-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION November 18, 2014 9:25 a.m.

v No. 316744 Wayne Circuit Court ELIAS GONZALEZ-RAYMUNDO, LC No. 12-009127-FH

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 319718 Wayne Circuit Court ELIAS GONZALEZ-RAYMUNDO, LC No. 12-009127-FH

Defendant-Appellee.

Before: B OONSTRA , P.J., and M ARKEY and K. F. K ELLY , JJ.

B OONSTRA , P.J.

Defendant was convicted, followi ng a jury trial, of four co unts of third-degree criminal sexual conduct, MCL 750.520d(1)(a) (v ictim at least 13 years of age but less than 16 years of age). 1 Defendant was sentenced to 5 to 15 years’ imprisonment for each conviction. In Docket No. 316744, defendant appeals as of right, arguing that (1) his defense counsel was ineffective for failing to use an interpreter at trial and for failing to properly investigate the case, and (2) the trial court violated his constitu tional right to due process by failing to provide him with an interpreter. After filing his claim of appeal, defendant moved this Cour t to remand the case to the trial court for a Ginther 2 hearing on his claim of ineffective assistance of counsel. This Court

1 Defendant was also acquitted of a fifth co unt of third-degree criminal sexual conduct, MCL 750.520d(1)(a) (victim at least 13 years of age but less than 16 years of age).

2 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-2- granted defendant’s motion to remand on September 5, 2013. 3 After the Ginther hearing, the trial court granted defendant’s motion for new tr ial on the ground that its failure to provide an interpreter violated defendant’s constitutional rights. In Docket No. 319718, the prosecution appeals by delayed leave granted 4 the trial court’s grant of defendant’s motion for new trial. The two cases were consolidated by this Court on February 19, 2014. 5 For the reasons specified below, we affirm the trial court’s order gran ting defendant a new trial in Docket No. 319718, and dismiss as moot defendant’s appeal in Docket No. 316744.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case arises out of a series of allege d sexual encounters betw een defendant and his step-nephew, IR, in Lincoln Park, Michig an. IR was born on September 11, 1997, and was approximately seven or eight years old when he first met defendant. Defendant lived in a house directly across the street from the Lincoln Park home of IR’s stepfather, Jose Gonzalez, and mother, Rosalba Llamas, where IR also lived.

IR testified that defendant is his step-unc le. When he was 10 or 11 years old, numerous members of defendant’s family came to town fo r Christmas and stayed at defendant’s home. Due to the amount of visitors, some people from defendant’s home, including defendant, stayed with IR’s family for the holiday in the home wh ere IR, Llamas, and Gonzalez lived. IR testified that, at Llamas’ instruction, he and defendant sl ept in the same room, and the same bed, during the Christmas holiday season. 6 Gonzalez disagreed with IR’s testimony, claimed that no two men had to sleep together during this Christma s holiday; and did not recall any instance where defendant and IR had to share a bed. According to IR, he and defendant woke up early in the morning because IR had accidentally touched defendant’s penis, which was erect at the time, in his sleep. IR claimed that he and defendant both “felt something,” and defendant asked IR if he would give him “head,” meaning or al sex. IR agreed and performed oral sex on defendant. This encounter was the culmination of a “crush” that IR had developed for defendant over the years prior.

Frequently, defendant would cross the street to use the internet at IR’s house, because defendant’s home did not have wireless internet access. IR testified that on one of these occasions, shortly after the first sexual encounter, he was lying on a couch on the main floor of the house, watching cartoons. IR was “acting asleep ,” but then began to signal to defendant, by poking or touching him, that he wanted to engage in sex. Once defendant accepted his “signals,”

3 People v Gonzalez-Raymundo , unpublished order of the C ourt of Appeals, entered September 5, 2013 (Docket No. 316744).

4 People v Gonzalez-Raymundo , unpublished order of the Court of Appeals, entered February 19, 2014 (Docket No. 319718).

5 Id.

6 On cross-examination at trial, IR admitted that he had previously testified that he had crawled into defendant’s bed in the morning, and ha d not slept in the sa me bed as defendant.-3- the two went into a bathroom located in the basement of the home. IR testified that he again performed oral sex on defendant, and that after this second act of oral se x, defendant told him that their sexual activity had to stay s ecret. IR agreed not to tell anyone.

