Opinion
No. 1-886 / 00-1689.
Filed April 24, 2002.
Appeal from the Iowa District Court for Allamakee County, LAWRENCE H. FAUTSCH, Judge.
Gerordo Quiroz Gonzalez appeals from the judgment and sentence entered upon a jury verdict finding him guilty of first-degree murder. AFFIRMED.
Maggi Moss and Jennifer Larson of Parrish, Kruidenier, Moss, Dunn, Montgomery, Boles Gribble, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, William Shafer, County Attorney, and Douglas D. Hammerand, Assistant County Attorney, for appellee.
Heard by MAHAN, P.J., and ZIMMER and EISENHAUER, JJ.
Defendant Gerordo Quiroz Gonzalez appeals from the judgment and sentence entered upon a jury verdict finding him guilty of first-degree murder. Gonzalez contends the district court erred (1) by denying his motion for change of venue and (2) by permitting the State to amend the minutes of testimony of witness Francisco Hernandez Lemus. Gonzalez also argues (1) he was denied his right to a fair trial on the basis that witnesses' testimony were inaccurately interpreted; (2) his trial counsel was ineffective for failing to renew a motion for change of venue; and (3) he is entitled to a new trial on the basis of cumulative error. We affirm.
Background Facts and Proceedings. On January 14, 2000, Gonzalez and his roommates went to the Horseshoe bar in Postville. Prior to going to the bar, the men consumed a large amount of alcohol at their residence. While at the bar, Gonzalez engaged in an argument with Santiago "Chago" Vega about a fifty-dollar debt. Gonzalez and his friends remained at the bar until closing time. While walking home, Gonzalez again encountered Chago, as well as Francisco "Lolito" Costillo and his friends. A fight ensued between the two groups. After the fight, the participants dispersed. Shortly thereafter, Gonzalez and three of his friends arrived at Lolito's apartment. Gonzalez asked for Chago but Lolito told him that Chago did not live at the apartment. At that time, Gonzalez shot Lolito in the head at close range.
Eyewitnesses heard Gonzalez say "Chago's not here but you are."
On January 24, 2000, Gonzalez was charged by trial information with one count of murder in the first degree in violation of Iowa Code section 707.2(1) (1999). Prior to trial, Gonzalez filed a motion to change venue. He argued that the pretrial publicity from several newspaper articles created a substantial likelihood that a fair and impartial trial could not be conducted in Allamakee County. Following a hearing, the district court denied Gonzalez's motion. The court concluded that newspaper articles were generally factual and informative, and not inflammatory. On April 3, 2000, Gonzalez provided notice of his intent to rely on the defenses of self-defense, diminished capacity and intoxication. Four days prior to trial, the State filed a notice of additional minutes of testimony. The court allowed the amendment.
A jury trial commenced on August 21, 2000. On September 5, 2000, the jury returned a verdict of guilty on the charge of first-degree murder. Subsequently, Gonzalez filed a motion for new trial and motion in arrest of judgment based on alleged errors that occurred during the pretrial and trial process. The district court denied these motions. On October 2, 2000, the court sentenced Gonzalez to life in prison without parole. The court also ordered Gonzalez to pay restitution to the Crime Victim Assistance Program in the amount of $3175 and restitution to the estate of Francisco Costilla in the amount of $150,000. Gonzalez appeals.
Change of Venue. Gonzalez contends that because of the extensive publicity attending this case, the district court's denial of his motion for change of venue deprived him of his right to a fair trial, under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, sections 9 and 10 of the Iowa Constitution. We review a district court's denial of a motion for a change of venue due to pretrial publicity de novo to determine whether the district court's decision demonstrates an abuse of discretion. State v. Wedebrand, 602 N.W.2d 186, 188 (Iowa Ct. App. 1999). Reversal is warranted only where the trial court's decision demonstrates an abuse of discretion. State v. Siemer, 454 N.W.2d 857, 860 (Iowa 1990); State v. Harris, 436 N.W.2d 364, 367 (Iowa 1989).
Pretrial publicity warrants a change of venue when "such a degree of prejudice exists in the county in which the trial is to be held that there is a substantial likelihood a fair and impartial trial cannot be preserved with a jury selected from that county." Iowa R. Crim. P. 2.11(10)(b). To obtain a reversal of a conviction based on the denial of a motion for change of venue, prejudice must be shown. State v. Escobedo, 573 N.W.2d 271, 275 (Iowa Ct.App. 1997). "A defendant relying on jury prejudice as a ground for reversal must show (1) publicity attending the trial that is so pervasive and inflammatory that prejudice must be presumed, or (2) actual prejudice on the part of the jury." Siemer, 454 N.W.2d at 860. "To sustain a claim of presumptive prejudice, the defendant must prove that the publicity attending the case was `pervasive and inflammatory.'" Id.
