Opinion
No. 5-730 / 04-0962
Filed November 23, 2005
Appeal from the Iowa District Court for Polk County, Robert J. Blink (trial) and Don C. Nickerson (sentencing), Judges.
Defendant appeals his conviction, after a jury trial, for forgery. AFFIRMED.
Karen A. Taylor of Taylor Law Offices, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, John P. Sarcone, County Attorney, and John Heinicke, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., Hecht, J., and Schechtman, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
I. Background Facts Proceedings
On March 2, 2000, a man representing himself as James Watson opened a checking account at the skywalk branch of Firstar Bank in Des Moines with $100 cash. He was assisted by bank employees Connie Johnston-Lay and Pam Clark. The man presented a driver's license and social security card for identification. Checks which were deposited into Watson's account soon returned as counterfeit. Subsequent ATM withdrawals of $1,250 were made, creating an overdraft.
Some documents showed the name of James Waston, instead of James Watson.
On June 8, 2000, a man representing himself as Mohamoud Sanoh, attempted to open a checking account at the main office of Firstar Bank at 520 Walnut Street in Des Moines. He presented a driver's license and social security card for identification. Coincidentally, Johnson-Lay was now working at this branch. She recognized Sanoh to be the same person who had opened a checking account under the name of Watson. Clark was called to the scene. She also identified Sanoh to be the person who previously represented himself as James Watson.
Later events revealed that the person in question was actually named Issa Kante. Kante was charged with forgery, in violation of Iowa Code section 715A.2(1)(c) (1999), a class "D" felony. Kante, a native of the Republic of Guinea, requested a "French-African dialect" interpreter. Noel Davenport, a native of Switzerland, interpreted in French for Kante. Before the trial, the court questioned Kante as follows:
French is the official language of the Republic of Guinea. Wikipedia, http://www.en.wikipedia.org/wiki/Guinea (last visited Oct. 13, 2005). The interpreter stated that Kante "is not a native English nor native French speaker, both languages he has learned. His native language is an African language."
Q. Mr. Sanoh, have you been able to understand what the interpreter has told you today? A. Yes.
Q. Do you have some ability to understand the English language? A. Yes.
Q. Have you been able to understand what your lawyer has explained to you up to this point? A. No. We never spoke before today. I talk before to Pam — Pam Summers, yeah.
Q. Your — Ms. Summers had been your lawyer before; is that correct? A. Yes.
Q. And Ms. Summers is apparently involved in another proceeding today and so Greta is trying the case for you? A. Okay.
Q. If at some point you do not understand what is taking place, will you tell the interpreter so she can tell me? A. Yes.
Q. Or you can tell Greta. A. Yes.
Q. If you have a question, will you do that? A. Yes, I do.
Q. I want to make sure that your trial is fair to you. A. Okay.
Q. Do you understand that? A. Yes.
Pamela Summers of the Des Moines Adult Public Defender Office had been appointed to represent Kante. On the day of trial another attorney from that office, Greta Truman, appeared to represent him.
A jury found Kante guilty of forgery. He was ordered to appear for a pre-sentence conference on October 27, 2000. Kante never appeared. A warrant was issued for his arrest. In January 2004 Kante turned himself in. He was given a suspended sentence and placed on probation for a period of two years. Kante now appeals, claiming he received ineffective assistance of counsel.
II. Standard of Review
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
In proving the first prong, the defendant faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994).
III. Ineffective Assistance
A.
Kante first contends that he received ineffective assistance due to his attorney's failure to ensure that he understood all of the proceedings through the assistance of the interpreter. He asserts that during the discourse with the court outlined above he informed the court that he was not able to understand his attorney. He also points out that French was not his first language.
Our supreme court has previously stated:
Trial counsel may breach a duty owed to his client through the ineffective assistance of an interpreter. When an intermediary, such as an interpreter, is the only means of communication for a defendant and his attorney, any deficient conduct on the part of the intermediary can be imputed to the attorney as ineffective assistance. Inaccurate and incomplete translations of attorney-client communications by an interpreter are an example of deficient conduct by an intermediary giving rise to an ineffective assistance of trial counsel claim.
Ledezma v. State, 626 N.W.2d 134, 149 (Iowa 2001) (citations omitted).
Our review of the record leads us to conclude that Kante was not asserting that he could not understand his attorney. Rather, he was stating that he had not previously spoken to this particular attorney. As noted above, Kante's previous counsel was unavailable on the day of trial, and another attorney from the same office appeared. The court's discourse with Kante does not reveal that Kante had any difficulty understanding the court's statements with the assistance of the interpreter. Kante admitted he was able to understand the interpreter. The interpreter also testified that, to the best of her knowledge, she could communicate clearly with Kante. We conclude Kante has failed to show that he received ineffective assistance due to inaccurate or incomplete translations by the interpreter.
B.
Kante claims that he was denied the effective assistance of counsel who was familiar with his case. He asserts that because he had not previously met with attorney Truman she could not present an effective defense. He does not identify that which Truman should have done differently. We conclude he has failed to show ineffective assistance on this ground.
C.
Kante asserts that attorney Summers failed to file a request to produce an ATM videotape of Watson, which would absolve him of the crime. We determine this issue should be preserved for postconviction proceedings because the present record is inadequate for us to address this issue. See State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004) ("Ordinarily, ineffective assistance of counsel claims are best resolved by postconviction proceedings to enable a complete record to be developed and afford trial counsel an opportunity to respond to the claim.").
D.
Finally, Kante contends that neither counsel advised him of the consequences a felony conviction may have on his immigration status. We find the record is also inadequate to address this issue on appeal. It should be preserved for any postconviction proceeding. See id.
We affirm the decision of the district court.