A few months later, in May, IR saw defendant getting ready for a soccer game that he was going to play at a nearby park. IR testified that he was “tired of being in [his] house,” so he asked Llamas if he could go to the park with de fendant. Llamas told him it was fine as long as defendant did not mind. IR went across the street to defendant ’s house to as k if he could accompany him to the park. When IR entered defe ndant’s bedroom, defendant was lying in bed. IR testified that he and defenda nt began engaging in their “usual ritual,” in which IR would perform oral sex on defendant, and that the encount er ended in anal sex, with defendant’s penis penetrating IR’s anus. IR wa s not yet 13 years old. IR test ified that, after these initial encounters, the two would sporadica lly engage in either oral sex or anal sex, generally every few weeks or so.

IR turned 13 years old shortly before he began eighth grade. He testified that he remembered sneaking out of his parent’s house la te at night on a school night, sometime in the winter after he had turned 13. On that night, IR waited approxima tely 30 minutes after he heard the television turn off in his parents’ bedroom , put on some pants, and then snuck downstairs, being extremely quiet because his mother was a very light sleeper. Using his mother’s cell phone, IR sent defendant a text message stating that he was in the mood to have sex and asking whether defendant wanted him to come over. De fendant responded that he did want IR to come over. IR then deleted the text messages from his mother’s cell phone. IR walked across the street and let himself into de fendant’s home; the two engaged in both oral and anal sex.

IR testified that, between th e ages of 13 and 14, he snuck out of his parents’ house on numerous occasions to engage in oral and anal sex with defendant. On some nights, IR would watch defendant’s home, and if de fendant flicked his bedroom light on and off, IR knew that to mean that defendant was interested in having sex that night . IR testified that the last time he and defendant engaged in sexual relations was in Janua ry of 2012. Overall, IR estimated the two had engaged in oral sex approximately 30 times and anal sex approximately five times.

IR testified that he never to ld any of the adults in his family about his relationship with defendant, but that his mother and some other fa mily members had “suspicions.” For example, when the family would have large barbeques, IR and defendant would act strangely toward each other, and IR believed other people could tell that something sexual was occurring. In the middle of February of 2012, IR’s biological fath er, David Rivera, disc overed the relationship between defendant and IR. It was a Sunday after noon and IR was asleep when he awoke to hear Rivera yelling, telling Llamas that someone “was gonna [sic] die, that he was really gonna [sic] pay for what he did.” He had discovered IR’s iPod, on which IR had sent a message to a friend regarding his sexual relationship wi th defendant. Rivera then wa lked to IR’s room and asked him if defendant had ever touched IR in an ina ppropriate way or if they had ever had sex. IR was unable to answer and hung his head low, and Ri vera “just knew” at th at point. Rivera, who was employed as a firefighter, threw his firefighte r’s axe into his car, but never actually attacked defendant.-4- Before his father discovered the relations hip, IR had already told his brother and two friends about it. After Rivera found out about the relationship, he requi red IR to report the sexual acts to the Lincoln Park police, even though IR did not wa nt to press ch arges against defendant. IR also part icipated in “Kids-Talk,” 7 to explain what had ha ppened with defendant. He also went to a doctor to be examined for evidence of sexual activity, but no such evidence was found. IR testified that afte r he reported the incident and s poke to “Kids-Talk,” his mother, Llamas, called him a liar and did not believe the things he claimed rega rding his relationship with defendant.

On March 28, 2013, the parties appeared before the trial court for an evidentiary hearing regarding text messages found on IR’s iPod. An interpreter was provided for defendant at this hearing. 8 At the conclusion of the h earing, the trial cour t ruled that all of the text messages found on IR’s iPod, apart from those that mentione d defendant, were protected by the rape shield law, MCL 750.520j, and were therefore inadmissible.

