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North Carolina v. McLellan

Filed: February 16, 1982.

STATE OF NORTH CAROLINA
v.
JAMES FRANKLIN MCLELLAN



Appeal by defendant from Brewer, Judge. Judgment entered 3 March 1981 in Superior Court. Robeson County. Heard in the Court of Appeals 1 February 1982.

Vaughn, Judge. Chief Judge Morris and Judge Martin (Harry C.) concur.

Vaughn

Defendant brings forward two assignments of error, neither of which discloses prejudicial error.

Defendant first argues the trial court abused its discretion in appointing a relative of the robbery victim to interpret his testimony. We disagree.

A court has the inherent authority to appoint an interpreter for the proper transaction of its business. Wise v. Short, 181 N.C. 320, 322, 107 S.E. 134, 136 (1921). Because of the possibility of inadvertent distortion of testimony, however, an interpreter should not be appointed unless necessary. Such necessity arises when the witness's normal method of communication is unintelligible to those in the courtroom.

In Wise v. Short, supra, the Supreme Court upheld a court's appointment of an interpreter to translate a holographic will written in the Syrian language. G.S. Chap. 8B details the procedure for the appointment of an interpreter for deaf persons. The decision of whether an interpreter is warranted in a particular case is a decision within the trial judge's discretion. It will not be reviewed absent a showing of abuse of discretion. Kely v. Abell, 483 S.W. 2d 625 (Mo. App. 1972); State in Interest of R.R., 79 N.J. 97, 398 A. 2d 76 (1979).

Before trial in the present cause, the State presented evidence that Billy Ray Joyner, the 49-year-old victim of the alleged robbery, had a speech disability caused by a childhood accident. Carolyn Martin, Mr. Joyner's half sister, testified that his lower jawbone had been injured and there were certain words he could not pronounce. At the close of the voir dire, the court concluded that at times during the victim's testimony, an interpreter may be necessary. In light of the court's instruction that Mr. Joyner's testimony should be interpreted only when an attorney, defendant or juror indicated an inability to understand, we conclude the court was well within its discretion in appointing an interpreter. See generally State in Interest of R.R., supra.

The next question is whether the court abused its discretion in its selection of the interpreter. Any qualified person may be appointed and act as an interpreter. Wise v. Short, 181 N.C. 320, 322, 107 S.E. 134, 136 (1921). Defendant argues that the court

erred in finding Carolyn Martin qualified because shw is a relative of Billy Ray Joyner. Defendant contends that the judge should have appointed either an impartial interpreter or no interpreter at all.

When an interpreter is appointed, it is vital that he act impersonally -- repeating the witness's testimony without embellishment or deletion. For that reason, we recognize that whenever possible, a disinterested interpreter should be appointed. Annot., 6 A.L.R. 4th 158 (1981). There are situations, however, when the "disability" of a witness is such that a disinterested interpreter would be of little assistance to the court. In cases like the present one, where the witness cannot speak clearly because of a speech impediment, some familiarity with the witness may be necessary. Emphasizing the witness's distinctive speech patterns, reviewing courts in these cases have upheld the trial court's discretion in appointing as interpreter a friend or relative of the witness. E.G., Fairbanks v. Cowan, 551 F.2d 97 (6th Cir. 1977) (father appointed interpreter of sodomy victim who could only make gutteral sounds); United States v. Addonizio, 451 F.2d 49 (3rd Cir. 1971), cert. denied, 405 U.S. 936, 92 S. Ct. 949, 30 L. Ed. 2d 812 (1972), reh. denied, 405 U.S. 1048, 92 S. Ct. 1309, 31 L. Ed. 2d 591 (1972) (wife appointed interpreter of witness who was unable to speak above a loud mumble); Almon v. State , 21 Ala. App. 466, 109 So. 371 (1926) (mother appointed of tongue-tied rape victim); Renick v. Hays, 201 Ky. 192, 256 S.W. 26 (1923) (daughter appointed interpreter of plaintiff with speech impediment).

In the present case, the prosecuting witness had suffered an injury when he was six years old which made it difficult for him to pronounce clearly certain words. His half sister testified that she had known and communicated with him since childhood and was able to understand him better than most people. Defendant's attorney had an opportunity to cross-examine Carolyn Martin outside the presence of the jury. Compare with Kley v. Abell, 483 S.W. 2d 625 (Mo. App. 1972). There was no evidence presented as to any specific prejudice she may have had. Since the State did not plan to call her as a primary witness, the potential for her improperly using the interpretation to corroborate her own ...


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