APPEAL from the Circuit Court of Lake County; the Hon. THOMAS
DORAN, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Defendant, Gus Harris, was charged in Lake County on April 29, 1980, with the offenses of armed robbery, armed violence and aggravated battery. (Ill. Rev. Stat. 1979, ch. 38, pars. 18-2(a), 33A-2, 12-4(b)(1).) The offenses were charged as the result of an occurrence during the early morning hours of April 13, 1980, in Waukegan. Although the facts are in dispute, the complainant, Bertoldo Figueroa, utilizing a court-appointed interpreter, testified essentially that he and his wife played Bingo on the evening of April 12. Afterward, he parted with his homeward-bound wife, and went to a bar, Shorty's Tap. He testified he was asked by a woman there, Sharlotte Stinnette, for a ride home at about 2 a.m., and he drove her to a bar near her apartment. That bar was closed, so he walked her to the area just outside her apartment, where he was allegedly struck in the face by a knife-wielding man, later identified as the defendant. By his account, he was then forced to a second floor apartment of the building where he was several times hit again, twice with the knife, which caused cuts on his hands. Upon demand, he handed the man his wallet and two rings; the man turned these items over to Stinnette. The amount of money contained in the wallet was inconsistently reported at different times by the complainant to be either $30 or $40, or $80. The complainant's wallet was returned to him and he was allowed to wash his hands in the kitchen sink. He then ran out of the apartment to his car parked nearby. In the haste of departure, the car became hung up on the sidewalk, unable to be moved, and the complainant fled down the street on foot where he was observed, stopped, and questioned by a police officer. Figueroa relocated the apartment, and Stinnette answered the door after police knocked several times and announced their presence. She was arrested after Figueroa, approaching the apartment door in the company of police, sighted her and lunged at her. In an adjoining room, Ken Anderson, the defendant's cousin and Stinnette's boy friend, was rousted out of bed by the police, but Figueroa shook his head, indicating Anderson was not the man who used the knife. Further search of the apartment ultimately led police through a slightly ajar back door to the basement where the defendant was found.
He had been discovered sitting against a wall in the reportedly 40-degree basement of the building clad only in pajama bottoms and within arm's reach of the basement entrance doorway where the complainant's two rings and $15 in cash were found.
Although Figueroa denied such knowledge, Stinnette was reputedly a prostitute. Apparently unknown to him, Figueroa's wife had not stayed at home, but had observed him leave Shorty's Tap in Stinnette's company. Declared by the court as a hostile witness, Figueroa's wife testified that he had related to her that he was jumped by two men in the parking lot of the Rock Tavern, which was the bar near Stinnette's apartment where Figueroa had parked. Stinnette did not testify at trial.
On the night in question, the defendant testified he had misplaced his keys to Stinnette's apartment, where he lived with her and Anderson, and was asleep on the stairs waiting for Stinnette to return home. According to the defendant's testimony, Anderson had not answered his knocks on the door because he was asleep in the apartment. When Stinnette arrived at the apartment accompanied by Figueroa, the defendant trailed them inside, whereupon Figueroa slammed the door, hitting him in the face. There was testimony the defendant was recovering from serious injury to his face after being hit with a baseball bat by a person against whom he was going to be a State's witness. The defendant confronted Figueroa for an explanation of his conduct, and Figueroa, shouting something in Spanish "came at me [the defendant] and I hit him." Stinnette then allegedly handed the defendant a knife, and Figueroa cut his hands trying to grab the knife held by the defendant. Defendant's demand that Figueroa leave the apartment was responded to with a loud flurry of Spanish. When the defendant's demand was repeated, Figueroa relinquished his rings and wallet to Stinnette, who immediately returned the wallet and washed Figueroa's hands in the kitchen sink and then bound the cuts with cloth. Figueroa then ran out of the apartment. Following Figueroa's exit, Stinnette told the defendant to go downstairs, gave him $15, which she produced from under her blouse, and Figueroa's two rings. Defendant testified it was usual for him to go downstairs when Sharlotte was expecting "company," and that he had been asking her for some money all week.
