trial that he was staying at Simon Bol's 

apartment.  Biel said that he watched television until about 10 p.m., and then went to 

sleep on the floor in the bedroom.  Biel testified that he drank little that night.  He 

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denied seeing IC until she appeared in court at his trial.  Biel could not explain how IC's 

blood stained his tank top. 

       A jury found Biel guilty as charged.  The trial court sentenced him within the 

standard range.  He moved to arrest or vacate judgment and for a new trial, arguing the 
language interpreters' incompetence at trial and ineffective assistance of counsel.1 The 

court denied the motion.  Biel appeals.

                                          ANALYSIS

       Biel's native language is Neur, a Sudanese dialect.  The court appointed 

qualified Neur language interpreters to assist Biel at trial.  He argues that his 

constitutional right to a competent interpreter was violated because his interpreters 

were incompetent.  The State argues that Biel relies on a single improper translation 

and that this isolated occurrence is insufficient to warrant a new trial.

       In Washington, the right of a criminal defendant to an interpreter is based upon 

the Sixth Amendment constitutional right to confront witnesses and the "'right inherent 

in a fair trial to be present at one's own trial.'"  State v. Gonzales-Morales, 138 Wn 2d 

374, 379, 979 P.2d 826 (1999) (quoting State v. Woo Woo Choi, 55 Wn. App. 895, 

901, 781 P.2d 505 (1989)).  Any inaccuracies in interpretation must be reviewed to 

determine whether they made the trial fundamentally unfair, thereby contravening a 

defendant's constitutional rights.  See Valladares v. United States, 871 F.2d 1564, 

1566 (11th Cir.1989). We review allegations of constitutional violations de novo.  State 

v. Vance, 168 Wn.2d 754, 759, 230 P.3d 1055 (2010).

       1 Biel makes no ineffective assistance of counsel argument on appeal.

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       A right to an interpreter is the right to a competent interpreter.  State v. 

Teshome, 122 Wn. App. 705, 711, 94 P.3d 1004 (2004).  Because interpreters are 

provided to non-English speakers to secure their rights in legal proceedings, "the 

standard for competence should relate to whether the rights of non-English speakers 

are protected, rather than whether the interpreting is or is not egregiously poor."  

Teshome, 122 Wn. App. at 712.  We also consider how well the defendant speaks and 

understands English.  See Teshmoe, 122 Wn. App. at 716.

       In Teshome, the defendant's interpreted plea hearing was reinterpreted from a 

recorded transcript.  According to this reinterpretation, the interpreter did not accurately 

interpret key questions relating to the defendant's charge, added words to the 

questions, and omitted certain words when describing the defendant's options.  

Teshome, 122 Wn. App. at 713.  But the defendant did not show the manifest injustice 

required to withdraw a plea.  Teshome, 122 Wn. App. at 717.

       The Ninth Circuit found inadequate interpretation based on direct evidence of 

incorrectly translated words, unresponsive answers, and the witness's expression of 

difficulty in understanding what was being said to him.  See Perez-Lastor v. I.N.S., 208 

F.3d 773, 778 (9th Cir. 2000).  In contrast, the Ninth Circuit found adequate translation 

when the translators were sworn in in accordance with the federal interpreter law, the 

record revealed a complete and adequate translation, neither petitioner indicated 

difficulty in understanding the questions, and both provided responsive answers.  

Acewicz v. United States I.N.S., 984 F.2d 1056 (9th Cir. 1993).  There, the court noted 

that the petitioners provided only isolated passages of garbled testimony and failed to 

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cite instances in which an incorrect or incomplete translation prevented him from 

providing relevant evidence.  Acewicz, 984 F.2d at 1063.

       Two Neur interpreters interpreted for Biel during the trial.  The record reveals 

only one instance where the court raised a concern about the interpretation.  The court 

heard Biel say the word "Washington," but the interpreter did not repeat the word.  RP 

(Nov. 5, 2009) at 177.  The court and the interpreter then discussed how the interpreter 

should proceed when the English language has no Neur equivalent. RP (Nov. 5, 2009) 

at 177-78.  The record reveals no other concerns expressed by the court or Biel about 

the quality of the interpretation until after the trial.  The record shows that Biel provided 

responsive answers during trial.

       The motion for a new trial and Biel's appellate briefing identify no other specific 

examples of incorrect interpretation.  Furthermore, the trial court observed that it was 

"quite clear" Biel understood English and instructed Biel to let the interpreter finish 

translating before providing a response.  RP (Nov. 5, 2009) at 180.  Biel fails to 

demonstrate his interpreters' performance deprived him of a fair trial.

       Biel next argues the court erred when it limited cross-examination of Simon Bol.  

Bol testified that he had Biel's ATM (automated teller machine) cards in his possession, 

and he produced them in court upon request. Biel's counsel sought to ask Bol about 

whether Bol used Biel's ATM cards without his consent as a possible motive to 

implicate Biel in the rape.  Biel argues that the evidence was relevant and admissible 

under ER 608(b).  The State counters that these questions were irrelevant and 

speculative.

