State v. Escobedo, 95-2005

• Decision Date: 24 September 1997
• Docket Number: No. 95-2005,95-2005
• Citation: 573 N.W.2d 271
• Parties: STATE of Iowa, Appellee, v. Guillermo ESCOBEDO, Appellant.
• Court: Iowa Court of Appeals

Page 271

573 N.W.2d 271

STATE of Iowa, Appellee, v. Guillermo ESCOBEDO, Appellant.

No. 95-2005.

Court of Appeals of Iowa.

Sept. 24, 1997.

Steven D. Pals of Klay, Veldhuizen, Binder, DeJong & Pals, Orange City, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, and Mark J. Schouten, County Attorney.

Heard by CADY, and STREIT, JJ., and HABHAB, Senior Judge. ^*

CADY, Judge.

Guillermo Escobedo appeals his convictions for first-degree murder, willful injury, and assault causing bodily injury. He asks for a new trial claiming error based on the denial of his motion for change of venue, substitution of a juror during deliberations, prosecutorial misconduct, and improper jury instructions. We affirm the convictions.

Escobedo was convicted of first-degree murder, willful injury, and assault on September 22, 1995, following a jury trial. The State presented evidence Escobedo and co-defendant Cesar Herrarte stabbed two young men with meat-packing knives after a fight broke out at a party on January 14, 1995. The party took place at a house in Hawarden, Iowa, and was attended by a number of young people. One of the teenage stabbing victims died a short time later. His wounds were so deep and severe that numerous vital organs and arteries in the chest and stomach area were cut or severed and some of his abdominal contents were expelled from his body.

Escobedo moved for a change of venue from Sioux County based on the small, rural nature of the jurisdiction, extensive media coverage, general public knowledge of the incident, his nationality and immigration status, and the lapse of time between the incident and the trial. ¹ The trial court denied the motion.

The case proceeded to trial with jury selection commencing September 6, 1995. The jury was impaneled on September 8. Three alternate jurors were selected. Prospective jurors were examined by the court as well as the attorneys.

The evidence in the case was presented to the jury over the course of the following two weeks. The trial court then gave its instructions to the jury and closing arguments were presented by the attorneys. The alternate jurors were subsequently excused but told by the trial judge not to discuss the case until a verdict had been returned. The jury then retired to begin its deliberations shortly after 3 p.m. on September 21. They deliberated into the evening and were excused around 10 p.m. with instructions to return at 9 a.m. the next morning to resume their deliberations.

The next morning, the county attorney informed the trial judge he recently received information from a person who reported hearing a juror make racial remarks about Escobedo at a bar a few nights earlier. The trial judge conducted an inquiry into the report, which included testimony from the juror and the informant, and dismissed the juror from the case. He then told Escobedo's lawyer he "intended to use" the dismissed first alternate juror, and Escobedo's lawyer responded "yes." The alternate juror was summoned and replaced the dismissed juror. Deliberations resumed after the trial judge instructed the jury to begin their deliberations anew. The jury returned its verdict later in the day.

Escobedo raises four claims on appeal. He first asserts the trial court erred in denying the motion for change of venue. He next claims the trial court erred in substituting the alternate juror during deliberations. He further claims the prosecutor repeatedly committed misconduct during closing argument by referring to his ethnic background, discussing his involvement in other crimes, injecting his personal beliefs into his argument, and making statements unsupported by evidence. Finally, Escobedo argues the jury instructions improperly permitted the jury to infer malice and malice aforethought to sustain the first-degree felony murder verdict.

I. Change of Venue

Our review of a refusal to grant a motion for change of venue is de novo. State v. Wagner, 410 N.W.2d 207, 210 (Iowa 1987). We recognize, however, the decision to grant or refuse a change of venue primarily rests in the discretion of the trial court and we will reverse that decision only when the discretion has been abused. Id.

