Opinion
Court of Appeals No. A-8828.
March 7, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Sharon L. Gleason, Judge, Trial Court No. 3AN-94-9016 CI.
Hugh W. Fleischer, Law Office of Hugh W. Fleischer, Anchorage, for the Appellant.
John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION AND JUDGMENT
Abidin Zeciri appeals the dismissal of his application for post-conviction relief. Zeciri claims that his trial attorney was ineffective for not appointing an interpreter for him during trial and that he was denied his right to testify. After an evidentiary hearing, the superior court found that Zeciri had failed to establish, by clear and convincing evidence, that his attorney was incompetent or that he was denied his right to testify. Because the superior court's findings are not clearly erroneous, we affirm the dismissal of Zeciri's application.
Background facts and procedural history
Abidin Zeciri is a native of Macedonia and grew up speaking Albanian and Serbo-Croatian. Zeciri emigrated to the United States in 1976, when he was twenty-three years old.
In 1985, Zeciri was charged with killing his wife, Safije Zeciri. Zeciri's defense at trial was that Safije had taken her own life. The jury convicted Zeciri of first-degree murder and the superior court imposed 50 years' imprisonment. We affirmed Zeciri's conviction on direct appeal.
Zeciri v. State, 779 P.2d 795, 796 (Alaska App. 1989).
AS 11.41.100(a)(1); Zeciri, 779 P.2d at 796.
Zeciri v. State, Alaska App. Memorandum Opinion and Judgment No. 3708 at 1-2 (Nov. 26, 1997), 1997 WL 732643 at *1.
Zeciri, 779 P.2d at 801.
On October 4, 1994, Zeciri filed a pro se application for post-conviction relief, alleging his trial counsel was ineffective for not providing him with an interpreter during the trial and for denying him his right to testify. The superior court summarily denied the application for failing to plead a prima facie case. On appeal, we reversed the superior court's decision, finding Zeciri had made a prima facie claim. We directed the superior court to conduct an evidentiary hearing on the question of whether Zeciri's trial counsel was ineffective in not providing an interpreter and whether Zeciri was denied his right to testify.
Zeciri, Memorandum Opinion and Judgment No. 3708 at 2, 1997 WL 732643 at *1.
Id. at 4, 1997 WL 732643 at *2.
Id. at 8-9, 1997 WL 732643 at *4.
Id.
Superior Court Judge Karen L. Hunt conducted an evidentiary hearing and concluded that Zeciri established a claim of ineffective assistance of counsel based on trial counsel's failure to utilize an interpreter before or during Zeciri's trial.
State v. Zeciri, 43 P.3d 169, 170 (Alaska App. 2002).
The State appealed. On appeal, we concluded that the superior court may not have applied the correct burden of proof. We also found that Judge Hunt's order did not adequately address the elements of a claim of ineffective assistance of counsel. We vacated Judge Hunt's order and remanded the case to the superior court for further findings.
Id. at 171.
Id.
Id.
On remand, the case was assigned to Superior Court Judge Sharon L. Gleason. Judge Gleason conducted an evidentiary hearing and denied relief. Zeciri appeals. Discussion
Zeciri promoted two main issues in his application. He claimed his trial attorney was ineffective for not assuring that he had an interpreter during his trial proceedings. Second, he claimed that he was denied his right to testify.
By the time Zeciri's case was remanded, Judge Hunt had retired. Judge Gleason was assigned to the case and conducted a new evidentiary hearing. The witnesses included Zeciri, Dana Fabe, Zeciri's trial counsel, James J. Waller, the lead defense investigator in Zeciri's trial, and Margi Mock, an intern with the Public Defender Agency at the time of Zeciri's trial.
Zeciri testified at the hearing that when the case went to trial in 1985, he could understand thirty to forty percent of the English others spoke to him. Zeciri had an interpreter present at his arraignment and at two pre-trial hearings. According to Zeciri, he told Fabe and Mock he wanted an interpreter present at his trial. Zeciri asserted that Fabe responded that an interpreter was not necessary because Zeciri wasn't testifying and that the "state budget" did not allow for an interpreter at $120 an hour. Waller testified that the cost of an interpreter was a concern but did not say it was the decisive factor in the decision to not have an interpreter at trial.
According to Waller, Zeciri's defense team was unable to locate an interpreter for the trial. During the trial, Waller sat next to Zeciri and tried to explain the trial proceedings. Zeciri testified that Waller was not an effective interpreter because he did not speak Albanian, and that Zeciri was unable to understand the entire trial. Zeciri said he also asked Fabe and Mock for help during the trial and neither could answer his questions.
