Opinion
No. 5-328 / 04-1249
Filed June 15, 2005
Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson (motion to suppress) and James M. Richardson (trial), Judges.
Arturo Venegas appeals his conviction for first-degree robbery. AFFIRMED.
Chad Primmer of Chad Douglas Primmer, P.C., Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Matthew Wilber, County Attorney, and Christopher Wilson and Shelley Sedlak, Assistant County Attorneys, for appellee.
Considered by Mahan, P.J., and Zimmer and Hecht, JJ.
I. Background Facts Proceedings
On November 11, 2003, two armed men came into the Oard Ross Drug Store in Council Bluffs and demanded money. Each man wore a bandana over his mouth and nose. They took some money from the cash registers, then got in a dark Chevy Camaro driven by a third man.
Police officers soon spotted a dark Chevy Camaro in the area, and one of the passengers had a blue bandana on his head. The vehicle refused to stop after police turned on their lights and sirens. The officers followed the vehicle to a wooded area near a cement factory. The three men ran from the car. One of the men, Edgar Cardona, was quickly apprehended. After a search with a helicopter, a second man, Ricardo Mastache, was also apprehended. Mastache had been hiding in a stream and his clothes were wet.
Officers were unable to locate the third man. A search of the vehicle revealed a gun, a bandana, and a check made out to Oard Ross Drug Store. The vehicle was registered to William Lockard. Lockard told officers he sold the car a few days earlier to a Hispanic man who lived at 824 Fifth Avenue.
Mastache agreed to help the police, and he stated the third person was a Hispanic man named "Wally." Officers received information that "Wally" lived in the 800 or 900 block of Fifth Avenue. Mastache's girlfriend lived at 824 Fifth Avenue. Officers had Mastache call his girlfriend and ask if "Wally" was there, and she replied that he had just recently arrived. Officers went to 824 Fifth Avenue and asked to speak to "Wally." The defendant, Arturo Venegas, came out, and he was arrested. Mastache's girlfriend stated Venegas's clothes were wet when he arrived at her apartment.
As Venegas was being taken to a police cruiser, Officer Jason Bailey started to tell him his Miranda rights. Venegas stated, "Yes, I know we robbed the store." Officer Bailey then went through the Miranda rights, asking Venegas after each one if he understood, and Venegas answered in the affirmative. Venegas told Officer Bailey that he owed another individual some money and they went down to the store to rob it.
At the police station, Venegas was again advised of his Miranda rights by Detective Loren Knauss. Detective Knauss was not sure if Venegas understood the terms "lawyer" or "attorney," and obtained a Spanish-speaking interpreter. The interpreter then read the Miranda warning to Venegas, and the questioning continued with the help of the interpreter. Venegas admitted that he robbed the drug store and that he was armed with a gun. He stated he owed Mastache money, and Mastache told him he should assist in robbing the drug store in order to pay up.
Venegas was charged with robbery in the first degree, in violation of Iowa Code section 711.2 (2003). Venegas filed a motion to suppress claiming (1) his arrest was in violation of his Fourth Amendment rights; (2) his statements to law enforcement officials were not made knowingly and voluntarily; and (3) his clothing was seized in violation of his Fourth Amendment rights. The district court determined that officers had probable cause to arrest Venegas and the subsequent seizure of his clothing was proper. The court also found Venegas voluntarily made an admission to Officer Bailey and that he knowingly, voluntarily, and intelligently waived his Miranda rights prior to his statements to Detective Knauss. The court denied the motion to suppress.
The case proceeded to a jury trial. After hearing the evidence, a jury found Venegas guilty of first-degree robbery. He was sentenced to a term of imprisonment not to exceed twenty-five years. Venegas appeals.
II. Warrantless Arrest
Venegas contends the district court should have granted his motion to suppress evidence obtained as a result of his warrantless arrest. He claims his warrantless arrest violates the Fourth Amendment. Because Venegas's argument implicates his constitutional rights, our review is de novo. See State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). We make an independent evaluation of the totality of circumstances, as shown by the entire record. Id.
Section 804.7(3) provides that an officer may make a warrantless arrest "[w]here the peace officer has reasonable ground for believing that an indictable public offense has been committed and has reasonable ground for believing that the person to be arrested has committed it." The phrase "reasonable ground for believing" used in section 804.7(3) means probable cause. State v. Harris, 490 N.W.2d 561, 563 (Iowa 1992). Probable cause exists when the facts and circumstances within an arresting officer's knowledge would warrant a person of reasonable caution to believe that an offense has been committed and the person to be arrested committed it. State v. Bradford, 620 N.W.2d 503, 508 (Iowa 2000); State v. Ceron, 573 N.W.2d 587, 592 (Iowa 1997).