The parties appeared for trial on April 1, 2013. Before voir dire, the following colloquy occurred:

DEFENSE COUNSEL: Final matter of housekeeping, Your Honor, is as [sic] a Hispanic I know that sometimes folk s can take offense to people speaking Spanish rather than English.

And I want to avoid the chance of any prejudice, so we’d like to preserve the right to waive the interpreter during th e course of the proceedings and explain things to the defendant on break. And you can hear straight from the defendant’s mouth if you like, Your Honor, this is indeed our wish.

We will accept any prejudice that might be done for his minimal lack of understanding during the course of the proceedings in order, in exchange for the safeguard against any poten tial prejudice amongst jury members or folks who don’t look too kindly upon those who don’t speak English as a first language.

And, again, I do say that with -- as one with experience.

THE COURT: You don’t have any objection to that?

PROSECUTOR: I think that’s a very strange thing that they are going to think [sic], so I think that they are ma king that decision that they shouldn’t be

7 Although the record provided to this Court does not further identify “Kids Talk,” from context it appears that IR was referring to the Kids-T alk Children’s Advocacy Center, which provides investigation and treatment for child victims of physical and sexual abuse, neglect, and psychological trauma. These services includ e forensic interviewing. See www.guidancecenter.org/kids-talk (last accessed October 21, 2014).

8 Defendant was also provided with an in terpreter at his preliminary examination.-5- questioned as ineffective because they have also indicated that he has -- it sounds to me, based on what defense counsel’s indicat ing, is that the client could, for the most part, could understand, with mini mal exception they would need the interpreter. And certainly that’s some thing that he could also voir dire on.

Following a recess, the case proceeded to tr ial without the trial court having further addressed the issue. At the conclusion of the prosecution’s case in chief, defendant moved for a directed verdict. The trial c ourt found that there was sufficient evidence to allo w the case to go to the jury, and denied defenda nt’s motion. At the conclusion of trial, defendant was found guilty of four counts of third-degree crim inal sexual conduct, MCL 750.520d(1)(a) (victim at least 13 years of age but less th an 16 years of age), and was ac quitted of a fifth count of thirddegree criminal sexual conduct, MCL 750.520d(1)(a).

The parties appeared for sentencing on May 6, 2013. Defendant used an interpreter during the sentencing proceedings. Defendant did not make a stat ement on his own behalf. At the conclusion of sentencing, defendant was sentenced as described above.

Defendant appealed his convictions by right on June 12, 2013. On August 7, 2013, defendant filed a motion to remand the case to the trial court to conduct a Ginther hearing. Defendant argued that he had been denied his stat e and federal rights to the effective assistance of counsel because defense counsel had (1) failed to conduct a jury voir dire to determine if the jury would have been prejudiced by defendant’s need for an inte rpreter, (2) waived defendant’s right to an interpreter at trial despite defenda nt’s need for such translation, (3) failed to investigate and meet with exculpat ory witnesses, and (4) failed to properly inform defendant of his right to testify at trial. Defendant suppor ted his motion with affidavits from Llamas and Gonzalez. In her affidavit, Llamas stated that defendant barely speaks any English, defendant needed a translator at trial, she did not believe that defendant committed the crimes alleged, and she would have testified had she be en called by defendant’s trial c ounsel. Gonzalez stated in his affidavit that defendant barely sp eaks any English, defendant needed a translator at trial, and trial counsel only prepped him on the day of trial a nd only for five minutes. This Court granted defendant’s motion on September 5, 2013.

