STATE of New Mexico, Plaintiff-Appellee, v. Raul PACHECO, Defendant-Appellant, 138 N.M. 737

OPINION VIGIL, Judge. {1} This case requires us to determine the consequence of an interpreter being present while the jury deliberated Defendant’s guilt or innocence without the benefit of an oath or instruction to ensure that she neither participate in or interfere with the jury’s deliberations. We hold that in these circumstances there is a presumption of prejudice. Since the presumption was not overcome, we reverse Defendant’s convictions and remand for a new trial.

BACKGROUND {2} During voir dire and throughout the trial, an interpreter was present so that two of the jurors could understand what was taking place. An interpreter was also used to assist one of the witnesses at Defendant’s request, although the transcript does not disclose whether it was the same interpreter. {3} The State correctly points out that it is not clear from the record whether an interpreter was present during the jury’s deliberations.

However, Defendant’s motion for a new trial asserts that the interpreter was present while the jury deliberated, and that she was not given an oath not to participate directly or indirectly in the jury deliberations. The State did not contradict this factual assertion. Moreover, a failure or refusal to provide an interpreter to assist the non-English speaking jurors in their deliberations would constitute reversible error in itself because without an interpreter they could not meaningfully participate in the deliberations. State v.

Gallegos, 88 N.M. 487, 489, 542 P.2d 832, 834 (Ct.App.1975) (“It is self-evident that a juror who does not possess a working knowledge of English would be unable to serve because he cannot possibly understand the issues or evaluate the evidence to arrive at an independent judgment as to the guilt or innocence of the accused.” However, “[sjuch would not be the case if testimony and evidence were translated.”). Accordingly, we presume that the trial court properly accommodated the two non-English speaking jurors by allowing the interpreter to assist them in deliberations. See State v.

Rojo, 1999-NMSC-001, ¶ 53, 126 N.M. 438, 971 P.2d 829 (holding that where the record is doubtful or deficient, every presumption is indulged by the reviewing court in favor of the correctness and regularity of the proceedings in the trial court). DISCUSSION {4} The effect of the interpreter’s presence while the jury deliberated without the benefit of an oath or instruction concerning her proper role and that she not participate in or interfere with the deliberations of the jury presents a legal question which we review de novo. See State v.

Juarez, 120 N.M. 499, 502, 903 P.2d 241, 244 (Ct.App. 1995) (stating a de novo standard of review is appropriate for threshold constitutional issues). {5} Two separate constitutional rights are at issue in this case. First, our Constitution guarantees that every citizen shall have the right to serve as a juror whether or not he or she can speak, read, or write the English language. N.M. Const, art.

VII, § 3 directs, “[t]he right of any citizen of the state to ... sit upon juries, shall never be restricted, abridged or impaired on account of ... language or ... inability to speak, read or write the English or Spanish languages.” To implement the constitutional right, our Supreme Court issued the Nonr-English Speaking Juror Guidelines (NES Guidelines) in 2000, a copy of which are attached as an Appendix to this opinion. The Supreme Court has also directed that “the trial court must make every reasonable effort to protect a juror’s rights under

Article VII,

Section 3 of the New Mexico Constitution and to accommodate a juror’s need for the assistance of an interpreter.” State v. Rico, 2002-NMSC-022, ¶ 1, 132 N.M. 570, 52 P.3d 942. Any failure to do so must be justified by unique needs and limitations. Id. ¶ 12. See also NES Guidelines Introduction,

Section I (stating, “all courts are encouraged to implement the standards [of the Guidelines] to the fullest extent possible”). {6} The second constitutional right at issue in this case is the right of a defendant to be tried by a jury, described as “one of the most important safeguards against tyranny which our law has designed.” Lee v. Madigan, 358 U.S. 228, 234, 79 S.Ct. 276, 3 L.Ed.2d 260 (1959). Most recently, in Blakely v.

Washington, 542 U.S. 296, 305-306, 124 S.Ct. 2531, 159 L.Ed.2d 403, (2004), the United States Supreme Court has observed that the right to a jury trial “is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.” Id. For this reason, both the United States and New Mexico Constitutions guarantee criminal defendants the right to a jury trial. U.S. Const, amend.

VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”); N.M. Const, art. II, § 12 (“The right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate.”). {7} The heart of a jury’s function lies in its deliberations. To ensure that the constitutional right to a jury trial is fully protected, we have recognized that communications with jurors occurring during deliberations directly bearing on the issues in the trial, “reflect the sacrosanctity of the jury’s deliberative process.” State v.

Ramming, 106 N.M. 42, 49, 738 P.2d 914, 921 (Ct.App.1987); accord Farrow v. State, 573 So.2d 161, 164 (Fla.Dist.Ct.App.1990) (en banc) (Garrett, J., dissenting) (noting that “[j]ury deliberations are an intricate, sacrosanct and fragile part of our judicial system”); State v. Alexander, 143 N.H. 216, 723 A.2d 22, 30 (1998) (holding that “[t]rial courts have the obligation to scrupulously protect the sanctity of the jury room”).

