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24921 - State v. Perez

Shearouse Adv. Sh. No. 12
S.E. 2d



THE STATE OF SOUTH CAROLINA

In The Supreme Court



The State, Respondent,

v.

Natalio A. Perez, Appellant.



Appeal From Greenwood County

C. Victor Pyle, Jr., Circuit Court Judge



Opinion No. 24921

Heard February 17, 1999 - Filed March 22, 1999



AFFIRMED



Chief Attorney Daniel T. Stacey, of Office of

Appellate Defense, of Columbia, for appellant.



Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka, and

Assistant Attorney General Derrick K. McFarland,

all of Columbia; and Solicitor W. Townes Jones IV, of

Greenwood, for respondent.





MOORE, A.J.: Appellant was convicted of murder and

sentenced to life. We affirm.

p.1


STATE v. PEREZ





FACTS



Four days after their marriage, appellant murdered his wife,

Brenda Connelly. Brenda's 11-year-old son testified he saw appellant stab

his mother. Brenda was stabbed five times and the wounds were so severe

that she was almost decapitated. Appellant contended at trial that Brenda

had threatened to kill herself and he was merely attempting to get a knife

away from her when she fell on it.1





ISSUE



Did the trial court err in denying appellant an interpreter to

translate his criminal trial thereby violating appellant's Sixth

Amendment rights to confront witnesses and be present at his trial?





DISCUSSION



On appeal, appellant contends the trial judge erred by denying

appellant an interpreter. We disagree.





Appellant made a pre-trial motion requesting that the interpreter at

his trial be allowed to translate everything said in the courtroom. The trial

court stated he would allow the interpreter to translate the questions for

appellant and, if appellant testified, both the questions and answers.

Appellant then asked for pauses in the trial at certain crucial points to allow

the interpreter time to explain the proceeding to appellant. The trial judge

stated, "Well, I assume the interpreter is - has been in the business long

enough that she can sit there and interpret for him everything that's going

on. If it gets to be a problem, if you will let me know, then we'll cross that

bridge when we come to it." Nothing further was said.







Appellant never objected to the trial court's ruling as to the pauses in

the trial and he never informed the trial judge of any problems. Accordingly,

these arguments are procedurally barred. State v. Williams, 303 S.C. 410,


1 Although this was the majority of appellant's testimony, there was

also testimony and it was argued that Brenda was cheating on appellant and

he committed the murder in an act of jealousy. Ultimately, only murder and

voluntary manslaughter were submitted to the jury - not accident or self

defense.

p.2


STATE v. PEREZ





401 S.E.2d 168 (1991)(issue not raised to and ruled on by the trial court is

not preserved for appeal). See also State v. Mitchell, 330 S.C. 189) 498

S.E.2d 642 (1998)(whether trial judge erred in not granting recess is

procedurally barred because, while counsel indicated he might need recess,

counsel never actually requested one).





Appellant also contends the trial judge erred in failing to administer

an oath to the interpreter.2 Appellant never objected to the failure of the

trial judge to administer the oath to the interpreter.3 See, e.g. State v. Rosa,

47 Ohio App.3d 172, 547 N.E.2d 1232 (1988)(defendant waived trial court's

failure to administer oath to interpreter by failing to object); People v. Avila,

797 P.2d 804 (Colo. 1990)(defendant waived error of trial court's failure to

administer oath to interpreter when he failed to object); State v. Puente

Gomez, 121 Idaho 702, 827 p.2d 715 (1992)(failure to object precludes

reversal for failure of trial court to administer oath to interpreter).

Accordingly, these arguments are procedurally barred and appellant's

conviction and sentence are



AFFIRMED.



FINNEY, C.J., TOAL, WALLER and BURNETT, JJ., concur.


2 The interpreter was sworn prior to petitioner's testimony, but

petitioner alleges the interpreter should have been sworn at the beginning of

the trial. An interpreter is considered a witness in the sense that the

accuracy of her translation is a question of fact for the jury which may be

disputed by counsel. State v. Puente-Gomez, 121 Idaho 702, 827 P.2d 715

(1992). While the administration of the oath to a witness is fundamental to

give the witness's testimony binding force, in the absence of a timely

objection, unsworn testimony does not constitute a nullity. Further, "[n]o

constitutional provision is violated when unsworn testimony is received." 81

Am. Jur.2d Witnesses § 712 (1976).





3 The General Assembly recently enacted two statutes which address

interpreters and their qualifications in trials when a party or witness does

not speak English well enough to testify. S.C. Code Ann. §§ 17-1-50 and 15

27-155 (Supp. 1998). These statutes became effective after petitioner's trial

and thus are inapplicable in this case.

p.3