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Abukar v. Commonwealth

Court of Appeals of Kentucky

June 27, 2014



          BRIEFS FOR APPELLANT: Alexandria Lubans-Otto Florence, Kentucky

          BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky David B. Abner Assistant Attorney General Frankfort, Kentucky



          CAPERTON, JUDGE.

         The Appellant, Mohamud Abukar, appeals as a matter of right his conviction for first-degree rape, for which he was sentenced to twelve years' imprisonment. On appeal, Abukar argues that the court below erred by denying his request for an interpreter at trial, that the court erred in denying his motion to suppress, and that the selection of his jury was unconstitutional. Upon review of the record, the arguments of the parties, and the applicable law, we reverse and remand.

         On October 10, 2010, Andrea Kendall reported to the Erlanger Police Department that after she and her boyfriend, Andrew Burchett, had both passed out in a cab the night before, she woke up early that morning in the back seat of the cab with the driver, Abukar, raping her. Kendall states that upon waking, the driver jumped off of her, and got into the driver's seat. She stated that she saw a Circle K store that she was familiar with, and asked the driver to stop there so she could buy cigarettes. Although she did buy cigarettes, Kendall states that this was simply a ruse to exit the cab. Burchett entered the Circle K right after Kendall, spoke with her, then exited the Circle K with Kendall and had a conversation in front of the store and next to the cab which had pulled up in front. The cab driver waited outside of Circle K for slightly more than three minutes, then drove away.

         At some point Kendall told Burchett that the cab driver had raped her. Burchett knew the driver from his work (a sandwich shop which cab drivers frequented), but did not know his name at the time. After going home, then to the Newport Police Department, Kendall was brought to Saint Elizabeth Hospital for a rape kit. The Erlanger Police Department was notified and Detective Kim Klare was assigned to the case. She interviewed both Kendall and Burchett, taping their statements on her cell phone. Klare also interviewed Kendall's mother and stepfather, who were also at the hospital, and had previously been at the Circle K where they reviewed the store security camera footage. Klare took possession of the Circe K security tapes. Upon viewing the tapes, Klare could identify the cab company, but not the cab driver himself.

         Thereafter, on October 12, 2010, Burchett contacted the police and advised that the cab driver who had allegedly raped his girlfriend was in the sandwich shop in Erlanger where he worked. The driver was Abukar, who was stopped by police and brought to the police department, where he was questioned by Detective Dan Fern. Abukar admitted knowing Burchett and stated that he had picked Burchett and Kendall up in Newport outside of a nightclub. Abukar stated that both Kendall and Burchett were very drunk, and that Burchett threw up in his cab and had to be moved from the back seat to the front passenger seat, after which time both Burchett and Kendall passed out without giving Abukar an exact address. Abukar denied having sexual contact with either one of them. He admitted that they had been in his cab for several hours (from approximately 1:30 to 6:30 a.m.) and stated that he did not throw them out of the cab or report them to the police because Burchett was his friend. Abukar's cab was searched and a DNA buccal swab was obtained from Abukar before he was released. Three days later, Abukar was arrested and charged with first-degree rape.

         Following Abukar's initial arraignment, a preliminary hearing was held in the Kenton County District Court. Abukar was arraigned in Kenton County Circuit Court on January 4, 2011. He entered a plea of not guilty, moved for discovery, and requested a pretrial conference date. Abukar remained incarcerated until May 2011, when his family was able to pay his cash bond.

         Because of what he asserts were issues with the DNA lab report as well as the initial stop, interrogation, search, and seizure, Abukar filed a motion to exclude and requested a suppression hearing on same. An interpreter was ordered for that proceeding, which was held on October 4, 2011. During the course of that hearing, the Commonwealth presented one witness, Detective Fern, who interviewed Abukar after his initial stop by police on October 12, 2010. Abukar offered no proof. The court ultimately denied Abukar's motion to suppress and Abukar then moved for findings of fact and conclusions of law on October 12, 2011. Those facts were entered on May 22, 2012, which was the first day of Abukar's jury trial.

         During voir dire, Abukar had challenged the Commonwealth's strikes wherein a potential juror, who, like Abukar, was a person of color and a Muslim, had been struck. Abukar asserts that the potential juror had been qualified and had stated that she could render an impartial verdict.[1] The judge found the strike to be race-neutral. The matter was again brought to the court's attention, and the court found that one person of color remained on the jury, an African-American female.[2]As noted, following the jury trial Abukar was convicted of rape in the first degree for which he was sentenced to twelve years in prison. It is from that conviction and sentence that Abukar now appeals to this Court.

         On appeal, Abukar raises three arguments: (1) That the trial court committed reversible error by denying Abukar an interpreter during trial; (2) That his Fourth Amendment rights were violated, and that the court erred in denying his suppression motion; and (3) That the jury selection for his trial was in violation of Abukar's right to due process. We address these arguments in turn.

         As his first basis for appeal, Abukar argues that the trial court erred in declining to provide him with an interpreter during trial. Abukar, who is originally from Somalia, repeatedly requested an interpreter over the course of sixteen hearings held before the court leading up to trial. The court discussed this issue with Abukar and his counsel on multiple occasions and ultimately appointed an interpreter for the suppression hearing in this matter October 2011. During the course of that hearing, however, the court viewed a videotape of the police interviewing Abukar and thereafter concluded that Abukar had a sufficient grasp of the English language to proceed to trial without an interpreter. Abukar disagreed and objected, asserting that the video clip itself revealed significant communicatory challenges and was not an adequate basis upon which to make a determination that Abukar had a sufficient mastery of the English language to comprehend the complexities of a trial. Accordingly, Abukar argues that in denying his request for an interpreter, the court violated his constitutional rights.

         In response, the Commonwealth argues that the court correctly refused to appoint an interpreter for Abukar during the trial. The Commonwealth asserts that the court adequately considered and addressed this issue on several occasions which included speaking with Abukar's attorney, reviewing a police videotape of Abukar interacting with police in English, and observing him in court on multiple occasions during as many as sixteen hearings. The Commonwealth argues that the court was within its discretion in concluding that an interpreter was not necessary and urges this Court to affirm.

         In reviewing this issue, we note that a trial court's decision as to whether to appoint an interpreter is reviewed for abuse of discretion. "[T]he test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky. 2004), quoting Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (2000). Further, we note that Kentucky Revised Statutes (KRS) 30A.410 states as follows:

(1) The court in any matter, criminal or civil, shall appoint a qualified interpreter or interpreters, to be paid out of the State Treasury, for the following categories of persons, whether they are parties, jurors, or witnesses:
(a) Persons who because of deafness or hard of hearing:
1. Use sign language, such as pidgin, signed English, American Sign ...

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