A juror need not be completely ignorant of the issues and events involved in a trial. State v. Hoeck, 547 N.W.2d 852, 861 (Iowa Ct.App. 1996) Mere exposure to news accounts does not amount to a substantial likelihood for prejudice. State v. Walters, 426 N.W.2d 136, 138 (Iowa 1988). The relevant question is not what a juror has been exposed to, but whether the juror holds such a fixed opinion on the merits of the case that he or she cannot judge impartially the guilt or innocence of the defendant. Id. Our supreme court has said:
Exposure to newsworthy events will not alone give rise to a presumption of prejudice. Additionally, to the extent particular jurors may be substantially prejudiced against a defendant, rigorous voir dire can be trusted to expose those prejudices.State v. Wagner, 410 N.W.2d 207, 211 (Iowa 1987).
In order to determine whether news articles and broadcasts have prejudiced a community for venue purposes, we consider whether the accounts:
indicated the defendant is guilty; were factual and informative; were inflammatory in tone; contained editorial denunciations of the defendant; contained emotional stories regarding the defendant or the victim; and were inaccurate, misleading or unfair. We also look to see whether enough time had passed between the accounts and the trial date to dissipate any prejudicial effect of adverse publicity; whether panel members who professed knowledge of the case stated they could render an impartial verdict on the basis of the evidence presented at trial; and whether the trial judge sustained strikes for cause against jurors who stated they could not render an impartial verdict due to their prior knowledge.State v. Means, 547 N.W.2d 615, 622 (Iowa Ct.App. 1996) (citing Walters, 426 N.W.2d at 139).
Gonzalez does not attempt to show actual prejudice on the part of the jury. Rather he contends that the publicity attending his case was so pervasive and inflammatory that prejudice must be presumed to exist. We disagree.
Thirty-three of the fifty-eight potential jurors indicated that they had no opinion on Gonzalez's guilt.
As documented in Gonzalez's exhibits, there was extensive news coverage of the case shortly after the murder. However, we find "the record does not disclose, as defendant would have it, sensational reporting of a routine crime. Rather, there was routine reporting of a sensational crime. We find nothing in the news coverage which went beyond direct relating of unvarnished facts." Walters, 426 N.W.2d at 139-40. There is also no evidence the media's account of the crime was unfair or inaccurate. After reviewing the newspaper articles, we conclude the coverage was factual, informative, accurate, not inflammatory or misleading, and expressed no view on Gonzalez's guilt or innocence. We determine the publicity attending the trial was not pervasive and inflammatory. We therefore affirm the district court on this issue.
Gonzalez also contends that he was continually mentioned in newspaper accounts "all the way up to and through the time of defendant's trial." However, the record reflects no such coverage. The record is clear that all newspaper articles attached to Gonzalez's motion to change venue occurred in late January and February 2000, shortly after the murder took place. Gonzalez does not discuss or identify which news coverage continued to exist prior to trial. Therefore, we reject this contention.
While we find the January 17, 2000 article from the Cedar Rapids Gazette to be unfortunate, we do not find said article standing alone warrants reversal.
Amended Minutes of Testimony. Gonzalez also contends the district court erred by permitting the State to amend the minutes of testimony of witness Francisco Hernandez Lemus. Gonzalez argues the amendment to the minutes in this case completely undermined his defense since the amendment changed the nature of the witness's testimony. We disagree. We review for errors at law. Iowa R. App. 6.4.
The State is required to file minutes of testimony of each witness expected to testify at the trial. Iowa R. Crim. P. 2.5(3). The minutes must be filed with the trial information and supply a "full and fair statement" of the anticipated testimony. Id. The purpose of the rule is to eliminate claims of foul play and provide an accused meaningful information from which a defense may be prepared. State v. Walker, 281 N.W.2d 612, 613 (Iowa 1979).
The obligation to provide a "full and fair statement" does not require the State to use precision in composing the expected testimony of each witness named in the minutes. State v. Ellis, 350 N.W.2d 178, 181 (Iowa 1984). The "full and fair statement" standard mandates the prosecutor to adequately alert the defendant to the source and nature of the testimony, and place defendant on notice of the need for further investigation of the particular details of the witness's expected testimony. State v. Lord, 341 N.W.2d 741, 743 (Iowa 1983). Moreover, the State is not bound to the original minutes of testimony provided to the defendant. State v. Wells, 522 N.W.2d 304, 307 (Iowa Ct.App. 1994). The court may permit the State to amend the minutes before or during the trial unless "substantial rights of the defendant" would be prejudiced, or a "wholly new and different offense" is charged. Iowa R. Crim. P. 2.4(8)(a) and (e); State v. Braun, 495 N.W.2d 735, 741 (Iowa 1993).
The decision to pursue discovery of the particular details of the expected testimony of a witness through deposition or other means rests, in each case, with the defendant. Wells, 522 N.W.2d at 307. This is true whether the minutes of testimony are filed with the trial information or later amended. Id. Amendments to minutes serve the same purpose as the original minutes, and follow the same rule requiring a "full and fair statement" of the expected testimony. Id.
The relevant inquiry is whether the subsequent amendment subjected the defendant to prejudice or created a new offense. Iowa R. Crim. P. 2.4(8)(e). In order to establish prejudice, we have stated:
Prejudice does not arise simply because an amendment to the minutes is allowed. Prejudice generally looks to the existence of some legitimate surprise visited upon the defendant which undermines an aspect of the defense to the charge or renders defendant's evidence inapplicable. A claim of prejudice must find support in the record.Wells, 522 N.W.2d at 307 (citations omitted).