The parties appeared before the trial court for a Ginther hearing on October 28, 2013. Defendant’s trial counsel testified that he had been an attorney for 18 years, approximately 10 to 15% of his practice involved criminal matters, a nd defendant’s trial had been his second as firstchair criminal defense attorney. Trial counsel also testified that defe ndant’s primary language was Spanish and that he had primarily spoken w ith defendant in Spanish because defendant’s English proficiency was limited. Trial counsel also testified that an interpreter had been present for the entire trial and on breaks the interpre ter would “catch [defendant] up” on anything that had occurred during the trial proceedings about which defendant was confused. Trial counsel further testified that, to his recollection, de fendant had known and understood why counsel had declined the assistance of an interpreter during tr ial, and that defendant was “okay” with that. Trial counsel had explained to defendant that he thought that having an interpreter would look bad not only because of possible jury prejudice against non-English speakers, but also because having someone whisper in defendant’s ear could look bad to the jury. Finally, trial counsel testified that he had decided not to call Llamas as a witness because IR had already testified on cross-examination that his mother did not believe that defendant had had sexual relations with IR-6- and Llamas could not add much to that, and additionally, because she was a conflicted witness, as the victim was her son. An associate in tria l counsel’s firm, Stepha nie Labelle (known during the trial as Stephanie Judd), also testified that an interpreter was not used during trial due to fears of jury bias against a no n-English speaking defendant.

Llamas testified at the Ginther hearing that defendant’s primary language was Spanish, that he previously lived in Mexi co before moving to the United States approximately seven years before the hearing, and that he did not speak Englis h either at work or so cially. Additionally, the only conversation Llamas had with defendant’s trial counsel was in th e hallway outside the courtroom on the first day of trial, and the conver sation only lasted about five minutes. Llamas wanted to testify because she “wanted the trut h to come out,” and she did not believe IR’s allegations against defendant.

The parties returned for the court’s ruli ng on defendant’s motion for a new trial on November 22, 2013. The trial court found that it had erred when it did not have defendant personally waive simultaneous translation, instead accepting trial counsel’s word on the subject. On that basis, the trial court granted defendant’s motion for a new trial. When asked to clarify, the court noted that its error was structural, and held that, even if it were not, trial counsel had been ineffective and defendant had been prejudi ced by not “getting [the cross-examination of the victim] in real time and able to respond to that in a timely fashion to be able to ask questions.” An order was entered that same day to reflect the trial court’s ruling.

The prosecution filed with this Court its delayed application for leave to appeal on December 23, 2013. The prosecution argued that the trial court had erred in granting defendant a new trial because trial counsel’s strategic decision regarding si multaneous translation was not a structural error, and because de fendant did not meet his burden of showing prejudice. This Court granted the prosecution’s applica tion for leave to appeal on February 19, 2014. Further, this Court consolidated the prosecution’ s appeal with defendant’s pending appeal, in the same order, on February 19, 2014.

II. MOTION FOR NEW TRIAL

As this issue is dispositive of the case be fore this Court, we a ddress the prosecution’s appeal first. The prosecution contends on a ppeal in Docket No. 319718 that the trial court abused its discretion in granting defendant’s motion for new trial on remand. We disagree.

A. STANDARD OF REVIEW

MCL 770.1 provides:

The judge of a court in which the trial of an offense is held may grant a new trial to the defendant, for any cause for which by law a new trial may be granted, or when it appears to the cour t that justice has not been done, and on the terms or conditions as the court directs.

“This Court reviews a trial court’s decision to grant or deny a motion for new trial for an abuse of discretion.” People v Cress , 468 Mich 678, 691; 664 NW2d 174, 182 (2003). An abuse-7- of discretion occurs when the trial court choose s an outcome that falls outside the principled range of outcomes. People v Miller , 482 Mich 540, 544; 759 NW2d 850 (2008).

Constitutional errors are classified as either structural or non-structural. People v Duncan , 462 Mich 47, 51; 610 NW2d 551 (200 0). “Structural e rrors are defects that affect the framework of the trial, infect the truth-gathering process, and deprive the trial of constitutional protections without which the trial cannot reliably serve it s function as a vehicle for determination of guilt or innocence.” People v Watkins , 247 Mich App 14, 26; 634 NW2d 370 (2001), affirmed but criticized on other grounds 468 Mich 233 (2003). Generally, all other errors are nonstructural. Carines , 460 Mich at 765. When a structural error occurs, revers al is required without any showing of prejudice. People v Cook

, 285 Mich App 420, 424; 776 NW2d 164 (2009). In contrast, a nonstructura l constitutional error is subject to analysis for harmless error. Carines

, 460 Mich. at 774.