Therefore, “the introduction or intrusion [into the jury room] of an unauthorized person during jury deliberations has been regarded as fundamental error requiring either a mistrial or a new trial.” Dilorenzo v. State; 711 So.2d 1362, 1363 (Fla.Dist.Ct.App.1998). {8} The presence of an interpreter during jury deliberations does not constitute, per se, the presence of an unauthorized person giving rise to a presumption of prejudice.

See Rico, 2002-NMSC-022, 132 N.M. 570, 52 P.3d 942, app. at 575 (noting that in protecting the constitutional right of non-English speaking citizens to serve on a jury, “we believe that the use of court interpreters during jury deliberations does not constitute an unauthorized presence in the jury room”); United States v. Dempsey, 830 F.2d 1084, 1091 (10th Cir.1987) (holding that “an important social policy argues against automatically foreclosing members of an important segment of our society from jury duty simply because they must take an interpreter into the jury room”).

However, “the presence of any nonjuror creates a danger that he or she will participate in the deliberations.” People v. Guzman, 76 N.Y.2d 1, 556 N.Y.S.2d 7, 555 N.E.2d 259, 263 (1990). This danger is particularly acute for an interpreter who is actively translating during the deliberation process itself. We must therefore strike a balance between protecting the right of non-English speaking citizens to serve as jurors and the sanctity of the jury’s deliberations. {9} In Dempsey, the Tenth Circuit considered whether a sign language interpreter could accompany a deaf juror during deliberations. 830 F.2d at 1086.

The court expressed concern that it could never know .for sure whether the interpreter had improperly influenced the jury with her “facial expressions, pauses, gestures[,] or otherwise.” Id. at 1091. However, the court noted that the trial court had required the interpreter to take an oath that she would translate correctly and that she would not interfere with or participate in the jury’s deliberations. Id. Further, after the jury’s deliberations, the trial court asked the interpreter whether she had participated in the jury’s deliberations other than to translate. Id.

Because the interpreter’s “oath to act strictly as an interpreter and not to participate in the deliberations” sufficiently protected the jury’s deliberations, the court held that the interpreter’s presence did not warrant a new trial of the defendant.

Id. at 1092; accord Guzman, 556 N.Y.S.2d 7, 555 N.E.2d at 263 (holding that the district court may sufficiently protect against the danger of improper participation by the interpreter by instructing the interpreter and the jurors that the interpreter may not participate in deliberations). {10} The NES Guidelines seek to protect the constitutional right of non-English speaking citizens to serve on a jury, and to also ensure that a defendant’s right to a fair trial is not compromised by the use of an interpreter. They do so by emphasizing the interpreter’s limited role.

Section 111(C)(5) (pre-deliberation instructions) provides: Prior to excusing the jury for deliberations, the trial judge should, on the record in the presence of the jury, instruct the court interpreter who will be providing

interpretation services for an NES juror that the interpreter should not interfere with deliberations in any way by expressing any ideas, opinions, or observations that the interpreter may have during deliberations but should be strictly limited to interpreting the jury deliberations. The trial judge should also ask the court interpreter to affirmatively state on the record that the interpreter understands the trial judge’s instructions. (Emphasis added.)

Section 111(C)(6) (post-deliberation instructions) provides: Following jury deliberations but before the jury’s verdict is announced, the trial judge should ask the court interpreter on the record whether the interpreter abided by his or her oath to act strictly as an interpreter and not to participate in the deliberations. The interpreter’s identity and answers should be made a part of the record. At the request of a party to the litigation, the jurors may also be questioned to the same effect.

The trial judge should also instruct the court interpreter not to reveal any aspect of the jury deliberations after the case is closed. (Emphasis added.) {11} No guidance was given to either the interpreter or the jury regarding the interpreter’s role during deliberations because no pre- and post-deliberation instructions were given.

The only oath given to the interpreter was before the first witness was called, as follows: “Do you solemnly swear that you will faithfully and impartially interpret English into Spanish and Spanish into English the testimony about to be given in the cause now on trial so help you God?” See NES Guidelines,

Section III(C)(2); NMSA 1978, § 38-10-8 (1985) (stating that an interpreter, “before entering upon his duties, shall take an oath that he will make a true and impartial

interpretation or translation in an understandable manner using his best skills and judgment in accordance with the standards and ethics of the interpreter profession”). {12} Moreover, apart from a brief explanation to Victim when she testified that the interpreter “is translating everything you’re saying from English into Spanish”, the trial court offered no explanation of the interpreter’s presence, or guidance to the jurors that her sole duty was to interpret. This failure also contravened the NES Guidelines,

Section 111(C)(4), which directs: Prior to the commencement of proceedings, the trial court judge should explain the role of the court interpreter to those present in the courtroom by explaining that the interpreter was appointed by the court to assist jurors or prospective jurors who do not understand English. The judge should also explain to the jury that the interpreter is only allowed to interpret and that the jurors may not ask the interpreter for advice or other assistance.

