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    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODOLFO CASTRO, Defendant-Appellant."
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        "text": "JUSTICE LORENZ\ndelivered the opinion of the court:\nFollowing a jury trial, defendant Rodolfo Castro was convicted of theft (Ill. Rev. Stat. 1975, ch. 38, par. 16 \u2014 1(a)(1)) and sentenced to 18 months\u2019 probation.\nOn appeal he contends that: (1) he was denied a fair trial by the prosecutor\u2019s improper cross-examination concerning his use of an interpreter and ability to speak English; (2) the trial court erred in denying defendant\u2019s IPI jury instruction on prior inconsistent statements and prior inconsistent conduct; (3) the theft count upon which he was convicted was fatally defective; (4) his right to a speedy trial was violated; and (5) his conviction for felony theft was improper where there was insufficient proof that the stolen snowblower was worth over $150.\nThe following pertinent evidence was adduced at trial.\nJohn Andrews testified for the State that on June 25, 1980, he owned a storefront used for storing equipment at 1342 North Western Avenue in Chicago, Illinois. At approximately 2 a.m., a police officer came over to his residence, woke him, and informed him that his storefront had been burglarized. He accompanied the police to the storefront where he observed that the front door had been forced open and shattered, and the inside had been ransacked.\nAndrews identified a snowblower and a bicycle recovered by the police as belonging to him. He testified that he had bought the snow-blower used for $300 although it would probably cost $600 new. He had used it for five years and it had a broken handle.\nOfficer Oscar Martinez testified for the State that he and his partner, Officer Jose Salazar, were patrolling southbound on Western Avenue on June 25, 1980, at about 1:45 a.m., when he saw three individuals run across Western Avenue carrying objects, including a snowblower and a bicycle. The officers proceeded to block defendant, who was holding the snowblower, with the squad car whereupon defendant let go of it and began to run away from them. Officer Salazar got out of the squad car and grabbed defendant about 10 feet from the car; however, Officer Martinez was unable to apprehend either of the other men.\nMartinez further testified that shortly after his arrest, defendant stated that he was \u201chelping one of the other individuals move some stuff,\u201d while in custody at the 13th District police station. Upon cross-examination, Martinez stated that he did not include this statement in the police report.\nHe further testified in response to cross-examination:\n\u201cQ. You had occasion to speak to me yesterday in the hallway right over there, isn\u2019t that correct?\nA. Yes.\nQ. And the State\u2019s Attorney, Mr. Kopec, was there, at that time?\nA. Yes.\nQ. I asked you if Rodolfo Castro made any statements to you on the evening he was arrested?\nA. Yes.\nQ. You told me he didn\u2019t, is that correct?\nA. I told you I did not remember.\u201d\nOfficer Jose Salazar testified for the State that he had caught the defendant 10 to 15 feet from the squad car, and when he asked the defendant what he was doing, defendant responded, \u201cNothing,\u201d in English.\nDefendant testified on his own behalf through an interpreter that he was 21 years old at the time of trial and had lived in Chicago for the past five or six years. He had come to the United States at the age of six or seven; had returned to Mexico for five years at one time; and currently was working as a waiter at the Knickerbocker Hotel in downtown Chicago. He stated that he spoke mostly Spanish at home although he spoke English at work, which he understood better than he could speak.\nHe further testified that on June 25, 1980, at 1:45 a.m., he was walking alone on Western Avenue toward a bar to buy some drinks to take home. He saw a machine in the middle of the street and was pulling it towards the sidewalk when the police arrived. At that time, he turned and saw \u201cmany guys\u201d running behind him.\nAlthough he was running a little due to traffic on Western Avenue, he had let go of the machine and was standing still when the police arrived. He further stated that he did not tell the police that he was helping a friend.\nUpon cross-examination, the prosecutor questioned him regarding his ability to speak English instead of Spanish. Illustrative of this questioning was the following dialogue:\n\u201cQ. Well, if I ask you questions in English, can you answer [them] in English without using the interpreter ***?