B. WAIVER

As a threshold issue, although the prosecution argues that defendant waived his right to an interpreter and has thus waived appellate review of this issue, we do not find that defendant’s trial counsel’s statements opera ted to affirmatively waive de fendant’s rights. “Whereas forfeiture is the failure to make the timely a ssertion of a right, waiv er is the intentional relinquishment or abandonme nt of a known right.” People v Carines , 460 Mich 750, 762 n 7; 597 NW2d 130 (1999), reh den 461 Mich 1205 (1999), quoting United States v Olano , 507 US 725, 733; 113 S Ct 1770; 123 L Ed 2d 508 (1993) . A defendant may generally waive a constitutional right. See People v Carter , 462 Mich 206, 217-218; 612 NW2d 144 (2000), reh den 463 Mich 1210 (2000) (“It is presumed that waiver is av ailable in a broad array of constitutional and statutory provisions . . . [how ever,] the defendant must personally make an informed waiver for certain fundamental rights such as the right to counse l or the right to plead not guilty, for other rights, waiv er may be effected by action of counsel.”) (internal quotation marks omitted; citations omitted). This includes the waiver of the right be present during his trial. People v Buie (On Remand) , 298 Mich App 50, 56-57; 825 NW2d 361 (2012). 9 However, such waiver must be personal and informed. See People v Kammeraad , ___ Mich App ___; ___ NW2d ___ (2014), slip op at 13-14. 10 Courts must “indulge ev ery reasonable presumption

9 As discussed in Part C, the lack of simultane ous translation implicates defendant’s “presence” at his trial, despite be ing physically present.

10 In Kammeraad , this Court found that the defendant, de spite his express statements that he wished to be removed from the courtroom during hi s trial, had not been “s pecifically informed of his constitutional right to be present at trial, even though the circuit court’s exhaustive efforts certainly made it implicitly clear th at he had a right to be present.” Id ., slip op at 12. This Court therefore was forced to conclude that defendant had not waived his right to be present. Id

. at 12- 13. In that case, the tr ial court made extensive efforts, in the face of an extremely obstinate and uncooperative defendant, to secure the defendant’s constitutional rights; that this Court was forced reluctantly to find those efforts inadequate indicates the strength of the dictate that courts-8- against the loss of constitutional rights” in assessing a waiver of such rights. See Illinois v Allen

, 397 US 337, 343; 90 S Ct 1057; 25 L Ed 2d 353 (1970).

The lack of simultaneous translation implicat ed defendant’s rights to due process of law guaranteed by the United States and Michigan C onstitutions. US Const, Am V; US Const, Am XIV; Const 1963, art 1, § 17. Specifically, a defendant has a right to be present at a trial against him; a defendant’s lack of understanding of the proceedings against him renders him effectively absent. See Drope v Missouri , 420 US 162, 171; 95 S Ct 896; 43 L Ed 2d 103 (1975); People v Cunningham , 215 Mich App 652, 654-655; 546 NW2d 715 (1996). In addition, lack of simultaneous translation impairs a defendant’s right to confront witnesses against him and participate in his own defense. Cunningham , 215 Mich App at 654-655. The right at issue is thus not merely statutory as codified by MCL 755.19a, but constitutional, and thus subject to the every reasonable presum ption against its loss.

Defense counsel, at the Ginther hearing, stopped well short of indicating that defendant made a personal and informed decision to waive his right to an interpreter, saying only that “this was the strategy I recommended to him and he went along with it to the poin t that I don’t recall him making any objection” and th at defendant “wasn’t opposed to it.” Counsel also described defendant as “very deferential” to his experience and status as a defense attorney. Under these circumstances, and where it does not appear that the trial court inquired of defendant personally concerning his awareness of his constitutional and stat utory right to an interpreter, we decline to find that defendant made an informed waiver of his right to receive simultaneous translation during his trial.

