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People v. Tomas





Appeal from the Circuit Court of Jackson County; the Hon. Richard E. Richman, Judge, presiding.


Rehearing denied September 3, 1985.

The instant case is one of first impression in Illinois involving the issue of whether the non-English-speaking defendants were deprived of their rights to effective assistance of counsel and to be present and participate at their trial when the trial court used their court-appointed interpreter to translate the proceedings at trial rather than appointing a second interpreter for that purpose. The defendants contend that this action by the trial court was improper in that it prevented them from communicating with counsel during trial when the interpreter was engaged in translating testimony for the court. We affirm.

On July 6, 1983, the defendants, Marcelino Tomas and Luis Sanchez, were charged by information in Jackson County with the offenses of rape, unlawful restraint and battery. On July 7, 1983, defense counsel filed a motion to appoint a translator, alleging that the defendants were migrant farm workers from Mexico and that neither of them could speak or understand the English language. The court granted the motion and appointed Frank Pereira, who had served as interpreter at the defendants' first appearance, to assist in the defense of the case.

At the beginning of the defendants' preliminary hearing on July 19, 1983, defense counsel stated, in response to the court's inquiry, that Mr. Pereira had done no work for the defendants other than translating their conversations with counsel. The court then stated:

"In view of his skill that he's demonstrated at the previous hearing, I would like to pre-empt his services for the court. I'm sure that even if you did use him for your purposes, he would be merely a translator and not a partisan, or I could make him — I could convince him that that's what his role would be without any difficulty * * *."

Defense counsel agreed that this was in keeping with her intentions regarding Mr. Pereira's services if the case should proceed beyond preliminary hearing.

During the hearing Mr. Pereira translated the proceedings, including the questions to and answers of the sole, complaining witness, from English into Spanish for the defendants. Following this testimony the court found probable cause to sustain the charges against the defendants. Mr. Pereira was again present to translate the proceedings from English into Spanish and from Spanish into English at the defendants' arraignment on July 28, 1983, at a pretrial conference on August 23, 1983, and at a hearing on defendant Tomas' motion to suppress on August 26, 1983.

Prior to the voir dire examination of prospective jurors on August 31, 1983, the court explained that Mr. Pereira would translate the proceedings for the benefit of both the defendants and the court, noting that "he [Mr. Pereira] is seated at the table next to the defendants for their convenience, but he is an officer of the court, my representative." At the defendants' jury trial the following day, the court "[a]gain remind[ed] the jurors that Mr. Pereira * * * is an officer of the court [and] is seated at the defense table merely as a convenience to the court and to the defendants. He is not employed by the defendants."

During both voir dire examination and the trial itself, Mr. Pereira continued the previous procedure of translating all questions and answers as they were given from English to Spanish or from Spanish to English as required. In addition to the other evidence presented, the jury heard testimony from two of the defendants' co-workers, who testified in Spanish. Prior to their testimony the court observed that since their testimony would be in Spanish, "the interpreter [would] be interpreting for us, rather than for the defendants."

During trial the court repeatedly cautioned both counsel and witnesses to allow time for translation, and Mr. Pereira on several occasions asked for questions to be repeated so that he could translate them. At one point during the complaining witness' testimony, the court ordered a break in the testimony for the interpreter to converse with the defendants, and on another occasion the court ordered a recess at Mr. Pereira's request so that he could converse with the court outside the jury's hearing. At the request of the defendants' counsel, neither counsels' opening statements nor their arguments during trial were translated. While counsels' closing arguments were likewise not translated, the court directed Mr. Pereira to take notes during the arguments so that he could summarize them for the benefit of the defendants.

The jury found the defendants guilty of all three charges, and the defendants were subsequently sentenced to concurrent terms of ten years' imprisonment for rape, three years' imprisonment for unlawful restraint, and 364 days' imprisonment for battery.

On appeal from their convictions the defendants contend that the trial court erred in not appointing a second interpreter to assist the defendants during trial when the court "borrowed" their interpreter to translate the trial proceedings. The defendants assert that the court's failure to do so prevented them from communicating with their attorney during substantial portions of the trial — namely, the examination of witnesses — in violation of their constitutional rights to be present at and participate in their trial. The defendants urge this court, therefore, to follow the California decisions of People v. Aguilar (1984), 35 Cal.3d 785, 677 P.2d 1198, 200 Cal.Rptr. 908, and People v. Romero (1984), 153 Cal.App.3d 757, 200 Cal. Rptr. 404, where, in similar situations, it was held that the use of one interpreter to translate both for the defendant and for prosecution witnesses violated the defendant's State constitutional right to an interpreter throughout trial.

As indicated above, we are aware of no Illinois case that has addressed the issue of the right of a non-English-speaking defendant to the exclusive use of an interpreter during trial. While the decided cases from other jurisdictions have recognized that a defendant's right to confront his accusers, to cross-examine witnesses and to the assistance of competent counsel are all jeopardized if he cannot understand the language of the court, witnesses and counsel (United States ex rel. Negron v. New York (2d Cir. 1970), 434 F.2d 386; Martinez v. State (Ind. App. 1983), 449 N.E.2d 307), no case has been cited in which the use of a single interpreter to translate the entire proceeding against a defendant was held to be a deprivation of those ...

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