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                                                                                                        SIXTH DIVISION

                                                                                                        December 30, 2005

No. 1-04-0693

THE PEOPLE OF THE STATE OF ILLINOIS,    )            Appeal from the

                                                                                  )            Circuit Court of

Plaintiff-Appellee,                                                   )            Cook County

                                                                                  )

v.                                                                               )
                                                                                  )

TEODORO CARMONA-OLVARA,                      )            Honorable

                                                                                 )            Michael P. Toomin,

Defendant-Appellant.                                             )           Judge Presiding

PRESIDING JUSTICE MCNULTY delivered the opinion of thecourt:

We do not often need to look back 150 years for authority toguide our resolution of an appeal, but when an old case providesthe best guidance, we will not hesitate to use it. In this casethe prosecutor, who charged defendant Teodoro Carmona-Olvara withburglary and arson, introduced into evidence a police officer'stranslation of a statement defendant made in Spanish. Defendantsought to introduce evidence that the officer mistranslated thestatement. The court disallowed the evidence. The bestauthority we found for resolving this appeal comes from a caseour supreme court decided in 1859. The court held that adefendant in a criminal trial has a right to present evidencethat an interpreter mistranslated evidence from a foreignlanguage. Because we find the trial court's error hereprejudiced defendant, we reverse and remand for a new trial.

BACKGROUND

Around 1 a.m. on March 10, 2003, Officer Victor Perezarrested defendant near the corner of 30th and Pulaski inChicago. Police then contacted Juan Luis Reyes Miranda and askedhim to identify his car. Reyes found that his car, parked on the2800 block south on Pulaski, had suffered fire damage. Officersshowed Reyes some tools in a police car. Reyes told police thathe owned the tools, and he had kept them in his car. Policecharged defendant with the arson and burglary of Reyes's car.

At trial the court provided defendant with an interpreter totranslate all proceedings into Spanish. The court asked theparties how long they expected the trial to take. The prosecutorthought two hours for the presentation of his case would suffice,so he hoped to complete the entire trial, including juryselection, in a single day. Defense counsel said he hadconfidence the trial would end no later than the day followingits start. The court so informed the venire. Jury selectiontook the entirety of the first day of trial, and the prosecutionbegan the presentation of its case late the next morning.

Reyes identified photographs showing fire damage to his carand his tools. He did not know defendant and he did not givedefendant permission to enter the car. He normally locked hiscar. He saw no indication of forced entry into the car. Hisbrother, who lived on the 2800 block south on Pulaski, had keysto the car.

Officer Perez testified that a little after 1 a.m. on March10, 2003, he saw someone in Reyes's car lighting something. Hesaw defendant exit the car and he saw flames rising in the car. Defendant ran south on Pulaski. Perez's partner went to theburning car while Perez chased defendant, who never left Perez'ssight between the time he left the car and the arrest. Accordingto Perez, the tools Reyes identified in court fell out ofdefendant's jacket when Perez grabbed him. He found more ofReyes's tools when he frisked defendant. He put all of the toolsin the police car and showed them to Reyes.

On cross-examination Perez admitted that when he arresteddefendant he found no tools for entering locked cars. Perez alsoadmitted that at a preliminary hearing he testified that he sawdefendant get out of the car first, and then he saw defendantlight something and drop it into the car.

Perez's partner corroborated the trial testimony, saying he,too, saw flames before he saw defendant get out of the car. Perez's partner called the fire department, but he managed to putout the fire before an engine arrived. He saw no signs of forcedentry into the car.

Defendant, who immigrated from Mexico to the United Statesin 2000, testified that he lived near 32nd and Pulaski. A littlebefore midnight on March 9, 2003, he walked to a gas station at28th 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 minuteslater. Defendant told him about the robbery. The officeroffered to take defendant home, but defendant chose to walk. Theprosecutor stipulated that telephone records showed thatdefendant called police on his cell phone about an hour beforehis arrest.

