State v. Ibarra-Ruiz

282 P.3d 934, 250 Or. App. 656, 2012 WL 2404956, 2012 Ore. App. LEXIS 783
CourtCourt of Appeals of Oregon
DecidedJune 27, 2012
Docket08C46610; A143425
StatusPublished
Cited by2 cases

This text of 282 P.3d 934 (State v. Ibarra-Ruiz) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ibarra-Ruiz, 282 P.3d 934, 250 Or. App. 656, 2012 WL 2404956, 2012 Ore. App. LEXIS 783 (Or. Ct. App. 2012).

Opinion

BREWER, J.

Defendant appeals his convictions for hindering prosecution and conspiracy to commit murder. Defendant asserts that the trial court erred in admitting testimony of a police officer concerning statements that defendant made to the officer through interpreters. He also challenges the trial court’s ranking at sentencing of his conviction for conspiracy to commit murder as a level 11 offense under the sentencing guidelines based on what he asserts were aggravating factors that were not found by a jury beyond a reasonable doubt. We affirm.

Shortly after a fatal drive-by shooting, a surviving witness identified Adrian Montoya-Franco as the shooter. A couple of days later, police stopped a car that defendant was driving, in which Montoya-Franco and another man were passengers. The police detained the three men for questioning about the murder.

Detective Tallan, the lead police investigator, interviewed defendant at the police station. Tallan, who understands little Spanish, conducted the interview with the assistance of two interpreters, Detectives Bethers and Diaz. During the interview, defendant made a number of admissions about his role in the effort to track down and kill the victim, including an earlier, unsuccessful, effort to commit the murder. At trial, Diaz testified that he is a native Spanish speaker who acts as a police interpreter. He testified that he and defendant were able to understand each other, that he interpreted defendant’s statements word for word, that Tallan took down specific quotes from defendant’s translated responses, that Diaz later read Tallan’s written report, and that the report was accurate. Bethers, also a police detective, translated different portions of Tallan’s interview with defendant. Bethers is not a fluent Spanish speaker, but he testified that he had conversational ability to speak and understand Spanish and that he used Spanish skills daily in his job. Bethers did not take notes of Tallan’s interview with defendant, but Tallan took notes. Bethers later reviewed those notes and determined that they were accurate.

At trial, after Diaz and Bethers had testified, the prosecutor called Tallan as a witness. The following colloquy ensued:

[658]*658“[PROSECUTOR] Detective Tallan, were you able to get some sort of background information from the defendant about other people involved in this case?
“A. Yes.
“Q. Did you specifically talk to him about different vehicles that people owned or used?
“A. Yes.
“Q. What did he — did he indicate what type of vehicle he had?
“[DEFENSE COUNSEL] Objection, Your Honor; hearsay. It violates my client’s right of confrontation.”

The court did not immediately rule on the objection. Instead, the prosecutor attempted to lay a foundation by eliciting testimony from Tallan that defendant had been advised of his Miranda rights and that defendant had signed a Miranda advice card, a consent to search card, and another Miranda advice card later that night during the interview.

At that point, the prosecutor resumed questioning Tallan about defendant’s statements:

“Q. Detective Tallan, let’s then go back to what [defendant] was indicating to you what vehicles people drove.
“[DEFENSE COUNSEL] Objection, Your Honor; it’s still hearsay and it still violates my client’s right to confrontation.
“[PROSECUTOR] Your Honor, it is not hearsay in any form of the word.
“THE COURT: Overruled.
“[DEFENSE COUNSEL] Both grounds, Your Honor?
“THE COURT: Both grounds are overruled.
“[DEFENSE COUNSEL] May I have a continuing objection to any statements my client — he is relating about my client?
“THE COURT: You may.”

On cross examination, Tallan testified that portions of his interview with defendant were conducted in English, not Spanish.

[659]*659The jury convicted defendant of both charged offenses. At sentencing, over defendant’s objection that he was entitled to a jury determination if the court were to impose a sentence in excess of 90 months’ imprisonment, the trial court ranked defendant’s conviction for conspiracy to commit murder (an unranked offense under the sentencing guidelines) at the same crime seriousness level as a completed murder. Without submitting any sentencing issue for the jury’s determination, the court then imposed a 128-month presumptive prison sentence on the conspiracy to commit murder conviction under the sentencing guidelines. Defendant appeals, assigning error to both the trial court’s evidentiary ruling and its sentencing decision.

The parties advance and parry with numerous arguments on appeal with respect to the challenged evidentiary ruling. In a nutshell, defendant asserts that the trial court erred in overruling his hearsay objection1 on the ground that, in order to answer the posited question, Tallan was required to recount one of the two police interpreters’ translated accounts of defendant’s underlying statement. The admission of such testimony, in defendant’s view, ran afoul of the Supreme Court’s holding in State v. Rodriguez-Castillo, 345 Or 39, 48, 188 P3d 268 (2008), that an interpreter’s account of a witness’s out-of-court statement is required— independently of the underlying statement — to pass separate muster under the hearsay rule. The state responds that (1) defendant’s argument on appeal is not preserved; (2) even if preserved, it is not well taken because the interpreters acted as defendant’s agents for purposes of translating his statements and, therefore, the interpreters’ statements were [660]*660not hearsay under OEC 801(4)(b)(C) or (D);2 and (3) even if the trial court erred, admission of the evidence was harmless because it was unlikely to have affected the verdicts. Because we conclude that defendant did not adequately preserve the argument that he makes on appeal, we need not consider the state’s alternative arguments.

To preserve an issue for appeal, a party’s explanation of its position must be “specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.” State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000). One of the primary purposes of preservation is to ensure that the opposing party is not surprised, misled, or denied the opportunity to meet the argument in the trial court. State v. Roble-Baker, 340 Or 631, 640, 136 P3d 22 (2006).

Defendant concedes that, if offered without translation, his statements were admissible under OEC 801(4)(b)(A), which provides that a “party’s own statements” are not hearsay. Therefore, as defendant acknowledges on appeal, the only cognizable hearsay objection that he could have made, based on Rodríguez-Castillo, would have been to any translation of his statement that underlay Tallan’s testimony. The difficulties with that proposition, on this record, are intractable. First of all, no such objection was made to the trial court in any coherent way.

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Cite This Page — Counsel Stack

Bluebook (online)
282 P.3d 934, 250 Or. App. 656, 2012 WL 2404956, 2012 Ore. App. LEXIS 783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ibarra-ruiz-orctapp-2012.