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       A person accused of a crime has a constitutional right to confront his or her 

accuser.  U.S. Const. amends. VI, XIV; Wash. Const. art. I, § 22; State v. Darden, 145 

Wn.2d 612, 620, 41 P.3d 1189 (2002).  The primary and most important component is 

the right to conduct a meaningful cross-examination of adverse witnesses.  State v. 

Foster, 135 Wn.2d 441, 456, 957 P.2d 712 (1998).  The right to cross-examine an 

adverse witness is not absolute however.  Darden, 145 Wn.2d at 620.  Courts may, 

within their sound discretion, deny cross-examination if the evidence sought is vague, 

argumentative, or speculative.  Darden, 145 Wn.2d at 620-21.  Such determinations 

are limited by general considerations of relevance.  Darden, 145 Wn.2d at 651; ER 

401, 403.  A defendant's right to introduce relevant evidence must also be balanced 

against the State's interest in precluding evidence so prejudicial as to disrupt the 

fairness of the trial.  Darden, 145 Wn.2d at 621.  Evidence is relevant if it tends to 

make the existence of any fact that is of consequence to the determination of the action 

more or less probable than it would be without the evidence.  ER 401.  When attacking 

a witness's credibility, it is not permissible to use extrinsic evidence of specific 

instances of conduct.  ER 608.  At the discretion of the trial court, a witness may be 

impeached on cross-examination with specific instances of conduct if that conduct is 

probative of the truthfulness of the witness.  ER 608(b).

       Bol surprised both the State and defense counsel during his testimony by 

handing Biel's ATM cards to defense counsel during cross-examination.  Defense 

counsel then asked Bol,

              Q:  Did you ever use this card for any transaction after Mr. Biel was 
       arrested?

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              A:  No, I didn't get money, $93.  The car was tow with those.
              Q:  I'm sorry, let's go back.  With regard - - with regard to the Tier One 
       Bank, is that - - is this the one you're referring to?
              A:  (Shook head negatively)
                      THE COURT:  Is that a no, sir?
                      MR. BOL:  It is a no, yes.
RP (Nov. 3, 2009) at 21.  At this point, the State objected and the parties went off the 

record.  Defense counsel sought to question Bol about why he had the cards in his 

possession, what he had done with them, and why he had not come forward with the 

cards earlier.  The court expressed concern about Bol's Fifth Amendment rights.  The 

court also indicated its preliminary ruling that the questioning had no relevance.  The 

court reasoned,

       I don't see how that can show any bias or motive on Mr. Bol's part if the 
       statements that he gave immediately after the event are the same statements 
       that he alleged now, because there - - if there was a change, then there might 
       have been an influence by him wanting to arguably get Mr. Biel convicted, so he 
       doesn't get in trouble for using his cards or using his money.  But if there's no 
       change in the statements, then I don't see how that would be  --  how that would 
       establish anything, even assuming that he did use the cards, the access cards 
       and did take the money, if the statement is consistent, then it cannot connect to 
       motive or bias in any way against Mr. Biel, because that was done after he gave 
       the statement that is consistent with his testimony today.  So in that case, I don't 
       see how it would be relevant, or intent or motive.
              And I don't see how it's admissible under [ER] 608, also.  And again, 
       because of the timing of this and the consistency of the statements, the only 
       thing it could be used for is saying, see what a bad person Mr. Bol is, and that 
       he took advantage of somebody that was arrested and used his stuff.  And that's 
       not the purpose of testimony is to show how bad somebody is, so that's what I'm 
       inclined to say.

RP (Nov. 3, 2009) at 55-56.  

       Defense counsel later asked again for an opportunity to question Bol about 

these subject areas. The court offered an opportunity to question Bol off the record 

because the court still was not convinced the questions had relevance.  Defense 

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counsel declined the offer to interview Bol.  

       Generally, "an act of theft is not directly relevant to [a witness's] propensity for 

truthfulness and veracity . . . ."  State v. Cummings, 44 Wn. App. 146, 152, 721 P.2d 

545 (1986).  But even if we assumed theft might constitute a motive for Bol to lie, 

nothing in the record indicates Bol improperly used Biel's ATM cards.  Defense counsel 

had no evidence that Bol used the cards to withdraw money, and declined the 

opportunity to question Bol off the record.  Biel's attorney sent subpoenas to the banks 

for each of the two cards, and the only one that responded disclosed that there was no 

activity on the account.  The defense attorney also had an opportunity to ask Bol at trial 

about at least one of the cards, before the State objected, and Bol denied its use.  The 

court acted within its discretion to exclude speculative or irrelevant testimony.  Biel 

demonstrates no reversible error.

                                           CONCLUSION

       Because Biel demonstrates neither incompetent interpreters nor a violation of 

his right to confront witnesses, we affirm his judgment and sentence.

WE CONCUR:

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