Jose Lopez v. Commonwealth, Ky. Sup. Ct., 5/14/15, to be published.
The Kentucky Supreme Court affirmed Mr. Lopez’s conviction to a total of forty (40) years unlawful transaction with a minor and incest. On appeal Mr. Lopez argued that the interpreter, employed at T.J. Sampson Hospital, was not a qualified interpreter under KRS 30A.400. KRS 30A.400(2) “provides that a statement made by a person entitled to an interpreter shall ‘only be admissible if the statement was made, offered, or elicited in the presence of a qualified interpreter.’ ” The court found that the error, even if it was error, was harmless in this case where, “Here, the evidence of Lopez’s guilt, even without his statement, was overwhelming.”
The Court left this issue open although it noted a possible Constitutional separation of powers issue with the statute in footnote 4. The Court also addressed the question “whether the use of an interpreter alters the nature of Lopez’s statement” for hearsay purposes. All though there was no direct law on this issue in the Commonwealth, the Court adopted Fletcher v. Commonwealth, 96 S.W.855, 857 (1906) holding that an interpreter is a “mere conduit by which the testimony of the witness was conveyed to the grand jury.” The court further held that, “We recognize that in certain circumstances the trial court may be justified in excluding testimony based on a translated statement, such as when the translation is inaccurate or misleading.”
Jason Apollo Hart of the Appeals Branch represented Mr. Lopez on appeal and Gregory K. Berry with the DPA trial office preserved the issue regarding KRS 30A.400 for appeal.
Contributed by Jason Apollo Hart
Kentucky Journal of Criminal Justice Education & Research
