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People v. Rivera





APPEAL from the Circuit Court of Cook County; the Hon. FRED G. SURIA, Judge, presiding.


Following a jury trial, defendant was found guilty of murder (Ill. Rev. Stat. 1973, ch. 38, par. 9-1) and was sentenced to a term of 30 to 60 years. On appeal defendant contends that: (1) the trial court erred in assuming that it had no authority to dismiss an indictment based on perjured testimony; (2) the court-appointed interpreter was incompetent and so closely connected with the prosecution that defendant was denied a fair trial; (3) the court erred in refusing a tendered instruction concerning an alibi defense; (4) the prosecutor's closing argument denied defendant a fair trial; and (5) he was not proved guilty beyond a reasonable doubt. We affirm. The pertinent facts follow.

Grand Jury

The following proceedings were had before the grand jury which, on June 24, 1976, indicted defendant for murder.

Mesco Irizarry *fn1 testified that he attended a picnic with several Puerto Rican friends on June 20, 1976, at Caldwell Woods. While he was watching a band perform, there was a disturbance between his friends and members of another group. His friends attempted to leave but the others followed and hit a friend, "Husky," with a cane, cutting his ear. His friends ran back to their own group and told them what had happened. One of them known as "Pie" wanted to go back and get the people who had hit "Husky." After driving their girlfriends home they returned to the picnic area. "Pie" was talking to the people who had fought with "Husky." "Pie" pushed one of the others and as he turned, he was pushed to the ground. When "Pie" got up, he drew a gun and fired five shots at the other group. He then got into a car and left with the others. The witness knew the gunman only as "Pie" and did not know his real name.

Robert Rodriguez testified. On June 20, 1976, "Pie" visited him at his home. "Pie" asked "Where is all the guys" and told Rodriguez to find them so "Pie" could get some guns and cars and get "some of those people." Rodriguez refused to return to the picnic with him. When "Pie" returned at about 9 p.m. he told Rodriguez that he had "shot this dude over there."

Ernest Porter testified through an interpreter. *fn2 On June 20, 1976, he was at Caldwell Woods. There was a group of about 600 Assyrians at the park. He was leaving the picnic when several people asked if he was Assyrian. When he replied that he was, they pushed him and swore at him. One of the group attempted to draw a gun but his friends tried to stop him. The person with the gun pushed one of Porter's friends and Porter pushed the gunman and then ran away. As he ran he heard shots and went to tell someone that his friend Edward had been shot.

Officer Clyde Craig, a Chicago police homicide investigator, testified. Concerning the shooting, he was informed by the Coroner's office that Edward Dinkha died of a gunshot wound to the head. He knew that Arturo Rivera's alias was "Pie" and conducted a lineup wherein the defendant was identified by a "Mr. Bouts." *fn3

Pretrial Motions

Prior to trial the defense made a motion to quash defendant's arrest and suppress any identification because of alleged improper police conduct. A hearing was held at which the following testimony was heard.

Judith Youmaran testified with the aid of an interpreter. On June 21, 1976, she viewed a lineup and identified the defendant. Her testimony did not reveal any impropriety by the police in conducting the lineup.

Robert Rodriguez testified. He was at Caldwell Woods on June 20, 1976. At about 1 or 2 a.m. on June 21, two policemen came to his house and woke him. They told him that they wanted him to come to the police station to identify one of the men who hurt a friend of his. After waiting at the station for about an hour, he was taken upstairs to a dark room. The police asked whether he knew a person named "Pie," and he responded that he did but he did not understand the relevance of the question. They then asked him whether he knew if "Pie" did it and told him, "We want you to say that he did it. Well, we just want to get you out of here, if you want to stay out of here, then you just tell them he did it and you go home and forget about everything that happened." At some point he was pulled by his hair, knocked off a chair and dragged by his neck. He was then handcuffed to a chair and left in the room overnight. About 8 a.m. the next day a policeman asked him if he was going to do what the police suggested, and he said "all right, all right, I will do it." He was then taken home.

William Youmaran testified with the aid of an interpreter. He was at Caldwell Woods on June 20, 1976, when Edward Dinkha was shot. He spoke to some policemen about 45 minutes after the shooting and later spoke to the Chicago Police at his home at about 1 a.m. He agreed to go to the police station. At about 6:15 a.m. he viewed a lineup and identified one of the men as the one who shot Dinkha. His testimony did not reveal any improper conduct by the police.

Hermiz Kbuoto testified through an interpreter. He saw Edward Dinkha get shot on June 20, 1976, and saw the man who shot him. At 10:15 a.m. the following morning he viewed a lineup and with the help of an interpreter identified defendant as the assailant.

