Opinion
No. 24960
Decided September 11, 1972.
Defendant was convicted of assault with a deadly weapon and appealed.
Affirmed
1. ASSAULT AND BATTERY — Witness — Spanish — Interpreter — Alleged Incompetency — No Showing — Plain Error — Negative — Assignment Not Considered. In prosecution for assault with a deadly weapon, where complaining witness did not speak the English language and it was necessary for court to use an interpreter to translate his testimony from Spanish to English, and where no objection to interpreter's qualifications was made by defense counsel during trial and defendant's motion for new trial made no challenge to interpreter's qualifications or competency, and it was not shown in what manner defendant was prejudiced by alleged incompetency of interpreter, held, since reviewing court finds no circumstances upon which doctrine of plain error might reasonably be applied in support of defendant's contention, it therefore would not consider this assignment.
2. JURY — Juror — Knowledge of Spanish — Defendant — Same — No Challenge — No Prejudice — Presumption — Improper Influence — Negative. Where juror who spoke and understood the Spanish language knew the defendant, the victim and some of the Spanish-American witnesses, but defendant who also spoke and understood Spanish and was aware such juror spoke and understood Spanish made no challenge of this juror, and no prejudice was shown, held, under these circumstances, it would not be presumed that remaining jurors were improperly influenced by such juror's apparent language advantage.
3. Juror — Knowledge of Spanish — Possession of Information — Unduly Influence Others — Burden of Proof — Prejudice. Where defendant in support of motion for new trial alleged that one juror spoke and understood Spanish, that this juror was thus able to understand alleged untranslated colloquy between interpreter and Spanish-speaking witness, that this juror thus became possessed of information not available to other jurors and was thus able to unduly influence them in their deliberations, held, under these circumstances, defendant had burden to prove any prejudice resulting by reason of such juror's presence on the jury.
4. INSTRUCTIONS, CRIMINAL — Self-defense — Failure to Object — Not Reversible — Exception — Prejudice — Plain Error. Where defendant did not object to trial court's instruction on self-defense or tender any alternate instruction which he claimed might more adequately set forth the law of self-defense, held, this assignment of error predicated upon such instruction was not reversible on appeal unless there was a manifest prejudice amounting to plain error.
Appeal from the District Court of Montrose County, Honorable George V. Kempf, Judge.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Patricia W. Robb, Special Assistant, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, Kenneth J. Russell, Deputy, for defendant-appellant.
Defendant-appellant, John Bercillio, seeks reversal of his conviction of assault with a deadly weapon in violation of C.R.S. 1963, 40-2-34. We affirm the judgment of conviction.
The charge against appellant arose out of an affray outside a dance hall in Montrose, Colorado. The record shows that one Jose Morales was stabbed by appellant, who thrust a broken beer bottle into Morales' abdomen. Appellant received a severe cut on his hand, presumably from a pocket knife used by Morales. Appellant's theory of innocence was predicated on self-defense. The jury chose to believe the People's evidence and returned its verdict of guilty. We find no prejudicial error in the trial proceedings.
I.
[1] The complaining witness, Jose Morales, did not speak the English language and it was necessary for the court to use an interpreter to translate his testimony from Spanish to English. Claim of error is made here, for the first time, that the interpreter used by the court was incompetent. No objection to the interpreter's qualifications was made by defense counsel during trial, and appellant's motion for a new trial made no challenge to the interpreter's qualifications or competency. Defense counsel extensively cross-examined Morales through the interpreter. It is not shown in what manner appellant was prejudiced by the alleged incompetency of the interpreter. We find no circumstances upon which the doctrine of plain error might reasonably be applied in support of appellant's contention, and we therefore will not consider this assignment. Crim. P. 52(b); Ortega v. People, 178 Colo. 419, 498 P.2d 1121; Land v. People, 171 Colo. 114, 465 P.2d 124; Lujan v. United States, 209 F.2d 190 (10th Cir.).
II.
Appellant's second argument for reversal is that the trial court erred in denying his motion for a new trial. The sole ground in support of the motion was that one of the trial jurors, Wilfred Rubalcaba, spoke and understood the Spanish language, whereas the other jurors did not. It was argued that Rubalcaba was therefore able to understand the alleged untranslated colloquy between the interpreter and the complaining witness, Morales, and became possessed of information not available to the other jurors. Appellant contends that Rubalcaba was therefore able to unduly influence the other jurors in their deliberations.
[2,3] The court noted that voir dire examination revealed that the juror, Rubalcaba, knew the appellant, the victim Morales, and also some of the Spanish-American witnesses. In spite of this, no challenge was directed toward Rubalcaba. Rubalcaba spoke and understood Spanish, and appellant was aware of this. The appellant also spoke and understood the Spanish language. We will not presume that the remaining jurors were improperly influenced by Rubalcaba's apparent language advantage under these circumstances. It was appellant's burden to prove any prejudice, if any resulted by reason of Rubalcaba's presence on the jury. No prejudice was here shown. Moore v. People, 125 Colo. 306, 243 P.2d 425.
III.
[4] Finally, error is predicated upon the court's instruction on self-defense. Appellant did not object to the instruction given, nor did he tender any alternate instruction which he claimed might more adequately set forth the law of self-defense, as is required by Crim. P. 30. This assignment of error is therefore not reversible on appeal unless there was manifest prejudice amounting to plain error. Crim. P. 52(b); Maes v. People, 169 Colo. 200, 454 P.2d 792; Morehead v. People, 167 Colo. 287, 447 P.2d 215; Rhodus v. People, 158 Colo. 264, 406 P.2d 679.
We note that the instruction given was patterned on the statutes relating to self-defense. C.R.S. 1963, 40-2-13, 14 and 15. Although the instruction might have been more artfully composed, we do not find that it improperly stated the law. Counsel argues that it improperly shifted the burden of proof to the defendant. We do not so construe the instruction. Nowhere does it mention burden of proof and we do not read into it the other infirmities appellant would have us to. The jury was properly instructed on the presumption of innocence, burden of proof and reasonable doubt. Taken together as a whole, the instructions fairly and adequately advised the jury of the law in this case. The alleged error predicated on the instructions is without merit.
The judgment is affirmed.
MR. JUSTICE DAY, MR. JUSTICE KELLEY and MR. JUSTICE ERICKSON concur.