☢ test - Í

Weldon v. State, 247 Ga.App. 17, 543 S.E.2d 56 (November 28, 2000). Convictions for sale of cocaine and related offenses reversed; trial court abused its discretion in binding and gagging the defendant before the jury without adequately considering other options. The defendant would not keep quiet in the courtroom during his trial. The judge ordered the defendant bound and gagged in front of the jury. Defendant was subsequently convicted. The defendant appeals. Held, although binding and gagging a defendant may be constitutionally acceptable in certain circumstances, it is likely to have a significant prejudicial impact upon the jury and is generally less preferable than removing the defendant from the courtroom. Therefore, the conviction was reversed. Distinguished in Taylor v. State , 282 Ga. 44, 644 S.E.2d 850 (May 14, 2007) (defendant admonished in front of jury for outbursts and inappropriate remarks, but not physically restrained). HH. IN CAMERA INSPECTION See EVIDENCE – EXCULPATORY EVIDENCE – IN CAMERA INSPECTION, above II. INDIGENCE See ATTORNEYS – APPOINTMENT OF COUNSEL – FINDING OF INDIGENCE, State v. Tunkara, 298 Ga. 488, 782 S.E.2d 278 (February 1, 2016). Following convictions for malice murder and related offenses, trial court properly granted new trial , despite citing wrong code section. Basis for grant of new trial: court found that “there was a complete breakdown of [Tunkara’s] understanding of what was transpiring at trial due to the interpreter, and that this prejudiced [Tunkara] at trial.” “Based on this fact and ‘principles of justice and equity,’ the trial judge granted Tunkara’s motion for new trial, relying on OCGA §§ 5–5–20 and 5–5–21. These two statutes apply to considerations about the weight of the evidence -- the general grounds. Here, however, it is largely undisputed that the trial court’s ruling was premised on a special ground -- the inadequacy of the interpreter. As such, the trial court’s discretion lies more squarely under OCGA § 5–5–25. That statute provides: ‘In all motions for a new trial on other grounds not provided for in this Code, the presiding judge must exercise a sound legal discretion in granting or refusing the same according to the provisions of the common law and practice of the courts.’ The inadequacy of an interpreter is one of the ‘other grounds not provided for in this Code.’ Accordingly, this statutory provision authorized the trial court to grant a new trial on this ground in this matter.” Affirmed “under the right-for-any-reason rule.” Cisneros v. State, 334 Ga.App. 659, 780 S.E.2d 360 (November 18, 2015). Physical precedent only. Convictions for burglary and related home-invasion offenses affirmed; no ineffective assistance of counsel in failing to move for hearing on interpreter’s accuracy. One interpreter was employed to interpret for defendant; a courtroom interpreter worked with witnesses. A Spanish-speaking alternate juror repeatedly criticized or corrected the courtroom interpreter, but neither defendant (who, according to counsel, spoke English) nor his interpreter expressed any concerns about the courtroom interpreter’s accuracy beyond a single instance where defendant’s interpreter corrected the courtroom interpreter. The courtroom interpreter was court certified, with a master’s degree in Bilingual Legal Interpreting. The juror was from Colombia, but her Spanish fluency was unknown, “and nothing indicated to [counsel] what her … interpreting skills were.” “[W]e cannot discern any basis for a valid objection to the interpretation provided by the court certified interpreter on the ground that [juror] M.B. was in apparent disagreement with portions of that interpretation. Nor can we conclude that trial counsel acted unreasonably in failing to insist on a hearing under the Supreme Court of Georgia’s Rules for the Use of Interpreters (the ‘Rules’). The Rules provide for such a procedure ‘[w]here a challenge is made to the accuracy of a translation[.]’ [Cit.] Cisneros maintains that M.B. had challenged the accuracy of the courtroom translation during the trial and then during the hearing on her misconduct, and that trial counsel ‘merely needed to insist that the trial court follow’ the Rules. Although the Rules do not specify how the accuracy of a translation may be challenged, or who may make such a challenge, the Rules do not reasonably contemplate that a hearing must be held where a juror is making comments from the jury stand and complaining to other jurors about the translation, as occurred here. Further, under the Rules the trial court ‘shall resolve the issue of the contested translation,’ so long as the trial court has ‘first determine[d] whether the interpreter is able to communicate accurately with and translate information to and from the non-English speaking person.’ Nothing put trial counsel on notice that Epps was not able to perform her duties as an interpreter, and his failure to insist on a hearing on that issue was reasonable. And Cisneros does not point to any specific portion of the courtroom translation that was brought to either trial counsel’s or the court’s attention as then being in dispute and therefore resolvable by the trial court. In view of the foregoing, Cisneros does not show that his trial counsel’s performance was professionally deficient in failing to object to [interpreter]’s interpretation or to insist on a hearing under the Rules, and the trial court did not err in rejecting his claim of ineffective assistance.” Cert. granted on this issue, case no. S16G0443, February 8, 2016. above, and APPEAL, RECORD/TRANSCRIPT, above JJ. INTERPRETERS AND INTERPRETATION