The judge should also explain that, for those English speaking jurors who may understand the non-English language spoken by the court interpreter, the jurors should disregard what they hear the interpreter say and rely solely on the evidence presented in English. {13} Absent any of the foregoing explanations, instructions, or oaths required by the NES Guidelines or any other protections such as in Dempsey, relating to jury deliberations, we cannot presume that the interpreter or jurors were even aware of the interpreter’s limited duty only to interpret during deliberations. Cf Saunders v.

State, 49 S.W.3d 536, 540-41 (Tex.Ct.App.2001) (holding that the court’s failure to administer an oath to the interpreter to not participate in any manner in the jury deliberations did not merit reversal when the court’s instructions to the jury that the interpreter is not a member of the jury and will not give advice when deliberating was directed to the interpreter as well as the jury members). Without protective instructions or an oath, as we have discussed, we are left to speculate about the interpreter’s role while this jury deliberated Defendant’s guilt or innocence.

In light of the sanctity of the jury room, we will not speculate that no improper communications took place when the safeguards to prevent such communications were not implemented. {14} New Mexico has a long tradition of finding a “presumption of prejudice” by the mere presence of an unauthorized person before a trial jury or grand jury when it is performing its core function. State v. Coulter, 98 N.M. 768, 770, 652 P.2d 1219, 1221 (Ct.App.1982) (holding a presumption of prejudice arose when alternate juror was present during jury deliberations); Davis v.

Traub, 90 N.M. 498, 499-500, 565 P.2d 1015, 1016-17 (1977) (adopting holding of State v. Hill, 88 N.M. 216, 220, 539 P.2d 236, 240 (Ct.App. 1975), that “the presence of an unauthorized person before the grand jury requires dismissal of the indictment, without the necessity of showing prejudice”); Baird v. State, 90 N.M. 667, 669, 568 P.2d 193, 195 (1977) (holding that a defendant need not show prejudice where the district attorney is present during grand jury deliberations). {15} We agree with the dissent that an interpreter is, in effect, an officer of the court who assists the court in the trial.

However, in light of her unique and sensitive role in perhaps the most crucial part of the trial, her presence while the jury deliberates is unauthorized in the absence of any appropriate protections. Furthermore, our cases also recognize a presumption of prejudice when communications with jurors occur while they are deliberating without following proper procedures. Hovey v. State, 104 N.M. 667, 669-70, 726 P.2d 344, 346-47 (1986) (holding that presumption of prejudice resulted when the judge and jury had a communication relating to the issues of the case without the presence of the defendant); State v.

Gutierrez, 78 N.M. 529, 531, 433 P.2d 508, 510 (Ct.App.1967) (holding that under standards of due process, there is a presumption of prejudice arising from any unauthorized communication with a trial juror during trial); see also Remmer v.

United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954) (“In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties.”). {16} We recognize that Rule 11-606(

B) NMRA provides a possible avenue for determining whether an interpreter exceeded her proper role. In the present case, however, absent the safeguard of the trial court fulfilling its obligation in the first place to impress upon the interpreter and juror that the interpreter’s role is limited solely to interpreting, we are unwilling to consider the interpreter’s unauthorized presence pursuant to the Rule 11-606(

B) avenue. First, as we have already discussed, the jurors were not told of the interpreter’s limited duty only to interpret, so they would not even be aware of whether an impropriety occurred. Secondly, citizens called to serve as jurors may have all kinds of native languages, such as Chinese, Russian, Vietnamese, Navajo, German, or Spanish. Without his own interpreter, a defendant cannot even interview the non-English speaking jurors about any possible impropriety. {17} Ultimately, our goal is to protect the integrity of the jury’s decision making process.

Consistent with these principles, we have recently reiterated, “we must take every precaution to avoid casting even the slightest doubt on the propriety of jury verdicts in criminal proceedings.” State v. Rod riguez, 2004-NMCA-125, ¶ 12, 136 N.M. 494, 100 P.3d 200, cert. granted, 2004-NMCERT-010, 136 N.M. 542, 101 P.3d 808, 808.

We facilitate full and frank discussions during deliberations, protect the fairness and impartiality of jury decisions, and prevent the possibility of undue influence on jurors, by presuming prejudice in this case. {18} We therefore hold that an interpreter may accompany a non-English speaking juror into the jury room during deliberations provided that the trial court first requires the interpreter to take an oath that he or she will not participate in or interfere with the jury’s deliberations. See Dempsey, 830 F.2d at 1092. The interpreter’s oath must be given on the record and in the jury’s presence.