Zeciri also testified that he told Fabe and Mock before trial that he wanted to testify on his own behalf. Zeciri said he was under the impression that he was going to testify up until the trial, at which point Fabe told him he could not testify. Zeciri said he did not understand he had a right to testify against Fabe's wishes, but later admitted that Fabe had explained to him that he had a right to testify. According to Zeciri, he told Fabe and Mock he wanted to testify every time the matter came up, but he did not think he could do it against Fabe's wishes, or without an interpreter.
Fabe testified that Zeciri never requested an interpreter, nor did she feel Zeciri needed an interpreter. Mock testified that, while she initially used an interpreter with Zeciri, after some time, she was able to communicate with Zeciri without an interpreter. Fabe also said cost was never an issue in deciding whether or not to use an interpreter because in-court interpreters were paid for by the court system. At the time of Zeciri's trial, Administrative Rule 6(b) provided that the court system would pay for an interpreter in criminal trials.
Former Alaska R. Admin. P. 6(b).
According to Fabe and Waller, the defense team decided it would be damaging to Zeciri's defense to testify. Fabe testified that Zeciri initially told her he wanted to take the stand, but, after running through a mock cross-examination in which Fabe played the prosecutor, and having Fabe explain to Zeciri that he would have to answer every question the prosecutor asked, Zeciri agreed not to take the stand. Fabe said she explained to Zeciri, at the time, that he had a right to testify.
Fabe also stated that she asked Waller to arrange an interpreter for trial, not because she thought Zeciri needed one, but because she wanted the jury to infer a possible reason why Zeciri was not testifying, even though she believed he had sufficient fluency to testify. She also felt an interpreter would keep Zeciri calm. Fabe surmised that having an interpreter present at the trial would elicit sympathy for Zeciri from the jury. Thus, Fabe apparently requested an interpreter for Zeciri so he might be perceived in a favorable light by the jury.
Judge Gleason analyzed the testimony of all the witnesses in her findings. Judge Gleason found that Fabe's testimony was in direct conflict with Zeciri's on six points: Fabe testified that she never refused Zeciri an interpreter; that she never told Zeciri cost was an issue in acquiring an interpreter; that she made clear to Zeciri he had a right to testify; that Zeciri made the decision not to testify; that she was certain she was able to communicate with Zeciri effectively in English; and that Zeciri never indicated to Fabe that he did not understand the trial or pre-trial proceedings. Judge Gleason found Fabe's testimony on these points to be "very credible" and Zeciri's testimony "not believable." Judge Gleason found that Zeciri had failed to prove that "he had English language difficulties that impaired his comprehension of the proceedings."
On the claim that his attorney was incompetent for failing to provide an interpreter, Judge Gleason found that Zeciri had failed to prove "that his trial counsel's conduct fell below the minimal range of competence required of a criminal law attorney."
Judge Gleason also noted that a tape of Zeciri's arraignment in May 1985 was admitted into evidence. On the tape, Judge Gleason found that she could hear Fabe asking Zeciri whether he understood the proceedings in English. Fabe represented to the court that she was "able to communicate with Mr. Zeciri [in English] pretty well." To ensure that Zeciri had sufficient comprehension of the proceedings, the trial judge at arraignment properly asked Zeciri directly if he comprehended the proceedings, and Zeciri answered "yes, sir."
When a defendant with questionable fluency in English appears before a trial judge, the judge is encouraged to determine if the defendant has sufficient command of English to understand the proceeding, and if not, to ensure access to an interpreter.
On Zeciri's other claim, Judge Gleason found that Zeciri failed to show he had been denied his right to testify. She found that Zeciri was well aware of his right to testify and "willingly and voluntarily waived that right."
We review the superior court's factual findings under the "clearly erroneous" standard. We uphold the court's findings unless, after viewing the record as a whole, we are left with a definite and firm conviction that a mistake has been made.
See Anchorage v. Gregg, 101 P.3d 181, 186 (Alaska 2004).
Id.
Judge Gleason's thorough findings analyze the content of each witness's testimony and evaluate each witness's credibility. Ultimately, Judge Gleason found that Zeciri had not proven the factual assertions necessary to obtain post-conviction relief. From our own review of the record, we uphold Judge Gleason's findings because Zeciri has not convinced us that any of Judge Gleason's findings are clearly erroneous.
Conclusion
The superior court's dismissal of Zeciri's application for post-conviction relief is AFFIRMED.