C. THE TRIAL COURT’S NON COMPLIANCE WITH MCL 775.19a

MCL 775.19a provides in relevant part:

If an accused person is about to be examin ed or tried and it appears to the judge that the person is incapable of adequately understanding the charge or presenting a defense to the charge because of a lack of ability to understand or speak the English language, the inability to ad equately communicate by reason of being mute, or because the person suffers from a speech defect or other physical defect which impairs the person in maintaining his or her rights in the case, the judge shall appoint a qualified person to act as an interpreter.

Further, a trial court should appoi nt an interpreter when it appears from the record that a witness is not understandable, comprehensible, or intelligi ble, and the absence of an interpreter would deprive the defendant of some basic right. See Warren (After Remand) , 200 Mich App at 591- 592.

In this case, the trial c ourt, prosecution, and defense c ounsel all were aware that defendant was incapable of understanding English at a level necessary to effectively participate in his defense without simultaneous translation of the trial proceed ings. Therefore, having failed must indulge every reasonable presumption against the loss of constitutional rights. Allen , 397 US at 338.-9- to secure defendant’s personal and knowing waiver of his right to simultaneous translation, the trial court erred in allowing defendant to proceed to trial without simultane ous translation of the trial proceedings. See People v Sepulveda , 412 Mich 889, 889; 313 NW2d 283 (1981) (“Notwithstanding the failure of the defendant to request an interpreter, it was error to fail to appoint an interpreter where the record clea rly shows that the defendant spoke no English whatsoever.”). The trial court possessed an affi rmative duty to establish defendant’s proficiency in English or appoint an interpreter in light of the record evidence concerning his limited understanding of English. Compare People v Atsilis , 60 Mich App 738, 739; 231 NW2d 534 (1975) (“[A] trial judge is not unde r a duty to affirmatively establis h a defendant’s proficiency in the English language when no evid ence is presented to him that could put the issue in doubt.”), and Kammeraad , slip op at 14 (“defendant . . . needlessly demanded an interpreter, as it is quite evident that defendant is fluent in the King’s Eng lish . . . .”). We concl ude that the trial court erred in failing to satisfy this duty, and that th is error effectively preven ted defendant from being truly present at his trial and arguabl y interfered with his ability to assist in his defense, including in the cross-examination of witnesses.

Defendant asserts that the trial court correctly determined that the error in this case was structural. The United States Di strict Court for the Eastern Dist rict of Michigan, in granting a petition for habeas corpus, has in one case descri bed the violation of a de fendant’s right to be present at his trial as a “structu ral defect” and suggested that de nial of simultaneous translation was such a defect, although the court also addressed prejudice to the defendant. Gonzalez v Phillips , 195 F Supp 2d 893, 902-903 (2001). 11 The prosecution argues, in contrast, that the failure to provide a full and simultaneous translat ion is a non-structural er ror. It cites to an unpublished decision of this Court 12 that indeed found non-structural error, but that did so in the context of deficient, ra ther than non-existent, si multaneous translation. In this case, by contrast, defendant received no simultaneous tr anslation during the trial at all. This Court also has stated that “although occasional lapses [in simultaneous translation] will not render a trial fundamentally unfair, adequate tran slation of trial proceedings requ ires translation of everything relating to the trial that someone conversan t in English would be privy to hear.” Cunningham

, 215 Mich App at 655. The Court in Cunningham thus considered whether lapses in translation rendered the defendant’s trial fundamentally unf air; however, while not directly addressing whether the error was a structural one, it remande d for further proceedings based on its inability to determine whether the erro r was harmless beyond a reasonabl e doubt. The parties have therefore presented us with auth ority that is both arguably c onflicting and distinguishable from the instant case; neither party has presented binding authority to this Court on the precise issue of whether the complete lack of simultaneous translat ion during a trial is a structural error such as would require us to affirm the trial court’s gr ant of a new trial even absent a showing of prejudice.

11 Decisions of lower federal courts are not binding on this Court. Abela v General Motors Corp

, 469 Mich 603, 607; 677 NW2d 325 (2004).

