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Zumberge v. State

August 5, 2010

KEITH KENNETH ZUMBERGE, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge.

The opinion of the court was delivered by: Voigt, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT*fn1, and BURKE, JJ.

[¶1] The appellant, Keith Zumberge, appeals his conviction for felony driving while under the influence, alleging that his constitutional rights to due process of law and to confront witnesses were violated by the district court's failure reasonably to accommodate his hearing impairment at trial. Finding no error, we affirm.

ISSUE

[¶2] Were the measures employed by the district court at trial to accommodate the appellant's partial hearing loss so unreasonable and inadequate as to have violated the appellant's constitutional rights to due process of law and to confront the witnesses against him?

FACTS

[¶3] The facts surrounding the criminal charge in this case are not material. The only underlying fact of significance is that the appellant has a 60% hearing loss in his left ear. The appellant brought his hearing loss to the district court's attention prior to the trial and accommodations were made aimed at ensuring that the appellant was able to hear at trial. No specific objection was made regarding the district court's accommodations until two months after the trial when, at sentencing, the appellant informed the district court that due to his hearing impairment he was not able to hear portions of the trial proceedings. The district court briefly addressed the appellant's comments and imposed its sentence. The appellant filed a timely notice of appeal.

STANDARD OF REVIEW

[¶4] The appellant never formally objected to the alleged failure by the district court to accommodate his hearing impairment, therefore we will review this matter under the plain error standard:

Even when constitutional error is alleged, each criterion must be satisfied or a claim for review under the plain-error doctrine will fail. To establish plain error, the appellant must prove (1) the record clearly reflects the alleged error; (2) the existence of a clear and unequivocal rule of law; (3) a clear and obvious transgression of that rule of law; and (4) the error adversely affected a substantial right resulting in material prejudice to him.

Snow v. State, 2009 WY 117, ¶ 13, 216 P.3d 505, 509 (Wyo. 2009) (citations, quotation marks, and footnote omitted).

DISCUSSION

[¶5] Regarding the first prong of plain error, the record clearly reflects the accommodations made by the district court to ensure that the appellant was able to hear the proceedings, which accommodations are now alleged by the appellant to have been inadequate. Turning to the second prong, "[t]he Sixth Amendment and the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution guarantee an accused the right to be present during every stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Skinner v. State, 2001 WY 102, ¶ 20, 33 P.3d 758, 765 (Wyo. 2001). "The right to be present at trial stems in part from the fact that by his physical presence the defendant can hear and see the proceedings . . . and can participate in the presentation of his rights." Id. at ¶ 21, at 765 (quoting Bustamante v. Eyman, 456 F.2d 269, 274 (9th Cir. 1972)). Although this Court has previously recognized that a defendant's ability to hear the proceedings carries constitutional implications, see Chapman v. State, 2001 WY 25, ¶ 31, 18 P.3d 1164, 1176 (Wyo. 2001), we have not had occasion to undertake a detailed analysis of the question. Therefore, we look to other jurisdictions that have addressed this matter.

A hearing-impaired defendant's right to due process may be implicated in the same way that the absence of an interpreter for a non-English speaking defendant's right may be implicated: "A defendant who cannot hear is analogous to a defendant who cannot understand English, and a severely hearing-impaired defendant cannot be tried without adopting reasonable measures to accommodate his or her disability." State v. Schaim, 65 Ohio St. 3d 51, 64, 600 ...


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