\nA. Yeah, well, I can answer you, but I didn\u2019t talk real good English.\nQ. Will you try and answer my question. If you can\u2019t, we will use the interpreter.\nA. I feel better with the interpreter so that way I can say everything that I want to say.\nOTHER PROSECUTOR: Judge, ask to continue in English and if the defendant has any problem, he has the assistance of the interpreter.\nTHE COURT: Yeah. I will let you question and if he doesn\u2019t understand, he can have it repeated and be translated.\nPUBLIC DEFENDER: Judge, I would object.\nTHE COURT: Objection overruled.\n(Whereupon the [subsequent] answers by the defendant were answered in English.)\u201d\nOn redirect examination, defendant said he preferred to return to Spanish testimony. During closing argument the prosecutor \u201casked the jury to remember\u201d that defendant spoke Spanish all during trial but that it \u201cbecame obvious\u201d that he spoke English \u201cprobably as well as I speak if not better.\u201d\nThe record further discloses that, subsequent to defendant\u2019s arrest on June 26, 1980, a preliminary hearing was held on July 21, 1980, wherein he was charged by a one-count information with burglary. On November 11, 1980, defendant made his first demand for trial. Jury selection for trial commenced on February 3,1981.\nOn that day the court allowed the filing of an additional count against the defendant alleging theft of the snowblower, over the defendant\u2019s objection. This second count did not state the name of the defendant as the accused, and was not verified or sworn to by the State\u2019s Attorney\u2019s office.\nDefendant\u2019s motion to dismiss the theft count, motion for a new trial, and motion in arrest of judgment were all subsequently denied.\nOpinion\nWe first consider defendant\u2019s contention that he was denied a fair trial by the prosecutor\u2019s cross-examination concerning his use of an interpreter and ability to speak English.\nWe note that pursuant to statute (Ill. Rev. Stat. 1971, ch. 38, pars. 165 \u2014 11, 165 \u2014 12; and ch. 51, par. 47) an interpreter may be sworn to interpret when necessary, although the calling of an interpreter is normally within the discretion of the trial court. People v. Soldat (1965), 32 Ill. 2d 478, 481, 207 N.E.2d 449.\nIn the present case, the defendant was assisted by an interpreter throughout most of his testimony. We think that, although an interpreter was appointed, the record demonstrates that defendant was nonetheless sufficiently conversant with the English language to understand and make responses in English. Defendant used English understandingly a number of times in testifying and in his initial conversation with the Latino police officer at the time of his arrest.\nWhile we are of the opinion that the prosecutor placed undue attention upon the issue of defendant\u2019s ability to speak English, the record refutes defendant\u2019s claim that he was deprived of a basic right, or was denied a fair trial thereby. There is no indication of record that defendant was either not personally understandable, comprehensible or intelligible (see People v. Bragg (1979), 68 Ill. App. 3d 622, 630, 386 N.E.2d 485), or was forced to answer questions which he did not understand.\nThe law in Illinois is that even where the trial judge has committed error, such error will not require reversal unless the defendant has been prejudiced or the outcome of the trial unduly influenced. Appellate court review is intended to seek out prejudicial error and is not intended to determine whether the record is totally devoid of error. People v. Scarpelli (1980), 82 Ill. App. 3d 689, 402 N.E.2d 915, cert. denied (1981), 450 U.S. 915, 67 L. Ed. 2d 340,101 S. Ct. 1357.\nWe therefore reject defendant\u2019s argument that the prosecutor\u2019s cross-examination of defendant in English was improper and prejudiced his right to a fair trial by allegedly forcing him to answer trick questions.\nDefendant also claims that the trial court erred in refusing his tendered instruction regarding prior inconsistent statements and conduct pertaining to Officer Martinez\u2019s testimony.\nIt is clear in Illinois that it is the responsibility of the trier of fact \u201cto determine the credibility of the witnesses, the weight to be given to their testimony and the inferences to be drawn from the evidence. [Citations.] Where the evidence is merely conflicting a court of review will not substitute its judgment for that of the trier of fact. [Citations.]