People v. Gorga ( 2009 )

Second Division
Filed: December 8, 2009
No. 1-08-1470
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY
)
v. ) No. 07 CR 17397
)
EMILIO GORGA, ) HONORABLE
) SHARON M. SULLIVAN,
Defendant-Appellant. ) JUDGE PRESIDING.
JUSTICE HOFFMAN delivered the opinion of the court:
Following a bench trial, the defendant, Emilio Gorga, was
found guilty of robbery and sentenced to 8 1/2 years’
incarceration. The defendant now appeals and requests that we
reverse his conviction and grant him a new trial, contending that
the trial court erred 1) when it refused his request to represent
himself and 2) when it allowed an ineffective interpreter to
participate in the trial proceedings. For the reasons which
follow, we affirm.
On August 9, 2007, at approximately 7:25 p.m., Vincent Ramirez
was waiting for a bus when two men approached him. One of the
men, who was later identified as the defendant, was of Hispanic
descent. The other individual, subsequently identified as the co-
No. 1-08-1470
defendant, Alpha Traore, was an African American. The men pushed
Ramirez against the wall of a viaduct and started going through his
pockets. According to Ramirez, Traore took $23 from his wallet.
After the defendant returned Ramirez’s wallet and cell phone, the
men fled.
At the time of the robbery, Jose Luque was driving in the
vicinity. When he observed the incident, he got out of his car and
watched from a distance of about five or six feet. After the
robbers fled, Luque approached Ramirez and signaled two uniformed
police officers, Kurt Catalan and Steve Chon, who were driving in
a passing police car.
Ramirez told the officers that he had just been robbed and
that during the robbery he felt a hard object which he thought was
a gun. Ramirez got into the police car and drove with the officers
in the direction that the robbers had fled. Luque followed in his
own vehicle. After traveling several blocks, Ramirez saw the men
who had robbed him walking down the street. At that time, the
police took the defendant and Traore into custody. Once the men
were in custody, both Ramirez and Luque identified the defendant
and Traore as the two individuals who had robbed Ramirez. When
arrested, Traore was in possession of $20, and the defendant had a
toy gun.
Initially, the defendant asserted that he had done nothing.
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However, it was stipulated that, if called, Detective Hillman would
testify that, after he advised the defendant of his constitutional
rights, the defendant told him that it was Traore’s idea to find
someone to rob because they were broke and that he just stood by
and watched Traore rob Ramirez. The defendant and Traore were
charged with aggravated robbery.
The defendant waived his right to a jury trial, and a bench
trial commenced on January 24, 2008. The defendant was represented
by an assistant public defender, and the trial court appointed a
Spanish language interpreter to assist the defendant. The State
presented the testimony of Ramirez, Luque, Officer Catalan, and
Officer Chon. Ramirez testified using the same interpreter who had
been appointed to assist the defendant. During the course of the
trial, both Ramirez and Luque identified the defendant as one of
the men who had robbed Ramirez.
Following the close of the State’s case, the defendant moved
for a directed finding of not guilty which was denied. After
conferring with the defendant, defense counsel informed the trial
court that the defendant would not be testifying on his own behalf.
Thereafter, the trial court asked the defendant whether he wished
to testify. The defendant responded that he did not. After the
trial court informed him that, if he did not testify, he would not
have another opportunity to do so, the defendant requested to speak
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No. 1-08-1470
with his attorney again. After a discussion with his attorney, the
defendant again waived his right to testify. The defense then
rested without calling any witnesses. Following closing arguments,
the defendant was found guilty of robbery and not guilty of
aggravated robbery.
The defendant filed a motion for a new trial asserting in
general terms that: the State had failed to prove him guilty beyond
a reasonable doubt, the finding of guilty is against the manifest
weight of the evidence, he was denied his constitutional rights of
due process and equal protection, the State failed to prove the
material allegations of the charge against him beyond a reasonable
doubt, and he did not receive a fair and impartial trial. The
trial court denied the motion on February 22, 2008. Although a
sentencing hearing was commenced, the matter was continued to allow
the State time to obtain a certified copy of a conviction which
appeared on the defendant’s presentence investigation report.
