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People v. Castillon

MARCH 17, 1971.





Defendant, Alfredo Castillon, was charged with the offense of armed robbery. After a bench trial he was convicted and sentenced to a term of not less than two, nor more than four years in the Illinois State Penitentiary. On appeal defendant contends (1) he was denied effective assistance of counsel by the failure to secure an interpreter until the time of trial and (2) he was denied a fair trial since the trial court accepted the complaining witness's testimony as true before defendant had been afforded an opportunity to present his case.

At trial, Edward Rivera, the complaining witness, testified that at approximately 8:30 P.M., on August 9, 1968, he went alone to the South Pacific Restaurant on Randolph Street in Chicago. In the restaurant he met the defendant Alfredo Castillon. He had never seen nor made the acquaintance of defendant Castillon before. The two sat at the bar and talked about general things. During their conversation of about two hours, Rivera drank between 5 and 10 shots of Chivas Regal, a scotch. He testified he felt "high". At one point, Rivera told Castillon he had to go to eat, and Castillon suggested that Rivera go with him to his house where they could possibly eat with his wife and niece. Rivera agreed to the suggestion.

The two left the restaurant together and took the "El" to Irving Park Road. After getting off, they went to a tavern where Castillon asked for someone who wasn't there. They then proceeded to an apartment building which the defendant claimed was his home. They walked up to the second floor where Castillon led Rivera out to the fire escape and put a knife to his back. Castillon demanded Rivera's wallet and three or four times threatened to kill him if he didn't give him his money. Rivera gave the defendant a $5.00 bill and told him that it was all he had. Castillon reached inside Rivera's suit coat and took his wallet which contained $22.00 or $23.00 and a couple of credit cards. After the money was taken, the defendant kept his knife on Rivera's back and led him outside. Rivera subsequently contacted the police.

Jim Honson, the bartender at the South Pacific Restaurant, testified that on August 9, 1968, he was tending bar at the restaurant from 5:00 P.M. to 2:00 A.M. He saw Castillon and Rivera sitting together that night. Honson had known Castillon for about 8 to 9 months prior to August 9, since Castillon usually came to the bar a couple of times a week. Honson had known Rivera for about five years, since Rivera came to the bar often, approximately twice a week throughout the five-year period. On that date in question, Honson served Castillon and Rivera drinks. He also saw the two leave together at approximately 10:00 or 10:30 P.M. At approximately 11:30 P.M., he received a phone call from Rivera who told him he was at the Police Station and that Castillon took his money.

Alfredo Castillon offered alibi testimony in his own behalf. He testified he was a dishwasher on the night in question at the "La Margarita" Restaurant. He stated he did not rob Edward Rivera.

Caesar Dovalino, the operator of La Margarita, testified that defendant worked for him as a dishwasher during the month of August, but was not sure the defendant worked for him on the night shift of August 9-10.

At the commencement of trial, the defense attorney indicated that the defendant had requested a bench trial. The trial court asked defendant whether he wished to waive his right to trial by jury and be tried by a court without a jury. Defendant replied: "No — I mean, yes, sir. I want to explain to you, I don't understand too much the English. I hope I understand you. So, you mean if I want you to try it right now?"

The court was not satisfied defendant was making a knowing jury waiver and stopped the proceedings to obtain an interpreter. Defense counsel then commented on his ability to communicate with the defendant:

"I had difficulty communicating with him and since then I have been able to talk to him and he understands me perfectly and he is able to converse with me. We talked about the case, what questions I would, of course, ask him, and put him on the stand and tell the truth and he understands completely."

THE COURT: "I am sure you have done everything in your power to properly defend this man, however, I am not satisfied that we can proceed to trial without an interpreter. I want someone to tell this man in his own language what is transpiring and we are beginning right at the beginning of the trial with a waiver of a very basic constitutional right, the waiver of a jury trial, and I am not satisfied that this record shows he understands that.

What are we going to do when other things develop during trial? We must have an interpreter."

An interpreter was obtained. After consulting with his interpreter, defendant again stated he wished to waive his right to a jury trial. Then the trial commenced.

Defendant contends he was denied effective assistance of counsel by the failure to secure an interpreter before trial. The thrust of defendant's argument is that failure to remove an obvious language barrier prior to trial denied him effective assistance of counsel at trial. The existence of such a barrier, according to defendant, appears on the face of the record since defense counsel lacked knowledge of defendant's alibi, namely, his job as a dishwasher at La Margarita Restaurant, until the defendant took the stand and was cross-examined.

• 1, 2 We need not consider defendant's claim since it was not asserted in his written motion for a new trial. Defendant filed an eight-point motion for a new trial, but did not include the effective assistance of counsel contention he now presents on appeal. It is settled law that after a jury trial, all non-jurisdictional allegations of error which are not asserted in the written motion for a new trial are deemed to have been waived and need not be considered by the reviewing court. (People v. Gratton (1963), 28 Ill.2d 450, 454, 192 N.E.2d 903, 905, People v. Irwin (1965), 32 Ill.2d 441, 443, 207 ...

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