Defendant testified that when he reached 30th and Pulaski,about midway between the gas station and his home, Perez and hispartner arrested him and took him in their patrol car. Defendanthad not seen any car burning, he never saw any tools, and he didnot take anything from any car on his way home.

On cross-examination defendant admitted that he spoke withPerez in Spanish following the arrest. The prosecutor asked:

"[H]e asked you why did you burn the car. ***

***

*** Do you recall telling Officer Perez I don'tknow, I just did it?"

Defendant answered, "I told him I do not know anything."

At the instruction conference at the close of defendant'scase in chief, defense counsel sought an instruction concerningprior inconsistent statements, to direct the jury to considerPerez's credibility in light of the conflict between histestimony at trial and his testimony at the preliminary hearing. This colloquy followed:

"[Defense counsel] MR. STAHL: Judge, there is anI.P.I. *** with regard to prior inconsistent statementsthat we would ask to be given.

THE COURT: Where is it?

MR. STAHL: I can go and prepare it. I've not yetprepared it.

THE COURT: We're going to jury. If you don'thave it now, it's not going to be given.

MR. STAHL: I'll go up and get it.

THE COURT: *** It's almost 4:00. We're going tofinish the case and argue to the jury.

MR. STAHL: All right, Judge. I'll write it out.

THE COURT: I'm not going to accept it writtenout. ***

MR. STAHL: Can I go back to your office and useyour computer to print it out?

THE COURT: We're not going to take time to do it. If you don't have it here now, I am not going to giveit.

MR. STAHL: You won't wait five minutes?

THE COURT: No, I will not wait five minutes, okay?

* * *

MR. STAHL: I'd also like the record to reflect Ireceived the State's instructions approximately fiveseconds before the instructions conference began.

* * *

*** I would ask the record to reflect we finishedthe instruction conference at 3:50 p.m..

THE COURT: Fine."

In rebuttal Perez said that he asked defendant in Spanishwhy he started the fire in the car. Perez testified, "He relatedto me in Spanish that I don't know. I just did it." On cross-examination defense counsel asked Perez to repeat the exactSpanish words defendant used. The transcript shows that Perezspoke in Spanish, and the court reporter did not attempt totranscribe the Spanish. Perez testified that he translated theSpanish as "I don't know why; I just did it." Perez did not askdefendant to write out or sign any document reflecting thisadmission.

Defendant sought to call an interpreter in surrebuttal. Thecourt disallowed the witness. Counsel made an offer of proof:

"[In] the context of the Spanish language *** thatdoesn't mean I don't know, but I did it, it just meansI don't know anything about it. So, it would have beena denial ***.

* * *

*** [I]t's explaining the meaning of the words. In the translation, words are not always translatedword for word ***. It's what they are told incontext."

The court reiterated its ruling disallowing the testimony.

The jury quickly returned a verdict, finding defendantguilty of burglary and arson. The court completed the trial inthe promised two days. In his posttrial motion defendantemphasized the refusal to permit the interpreter to contestPerez's translation of defendant's statement and the rejection ofthe instruction concerning inconsistent testimony. The courtdenied the motion and sentenced defendant to concurrent three-year terms on the charges.

ANALYSIS

On appeal defendant again challenges the court's decisionnot to permit an interpreter to contest Perez's translation ofdefendant's statement to him. Our supreme court's opinion inSchnier v. People, 23 Ill. 17 (1859), guides our consideration ofthe issue. In Schnier, the principal witness in a prosecutionfor murder testified through an interpreter because he spoke onlyGerman. The witness saw the defendant arguing with the victimand he saw the victim fall with blood running from his nose. Thewitness asked the defendant what he had done. According to theinterpreter, the answer the defendant gave, as the witnessreported it, meant: "the stroke was rather hard, but he was sorryfor it." Schnier, 23 Ill. at 18. The trial court permitted thewitness to explain, through the interpreter, that the German wordthe defendant used meant a "blow." Schnier, 23 Ill. at 18.

