Cortez-Rivas v. Commonwealth

PRESENT: Goodwyn, C.J., Mims, Powell, Kelsey, McCullough, and Chafin, JJ., and Russell,
S.J.
JULIO CORTEZ-RIVAS
OPINION BY
v. Record No. 210011 JUSTICE STEPHEN R. McCULLOUGH
FEBRUARY 3, 2022
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Julio Cortez-Rivas challenges his rape conviction, arguing that the prosecution violated
his rights under the Confrontation Clause of the United States Constitution by failing to produce
as a witness a police officer who translated for a detective at the scene of the crime. At trial,
however, the Commonwealth offered the testimony of a different officer who separately
translated the exchange between Cortez-Rivas and a police detective. We conclude that
Cortez-Rivas did not suffer any violation of his rights under the Confrontation Clause and,
therefore, we affirm.
BACKGROUND
Steven Loving, a detective with the Manassas Park Police Department, interviewed
Cortez-Rivas concerning the possible sexual abuse of his underage stepdaughter. Cortez-Rivas’
native language is Spanish. Detective Loving was accompanied by Officer Gomez, who speaks
Spanish. Officer Gomez translated Detective Loving’s questions and Cortez-Rivas’ responses.
Detective Loving’s body camera recorded the interview.
Officer Claudia Ventura, who is fluent in Spanish, reviewed the body camera footage and
independently translated the statements Cortez-Rivas made during the interview. Officer
Ventura generated a transcript of this interview in English.
Cortez-Rivas was later charged with rape. At trial, Officer Ventura testified about
statements Cortez-Rivera had made. Officer Ventura was subject to cross-examination. Officer
Gomez, who had in the meantime retired from the police department, did not testify.
Following a presentation of all the evidence, a jury convicted Cortez-Rivas of rape. He
appealed to the Court of Appeals. That court declined to grant him an appeal. We granted
Cortez-Rivas an appeal based on the following assignment of error:
The trial court erred when it violated Mr. Cortez-Rivas’ right of
confrontation by admitting the hearsay statements of
Mr. Cortez-Rivas’ police interview without the testimony of the
interpreter who interpreted the questions to Mr. Cortez-Rivas and
the responses of Mr. Cortez-Rivas.
ANALYSIS
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right to . . . be confronted with the witnesses against him.” U.S. Const. amend VI.
“[T]he Confrontation Clause . . . bars the admission of testimonial statements of a witness who
did not appear at trial unless he [or she] was unavailable to testify, and the defendant had had a
prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
“This Court reviews de novo whether the admission of evidence violates a defendant’s
confrontation right.” Logan v. Commonwealth, 299 Va. 741, 745 (2021).
Officer Ventura, who translated the statements Cortez-Rivas made to Detective Loving,
testified at trial and was subject to confrontation. She relayed statements Cortez-Rivas made to
Detective Loving. For example, she testified that Cortez-Rivas said “I was drinking so it is
possible that I touched her. I don’t want to say because I honestly don’t know.” Officer Ventura
prepared her translation based on her personal review of the body camera footage; she did not
rely on Officer Gomez. Assuming, without deciding, that statements translated from one
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language into another by a translator can constitute testimonial evidence, thus triggering the
protections of the Confrontation Clause, ∗ those protections were satisfied here because the
translator, Officer Ventura, testified.
The Constitution does not require that all persons who had some involvement in a
criminal investigation be produced as witnesses. See Robertson v. Commonwealth, 61 Va. App.
554, 563 (2013) (“[T]he Sixth Amendment does not require that everyone involved in the
preparation of an exhibit testify as a witness at trial. Neither does the Confrontation Clause
demand that everyone whose testimony might be relevant be required to testify.”). The
Constitution ensures that a defendant in a criminal case will “be confronted with the witnesses
against him.” U.S. Const. amend VI. Officer Gomez was not a witness and no statements at all
from him, testimonial or otherwise, were offered into evidence. Therefore, since he was not a
witness, there was no constitutional requirement for Officer Gomez to be confronted at trial. The
fact that Officer Gomez originally translated at the scene for Detective Loving is immaterial for
Confrontation Clause purposes.
CONCLUSION
For the foregoing reasons, we will affirm the judgment of the Court of Appeals.
Affirmed.
∗
We acknowledge the existence of a divergence of views on the question of whether an
interpreter must be produced at trial to satisfy the constitutional guarantee of confrontation.
Compare, e.g., State v. Lopez-Ramos, 929 N.W.2d 414, 420 (Minn. 2019) (that the Confrontation
Clause is not violated by the admission of translated statements where the translator is merely
acting as a “language conduit”), with United States v. Charles, 722 F.3d 1319, 1330-31 (11th
Cir. 2013) (concluding that the Confrontation Clause afforded a defendant the right to confront a
translator). This case, however, does not present us with the opportunity to address that
question.
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