The defendant testified. He was arrested at about 6 a.m. on June 21, 1976, and brought to the police station. No arrest warrant was shown to him. Once at the station, he was slapped a couple of times and then placed in a lineup. He was told to take spot number 3. Several people viewed the lineup and said it was "number 3."

Robert Smitka, an investigator for the Chicago Police Department, testified. On June 21, 1976, while investigating the shooting of Edward Dinkha, he spoke with John Rios at about 3:30 a.m. Rios stated that he had been injured by some people at Caldwell Woods the day before and that he was taken to a hospital. He mentioned that he had been with Robert Rodriguez, Ismael Rosario and a person named "Pie." At about 4 or 4:15 a.m. Smitka spoke with Rodriguez who informed him that although he had been present when Rios was hurt, he was not at Caldwell Woods when the shooting occurred. He was at home several hours later when "Pie" stopped by. "Pie" told Rodriguez that after he dropped Rios off earlier, he and a few friends returned to the woods to find the Assyrians who hurt Rios. "Pie" found a few of the Assyrians at the entrance to the woods, got into a struggle with one of them and started shooting. He knew that he had hit one of the Assyrians. Officer Smitka stated that he did not, nor, to his knowledge, did any other investigator threaten, strike, or physically abuse Rodriguez in any way. At about 5 a.m. Officer Smitka spoke with Rosario. Rosario told Smitka that after Rios had been injured, he, "Pie" and several others returned to the woods in two cars. When they reached the entrance to the woods, "Pie" approached a group of people. An argument started and "Pie" was knocked down. Rosario saw "Pie" pull out a gun and start firing.

All three of those interviewed knew the assailant only as "Pie." Smitka then showed each of the three a book of photographs and all three identified a photograph of Arturo Rivera as the person they knew as "Pie." Smitka identified this person as the defendant. Smitka arrested defendant at about 6 a.m.

A statement made by Ismael Rosario was also received. It stated that he was harassed in the same manner as Rodriguez had been, and that he had lied before the grand jury.

At the close of the hearing, the court denied the motions to quash the arrest and suppress the identification.

Defendant also filed a motion to dismiss the indictment on the ground that two witnesses, Rodriguez and Rosario, perjured themselves before the grand jury. Defendant contended that they were forced to lie because of the alleged improper police practices already detailed. Without the testimony of these two witnesses, there was insufficient evidence upon which an indictment could be returned. The trial court noted that two other witnesses had testified before the grand jury and then denied the motion to dismiss the indictment.

Before any testimony was taken at trial, the defense objected to the use of the State-selected interpreter because she had reviewed testimony with the State's witnesses and spoke Arabic, a second language of the witnesses, and not Assyrian, their native tongue. The defense offered to locate a disinterested interpreter who could speak Assyrian and to split the cost with the State. Alternatively, the defense suggested several college professors who could act as interpreters. The State suggested that the present interpreter could be examined by voir dire to see whether she was unbiased and would translate accurately. The court suggested that the defense could have their own interpreter present and that if translation problems arose at trial, a hearing out of the presence of the jury would settle any differences.

A voir dire of the prospective interpreter, Najah Abdallah, was conducted. She testified that she had spoken with several of the State's witnesses, in the presence of assistant state's attorneys, concerning the present case. They had reviewed the testimony of Judith and William Youmaran and Hermiz Kbuoto concerning the lineup procedure, the photographs, and the police reports. She spoke to the witnesses in Arabic and had no problem in communicating with them. She testified that "I feel like I am here to do my job. That is all."

On examination by the State, the interpreter stated that she would truly and accurately translate the testimony and take such an oath.

The court found that Ms. Abdallah would be a fair and impartial interpreter and she could be used at trial. The defense was assisted by Adly Hatour, their own interpreter, at trial.


At trial, the following pertinent testimony was adduced.

For the State

Aprin DeBaz testified. He was the pastor of St. Surgis Church which sponsored the picnic at Caldwell Woods on June 20, 1976. He left the picnic after Edward Dinkha was shot and administered the last rites to the victim at the hospital.

William Youmaran testified. On June 20, 1976, he and Hermiz Kbuoto arrived at Caldwell Woods at about 3 or 3:30 p.m. He left the picnic with his sister, Judith Youmaran, Hermiz Kbuoto and the deceased at about 6:30 or 6:45 p.m., while it was still daylight. As they approached their car, the witness saw six people standing beside two cars. He identified the defendant as the person who asked whether Youmaran was Assyrian. When he answered yes, the defendant approached them. Two of defendant's friends tried but were unable to hold him back. Defendant then began pushing and swearing at Youmaran's friend. Again, defendant's friends tried unsuccessfully to restrain him. Defendant drew a gun and Kbuoto said "He got gun," and then pushed the defendant to the ground. While on the ground, defendant fired one shot in the air and the Assyrians ran. As Youmaran ...

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