The defendant sought to introduce testimony from anotherGerman speaker that the German answer the witness reported meant,instead, the "fall" was rather hard. (Emphasis omitted.) Schnier,23 Ill. at 19. The trial court disallowed the evidence. Thejury found the defendant guilty of manslaughter.

On appeal our supreme court explained:

"The defendant *** offered to prove by a German scholarthe meaning of the German word *** as used by accusedwhen speaking to the witness ***.

The object of all evidence is to inform the juryor tribunal to whom the issue is submitted, of all thefacts in dispute, precisely as they occurred. *** Hencewitnesses are required to detail what the parties didand said. And in detailing conversations, oradmissions, the rules of evidence require that as faras practicable the language employed by the party,should be detailed by the witness. *** [I]t is alwaysdesirable that the witness shall as far as possibledetail to the jury the very same language, in preciselythe same connection, in which it was employed by theperson using it, otherwise, it will necessarily bemerely an accident if the jury obtain the sense inwhich it was spoken. When the facts, conversations oradmissions, admissible in evidence, are known to aperson who does not understand and speak the languagein which the trial is conducted, then the only means bywhich the jury or court trying the issue can arrive atthe facts, is from the evidence through an interpreter***. *** [A]n interpreter, if the person employed isnot well versed in each language, *** is liable to failin giving the jury the facts, circumstances,conversations and admissions just as they were detailedby the witness, and if that is not done, the partyagainst whom the mistake is made must suffer wrong,unless he shall be permitted to call others who aremore capable of translating the language accurately.This we think is the right of the party. It cannot bethe law that because an interpreter is called who isnot capable of correctly translating the evidence, orfrom bias or partiality renders it incorrectly, thatparties must be bound by it although it may affecttheir most vital and important rights. In this case thewitness was permitted to testify as to the sense inwhich he understood the accused to employ this term,and we can perceive no objection in permitting theaccused to introduce evidence of the primary meaning ofthe word, and its meaning in the connection in which itwas used." Schnier, 23 Ill. at 27-28.

The court reversed the conviction and remanded for a new trial atwhich the defendant could present his evidence of the meaning ofthe words he spoke in the context in which he used them.

While Illinois courts have not often invoked Schnier, itappears to remain a correct statement of the law. In People v.Laures, 289 Ill. 490, 502 (1919) our supreme court said, "Weagree fully with the reasoning of [Schnier] on th[e] question" ofthe need to permit the defendant to present evidence that aninterpreter mistranslated testimony. And in Seniuta v. Seniuta,31 Ill. App. 3d 408, 417 (1975), the court cited Schnier for theproposition that "An interpreter's account of the answers of awitness need not be literal as long as the answers of theinterpreter and the witness amounted to the same thing.[Citations.] There are situations in which he may testify to thesense in which he understands the witness."

Other jurisdictions have adopted the principles stated inSchnier. See United States v. Morales-Madera, 352 F.3d 1 (1stCir. 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 todecide based on evidence regarding competing translations); Statev. Burris, 131 Ariz. 563, 569, 643 P.2d 8, 14 (Ariz. App. 1982)("the accuracy of the sworn interpreter's interpretation may beimpeached and is ultimately to be determined by the jury.") Wefollow Schnier here.

This case involves a real possibility of "bias orpartiality" (Schnier, 23 Ill. at 28) affecting the interpreter'stranslation of defendant's words. Only Officer Perez translatedthe Spanish defendant spoke to him. As the court stated inGonzales v. State, 372 A.2d 191, 192 (Del. 1977), "there is aninherent possibility of bias *** whenever an arresting policeofficer is called upon to serve as the defendant's interpreter." Thus, we hold that the trial court erred by excluding evidence ofa competing translation of defendant's answer to Officer Perez'squestion.