Giving the oath on the record will dispel the possibility or even appearance of an impermissible thirteenth juror. Giving the oath in the presence of the jury will clarify for the jury what the interpreter’s role is during deliberations and further safeguard the sanctity of the jury room. See Guzman, 556 N.Y.S.2d 7, 555 N.E.2d at 263 (noting that the danger presented by the interpreter’s presence during jury deliberations may be overcome by instructing the jury and the interpreter that the interpreter may not participate in deliberations and “that any breach should be reported to the court”).

The interpreter’s oath creates a presumption that the interpreter will act properly during deliberations. See Thomason v. Territory of N.M. 4 N.M. 154, 167, 13 P. 223, 228 (1887) (holding that where an interpreter is “[ajcting under oath and the order of the court, the presumption should be in favor of proper action by him, rather than against it”). {19} The State argues, and the dissent agrees, that because Defendant did not object to the trial court’s failure to administer an appropriate oath to the interpreter until after the jury had rendered its verdict, Defendant waived the issue.

We will not extend the possibility of waiver to the jury deliberation process in the absence of any safeguards to impress upon the interpreter, and the jury, that the interpreter’s role is limited to that of interpreting. Were we to uphold Defendant’s conviction despite the fundamental flaw of the lack of any interpreter instruction, we would undermine the foundation of our jury system, and ultimately diminish public confidence in a defendant’s right to a fair trial. We accordingly refuse to speculate that no improper communication took place when the safeguards to prevent such communication were absent.

See Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (holding that a deficient reasonable doubt instruction is a structural defect in the very constitution of the trial mechanism and therefore incapable of correction by harmless error analysis); United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936) (holding that errors which “seriously affect the fairness, integrity or public reputation of judicial proceedings” may be raised for the first time on appeal); State v.

Bindyke, 288 N.C. 608, 220 S.E.2d 521, 531 (1975) (holding that, despite the defendant’s failure to object, the presence of an alternate juror in the jury room during deliberations “is a fundamental irregularity of constitutional proportions which requires a mistrial or vitiates the verdict”). We may, in our discretion, consider issues that a defendant failed to preserve if they involve “general public interest” or a “fundamental error or fundamental rights of a party.” Rule 12-216(

B) NMRA. As we have already discussed, this case involves fundamental rights. “Because a fundamental right is involved, the issue is reviewable.” Coulter, 98 N.M. at 770, 652 P.2d at 1221; see State v. Orona, 92 N.M. 450, 455-56, 589 P.2d 1041, 1046-47 (1979) (reviewing the trial court’s improper communication with the jury despite the defendant’s failure to lodge an objection until after the verdict had been returned); see also State v.

Barber, 2004-NMSC-019, ¶ 16, 135 N.M. 621, 92 P.3d 633 (recognizing that “another strand runs through the fundamental error doctrine that focuses less on guilt and innocence and more on process and the underlying integrity of our judicial system”); State v. Holloway, 106 N.M. 161, 163-64, 740 P.2d 711, 713-14 (Ct. App.1987) (recognizing that some rights are so fundamental that they cannot be waived); State v.

Osborne, 111 N.M. 654, 661-62, 808 P.2d 624, 631-32 (1991) (holding that the failure to instruct on essential elements is reversible fundamental error even when the defendant aided in the error and did not request instructions). {20} To the extent Defendant’s conduct can be construed as a waiver of his own rights, we doubt he could waive the rights of the non-English speaking jurors. As we have said, this case not only involves Defendant’s constitutional right to be tried by a jury, it also involves the constitutional right of non-English speaking persons to serve as jurors.

A concomitant of this right, as we have observed, is the right to deliberate without any interference or participation by a “thirteenth juror.” The protections of these constitutional rights of a juror should not be measured by a defendant’s actions or inactions. Instead, it is the obligation of the trial court to ensure this structural integrity of the trial process. We therefore disagree with the dissent that the trial court “did not have the opportunity to address the interpreter’s presence.... ” Dissent, ¶ 26.

The trial court had an ample opportunity and the obligation to protect this constitutional right of the jurors. {21} In this case, the trial court only required the interpreter to take an oath to faithfully and impartially translate the testimony. We hold that this oath was insufficient to safeguard against interference, or the appearance of interference, with the jury’s deliberations. The failure of the trial court to administer an appropriate oath to the interpreter resulted in a presumption of prejudice; see Coulter, 98 N.M. at 769, 652 P.2d at 1220, which the State has not attempted to overcome.

See id. {22} Based on the foregoing, we reverse and remand for a new trial consistent with this opinion. Because we remand for a new trial, we need not address Defendant’s remaining contentions. {23} IT IS SO ORDERED. I CONCUR: IRA ROBINSON, Judge.