12 Unpublished decisions of this Court are not binding on future panels of this Court. MCR 7.215(C)(1).-10- We conclude, however, that we need no t decide whether the complete lack of simultaneous translation in the instant case is a st ructural error, because even if we were to subject the trial court’s error to harmless error anal ysis, we would conclude in this case that the error was not harmless and that it prejudiced defe ndant. The trial court found that defendant was specifically prejudiced by the lack of translation of IR’s testimony. In Cunningham , 215 Mich App at 657, this Court noted that inadequate (rather than absent) translation of the complainant’s cross-examination responses was subject to harm less error analysis, with the burden of proof resting on the prosecution to prove the erro r was harmless beyond a reasonable doubt. This Court in that case was unable to determine if th e error prejudiced defendant due to an inadequate record. Id

. Further, this Court has noted that exact translation of witness testimony is more important than translatio n of attorney colloquy. People v Truong (After Remand) , 218 Mich App 325, 333; 553 NW2d 692 (1996).

In this case, defendant’s trial was essentially a credibility contest between himself and IR. Defendant lacked the ability, due to the denial of simultaneous translation, to assist his counsel in cross-examining IR. Defendant asserts, for exampl e, that he could have refuted IR’s testimony that defendant signaled IR usi ng the lights from his house, refuted IR’s testimony that Llamas instructed IR to share a bed with defendant, and refuted IR’s characterization of him as a homosexual, had he been aware that IR had so testified. Further, defendant asserts that his waiver of his right to testify wa s not made knowingly due to his lack of understanding of what IR had testified to at trial. At the Ginther hearing, trial counsel described defendant’s communication with him during trial as “not much ” and said “we might have passed one note [in Spanish].” Although defense counsel also indicate d at the hearing that de fendant was able, prior to trial, to communicate his version of events su fficiently for defense counsel to prepare a trial strategy, it does not appear that defense counsel was able to modify that strategy with input from defendant in response to answers received during either direct examination or cross-examination of IR. On the record before this Court, we ther efore conclude that the tr ial court did not err in determining that the lack of simultaneous translation was prejudicial to defendant.

We share the prosecution’s concern that defendants may waive their right to an interpreter and later claim error on appeal resulti ng from it, thereby harboring error in the form of an “appellate parachute.” However, we note that in this case the trial court primarily based its grant of a new trial on its own failure to follow the dictates of MCL 775.19a, which requires the appointment of an inte rpreter if “it appears to the judge that the person is incapable of adequately understanding the charge or presenting a defense to the charge because of a lack of ability to understand or speak th e English language.” Id . (emphasis added). While a trial court is not required to inquire into a defendant’s ability to comprehend English when no evidence of any limitation is presented to it, see Atsilis , 60 Mich App at 739, Kammeraad , slip op at 14, it should, when presented (as in this case) with indications that a defendant may lack sufficient comprehension of the English langu age, either satisfy itself of defendant’s proficiency, provide for simultaneous interpretation, or, in the case where a defendant wishes to waive such a right, secure the defendant’s personal, informed waiver. Id .; Carter , 462 Mich at 217-218; Kammeraad , slip op at 13-14. Such an approach shoul d alleviate concerns that a defendant may harbor appellate error.

Because we affirm the trial court’s grant of a new trial in Docket No. 319718, we decline to address as moot the issues presented in de fendant’s appeal in Dock et No. 316744, as there is-11- no relief this Court can grant. In re Contempt of Dudzinksi , 257 Mich App 96, 112; 667 NW2d 68 (2003). In light of our affirmance of the trial court’s grant of a new trial, we do not reach the issue of the effectiveness of defendant’s counsel under Strickland v Washington , 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). 13

Affirmed in Docket No. 319718 and remanded for further proceedings consistent with this opinion. Dismissed as moot in Dock et No. 316744. We do not retain jurisdiction.

/s/ Mark T. Boonstra /s/ Jane E. Markey /s/ Kirsten Frank Kelly

13 We note that we have found no cases where a defense counsel’s fa ilure to request an interpreter, or affirmative wa iver of an interpreter, under circumstances where the record evidence satisfies MCL 775.19a, has been deemed objectively reasonable conduct on the part of the defense attorney.