The prosecution contends that defendant suffered noprejudice from the exclusion of his interpreter's translation ofhis response. Perez translated the response as a confession thathe "just did it." Defendant's interpreter, according to theoffer of proof, translated the same Spanish words as a denialthat defendant knew anything about the incident. Confessionscarry extreme persuasive weight. People v. St. Pierre, 122 Ill.2d 95, 114 (1988). The evidence against defendant largelydepended on the credibility of Officer Perez's testimony. OnlyPerez saw defendant carrying items taken from Reyes's car. OnlyPerez claimed to have watched defendant continuously from thetime he saw someone lighting something in the car up to the timeof the arrest. Neither Perez nor his partner knew defendantbefore the arrest. We cannot say that the evidence sooverwhelmingly favored the prosecution that the exclusion of thealternate translation of defendant's words had no prejudicialeffect. Accordingly, we reverse the judgment of the trial court.

Defendant argues that we should not remand for a new trialbecause the prosecution failed to present sufficient evidence tosupport the convictions. Perez saw defendant in Reyes's carlight something and get out of the car. He never lost sight ofdefendant as he ran from the car down the street. When Perezarrested defendant, Perez found several of Reyes's tools indefendant's possession. According to Perez, defendant confessedto setting the fire in Reyes's car. Reyes testified that he didnot give defendant permission to enter his car or to take histools or to set fire to the car. While the lack of anyindication of forced entry casts some doubt on the proof ofburglary, we find Perez's testimony sufficient to sustain theconvictions. Therefore we remand for retrial on both charges.

On remand we expect that defendant will again request aninstruction on prior inconsistent statements based on theconflict between Perez's testimony at the preliminary hearing andhis testimony at trial. No matter what Perez says at theretrial, his testimony will conflict with either the testimony atthe 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 thecar. At trial Perez said instead that defendant, sitting in thepassenger seat of the car, lit a fire and then got out of thecar.

This court recently restated the principles applicable forinstructing the juror on prior inconsistent statements.

"The pattern jury instruction regarding inconsistentstatements is appropriately given when two statementsare inconsistent on a material matter. [Citation.] *** [T]he materiality of the prior inconsistentstatement is an issue for the trial court to determine.*** [A]n issue is material when the contradictionreasonably tends to discredit the testimony of thewitness on such facts." People v. Eggert, 324 Ill.App. 3d 79, 82 (2001).

In this case, as in Eggert, the trial court made nodetermination concerning the materiality of the inconsistency inthe testimony. The court's comments on the record show that thecourt refused the instruction because defense counsel did nothave a copy prepared for inclusion with the prosecution'sinstructions, and the court refused to wait five minutes for aprinted copy, and the court would not accept a handwritten copyof the instruction.

The inconsistency between Perez's testimony at trial and histestimony at the preliminary hearing affected the credibility ofhis testimony that he saw defendant set the car on fire. Particularly under the circumstances of this case, where theevidence against defendant depended on the credibility of Perez'stestimony, the court should have instructed the jury on theeffect of prior inconsistent statements. See Eggert, 324 Ill.App. 3d at 82.

Finally, we note that the court refused the instruction anddisallowed the interpreter's testimony apparently out of concernfor the jurors' time. While jurors' inconvenience may warrantexclusion of evidence in some instances (see People v. Cruz, 162Ill. 2d 314, 348 (1994)), the trial court must not lose sight ofits obligation to provide the defendant a fair trial (see Peoplev. McKinney, 260 Ill. App. 3d 539, 550 (1994)). The court hereexcluded highly relevant evidence of a conflicting translation ofdefendant's words, even though presentation of the evidenceprobably would have taken little time. We recognize the need toconserve time on a crowded docket, but we find that the exclusionof the evidence at issue demands reversal. Accordingly, wereverse and remand for a new trial.

Reversed and remanded.

TULLY and O'MALLEY, JJ., concur.