Evidence from two different sources linked Venegas to the robbery. The car that was used in the robbery had recently been sold to a Hispanic man who lived at 824 Fifth Avenue. Venegas was a Hispanic male who was present at 824 Fifth Avenue. Also, Mastache linked "Wally," a Hispanic man who lived in the 800 to 900 block of Fifth Avenue, to the crime. Mastache's girlfriend stated "Wally" was present at 824 Fifth Avenue, his clothes were wet when he arrived, and when officers arrived Venegas responded to the name "Wally." Looking at the totality of the circumstances, we determine police officers had probable cause to arrest Venegas. We conclude the district court properly denied the motion to suppress based on the warrantless arrest in this case.
III. Voluntariness of Statements
Venegas asserts the district court should have suppressed his statements to Detective Knauss because he did not knowingly waive his Miranda rights. On appeal, Venegas asserts that he confessed to Detective Knauss because he was persuaded to believe his cooperation would assist in reducing his punishment. He also claims he was confused and unable to process the information provided to him.
We first note that Venegas did not raise before the district court the issue of an alleged promise of leniency. We conclude this issue was not preserved for our review, and we do not address it. See State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999). If we were to address this issue, our de novo review of the transcript of the interrogation by Detective Knauss shows no promises of leniency were made.
We turn then to a consideration of Venegas's claims that he did not understand his Miranda rights and so could not voluntarily waive them. In Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706-07 (1966), the United States Supreme Court mandated that during a custodial interrogation an accused should be advised of certain constitutional rights. A defendant may waive these rights, provided the waiver was made voluntarily, knowingly, and intelligently. State v. Thai, 575 N.W.2d 521, 524 (Iowa Ct.App. 1997). The State has the burden to prove by a preponderance of the evidence that a defendant's waiver is voluntary. State v. Bowers, 656 N.W.2d 349, 353 (Iowa 2002). The ultimate test is whether, under the totality of the circumstances, the statements were the product of an essentially free and unconstrained choice, made by the subject at a time when that person's will was not overborne or the capacity for self-determination critically impaired. Id. Our review of this issue is de novo. Turner, 630 N.W.2d at 606.
We determine the State produced sufficient evidence to show that Venegas's waiver was voluntary. Police officers told Venegas his Miranda rights at least three times, twice in English and once in Spanish, before he made the statements to Detective Knauss. Venegas had the benefit of an interpreter to help him. There was no evidence to show Venegas's will was overborne or his capacity for self-determination critically impaired. We conclude Venegas waived his Miranda rights in a voluntary, knowledgeable, and intelligent manner. The district court properly denied Venegas's request to suppress his statements to Detective Knauss.
IV. Hearsay Evidence
During the trial, the State presented a videotape of the entire interview between Detective Knauss and Venegas, which was interpreted by Albert Ochoa. Venegas objected to the videotape on the ground that Ochoa's statements to Detective Knauss were hearsay. The district court overruled the hearsay objection, and the videotape was played for the jury. Venegas claims the district court erred in allowing the jury to see the entire videotape.
We review hearsay rulings for errors of law. State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998). Generally, hearsay evidence is not admissible, unless it comes within an exception to the hearsay rule. Iowa R. Evid. 5.802. An admission by a party opponent is not considered hearsay. Iowa R. Evid. 5.801(d)(2).
Back in 1917, our supreme court held that testimony does not become hearsay when it is received through an interpreter. State v. Powers, 181 Iowa 452, 459, 164 N.W. 856, 858-59 (1917). We note that some courts have determined "an interpreter is `no more than a language conduit' and therefore, his translation [does] not create an additional level of hearsay." See United States v. Koskerides, 877 F.2d 1129, 1135 (2d Cir. 1989). Other courts, however, consider the interpreter's biases and qualifications to determine whether the statements can fairly be considered those of the speaker. See United States v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991).
Ochoa testified at the trial that he honestly and accurately translated from English to Spanish and from Spanish to English. There was no evidence Ochoa was biased or that he lacked the qualifications to translate the interview. We conclude the videotape of the interview did not become hearsay merely because an interpreter was used. We affirm the district court's decision to overrule Venegas's hearsay objection to the videotape.
We affirm Venegas's conviction for first-degree robbery.