On April 8, 2008, the defendant attempted to file several hand
written pro se motions for a new trial. Those motions argued,
inter alia, that the statute providing for extended term sentences
is unconstitutional and that his attorney improperly advised him
not to testify on his own behalf. The defendant’s attorney
informed the court that the defendant was claiming that he was
denied his right to testify and that "he wanted to tell *** his
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No. 1-08-1470
side of the story." The trial court continued the case in order to
obtain a transcript of that portion of the trial when the defendant
waived his right to testify.
On May 5, 2008, the defendant’s attorney stated that he was
filing a motion to reopen the defendant’s case-in-chief,
representing to the court that the defendant wished to testify on
his own behalf and that he did not understand that he could testify
without the approval of his attorney. The defendant’s attorney
also informed the court that the defendant no longer wished to be
represented by him and that the defendant wished to represent
himself. Thereafter, the trial court questioned the defendant
concerning his request to represent himself.
Responding to the court's questions, the defendant stated that
he no longer wanted to be represented by the assistant public
defender because he refused to present several motions which the
defendant wanted filed; primarily, a motion addressing the
constitutionality of the statute providing for extended term
sentences. He also expressed displeasure with the representation
he had received from the assistant public defender, specifically
complaining of the advice he had been given not to testify on his
own behalf. The defendant told the trial judge that he spoke
English "a little bit." In response to the trial judge's questions
concerning the level of his education, the defendant stated that he
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No. 1-08-1470
was able to read and write and that he had gone to the 6th grade in
Cuba. The defendant denied ever having been treated for a
psychiatric illness and denied that he was taking any psychiatric
medication. The trial judge examined the hand written motions
which the defendant wished presented and found them to be
unintelligible. She questioned the defendant concerning the
motions. He admitted that he had not prepared the motions,
although he had signed them. When the trial judge asked the
defendant about the content of the motions, she could not follow
what he was saying. Following her examination of the defendant,
the trial judge denied his motion to represent himself and ordered
that the assistant public defender continue representing the
defendant.
The assistant public defender reiterated his request that the
trial court reopen the case and allow the defendant the opportunity
to testify on his own behalf. He asserted that it was the
defendant's contention that he had not understood what it meant
when he waived his right to testify. Defense counsel told the
court that the defendant "thought because I advised him not to,
that meant he couldn’t. I think he chooses not to follow my advice
and step up on the stand and testify on his own behalf." The State
objected. Nevertheless, the trial judge allowed the defendant to
reopen the case and testify because of her belief that the
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No. 1-08-1470
defendant may not have fully understood that he was not required to
follow his attorney’s advice against testifying.
The defendant took the stand and denied that he took part in
the robbery. He claimed that Traore surprised him when he robbed
Ramirez. The defendant also denied telling the police that it was
Traore’s idea to rob Ramirez because they were broke. The
defendant testified that he told Traore not to take Ramirez’s money
and that it was he that gave Ramirez back his wallet and cell
phone. According to the defendant, the toy pistol found in his
pocket by the police was a birthday present intended for his
girlfriend’s son.
In rebuttal, the State introduced a stipulation that, if
called, Detective Hillman would testify that, after advising the
defendant of his constitutional rights, the defendant stated that
it was Traore’s idea to find someone to rob because they were broke
and that he just stood by watching while Traore robbed Ramirez.
The State also introduced certified copies of the defendant’s pior
convictions for theft, theft by deception, and retail theft.
Following a second round of closing arguments, the trial court
again found the defendant guilty of robbery and sentenced him as
a Class X offender to an extended term of 8 1/2 years’
incarceration followed by a term of 3 years' supervised release.
The defendant moved the court to reconsider the sentence. That
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No. 1-08-1470
motion was denied, and this appeal followed.
For his first assignment of error, the defendant argues that
he was deprived of his sixth amendment (U.S. Const., amend. VI)
right to self-representation when the trial court denied his
request to discharge his attorney and proceed pro se. He contends
that, when he requested to discharge his attorney and represent
himself, he did so knowingly, intelligently, and with full
awareness of both the right being abandoned and the consequences of
his decision to proceed pro se. See People v. Lego, 168 Ill. 2d
561, 563-65, 660 N.E.2d 971 (1995). The defendant concludes,
therefore, that the trial court abused its discretion when it
denied his request to represent himself. We disagree.
