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People v. Niebes

OPINION FILED FEBRUARY 16, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

HECTOR NIEBES (IMPLEADED), DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY J. SCOTILLO, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

After a jury trial, defendant was convicted of armed robbery and given a sentence of four years to four years and one day imprisonment. On appeal, it is contended (1) that defendant was denied a fair trial by the admission of a transcript of the victim's previous testimony in that (a) such testimony was rendered incomprehensible through the use of an unqualified interpreter and (b) the State failed to exercise due diligence in procuring the victim's attendance at trial; and (2) that defendant was not proved guilty beyond a reasonable doubt.

On an afternoon in July, an off-duty Chicago police officer was driving in his personal car when, at a distance of 100 feet, he observed a man later identified as Juan Ortega Ruiz walking eastbound on the south side of the street. Ruiz was followed by three men — one of whom was later identified as defendant. The officer then saw the three men, who were holding shiny metallic objects, knock Ruiz to the sidewalk and hold him down while his watch was pulled from his wrist by one of the three (later identified as Filipe Torres) and his pockets searched by defendant and the third man.

The officer pulled up alongside and identified himself to Ruiz who then entered the car. By this time, the three men had run across the street and entered a nearby alley, where they ran northward, and the officer and Ruiz followed a parallel course along the street located just east of the alley. For the most part, the buildings formerly standing on the west side of such street had been razed, so that the officer's view of the men was obstructed only for a second or two as they passed behind each of the four buildings still standing. The flight down the alley covered almost an entire block, and when the men changed course and ran easterly the officer stopped his vehicle in their path, exited the car with his weapon drawn, announced his office, and ordered them to stay where they were. Torres continued to run, but defendant and the other person remained. When ordered to empty their pockets, defendant produced a long knife, $30 in cash, and some personal papers.

At a preliminary hearing held the next day, Ruiz testified through an unidentified interpreter, who was by occupation a probation officer and whose use as a translater was suggested by the prosecutor. On direct examination, Ruiz testified that a man whom he identified as defendant and two companions had attacked him; that defendant held a razor to his right side as the companions took his wristwatch, $15, and his identification, and that they fled after obtaining his property.

During the course of cross-examination, Ruiz testified that defendant was wearing the same clothes in court as he had during the incident in question, i.e., blue slacks and a white short-sleeved shirt. When asked whether defendant wore a mustache during the incident, Ruiz replied, "The way he is now." Defense counsel repeated the question, and Ruiz replied that he had not noticed the mustache the day before but that defendant looked the same both days. Ruiz further testified that defendant was shorter than he and had approached from the left while holding a razor in his right hand. When asked, "And which side did the offender put the razor to you by," Ruiz replied, "The left side," while indicating his right side. The following exchange then occurred through the interpreter:

"MR. WEXLER: There were three offenders and they all started running?

THE INTERPRETER: Yes. They started running.

Q: In which direction?

A: That is when the police officer came to the scene.

Q: In which direction were they running?

A: Through the hallway, through the hallway.

Q: Is that to the north or south or east or west? Did you say a hallway or an alley?

A: He says he was on Division. Ther [sic] were running toward Milwaukee.

Q: And one last question. Where did this incident take place? On the corner of Wood and ...


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