State v. Navarro

Decision Date16 March 1982
Docket NumberNo. 2,CA-CR,2
Citation132 Ariz. 340,645 P.2d 1254
PartiesThe STATE of Arizona, Appellee, v. Aurelio Ballesteros NAVARRO, Appellant. 2454.
CourtArizona Court of Appeals
Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Clifford C. Wamacks, Phoenix, for appellee
OPINION

HOWARD, Chief Judge.

Appellant was convicted of aggravated assault with one non-dangerous and two dangerous prior felony convictions, as well as aggravating factors and was sentenced to a maximum term of 25 years' imprisonment. Two issues are raised on appeal: (1) Was there a failure by an interpreter to properly place the witness under oath? (2) Were the state's relevancy objections concerning the victim's prior injuries and subsequent conduct properly sustained by the trial court? We affirm.

On the evening of January 8, 1981, appellant choked Carlotta Peralta and beat her on the eyes and face with his hands. After the beating, appellant left the apartment that the two had been sharing and did not return. The victim, who had no telephone to call for help and could not see because her eyes were swollen shut, was found the next morning by her daughter and taken to the hospital where she was admitted and treated for three days. Thereafter, she underwent reconstructive plastic surgery involving an open reduction of the right cheek bone and another three-day hospitalization. Her fractured nose and left cheek bone did not require reduction. The surgeon treating Peralta testified that all of the injuries he observed and treated were fresh injuries and there was no indication of prior injury.

THE OATH

Appellant claims a denial of due process caused by an alleged failure to place the victim under oath through an interpreter. A transcript of the proceeding reads as follows:

"MR. WILD (prosecutor): Carlotta Peralta.

CARLOTTA PERALTA, having been first duly sworn, was examined and testified as follows:

THE COURT: Folks, Donna is the official court interpreter for the Pima County Superior Court. She is under oath and, you know, sworn to translate from English to Spanish and Spanish to English. So you are to consider her translation as evidence in this case.

MR. WILD: May I proceed, your Honor?

THE COURT: Please."

Because there is no mention of the interpreter until after the witness is sworn, appellant contends that the interpreter did not place the witness under oath in Spanish, and therefore, the witness was not sworn in a manner calculated to "awaken the conscience and impress the mind." A.R.S. § 12-2221(A); Rule 603, Arizona Rules of Evidence, 17A A.R.S. We disagree.

We first note that the record does not show that the oath was not administered in Spanish. In the absence of objection, the presumption of regularity is an adequate answer to the raising of such a matter on appeal. See Defino Martone v. United States, 396 F.2d 229 (1st Cir. 1968); People v. Fisher, 223 N.Y. 459, 119 N.E. 845 (1918). In this case, the presumption would include that officers, such as official court interpreters, will do their duty, Cf. Kingsbury v. State, 27 Ariz. 289, 232 P. 887 (1925), rev. on other grounds, 28 Ariz. 86, 235 P. 140 (1925), and an oath will be properly administered. State ex rel. DeBerry v. Nicholson, 102 N.C. 465, 9 S.E. 545 (1889); State v. Hyde, 28 Or.App. 809, 561 P.2d 659 (1977); 58 Am.Jur.2d Oath and Affirmations § 14 (1971). In addition, irregularity in failing to swear a witness is waived where he is permitted to testify without objection. See State v. Embrey, 62 N.M. 107, 305 P.2d 723 (1957); Trammell v. Mount, 68 Tex. 210, 4 S.W. 377 (1887); 81 Am.Jur.2d Witnesses § 414 (1976). This is because an alleged error in swearing can easily be cured if the objection is raised at the time. See People v. Duffy, 110 Cal.App. 631, 294 P. 496 (1930).

RELEVANCY OBJECTION

Appellant next contends that his right to confrontation was denied when the court denied cross-examination of the victim concerning (1) the fact that two weeks after the injury, the victim went out dancing, and (2) possible beatings at an earlier time by a former husband.

The right of cross-examination is included in the right of confrontation as guaranteed by the Sixth Amendment. United States v. Norman, 402 F.2d 73 (9th Cir. 1968), cert. den. 397 U.S. 938, 90 S.Ct. 949, 25 L.Ed.2d 119; State v. Dunlap, 125 Ariz. 104, 608 P.2d 41 (1980). Although the right to cross-examination is basic, it is not absolute as the trial court has discretion to limit the scope. United States v. LaRiche, 549 F.2d 1088 (6th Cir. 1977), cert. den. 430 U.S. 987, 97 S.Ct. 1687, 52 L.Ed.2d 383; State v. Kalamarski, 27 Wash.App. 787, 620 P.2d 1017 (1981). The trial court in limiting cross-examination is thus entitled to rely upon what the record before it reveals to be the relevancy of the cross-examination attempted. State v. Taylor, 9 Ariz.App. 290, 451 P.2d 648 (1969). Unless there has been a clear abuse of discretion and prejudice occurs, questions concerning the admissibility of evidence will not be disturbed on appeal. Rimondi v. Briggs, 124 Ariz. 561, 606 P.2d 412 (1980).

" 'Relevant...

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14 cases
  • People v. Sardy
    • United States
    • Court of Appeal of Michigan — District of US
    • 29. Dezember 2015
    ...affirmation before testifying must be raised by objection or it is considered waived.’ ”) (citation omitted); State v. Navarro, 132 Ariz. 340, 342, 645 P.2d 1254 (Ariz.App., 1982) (“[I]rregularity in failing to swear a witness is waived where he is permitted to testify without objection.”);......
  • State v. Paolella
    • United States
    • Connecticut Supreme Court
    • 27. Juni 1989
    ...denied, 351 U.S. 943, 76 S.Ct. 834, 100 L.Ed. 1469 (1956); Saxton v. State, 389 So.2d 541, 543 (Ala.Crim.App.1980); State v. Navarro, 132 Ariz. 340, 342, 645 P.2d 1254 (1982); Sewall v. Spinney Creek Oyster Co., 421 A.2d 36, 39 (Me.1980); State v. Embrey, 62 N.M. 107, 109, 305 P.2d 723 (195......
  • Beck v. State
    • United States
    • Texas Court of Criminal Appeals
    • 5. November 1986
    ...to a witness being unsworn in order to have a ground of appeal. And more recently in restating the rule of waiver the court in Arizona v. Navarro, 645 P.2d 1254 (Court of Appeals, Div. 2--Arizona 1982), wrote: "This is because an alleged error in swearing can easily be cured if the objectio......
  • State v. Churchwell
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    • Arizona Court of Appeals
    • 24. März 2011
    ...is "entitled to rely upon what the record before it reveals to be the relevancy" of the evidence sought. See State v. Navarro, 132 Ariz. 340, 342, 645 P.2d 1254, 1256 (App.1982) (ruling on relevancy of attempted cross-examination reversed only for clear abuse of discretion and prejudice). ¶......
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