A criminal defendant's right of self-representation is
embodied in the sixth amendment to the United States Constitution.
Faretta v. California, 422 U.S. 806, 821, 45 L.Ed.2d 562, 574, 95
S.Ct. 2525, 2534 (1975). Article I, section 8 of the Illinois
Constitution has a similar provision that guarantees an accused the
same right. Ill. Const. 1970, art. I, §8; People v. Leeper, 317
Ill. App. 3d 475, 480, 740 N.E.2d 32 (2000). The erroneous denial
of a defendant's request to represent himself is a structural
defect that defies a harmless-error analysis and requires a per se
reversal. People v. Bingham, 364 Ill. App. 3d 642, 648-50, 847
N.E.2d 903 (2006). However, the constitutional right of self-
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No. 1-08-1470
representation is not absolute and may be forfeited if the
defendant cannot make a knowing and intelligent waiver of counsel
(People v. Rohlfs, 368 Ill. App. 3d 540, 545, 858 N.E.2d 616(2006)) or if the defendant's request to represent himself is
untimely (People v. Burton, 184 Ill. 2d 1, 24, 703 N.E.2d 49(1998)).
Assuming for the sake of analysis that the defendant's request
to proceed pro se in this case was knowingly and intelligently
made, the question remains as to its timeliness. The timing of a
defendant's request to represent himself is significant. Burton,
184 Ill. 2d at 24. Court's have held that such a request is
untimely when it is first made after the trial or meaningful
proceedings have begun. Burton, 184 Ill. 2d at 24; Leeper, 317 Ill.
App. 3d at 481.
In the instant case, the defendant's request to discharge his
attorney and proceed pro se came very late in the proceedings.
When the request was first made, the defendant had already been
found guilty and his original motion for a new trial had been
denied. Pending was his attorney's request to reopen the
defendant's case-in-chief to permit the defendant to testify on his
own behalf.
The decision of whether to grant or deny a criminal
defendant's request to represent himself is a matter committed to
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No. 1-08-1470
the sound discretion of the trial court, and its ruling in such a
matter will not be disturbed on review unless that discretion has
been abused. Burton, 184 Ill. 2d at 24-25; Rohlfs, 368 Ill. App.
3d at 545. In this case, we find no abuse of discretion. At the
time that the defendant first requested to represent himself, his
appointed attorney had an intimate and lengthy involvement in the
case, having represented the defendant throughout the trial and in
his original post-trial motion. Simply put, the defendant's
request to proceed pro se after he had already been found guilty
came too late. Burton, 184 Ill. 2d at 24-25.
Next, the defendant argues that the trial court erred when it
allowed an ineffective interpreter to participate in the trial
proceedings. He also complains about the fact that the same
interpreter was allowed to act both as his interpreter and the
interpreter for the State's witnesses. In response, the State
contends that the defendant has forfeited these issues by failing
to raise any objection at trial or in his post trial motions. We
agree with the State.
To preserve an issue for appellate review, a defendant must
both object at trial and raise the issue in a written post-trial
motion. People v. Bush, 214 Ill. 2d 318, 332, 827 N.E.2d 455(2005); People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124(1988). In this case, the defendant neither raised the competency
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No. 1-08-1470
of the interpreter or objected to the scope of the interpreters
activities in the trial court, nor did he raise the issues in any
of his post-trial motions. Consequently, he has forfeited the
issues for purposes of this appeal. Bush, 214 Ill. 2d at 332;
Enoch, 122 Ill. 2d at 186.
The defendant acknowledges that he has forfeited these issues
by failing to object at the trial level or raise them in his post-
trial motions. Nevertheless, he urges us to consider the issues
under the plain-error doctrine. We decline to do so.
Plain errors or defects affecting substantial rights may be
considered on appeal even if they were not brought to the attention
of the trial court. 134 Ill. 2d R. 615(a). The plain-error
doctrine bypasses normal forfeiture principles and allows a
reviewing court to consider unpreserved errors "when either (1) the
evidence is close, regardless of the seriousness of the error, or
(2) the error is serious, regardless of the closeness of the
evidence." People v. Herron, 215 Ill. 2d 167, 186-87, 830 N.E.2d
467 (2005). "In both instances, the burden of persuasion remains
with the defendant." Herron, 215 Ill. 2d at 187.