\u201d People v. Searpelli (1980), 82 Ill. App. 3d 689, 698, 402 N.E.2d 915, cert. denied (1981), 450 U.S. 915, 67 L. Ed. 2d 340, 101 S. Ct. 1357.\nWith respect to prior inconsistent statements, a witness may be cross-examined as to prior statements which are repugnant or inconsistent with his testimony at trial, but the inconsistency must relate to material and not collateral or irrelevant matters. O\u2019Brien v. Walker (1977), 49 Ill. App. 3d 940, 364 N.E.2d 533.\nThe test of whether the prior statement is sufficiently inconsistent to permit its utilization is that the \u201cstatement must have a reasonable tendency to discredit the direct testimony on a material matter.\u201d (People v. Burgin (1979), 74 Ill. App. 3d 58, 73, 392 N.E.2d 251, citing People v. Curtis (1977), 48 Ill. App. 3d 375, 386, 362 N.E.2d 1319.) Materiality lies within the discretion of the trial court. People v. Svoboda (1979), 75 Ill. App. 3d 487, 394 N.E.2d 72.\nThe record of the instant case discloses that the officer\u2019s testimony with respect to defendant\u2019s purported statement that he was \u201chelping one of the other persons move the stuff,\u201d where he did not earlier remember or record such statement in the police report, was merely collateral to the issue of defendant\u2019s guilt or innocence for the offense charged.\nSince we are of the opinion that whether or not defendant uttered such a statement is patently immaterial, we find that the trial court properly ruled by refusing to give the tendered instruction on prior inconsistent statements and conduct.\nDefendant next contends that the theft count upon which he was convicted was fatally defective in the following specifics: (1) it fails to state the name of the accused; (2) it is not signed or verified by the State\u2019s Attorney\u2019s office; and (3) it fails to set forth the nature and elements of the offense charged.\nAs to the latter contention, we note that the supreme court has specifically held that the element of knowledge can be charged \u201c \u2018either in the language of the statute or in other appropriate words.\u2019 \u201d People v. Shelton (1969), 42 Ill. 2d 490, 494, 248 N.E.2d 65.\nHere, the count in issue charged that defendant \u201ccommitted the offense of theft in that he exerted unauthorized control over the property (Toro snowblower) of the owner, Mr. John Andrews, intending to deprive [him] permanently of the use or benefit of the property, which was valued in excess of $150 in violation of chapter 38, section 16\u2014 1(a)(1) Ill. Rev. Stat. ***.\u201d\nIn People v. Wilson (1973), 10 Ill. App. 3d 48, 294 N.E.2d 1, we held that a theft charge which alleges that a defendant obtained unauthorized control of specific property with intent to deprive the owner permanently of its use and benefit is not rendered fatally defective for omission of the word \u201cknowingly.\u201d\nIn accordance with these principles, we find that the failure to include the word \u201cknowingly\u201d in count 2 charging theft does not render this charge fatally defective.\nWe are also not persuaded by defendant\u2019s argument that count 2 was fatally defective because it was not verified by the State\u2019s Attorney\u2019s office and failed to state the name of the accused.\nWhile the authority cited by defendant indicates that an amendment to an information which charges an offense separate and distinct from that charged in the original information must be re-verified (People v. Moore (1959), 21 Ill. App. 2d 9, 157 N.E.2d 94), we find the cases cited inapplicable to the case at bar where the defendant did not object to the lack of verification until after the defense had rested its case.\nThe supreme court has consistently held that a sworn or verified complaint is not a jurisdictional prerequisite to the prosecution of a criminal offense and may be waived by a plea of guilty or by proceeding to trial without objection. People v. Bradford (1975), 62 Ill. 2d 21, 338 N.E.2d 182; People v. Harding (1966), 34 Ill. 2d 475, 216 N.E.2d 147; People v. Billow (1941), 377 Ill. 236, 36 N.E.2d 339.\nHere, an examination of the record shows that although defendant made several motions to dismiss count 2 prior to trial, he did not specifically object to the lack of verification until after proceeding to trial on all charges. Accordingly, we conclude that defendant has waived the verification issue for the purpose of this appeal.\nSimilarly, we do not find that the omission of defendant\u2019s name on count 2 renders it fatally defective where the name of the accused was stated on the first count and where the second count for theft was added in open court.