Luu v. People , 16 Brief Times Rptr. 1783 ( 1992 )

Justice QUINN

specially concurring:

I specially concur in the judgment. While I acknowledge that there may be circumstances where the absence of an interpreter to translate for a defendant during the critical phases of a trial so infects the structural integrity of the trial as to defy analysis under the harmless error standard, I am satisfied that those circumstances are not present here. In my view, both Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983), and Arizona v. Fulminante, _ U.S. _, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), provide support for applying harmless error analysis to the facts of this case.

Although the defendant was physically present during all phases of the trial and was represented by counsel, for reasons undisclosed by the record the defendant was not afforded the benefit of an interpreter’s presence during final arguments. The final arguments, however, were conducted in the absence of the interpreter at the express request of defense counsel and after the court, again at the express request of defense counsel, informed the jury that the interpreter was not present “for reasons that we’ve not been informed of.”

There is no basis in this case for assuming that the interpreter’s absence somehow impaired defense counsel’s ability to object to any unsupported statements of the prosecutor during the prosecution’s closing or impaired defense counsel’s ability to effectively respond to the prosecutor’s summation. The evidentiary phase of the case had ended, and the only remaining task for defense counsel was to argue the case to the jury — a task that is uniquely within the control of defense counsel and is limited by the evidence, the reasonable inferences therefrom, and the jury instructions.

It would be utter speculation were this court to conclude that the interpreter’s absence during summation somehow deprived defense counsel of information which, but for the interpreter’s absence, would probably have been used by defense counsel either to object to or to rebut some aspect of the prosecution’s summation. It would be even more speculative were this court to presume that the jury, notwithstanding the trial court’s statement about the interpreter, viewed the interpreter’s absence as evidence of the defendant’s guilt.

Although it was error for the trial court to proceed with final arguments in the absence of the interpreter, I am convinced beyond a reasonable doubt that the error was harmless under the particular facts of this case. I accordingly specially concur in the judgment.