APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
ROMITI, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
Indictment No. 71-226, filed on 26 January 1971, charged defendant-appellant Rivera (hereafter defendant or Rivera) with the unlawful sale on 15 October 1970 of a narcotic drug, to-wit: heroin (more specifically described at trial by a police chemist as .14 grams of diacethyl morphine hydrochloride. (Ill. Rev. Stat. 1969, ch. 38, sec. 22-3.) At the arraignment on 3 February 1971, at which defendant entered a plea of not guilty, defendant promptly informed the court that he "don't speak English." By 11 February 1971, the court had appointed the Public Defender to represent defendant. At a bench trial on 8 April 1971, the court found defendant guilty of the offense of unlawful possession of a narcotic drug, and sentenced him (under the provisions of Ill. Rev. Stat. 1969, ch. 38, sec. 22-40) to a term in the Penitentiary of not less than three years nor more than nine years (to run concurrently with a like term which had already been imposed on defendant on a plea of guilty to Indictment No. 71-500, a matter not involved in this appeal).
The evidence presented by the State in its case in chief consisted of the testimony of two Chicago police officers, Officer Markham and his partner Officer Rouzan. Officer Markham testified that he was serving as an undercover officer for the narcotics section of the Vice Control Division on 15 October 1970. Early that evening, he was driving his personal automobile and was accompanied by a "special employee" of the police department. He stopped his automobile at a corner where he was introduced by the "special employee" to two men then identified only as Ponce and Louie, but whom the officer later identified as defendant Rivera and his co-defendant, one Lucas Torres. Torres asked Officer Markham how much heroin he wanted to buy. After Markham had replied that he wanted two bags and after he had paid Torres $11.00, Torres nodded to defendant who then spat two green-colored balloons out of his mouth into his hands. Defendant then handed the two bags to Officer Markham. The officer thereupon drove away and joined his partner, Officer Rouzan, two blocks away. After taking the "special employee" home, the two officers went to Headquarters where a test was performed on a portion of the contents of one of the balloons. The test revealed that the balloon contained heroin. On 21 October 1970, Officer Rouzan, to the knowledge of Officer Markham, obtained arrest warrants for "Ponce Doe" and "Louis Doe". The arrest of defendant and Torres did not occur until 23 November 1970, when Officer Markham saw the two men and notified Officer Rouzan where he could make the arrests.
Defendant did not testify in his own behalf. Co-defendant Torres did and denied having made any sale to Officer Markham, and stated that he had first met Officer Markham only after his arrest. There was no other testimony for the defense.
At the jury-waiver proceeding, which immediately preceded the trial in the instant case, the Public Defender informed the court that "this will be a bench trial", and then immediately added: "Mr. Rivera has some difficulty in communicating. He is of Spanish origin. Mr. Torres speaks English and Spanish and will interpret as to the jury-waiver." Co-defendant Torres had been indicted for the same offense arising out of the same occurrence, and both co-defendants were represented by the same Public Defender. The court said: "All right. I want to know whether each of you understand what [the Public Defender] told the court. He has indicated to this court that you wish to have this trial by the court. You want the court to hear the case, is that correct?"
The court then proceeded to explain the fact that defendant and co-defendant had a right to a jury trial and what that right meant. At each of two stages of this explanation, the court said: "You understand that?" The first time, Rivera replied "Yes", and then Torres replied "Yes", speaking for himself. The second time, Torres replied "Yes", speaking for himself. The court then said: "Would you [Torres] ask him [Rivera] if he understands that?" Before Torres said anything to Rivera, Rivera said "Yes". The court then said: "He understands that?" and Torres replied "Yes".
The court then said: "What you are asking then and what [the Public Defender] is saying is that you want the Court to hear the evidence and you want this Court to decide your innocence or guilt on the charge, is that right?" Torres said "Yes", speaking for himself. The court then said to Torres: "Ask him [Rivera] if this is what he wants too." Before Torres asked Rivera anything, Rivera said "Yes", whereupon Torres echoed "Yes".
The first ground of this appeal is that at the jury-waiver proceeding, defendant Rivera did not "knowingly and understandingly" waive his right to trial by jury, for which reason the court lacked jurisdiction to enter a finding of guilty. The basis for this position is the fact that no interpreter or translator was utilized to assist Rivera.
• 1 In People v. Soldat (1965), 32 Ill.2d 478, our supreme court said:
"The calling of an interpreter is normally within the discretion of the trial court, and a conviction will be reversed only when there has been an abuse of that discretion which operates to deprive a defendant of some basic right."
Defendant, however, calls our attention to the 1970 case of U.S. ex rel. Negron v. the State of New York, 434 F.2d 386, in which the Court of Appeals for the Second Circuit held that, under the Sixth and Fourteenth Amendments to the Federal Constitution, the trial judge in a State criminal proceeding has a duty to appoint an interpreter sua sponte at any stage of the proceeding at which the need to do so, in order to enable the defendant effectively to participate, either becomes or ought to have become manifest to the court. We hold that, in the instant case, the trial judge discharged that duty by acquiescing in the suggestion of defense counsel, made at the very outset of the jury-waiver proceeding, that co-defendant Torres act as interpreter for Rivera.
Defendant next suggests a further development in the law as to this matter of an interpreter, namely, that, if and when it becomes apparent to the trial judge that the interpreter is not in fact interpreting, then it becomes the duty of the trial judge sua sponte to intervene and to take whatever action he deems necessary to insure that interpretation does in fact occur. The factual basis in this case for defendant's suggestion is as follows: At the post-trial hearing in aggravation and mitigation, the trial court itself appointed an interpreter for defendant (perhaps because, at this stage of the proceeding, the interest of Torres first became different from the interest of defendant). The record of that hearing shows that, on at least one occasion, interpretation did in fact occur. That record was made by the same court reporter who made the record of the pre-trial jury-waiver proceeding and of the trial itself. But the record for those two stages of the criminal proceeding does not show that any interpretation in fact occurred. Defendant wishes us to indulge in the negative inference that ...