{ "id": 5765476, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TEODORO CARMONA-OLVARA, Defendant-Appellant", "name_abbreviation": "People v. Carmona-Olvara", "decision_date": "2005-12-30", "docket_number": "No. 1-04-0693", "first_page": "162", "last_page": "169", "citations": [ { "type": "official", "cite": "363 Ill. App. 3d 162" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "260 Ill. App. 3d 539", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2866581 ], "year": 1994, "pin_cites": [ { "page": "550" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/260/0539-01" ] }, { "cite": "162 Ill. 2d 314", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477550 ], "year": 1994, "pin_cites": [ { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0314-01" ] }, { "cite": "324 Ill. App. 3d 79", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 256301 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "82" }, { "page": "82" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/324/0079-01" ] }, { "cite": "122 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549964 ], "year": 1988, "pin_cites": [ { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0095-01" ] }, { "cite": "372 A.2d 191", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8042387 ], "year": 1977, "pin_cites": [ { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/a2d/372/0191-01" ] }, { "cite": "131 Ariz. 563", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 739646 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "569", "parenthetical": "\"the accuracy of the sworn interpreter's interpretation may be impeached and is ultimately to be determined by the jury.\"" }, { "page": "14", "parenthetical": "\"the accuracy of the sworn interpreter's interpretation may be impeached and is ultimately to be determined by the jury.\"" } ], "opinion_index": 0, "case_paths": [ "/ariz/131/0563-01" ] }, { "cite": "360 F. Supp. 2d 897", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9180562 ], "year": 2005, "pin_cites": [ { "parenthetical": "accuracy of translation is question for trier of fact to decide based on evidence regarding competing translations" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/360/0897-01" ] }, { "cite": "352 F.3d 1", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9294795 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/f3d/352/0001-01" ] }, { "cite": "31 Ill. App. 3d 408", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2713493 ], "year": 1975, "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0408-01" ] }, { "cite": "289 Ill. 490", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4963639 ], "year": 1919, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/ill/289/0490-01" ] }, { "cite": "23 Ill. 11", "category": "reporters:state", "reporter": "Ill.", "weight": 6, "year": 1859, "pin_cites": [ { "page": "22" }, { "page": "22" }, { "page": "22" }, { "page": "22-24" }, { "page": "23" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 859, "char_count": 18377, "ocr_confidence": 0.763, "pagerank": { "raw": 5.578649565477873e-08, "percentile": 0.35029320242222617 }, "sha256": "67cd585564dfac522f6a00b2ccf37a9ebbaec0cbb25aa138c733e150d486d19c", "simhash": "1:ba98c548ff9c0dfc", "word_count": 3085 }, "last_updated": "2023-07-14T18:25:30.372916+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TEODORO CARMONA-OLVARA, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE McNULTY\ndelivered the opinion of the court:\nWe do not often need to look back 150 years for authority to guide our resolution of an appeal, but when an old case provides the best guidance, we will not hesitate to use it. In this case the prosecutor, who charged defendant Teodoro Carmona-Olvara with burglary and arson, introduced into evidence a police officer\u2019s translation of a statement defendant made in Spanish. Defendant sought to introduce evidence that the officer mistranslated the statement. The court disallowed the evidence. The best authority we found for resolving this appeal comes from a case our supreme court decided in 1859. The court held that a defendant in a criminal trial has a right to present evidence that an interpreter mistranslated evidence from a foreign language. Because we find the trial court\u2019s error here prejudiced defendant, we reverse and remand for a new trial.\nBACKGROUND\nAround 1 a.m. on March 10, 2003, Officer Victor Perez arrested defendant near the corner of 30th and Pulaski in Chicago. Police then contacted Juan Luis Reyes Miranda and asked him to identify his car. Reyes found that his car, parked on the 2800 block south on Pulaski, had suffered fire damage. Officers showed Reyes some tools in a police car. Reyes told police that he owned the tools, and he had kept them in his car. Police charged defendant with the arson and burglary of Reyes\u2019s car.\nAt trial the court provided defendant with an interpreter to translate all proceedings into Spanish. The court asked the parties how long they expected the trial to take. The prosecutor thought two hours for the presentation of his case would suffice, so he hoped to complete the entire trial, including jury selection, in a single day. Defense counsel said he had confidence the trial would end no later than the day following its start. The court so informed the venire. Jury selection took the entirety of the first day of trial, and the prosecution began the presentation of its case late the next morning.\nReyes identified photographs showing fire damage to his car and his tools. He did not know defendant and he did not give defendant permission to enter the car. He normally locked his car. He saw no indication of forced entry into the car. His brother, who lived on the 2800 block south on Pulaski, had keys to the car.