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People v. Lopez

OPINION FILED MAY 19, 1983.

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

v.

JACOBO LOPEZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. George Marovich, Judge, presiding.

JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Defendant, Jacobo Lopez, was charged by indictment with one count of rape (Ill. Rev. Stat. 1981, ch. 38, par. 11-1) and two counts of indecent liberties with a child, the first involving sexual intercourse (Ill. Rev. Stat. 1981, ch. 38, par. 11-4(1)) and the second involving lewd fondling or touching (Ill. Rev. Stat. 1981, ch. 38, par. 11-4(3)). Following a jury trial in the circuit court of Cook County, defendant was convicted on all three counts and sentenced to eight years in the Illinois Department of Corrections.

Defendant raises three claims of error on appeal: (1) his confession should have been suppressed because the State failed to produce and examine all material witnesses to each of his confessions as required by statute; (2) he should be granted a new trial because the State failed to provide the defense with a list of witnesses to all of defendant's confessions as required by statute; and (3) he was denied a fair trial because the trial court refused to allow him to have an interpreter assist him at trial.

We affirm the decision of the trial court.

FACTS

The rape victim, a niece of defendant, is a deaf-mute 12-year-old. Testifying with the aid of a sign language interpreter, she stated that on Thursday, March 26, 1981, she came home from school and began watching television with her brother, sister, and cousin. Defendant, a brother of the victim's mother, arrived and sat down to watch television with the children. When the victim went upstairs to the bathroom, defendant followed her, led her into her parents' bedroom, and directed her to remove her clothing and put on a bathrobe. Despite the child's indications of protest, defendant then unzipped the robe, removed the girl's underclothing, pushed her onto the bed, began kissing and fondling her breasts, and then put his penis into her vagina. As she struggled to push defendant away, he withdrew his penis but then began a second act of forced sexual intercourse with the girl. When defendant finally released her, he warned her not to tell anyone what had happened and then left the house.

After defendant had gone, the victim, although in pain, did not mention the attack to anyone that day. On Friday, the following day, she did tell her younger sister but was too afraid to tell her mother because "mother — father mad at me, no more live in the house, kick out." She did not tell her mother about the attack until the following Sunday.

The victim's mother did not call the police immediately to report the rape but instead called a family conference on Sunday evening to decide the proper course of action. As a result, the mother called the police on Monday morning, March 30, 1981, and told them that her brother, the victim's uncle, had raped her daughter. She and the police then took the child to the hospital for an examination. With the help of a sign language interpreter and some anatomy pictures provided by the doctor, the girl told the police about the entire incident.

Meanwhile, Sergeant O'Hara and Officer Jackson went to defendant's place of employment, U.S. Steel Company, and arrested him on charges of rape and indecent liberties with a child.

In his first conversation with the arresting officers, defendant denied raping the girl but admitted to "playing around with her." Defendant was then taken to the Fourth District police station, where he was questioned twice during the afternoon on the day of his arrest, once at 2 p.m. and once at 4:30 p.m. Detective Charles Grunhard testified that he was present during both sessions and gave defendant his Miranda warnings before defendant made any statement at all. Defendant said he understood his rights and then agreed to talk about the charges to Grunhard and his partner, Detective Edison, who was also present at the 2 p.m. questioning.

At approximately 4:30 p.m. on March 30, 1981, Assistant State's Attorney Komessar completed his several-hour interview of the victim's mother in time to participate with Grunhard in the second session with defendant at the district station. Komessar identified himself to defendant as an assistant State's Attorney, explained that he was not defendant's attorney, and then advised defendant of his Miranda rights, which defendant again said he understood.

A short time later, court reporter Raymond Peters was called in to record defendant's statement. Komessar explained each of defendant's Miranda rights, and defendant responded on the record that he understood each one. He then admitted to committing indecent liberties and having sexual intercourse with his niece. After defendant's confession was transcribed, Komessar and defendant together read each question and answer aloud because defendant had some difficulty reading the typed statement although he had had no trouble understanding and responding to each question as it was asked. Defendant then initialed each page of the statement and signed the last page, which was also signed by Grunhard and Komessar.

On August 5, 1981, defendant filed a motion to suppress his confessions on the ground that they were coerced and involuntary: (1) Miranda warnings were not given, (2) defendant was subjected to continued questioning after he said he did not want to talk, (3) his request for an attorney was ignored, and (4) he was promised that he could go home as soon as he made a statement. At the September 16, 1981, hearing on the motion, Detective Grunhard testified that he had given defendant the required Miranda warnings each time they talked, that he had not said that defendant could go home as soon as he made a statement, and that although defendant had had some difficulty reading the transcription of his statement, he had displayed no lack of understanding during the questioning. Defendant himself testified that he understood spoken English better than he read written English.

On cross-examination, Grunhard admitted that he and defendant had talked about defendant's going home. Defendant had asked how long he would have to stay in the station, whereupon Grunhard had responded, "Well, after the conversation is complete and everything is completed here, and if they prefer charges against you, then later the Bond Court meets tonight and the judge at the Bond Court will set a bond for you and you will be able to go."

Defendant was the only other witness to testify at the hearing on the motion to suppress. After confirming Grunhard's testimony concerning the Miranda warnings, his own ability to understand spoken English, and Komessar's carefully helping him review the accuracy of his written confession, defendant testified that at the time he was questioned, he did not know what the word "attorney" meant or what a State's Attorney was. However, he later admitted on cross-examination that when Komessar identified himself and explained his position as an assistant State's Attorney, defendant understood that Komessar was a lawyer who was not representing him. No further questions were asked.

At the conclusion of the testimony offered during the hearing, the trial judge reserved his ruling on the motion to suppress until defense counsel had had an opportunity to file a memorandum supporting the motion. The judge noted, however, that the only issue presented at the hearing ...


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