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April 14, 1997


The Honorable Justice Buckley delivered the opinion of the court. Campbell, P.j., concurs. O'brien, J., dissents.

The opinion of the court was delivered by: Buckley

JUSTICE BUCKLEY delivered the opinion of the court:

Following a bench trial, defendant, Muoi Phuong, was found guilty of misdemeanor retail theft and sentenced to one year of supervision with a $90 fine. Defendant appeals, raising the following issues: (1) whether defendant, a Chinese-speaking recent immigrant with minimal education in this country and no criminal history, understandingly waived her right to a jury trial where she was not advised that she could have members of the community decide her guilt or innocence; (2) whether defendant received a fair trial where the trial court expressed its bias by repeated and gratuitous remarks relating to the Chinese language spoken by defendant and a defense witness; (3) whether defendant was deprived of a fair trial when the trial court refused to allow full translation of the testimony of a Chinese-speaking defense witness; (4) whether the trial court unfairly assumed the role of an advocate when it called and elicited hearsay statements from a police officer about receipts recovered from defendant when the officer had observed the entire trial despite an order to exclude witnesses; (5) whether the testimony of the police officer about the contents of sales receipts recovered from defendant were improperly admitted into evidence where the documents themselves were not produced; (6) whether defendant was proven guilty of retail theft beyond a reasonable doubt where no competent evidence of the corpus delicti was presented and where defendant did not know about her companion's shoplifting; and (7) whether the trial court improperly assessed a fine of $90 without inquiring into defendant's ability to pay.

Defendant, Muoi Phuong, is a Chinese-speaking woman who had recently immigrated to the United States and who had received a few months of education in this country. Prior to her being charged with and convicted of retail theft in March 1995, defendant had no criminal record or any dealing with the American criminal justice system.

Before trial, defendant signed a jury waiver form that had been translated by a Chinese interpreter. The trial court informed defendant that she could be tried by either a judge or a jury without further elaboration. When defense counsel informed the trial court that defendant had agreed to a bench trial, the trial court commented "Nothing like a bench trial with a Chinese interpreter." Prior to trial, a motion to exclude witnesses was granted.

Testimony concerning the theft came primarily from a Carson Pirie Scott (Carson's) employee, Veronica Miranda. Miranda testified that on December 2, 1994, she was working at the Carson's in Lincolnwood. On that date, Miranda saw a woman in the department store taking unspecified merchandise from the racks and putting it into her shopping bag. Miranda then saw another woman, identified as defendant, enter the store through the upper mall door and speak with the first woman. The first woman was identified as Hoag Huynh, defendant's friend and coworker. Huynh laid the merchandise from her shopping bag on the floor and showed the items to defendant. Huynh then gave a long ivory-colored skirt to defendant, who put the skirt into her shopping bag. Miranda testified that the skirt had been for sale at Carson's. Miranda did not see defendant take any merchandise off of the racks or put any other items into her shopping bag. Defendant left the store and Miranda did not see her pay for the skirt.

Miranda then followed defendant around the shopping mall and watched her go into other stores. Defendant was apprehended 30 to 40 minutes later by Miranda, who stated that she took custody of defendant and the items in her possession. Huynh was not with defendant when she was apprehended by Miranda. Carson's employees contacted the Lincolnwood police, who arrived after defendant had been brought to the Carson's security office. The police searched defendant's car and found the skirt there, still inside the shopping bag that defendant had been carrying in Carson's. Miranda testified that Carson's had a videotape recording of the events that had occurred in the store, but that it could not be located for trial.

Miranda testified that defendant told her in English that defendant's friend passed the merchandise to her. Miranda does not speak any Chinese and did not use an interpreter to speak to defendant. Miranda testified that defendant seemed to understand what Miranda was saying to her.

The police arrested both defendant and Huynh and charged them with retail theft. Huynh later pled guilty to the charge. At trial, Huynh testified through a Chinese interpreter that she and defendant were co-workers and that on December 2, 1994, they went to the Lincolnwood mall with a third friend. Huynh stated that she did not see defendant take anything from the store without paying for it. She also testified that she and defendant did not plan together to steal anything from the store, nor did she tell defendant that she was going to steal anything.

Huynh admitted to shoplifting on December 2 but denied that one of the items she stole was a woman's skirt. She claimed that "it was just a nipple for a milk bottle." Over the objection from defense counsel, the trial court instructed the Chinese interpreter not to translate the rest of Huynh's response, stating "She plead [sic ] guilty to shoplifting. What other items she took I'm not concerned about really." Huynh denied giving defendant anything to put in her bag. According to Huynh, defendant paid for the skirt and obtained a receipt. She testified that a police officer took the receipt and told the women that the receipt was not from the same day.

Defendant also testified at trial. When she began her testimony, defendant was asked in English to state her name and spell her last name for the record. She did so. Then, defense counsel requested that defendant testify through a Chinese interpreter so that she may be better understood, and the trial court commented, "Miss Public Defender, we're going to be here until the Fourth of July." Later in her testimony, defendant responded to the question "On December the 2nd, of 1994, did you steal anything from Carson Pirie Scott?" by shaking her head "no." The trial court stated, "She's shaking her head in Chinese, no." Defendant testified that she paid for the skirt before leaving the store.

Defendant stated that after she was stopped in the mall, neither the police, Miranda, nor any other Carson's employee spoke with her. The court responded to this line of questioning by stating, "Nobody speaks Chinese that I know of except this lady. So, the policeman doesn't talk to her in Chinese and neither does anybody from Carson's. So what?"

Defendant acknowledged that she understood what the police meant when they showed her the skirt and asked for the receipt. Defendant told the police, "Friend got receipt." Defendant further testified that she did not know who had the receipt now; her friend told her the police took the receipt.

After both the State and the defense had rested their cases, the trial court called Officer Cahill to testify over defense counsel's objections. Officer Cahill had been present in the courtroom during the entire trial. Officer Cahill testified that he obtained receipts from defendant in the course of his investigation. None of the receipts were for the skirt. The receipts were dated a month prior to her arrest and were from Marshall Field's department store. The receipts themselves were ...

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