On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 92-06-0880.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 21, 2010
Before Judges Stern and Sabatino.
This is an appeal of the denial of post-conviction relief ("PCR"). After a 1993 jury trial, defendant Almir DeSouza, a Brazilian immigrant, was found guilty of murdering his girlfriend with a knife. He also was convicted of certain weapons offenses. Defendant was sentenced to a custodial term of sixty years, with a thirty-year period of parole ineligibility.
Defendant filed a direct appeal to this court raising certain issues not germane to the present appeal. We affirmed defendant's murder conviction and his sentence in an unpublished decision. See State v. DeSouza, No. A-5452-92 (App. Div. July 6, 1995) (slip op. at 5), certif. denied, 142 N.J. 574 (1995), cert. denied, 516 U.S. 1147, 116 S.Ct. 1019, 134 L.Ed. 2d 99 (1996).
Defendant then filed an initial PCR application with the trial court. He claimed that he had been denied a fair trial because of his alleged inability to speak or understand English, asserting that the trial court should have translated the proceedings for him with a Portuguese interpreter. Although we do not have the transcripts of the trial, the papers submitted to us suggest that a Portuguese interpreter was apparently present for at least part of the trial, but only to repeat defendant's testimony (which he gave in broken English with a thick accent) into more understandable English. The interpreter evidently did not translate the testimony of the other witnesses to defendant, nor the statements made during the course of the trial by the judge and by counsel.
The judge hearing the first PCR application ("the first PCR judge") denied it, concluding that defendant did not request-- and that he did not need--an interpreter at his trial. We dismissed defendant's appeal of that ruling on procedural grounds, without prejudice, because he had not supplied us with a copy of the first PCR judge's findings and with a transcript of the PCR proceedings, as required under the Rules of Court. See State v. DeSouza, No. A-3987-98 (App. Div. Dec. 14, 2000) (slip op. at 3).
Defendant then filed a second PCR petition. He renewed his claim that he should have been provided with an interpreter at trial. He disputed several of the first PCR judge's findings, including the finding that he had not requested an interpreter when his case was tried. Defendant specifically alleged that he had sent the court a letter before trial seeking an interpreter, but that for some reason the letter had not been routed to the trial judge. He further argued that his trial attorney was constitutionally ineffective in failing to reinforce and pursue that interpreter request.
The trial court denied the second PCR petition.*fn1 However, in November 2005, we remanded the matter to the trial court. We found that defendant had raised a prima facie case of lack of fluency sufficient to warrant an evidentiary hearing on the issue, with witnesses. See State v. DeSouza, No. A-3885-02 (App. Div. Nov. 29, 2005) (slip op. at 15). We instructed that the PCR court should apply the lack-of-fluency standards set forth in the Federal Court Interpreters Act, 28 U.S.C.A. § 1827, cited by Judge Fuentes in State v. Rodriguez, 294 N.J. Super. 129, 138 (Law Div. 1996). We further stated that "if it is determined [after the evidentiary hearing] that defendant qualified for an interpreter, his [trial] attorney's failure to request one is not only dispositive, it constitutes ineffective assistance of counsel." DeSouza, supra, No. A-3885-02 (slip op. at 16); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984) (delineating the constitutional test for ineffective assistance of counsel); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland standard under New Jersey law).
In remanding the PCR matter, we recognized that there were several unresolved factual issues, including why defendant did not reiterate his request for an interpreter at trial. We also directed the trial court to explore with defendant's trial attorney, who was not fluent in Portuguese, his ability to communicate with his client during the trial. Since the first PCR judge had twice ruled on defendant's petition, and had made some erroneous factual findings, we instructed that the evidentiary hearing be conducted by a different judge. DeSouza, supra, No. A-3885-02 (slip op. at 16-17).
On remand, Judge Bette E. Uhrmacher conducted several intermittent days of evidentiary hearings in 2006, 2007, and 2008.*fn2 The judge heard testimony from several witnesses, including the victim's mother, two of the victim's co-workers, a State Police officer who administered the Miranda*fn3 warnings to defendant, a detective from the Monmouth County Prosecutor's Office who took a statement from defendant in 1992 about an escape attempt at the jail in which he was incarcerated, and defendant's former trial counsel. The judge also took testimony at the PCR hearing from defendant himself, which was generally provided with the aid of an interpreter, although at times defendant replied in English before the questions were translated.
Following the remand hearing, Judge Uhrmacher wrote a detailed opinion, dated June 17, 2008, rejecting defendant's claim that he was entitled to an interpreter and that his former attorney was ineffective in not securing one. The judge found the State's witnesses credible and defendant's testimony, by contrast, incredible and plagued with inconsistencies. The judge found that defendant had made several admissions that he could understand English, including one made to the court in an "unguarded moment" describing his ability to speak English at work.
On the present appeal, defendant argues that Judge Uhrmacher incorrectly concluded that a person's capacity to take part in "simple, social conversations" in English means that his or her English skills were sufficient to enable him to fully participate in his defense. The State argues that Judge Uhrmacher applied the law ...