The amendment permitted by the trial court in this case did not prejudice any substantial rights of the defendant. To the contrary, the amendment merely enlarged or detailed the prior minutes of Lemus's testimony. Specifically, the amendment allowed introduction of Lemus's testimony that Gonzalez, shortly after the shooting, stated "If I get out of this, Monday I am going to look for Chago." We recognize that Lemus failed to inform the parties of the additional evidence in his previous statements. However, despite Gonzalez's contention, this additional testimony was not new to Gonzalez. The record is clear that virtually every eyewitness testified that Gonzalez had been originally looking for Chago before he killed the victim in Chago's residence. In addition, this additional testimony was not the only evidence used by the State to negate Gonzalez's intoxication defense.
After a careful review of the record, we conclude the amended minutes did not change the nature of the testimony and could not have surprised defendant or unfairly altered his defense or ability to rebut the evidence. In addition, given the overwhelming evidence of guilt, Gonzalez has failed to show he was unfairly prejudiced by the allowance of this additional testimony. Accordingly, the amendment was properly allowed.
Adequacy of Interpreter Services. Gonzalez also argues he was deprived of the right to a fair trial on the basis that witnesses' testimony were inaccurately interpreted. When a defendant asserts claims of a constitutional nature, our review is de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).
The State contends that this claim was not adequately preserved for appeal. Specifically, the State argues Gonzalez's attorney only objected to prior translations by the interpreter throughout the course of depositions, not to trial translations. Therefore, the State argues the claim was not adequately preserved. We will assume without deciding that error was preserved and will proceed to discuss the merits of this issue.
Iowa Code section 622A.2 provides:
Every person who cannot speak or understand the English language and who is a party to any legal proceeding or a witness therein, shall be entitled to an interpreter to assist such person throughout the proceeding.
Iowa Code § 622A.2 (1999). Chapter 622A specifies neither the interpreter's duties nor the procedures that should be used when an interpreter is required. State v. Thongvanh, 494 N.W.2d 679, 681 (Iowa 1993).
In Thongvanh, our supreme court stated, "The general standard for adequate translation of trial proceedings `requires continuous word for word translation of everything relating to the trial a defendant conversing in English would be privy to hear.'" Id. (quoting United States v. Joshi, 896 F.2d 1303, 1309 (11th Cir. 1990)). However, our supreme court recognized this right is not absolute. "Although a continuous word for word translation of the proceedings will always pass constitutional muster, minor deviations from this standard will not necessarily contravene a defendant's constitutional rights." Id. (quoting Joshi, 896 F.2d at 1309). In addition, we are "unlikely to find that a defendant received a fundamentally unfair trial due to an inadequate translation in the absence of contemporaneous objections to the quality of the interpretation." Id. at 682 (quoting Joshi, 896 F.2d at 1310).
In the present case, there were three interpreters. Gonzalez was provided with his own interpreter who sat beside him throughout the trial. In addition, there were two interpreters who continually alternated their services for twenty-minute periods, except for the testimony of the witnesses. Furthermore, the record does not indicate that Gonzalez made any objection relating to the adequacy of translation until a State's witness, Jose Martinez, was questioned by Gonzalez's attorney on whether Chago had been looking at the defendant badly. The official interpreter asked the court for permission to consult with her colleague for assistance to translate the question. It was only at this time that concerns regarding translation were brought to the court's attention. The court, the parties, and interpreters engaged in an extensive discussion regarding this matter. The official interpreters did acknowledge concerns regarding some translations that occurred in pretrial depositions and some differences in exact word choices for awkward phrases during trial testimony. The only concern by Gonzalez's interpreter was the word choice in one translation. However, the district court felt the difference in the translations was de minimus but cautioned all three interpreters to alert the court to any further problems immediately. No other objections to the adequacy of the interpretation were made during the remainder of the trial.
This objection occurred nine days after the trial commenced and after some 1250 pages of trial transcript.
After a careful review of the record, we conclude Gonzalez was not deprived of his constitutional rights guaranteeing him a fair trial. We conclude that the interpreters adequately translated the testimony. We therefore reject Gonzalez's claim.
Ineffective Assistance of Counsel. Gonzalez also contends his trial counsel was ineffective for failing to renew the motion for change of venue after jury selection. We concluded above that the publicity attending the trial was not pervasive and inflammatory. Therefore, this claim of ineffective assistance of counsel must fail. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999) (stating "[C]ounsel is not incompetent in failing to pursue a meritless issue.").
Cumulative Error. Gonzalez asserts a general claim that the cumulative effect of errors committed during trial deprived him of a fair trial. Because we have determined that no errors were committed in the trial court, we reject this argument. Gonzalez is not entitled to a new trial.
Conclusion. We have considered all claims raised by Gonzalez on appeal. Finding no merit in his contentions, we affirm the judgment of the district court.
AFFIRMED.