Here, the defendant cannot satisfy the first prong of the
plain-error doctrine because the evidence was not closely balanced.
The defendant was identified by Ramirez, the victim, and Luque, the
eye witness, both shortly after the incident and again in court.
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No. 1-08-1470
Additionally, he was apprehended in the company of Traore a short
distance from the place where Ramirez was robbed, and the defendant
admitted to the police that Traore robbed Ramirez. The evidence of
the defendant's guilt was overwhelming.
Second, we do not find that the alleged errors relating to the
interpreter affected the fairness of the trial. The defendant's
assertions that he was deprived of his right to confront witnesses
because he could not fully understand the victim's testimony as it
was translated is not supported by the record. The victim
testified in Spanish, the defendant's primary language.
Consequently, the defendant cannot claim that he did not understand
what the victim was saying. As for the accuracy of the
interpreter's translation, nothing in the record establishes that
it was in any way inaccurate. It is true that, in his brief, the
defendant points to two limited exchanges between the prosecutor
and Ramirez which he claims represent mistranslations. However, we
find nothing in the first exchange which suggests that the witness
did not understand the question or that his answer was
unresponsive. As for the second exchange consisting of four
questions and answers, only the last answer appears to be somewhat
unresponsive. This isolated unresponsive answer hardly evinces
ineffective translation.
The defendant also claims that the trial court erred in
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No. 1-08-1470
allowing the same interpreter to translate for him and the State's
witnesses. He claims that he was entitled to a second interpreter
to correct the mistakes of the interpreter translating the
testimony of the State's witnesses and to allow his attorney to
identify mistranslations. The flaw in the defendant's arguments in
this respect is the absence of any evidence in the record that the
interpreter made any material mistakes in translating. Absent
evidence of a mistranslation in critical testimony, the defendant
cannot establish any prejudice in the trial court's failure to
employ two separate interpreters. See People v. Tomas, 136 Ill.
App. 3d. 1054, 1056-59, 484 N.E.2d 341 (1985). See also Hung v.
State, 284 Ga. 796, 798, 671 S.E.2d 811, 814 (2009); New Mexico v.
Nguyen, 144 N.M. 197, 201, 185 P.3d 368, 372 (2008); but see People
v. Romero, 153 Cal. App. 3d 757, 760, 200 Cal. Rptr. 404, 405-06
(1984).
For the foregoing reasons, we affirm the judgment of the
circuit court.
Affirmed.
THEIS and KARNEZIS, JJ., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be attached to Each Opinion)
Please use the THE PEOPLE OF THE STATE OF ILLINOIS,
following form:
Plaintiff-Appellee,
Complete v.
TITLE
of Case. EMILIO GORGA,
Defendant-Appellant.
Docket No.
No. 1-08-1470
Court
Appellate Court of Illinois
First District, Second Division
Opinion Filed
December 8 , 2009
(Give month, day and year)
JUSTICE THOMAS E. HOFFMAN, J., delivered the opinion of the Court.
THEIS and KARNEZIS, JJ. , concur[s].
JUSTICES
, dissent.
Appeal from the Lower Court and trial Judge(s) in form indicated in margin:
Circuit Court of
Cook County; the Appeal from the Circuit Court of Cook County.
Judge Presiding.
The Hon. SHARON M. SULLIVAN , Judge(s) Presiding.
For Appellants, Indicate if attorney represents APPELLANTS or APPELLEES and include
John Doe, of attorneys of counsel. Indicate the word NONE if not represented.
Chicago.
FOR APPELLANT: DeP aul University Co llege of Law, of Chicago. Pro fessor Andrea Lyons,
For App ellees, Asso ciate D ean for Clinica l Programs, of counsel.
Smith & Smith,
of Chicago.
Also add attorneys
for third party FO R A PPE LLE E(S): Anita A lverez, Statre's Atto rney, of Chicago. James E . Fitzgerald,
appellants and/or Peter Fischer and Kathleen Warnick, Assistant State's Attorneys, of
appe llees. counsel.
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No. 1-08-1470
(USE REVERSE SIDE IF NEEDED)
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