The defendant's pretrial motion to quash arrest and suppress evidence was denied after a hearing. Two motions for mistrial were also denied. The jury found the defendant guilty of aggravated battery and reckless conduct, and not guilty of armed violence and armed robbery. The defendant's motion for a new trial was denied and the court sentenced him to 30 months' probation, the first 113 days to be served in the county jail and credit for that amount of time already served was applied to his sentence.
Three issues are now raised on appeal: (1) Whether the trial court erred in denying defendant's motion for mistrial upon learning from the translator that she had improperly paraphrased the testimony of the complainant-witness thereby denying the defendant his right of confrontation; (2) Whether the verdicts returned by the jury were legally inconsistent; and (3) Whether the trial court erred in refusing to suppress the physical evidence.
The defendant first contends his right to confrontation was denied by virtue of the translator's confessed paraphrasing of questions and answers during the complainant's testimony. The record does not clearly reflect, nor has it been made apparent to this court, how many or which specific questions and/or answers were paraphrased. The State counters that the complainant's testimony, as translated, was intelligible, and that the defendant at no time during Figueroa's testimony objected to the competency of the interpreter's performance. The translator employed here was a Spanish-speaking court reporter.
The use of an interpreter during trial is a matter within the discretion of the trial court. (People v. Soldat (1965), 32 Ill.2d 478.) The resolution of any question in this regard is whether the testimony presented through the interpreter is understandable, comprehensible, and intelligible; and, if it was not, whether such lack of such intelligibility was brought about by an ineffective and incompetent interpreter. (People v. Niebes (1979), 69 Ill. App.3d 381.) Niebes cited to People v. Starling (1974), 21 Ill. App.3d 217 for that proposition. The defendant finds Starling factually similar, and supportive of his argument; the State contends Starling is inapposite.
In Starling, the court found the defendant had been denied his right of confrontation due to the ineffective and incompetent performance of the court-appointed interpreter. In that case, the court sustained numerous defense objections to conversations being held between the witness and the interpreter and duly admonished the interpreter each time. Additionally, the witness' testimony as translated was unintelligible at various points throughout that trial, and even the State complained at least once about the interpreter's performance. Thus, that court found the selection of the interpreter constituted an abuse of discretion since it resulted in deprivation of the defendant's basic right of confrontation.
The defendant argues that even though Figueroa's testimony was understandable and intelligible for the most part as translated by the interpreter, her self-admitted paraphrasing of some of the questions and answers resulted in presentation to the jury of her version of the occurrence rather than the complainant's. The central issue appears to us to be whether the purportedly clarifying paraphrasing indulged in by the interpreter prejudiced the defendant's right to confrontation of the witnesses against him.
After reviewing the record, it is our opinion that the defendant is estopped from raising this issue since he invited or, at least, acquiesced in the error of which he now complains. As pointed out by the State, the defendant did not object to the interpreter's performance at any time during Figueroa's testimony. There was no hint the defendant was dissatisfied with, or could not understand, the testimony being translated back. Contrary to the assertion in his brief that the error could not have been discovered prior to the interpreter's admission in chambers (whereupon he timely requested a mistrial), we believe it would have been obvious to even non-Spanish-speaking persons that the interpreter and Figueroa were engaged in "conversation back and forth" rather than question-answer dialogue. Counsel failed to object to the excess questions and answers between witness and interpreter, and failed to timely request an admonishment from the court on this obviously improper practice.
Additionally, in our view, the record reveals the interpreter was induced to paraphrase by defense counsel's own posturing of his cross-examination. A significant number of defense counsel's questions were posed in the third person so as to actually cast the interpreter in the role of questioner. For example, rather than addressing the witness, defense counsel would direct the interpreter thusly:
"Q. [Mr. Stone]: Ask Mr. Figueroa if he didn't say he was first jumped and held at knife point in the parking lot at the Rock Tavern?
Q. He denies he ever said that?
A. No, the truth is as I am telling you, as I have said.
Q. And ask Mr. Figueroa if he didn't tell the third story that he was jumped by two men in the parking lot.
Q. And doesn't he recall telling that story ...