\nIt is the policy of our modern courts to disregard mere technical objections and require only that the indictment state the essential elements of the offense (People v. Ballard (1978), 65 Ill. App. 3d 831, 382 N.E.2d 800, cert. denied (1979), 444 U.S. 925, 62 L. Ed. 2d 180, 100 S. Ct. 262), and we do not find any showing that defendant was prejudiced by this omission.\nConsequently, we conclude that the theft count upon which the defendant was convicted is not fatally defective under section 111 \u2014 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 111-3).\nDefendant also urges us that his right to a speedy trial under section 103 \u2014 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 103 \u2014 5) was violated with respect to the theft count, which was filed over seven months after his arrest and over six months after the original information charging burglary was filed.\nWe are not persuaded by the cases cited by defendant which hold that trial must commence within 120 days from the date an accused is taken into custody, where, as here, the defendant was not in custody but was out on bond prior to trial.\nThe pertinent provision applicable to the instant case is, instead, section 103 \u2014 5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 103 \u2014 5(b)), which provides: \u201c(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant ***.\u201d (Emphasis added.)\nThe record discloses that defendant made his first of three demands for trial on November 12, 1980, and that trial commenced on February 3, 1981, or 83 days after his first demand for trial had been made.\nWhile the defendant persistently argues that the State waited over seven months before filing the theft count on the date that trial commenced on February 3, 1981, this does not bear upon the clear mandate of section 103 \u2014 5(b) which requires that we direct our examination only to the time elapsed between defendant\u2019s demand and subsequent trial.\nWe conclude, therefore, that the defendant\u2019s right to a speedy trial was not violated.\nWe finally consider defendant\u2019s contention that there was insufficient proof of the value of the snowblower to warrant a felony conviction. The owner of the snowblower in the case at bar testified that he had bought it used five years earlier for $300, although it probably cost $600 new, and that it had a broken handle.\nTo sustain a felony conviction for theft, rather than a misdemeanor, the value of the stolen property must be proven to be in excess of $150. Ill. Rev. Stat. 1975, ch. 38, par 16 \u2014 1(e)(3).\nAs the court in People v. Brown (1976), 36 Ill. App. 3d 416, 421, 343 N.E.2d 700, stated: \u201cThe criterion used in determining value in theft cases is the fair cash market value at the time and place of the theft. [Citations.] Cost is not the standard, whether it be original cost or replacement cost. [Citations.]\u201d\nIn the present case, the record discloses that the snowblower was used for five years subsequent to purchase and had a broken handle. Moreover, none of the questions propounded to the complainant related to fair cash market value, but instead concerned the actual price paid and speculation as to its retail value if purchased new five years earlier.\nWith these factors in mind, we are of the opinion that the evidence of value presented was not sufficient to support a conviction for felony theft.\nWe therefore reduce the degree of the offense for which defendant was convicted to theft of property not- exceeding $150 in value, pursuant to Supreme Court Rule 615(b)(3) (73 Ill. 2d R. 615 (b)(3)) and remand the cause to the circuit court of Cook County for resentencing.\nJudgment of guilty affirmed; conviction reduced to theft of property not exceeding $150 in value; cause remanded for resentencing.\nAffirmed in part; reversed in part; remanded for further proceedings.\nSULLIVAN, P. J., and WILSON, J., concur.",
        "type": "majority",
        "author": "JUSTICE LORENZ"
      }
    ],
    "attorneys": [
      "Steven Clark and Gordon H. Berry, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.",
      "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Kevin D. Sweeney, and Daniel E. Jordan, Assistant State's Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODOLFO CASTRO, Defendant-Appellant.\nFirst District (5th Division)\nNo. 81\u2014548\nOpinion filed September 24, 1982.\nSteven Clark and Gordon H. Berry, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Kevin D. Sweeney, and Daniel E. Jordan, Assistant State's Attorneys, of counsel), for the People."
  },
  "file_name": "0561-01",
  "first_page_order": 583,
  "last_page_order": 591
}