\nOfficer Perez testified that a little after 1 a.m. on March 10, 2003, he saw someone in Reyes\u2019s car lighting something. He saw defendant exit the car and he saw flames rising in the car. Defendant ran south on Pulaski. Perez\u2019s partner went to the burning car while Perez chased defendant, who never left Perez\u2019s sight between the time he left the car and the arrest. According to Perez, the tools Reyes identified in court fell out of defendant\u2019s jacket when Perez grabbed him. He found more of Reyes\u2019s tools when he frisked defendant. He put all of the tools in the police car and showed them to Reyes.\nOn cross-examination Perez admitted that when he arrested defendant he found no tools for entering locked cars. Perez also admitted that at a preliminary hearing he testified that he saw defendant get out of the car first, and then he saw defendant light something and drop it into the car.\nPerez\u2019s partner corroborated the trial testimony, saying he, too, saw flames before he saw defendant get out of the car. Perez\u2019s partner called the fire department, but he managed to put out the fire before an engine arrived. He saw no signs of forced entry into the car.\nDefendant, who immigrated from Mexico to the United States in 2000, testified that he lived near 32nd and Pulaski. A little before midnight on March 9, 2003, he walked to a gas station at 28th and Pulaski to buy some donuts and juice. On his way home, not far from the gas station, a man robbed him of $380 in cash, but left him his wallet and cell phone. Once the robber left, defendant called police. An officer arrived about 15 minutes later. Defendant told him about the robbery. The officer offered to take defendant home, but defendant chose to walk. The prosecutor stipulated that telephone records showed that defendant called police on his cell phone about an hour before his arrest.\nDefendant testified that when he reached 30th and Pulaski, about midway between the gas station and his home, Perez and his partner arrested him and took him in their patrol car. Defendant had not seen any car burning, he never saw any tools, and he did not take anything from any car on his way home.\nOn cross-examination defendant admitted that he spoke with Perez in Spanish following the arrest. The prosecutor asked:\n\u201c[H]e asked you why did you burn the car. ***\n***\n*** Do you recall telling Officer Perez I don\u2019t know, I just did it?\u201d\nDefendant answered, \u201cI told him I do not know anything.\u201d\nAt the instruction conference at the close of defendant\u2019s case in chief, defense counsel sought an instruction concerning prior inconsistent statements, to direct the jury to consider Perez\u2019s credibility in light of the conflict between his testimony at trial and his testimony at the preliminary hearing. This colloquy followed:\n\u201c[Defense counsel] MR. STAHL: Judge, there is an LEI. *** with regard to prior inconsistent statements that we would ask to be given.\nTHE COURT: Where is it?\nMR. STAHL: I can go and prepare it. I\u2019ve not yet prepared it.\nTHE COURT: We\u2019re going to jury. If you don\u2019t have it now, it\u2019s not going to be given.\nMR. STAHL: I\u2019ll go up and get it.\nTHE COURT: *** It\u2019s almost 4:00. We\u2019re going to finish the case and argue to the jury.\nMR. STAHL: All right, Judge. I\u2019ll write it out.\nTHE COURT: I\u2019m not going to accept it written out. ***\nMR. STAHL: Can I go back to your office and use your computer to print it out?\nTHE COURT: We\u2019re not going to take time to do it. If you don\u2019t have it here now, I am not going to give it.\nMR. STAHL: You won\u2019t wait five minutes?\nTHE COURT: No, I will not wait five minutes, okay?\nMR. STAHL: I\u2019d also like the record to reflect I received the State\u2019s instructions approximately five seconds before the instructions conference began.\nif:\nI would ask the record to reflect we finished the instruction conference at 3:50 p.m..\nTHE COURT: Fine.\u201d\nIn rebuttal Perez said that he asked defendant in Spanish why he started the fire in the car. Perez testified, \u201cHe related to me in Spanish that I don\u2019t know. I just did it.\u201d On cross-examination defense counsel asked Perez to repeat the exact Spanish words defendant used. The transcript shows that Perez spoke in Spanish, and the court reporter did not attempt to transcribe the Spanish. Perez testified that he translated the Spanish as \u201cI don\u2019t know why; I just did it.\u201d Perez did not ask defendant to write out or sign any document reflecting this admission.\nDefendant sought to call an interpreter in surrebuttal. The court disallowed the witness. Counsel made an offer of proof:\n\u201c[In] the context of the Spanish language *** that doesn\u2019t mean I don\u2019t know, but I did it, it just means I don\u2019t know anything\nabout it. So, it would have been a denial ***.\n\u2756 \u2756 *\n*** [I]t\u2019s explaining the meaning of the words. In the trans\u00edation, words are not always translated word for word ***. It\u2019s what they are told in context.\u201d\nThe court reiterated its ruling disallowing the testimony.\nThe jury quickly returned a verdict, finding defendant guilty of burglary and arson. The court completed the trial in the promised two days. In his posttrial motion defendant emphasized the refusal to permit the interpreter to contest Perez\u2019s translation of defendant\u2019s statement and the rejection of the instruction concerning inconsistent testimony. The court denied the motion and sentenced defendant to concurrent three-year terms on the charges.