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State v. Borjas-Arias

October 7, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
ANGEL BORJAS-ARIAS, APPELLANT.



Appeal from Superior Court of Whatcom County. Docket No: 94-1-00448-7. Date filed: 03/16/95. Judge signing: Hon. Michael F. Moynihan.

PER CURIAM. Angel Borjas-Arias was charged with one count of first degree murder for strangling Nelson Garcia-Contreras to death with an electrical cord. He subsequently pleaded guilty to second degree murder. Borjas-Arias now appeals, contending that his guilty plea is invalid because the trial court failed to administer an oath to his interpreter as required by RCW 2.43.50 and that he is therefore entitled to a new plea hearing.

Because Borjas-Arias failed to object to the error, he is precluded from challenging it on appeal. Moreover, even if the issue were properly preserved, Borjas-Arias has failed to demonstrate any resulting prejudice. Accordingly, we affirm.

On March 16, 1995, Borjas-Arias pleaded guilty to an amended charge of second degree murder. Although Borjas-Arias participated in the plea hearing through an interpreter, the record does not indicate that the trial court administered an oath to the interpreter as required by RCW 2.43.050. Following the hearing, the trial court found that Borjas-Arias' plea was knowing and voluntary and that there was a factual basis for the plea. Borjas-Arias did not move to withdraw his guilty plea under either CrR 4.2(f) or CrR 7.8.

Borjas-Arias argues that the trial court erred by accepting his guilty plea without first administering an oath to the interpreter. See RCW 2.43.050. As a result, he reasons, the trial court lacked a factual basis upon which to conclude that his guilty plea was knowing and voluntary.

Borjas-Arias raised no objection to the trial court's apparent failure to administer the oath. The failure to object to such an omission precludes appellate review unless the defendant can demonstrate some obvious error affecting the fairness of the proceeding:

It has long been the general rule that even a failure to swear a witness may be waived. This may occur either by knowing silence and an attempt to raise objection after verdict or by the mere failure of counsel to notice the omission before completion of the trial. If this be true of a witness, one who may and often does have an interest in the outcome of the trial and who may therefore require the admonition of an oath "in a form calculated to awaken his conscience and impress his mind" with his duty to tell the truth, how much more so of an interpreter.

Such court functionaries stand somewhere between an expert witness called by the court and the court reporter. As to such persons, the fundamental question is normally one of qualification, not of veracity or fidelity. In the absence of special circumstances, the latter qualities are assumed.

(Footnotes omitted.) United States v. Perez, 651 F.2d 268, 273 (5th Cir. 1981); accord State v. Sengxay, 80 Wash. App. 11, 906 P.2d 368 (1995) (mere speculation that failure to administer oath to interpreter may have affected defendant's ability to cross-examine witnesses insufficient to demonstrate obvious error).

Moreover, Borjas-Arias has not provided any legal analysis indicating how the failure to administer an oath constituted an error of constitutional magnitude that can be raised for the first time on appeal. RAP 2.5(a)(3). The mere fact that the oath requirement may have constitutional underpinnings does not necessarily convert a violation into an error of constitutional magnitude. State v. Avila, 78 Wash. App. 731, 738, 899 P.2d 11 (1995) (rejecting argument that failure to administer oath to child witness constitutes error of constitutional magnitude that may be raised for first time on appeal where appellant failed to analyze four-step approach of State v. Lynn, 67 Wash. App. 339, 835 P.2d 251 (1992)).

Finally, even if the error were properly preserved, Borjas-Arias has failed to make any showing that the failure to administer an oath affected the validity of his guilty plea. Significantly, he has not challenged the qualifications of the interpreter or alleged any inadequacies in the translation. Nor did defense counsel or Borjas-Arias express any dissatisfaction with the interpreter during the plea hearing. Rather, Borjas-Arias maintains that his "obvious confusion" is demonstrated by the fact that during the plea colloquy he did not understand one of the trial court's question and that in several other instances he responded with a "non sequitur." This argument fails when Borjas-Arias' responses are viewed in context.

At the beginning of the plea hearing, defense counsel informed the trial court that he had discussed the plea agreement and the consequences of a guilty plea with his client in detail and that he had reviewed the Statement of Defendant on Plea of Guilty with Borjas-Arias in "layman's terms." The Statement contains the required certification by the interpreter that he translated the entire document for Borjas-Arias and that Borjas-Arias acknowledged his understanding of the translation and the subject matter of the document. CrR 4.2(h).

Through the interpreter, Borjas-Arias acknowledged that the Statement of Defendant on Plea of Guilty had been translated for him and that he understood the contents of the document. He also informed the trial court that he had directed defense counsel what to write in describing the offense. At the Conclusion of the colloquy, Borjas-Arias stated that he had no further questions.

Viewed in context, the record fails to reveal any significant confusion and amply supports the trial court's determination that Borjas-Arias' plea was knowing, voluntary, and supported by an adequate factual basis. The fact that Borjas-Arias, through the interpreter, indicated that he did not understand one of the court's questions demonstrated his ability to seek clarification when necessary. Borjas-Arias' claim that his reply of "exactly" rather than "yes" to ...


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