\nANALYSIS\nOn appeal defendant again challenges the court\u2019s decision not to permit an interpreter to contest Perez\u2019s translation of defendant\u2019s statement to him. Our supreme court\u2019s opinion in Schnier v. People, 23 Ill. 11 (1859), guides our consideration of the issue. In Schnier, the principal witness in a prosecution for murder testified through an interpreter because he spoke only German. The witness saw the defendant arguing with the victim and he saw the victim fall with blood running from his nose. The witness asked the defendant what he had done. According to the interpreter, the answer the defendant gave, as the witness reported it, meant: \u201c \u2018the stroke was rather hard, but he was sorry for it.\u2019 \u201d Schnier, 23 Ill. at 22. The trial court permitted the witness to explain, through the interpreter, that the German word the defendant used meant a \u201cblow.\u201d Schnier, 23 Ill. at 22.\nThe defendant sought to introduce testimony from another German speaker that the German answer the witness reported meant, instead, the \u201cfall\u201d was rather hard. Schnier, 23 Ill. at 22. The trial court disallowed the evidence. The jury found the defendant guilty of manslaughter.\nOn appeal our supreme court explained:\n\u201cThe defendant *** offered to prove by a German scholar the meaning of the German word *** as used by accused when speaking to the witness ***.\nThe object of all evidence is to inform the jury or tribunal to whom the issue is submitted, of all the facts in dispute, precisely as they occurred. *** Hence witnesses are required to detail what the parties did and said. And in detailing conversations, or admissions, the rules of evidence require that, as far as practicable, the language employed by the party should be detailed by the witness. *** [I]t is always desirable that the witness shall, as far as possible, detail to the jury the very same language, in precisely the same connection, in which it was employed by the person using it, otherwise, it will necessarily be merely an accident if the jury obtain the sense in\nwhich it was spoken. When the facts, conversations or admissions, admissible in evidence, are known to a person who does not understand and speak the language in which the trial is conducted, then the only means by which the jury or court trying the issue can arrive at the facts, is from the evidence through an interpreter ***. *** [A]n interpreter, if the person employed is not well versed in each language, *** is liable to fail in giving the jury the facts, circumstances, conversations and admissions just as they were detailed by the witness, and if that is not done, the party against. whom the mistake is made must suffer wrong, unless he shall be permitted to call others who are more capable of translating the language accurately. This, we think, is the right of the party. It cannot be the law that because an interpreter is called who is not capable of correctly translating the evidence, or from bias or partiality renders it incorrectly, that parties must be bound by it, although it may affect their most vital and important rights. In this case the witness was permitted to testify as to the sense in which he understood the accused to employ this term, and we can perceive no objection in permitting the accused to introduce evidence of the primary meaning of the word, and its meaning in the connection in which it was used.\u201d Schnier, 23 Ill. at 22-24.\nThe court reversed the conviction and remanded for a new trial at which the defendant could present his evidence of the meaning of the words he spoke in the context in which he used them.\nWhile Illinois courts have not often invoked Schnier, it appears to remain a correct statement of the law. In People v. Laures, 289 Ill. 490, 502 (1919), our supreme court said, \u201cWe agree fully with the reasoning of [Schnier] on th[e] question\u201d of the need to permit the defendant to present evidence that an interpreter mistranslated testimony. And in Seniuta v. Seniuta, 31 Ill. App. 3d 408, 417 (1975), the court cited Schnier for the proposition that \u201cAn interpreter\u2019s account of the answers of a witness need not be literal as long as the answers of the interpreter and the witness amounted to the same thing. [Citations.] There are situations in which he may testify to the sense in which he understands the witness.\u201d\nOther jurisdictions have adopted the principles stated in Schnier. See United States v. Morales-Madera, 352 F.3d 1 (1st Cir. 2003); Kim v. Kim, 360 F. Supp. 2d 897, 901 n.2 (N.D. Ill. 2005) (accuracy of translation is question for trier of fact to decide based on evidence regarding competing translations); State v. Burris, 131 Ariz. 563, 569, 643 P.2d 8, 14 (App. 1982) (\u201cthe accuracy of the sworn interpreter\u2019s interpretation may be impeached and is ultimately to be determined by the jury.\u201d) We follow Schnier here.\nThis case involves a real possibility of \u201cbias or partiality\u201d (Schnier, 23 Ill. at 23) affecting the interpreter\u2019s translation of defendant\u2019s words. Only Officer Perez translated the Spanish defendant spoke to him. As the court stated in Gonzales v. State, 372 A.2d 191, 192 (Del. 1977), \u201cthere is an inherent possibility of bias *** whenever an arresting police officer is called upon to serve as the defendant\u2019s interpreter.\u201d Thus, we hold that the trial court erred by excluding evidence of a competing translation of defendant\u2019s answer to Officer Perez\u2019s question.\nThe prosecution contends that defendant suffered no prejudice from the exclusion of his interpreter\u2019s translation of his response. Perez translated the response as a confession that he \u201cjust did it.\u201d Defendant\u2019s interpreter, according to the offer of proof, translated the same Spanish words as a denial that defendant knew anything about the incident. Confessions carry extreme persuasive weight. People v. St. Pierre, 122 Ill. 2d 95, 114 (1988). The evidence against defendant largely depended on the credibility of Officer Perez\u2019s testimony. Only Perez saw defendant carrying items taken from Reyes\u2019s car. Only Perez claimed to have watched defendant continuously from the time he saw someone lighting something in the car up to the time of the arrest. Neither Perez nor his partner knew defendant before the arrest. We cannot say that the evidence so overwhelmingly favored the prosecution that the exclusion of the alternate translation of defendant\u2019s words had no prejudicial effect. Accordingly, we reverse the judgment of the trial court.\nDefendant argues that we should not remand for a new trial because the prosecution failed to present sufficient evidence to support the convictions. Perez saw defendant in Reyes\u2019s car light something and get out of the car. He never lost sight of defendant as he ran from the car down the street. When Perez arrested defendant, Perez found several of Reyes\u2019s tools in defendant\u2019s possession. According to Perez, defendant confessed to setting the fire in Reyes\u2019s car. Reyes testified that he did not give defendant permission to enter his car or to take his tools or to set fire to the car. While the lack of any indication of forced entry casts some doubt on the proof of burglary, we find Perez\u2019s testimony sufficient to sustain the convictions. Therefore we remand for retrial on both charges.\nOn remand we expect that defendant will again request an instruction on prior inconsistent statements based on the conflict between Perez\u2019s testimony at the preliminary hearing and his testimony at trial. No matter what Perez says at the retrial, his testimony will conflict with either the testimony at the preliminary hearing or the testimony at the original trial. At the hearing Perez said he saw defendant get out of the car, light something on fire, and drop the flaming object into the car. At trial Perez said instead that defendant, sitting in the passenger seat of the car, lit a fire and then got out of the car.\nThis court recently restated the principles applicable for instructing the juror on prior inconsistent statements.\n\u201cThe pattern jury instruction regarding inconsistent statements is appropriately given when two statements are inconsistent on a material matter. [Citation.] *** [T]he materiality of the prior inconsistent statement is an issue for the trial court to determine. *** [A]n issue is material when the contradiction reasonably tends to discredit the testimony of the witness on such facts.\u201d People v. Eggert, 324 Ill. App. 3d 79, 82 (2001).\nIn this case, as in Eggert, the trial court made no determination concerning the materiality of the inconsistency in the testimony. The court\u2019s comments on the record show that the court refused the instruction because defense counsel did not have a copy prepared for inclusion with the prosecution\u2019s instructions, and the court refused to wait five minutes for a printed copy, and the court would not accept a handwritten copy of the instruction.\nThe inconsistency between Perez\u2019s testimony at trial and his testimony at the preliminary hearing affected the credibility of his testimony that he saw defendant set the car on fire. Particularly under the circumstances of this case, where the evidence against defendant depended on the credibility of Perez\u2019s testimony, the court should have instructed the jury on the effect of prior inconsistent statements. See Eggert, 324 Ill. App. 3d at 82.\nFinally, we note that the court refused the instruction and disallowed the interpreter\u2019s testimony apparently out of concern for the jurors\u2019 time. While jurors\u2019 inconvenience may warrant exclusion of evidence in some instances (see People v. Cruz, 162 Ill. 2d 314, 348 (1994)), the trial court must not lose sight of its obligation to provide the defendant a fair trial (see People v. McKinney, 260 Ill. App. 3d 539, 550 (1994)). The court here excluded highly relevant evidence of a conflicting translation of defendant\u2019s words, even though presentation of the evidence probably would have taken little time. We recognize the need to conserve time on a crowded docket, but we find that the exclusion of the evidence at issue demands reversal. Accordingly, we reverse and remand for a new trial.\nReversed and remanded.\nTULLY and O\u2019MALLEY, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE McNULTY" } ], "attorneys": [ "Carli D. Fish, Theodore W. Pannkoke, and Maya Hoffman, all of Cozen O\u2019Connor, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Janet C. Mahoney, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TEODORO CARMONA-OLVARA, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1-04-0693\nOpinion filed December 30, 2005.\nCarli D. Fish, Theodore W. Pannkoke, and Maya Hoffman, all of Cozen O\u2019Connor, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Janet C. Mahoney, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0162-01", "first_page_order": 180, "last_page_order": 187 }