Our rules of criminal procedure require venue to be changed when "such degree of prejudice exists in the county in which the trial is to be had that there is a substantial likelihood a fair and impartial jury cannot be preserved with a jury selected from that county." Iowa R. Crim. P. 10(10)(b). To obtain a reversal of a conviction based on the denial of a motion for change of venue, either actual prejudice on the part of the jury must be shown or the publicity attending the case must be so pervasive and inflammatory prejudice is presumed. State v. Harris, 436 N.W.2d 364, 367 (Iowa 1989).

We fail to find presumed prejudice from our review of the record. Most of the media reports were factual in nature and restricted to the first two months following the incident. There were some letters printed in the newspaper critical of the impact of the illegal immigrant population in the community, but other letters and editorials were conciliatory and spoke favorably about immigrants in the community. Community and law enforcement leaders repeatedly emphasized in the news reports the incident was not racially motivated. Moreover, extensive voir dire was conducted in this case with most jurors responding the pretrial publicity would not adversely affect their ability to be fair and impartial. See Wagner, 410 N.W.2d at 211 (voir dire can be trusted to expose prejudices based on pretrial publicity).

Escobedo argues this case illustrates the impropriety of relying upon voir dire examination to expose prejudice in publicized cases because jurors can be dishonest in their responses to the questions, and prejudice should be presumed when a biased juror actually becomes part of the jury. We disagree. The incident involving the dismissed juror does not give rise to a presumption of prejudice on the part of the jury. The presumption of prejudice pertains to pervasive pretrial publicity. Claims that the jury that did serve was not impartial must be grounded on evidence appearing of record. State v. Neuendorf, 509 N.W.2d 743, 747 (Iowa 1993). There was no evidence the dismissed juror in this case had any effect on the verdict or that the jury was impartial. We do not find the district court abused its discretion in denying the motion for change of venue.

II. Substitution of Jury

Our rules of criminal procedure permit the selection of alternate jurors to sit at trial and replace any regular juror who becomes unable to serve, or becomes disqualified, before the jury retires to deliberate on the verdict. Iowa R.Crim. P. 17(15). There are a variety of circumstances that can arise during the course of a trial which require jurors to discontinue their service, and the availability of alternate jurors to replace dismissed jurors helps to avoid the time, expense, anxiety, and inconvenience associated with a mistrial. ² Although some jurisdictions recognize the replacement of regular jurors during deliberations, we do not. ³ Our rules only permit the replacement of a regular juror prior to the commencement of the deliberations and require alternate jurors to be discharged after the deliberations begin. Id.

We agree with Escobedo the district court was not authorized to replace a juror during deliberations. We also agree Escobedo would have been entitled to a mistrial after the trial court dismissed the juror during the deliberations. However, Escobedo did not request the trial court to declare a mistrial, but instead acquiesced in the replacement of the dismissed juror with a previously dismissed alternate juror. ⁴ This response is critical to our analysis of the claim.

We recognize our time-honored principle that claims of error must first be raised at trial. State v. Heacock, 521 N.W.2d 707, 710 (Iowa 1994). This principle acknowledges we are a court of review and provides the needed symmetry in our judicial process by requiring the trial judge to be alerted to the claim of error at trial and given an opportunity to correct it without an appeal. See State v. Halliburton, 539 N.W.2d 339, 342 (Iowa 1995). Without this opportunity, we have no decision or action to review. See State v. Wages, 483 N.W.2d 325, 326 (Iowa 1992). Nearly all error, including jury irregularities, may be waived. ⁵ See id.; State v. Doughty, 397 N.W.2d 503, 504-05 (Iowa 1986).

We conclude Escobedo waived his claim of error based on the unauthorized replacement of a juror during deliberations. Furthermore, we reject his invitation made in oral argument to excuse the waiver by adopting the plain error standard of review. Lamphere v. State, 348 N.W.2d 212, 218 (Iowa 1984) (supreme court refused to adopt plain error rule).

III. Prosecutorial Misconduct

Prosecutorial misconduct warrants a new trial when it is "so prejudicial as to deprive the defendant of a fair trial." State v. Lyons, 210 N.W.2d 543, 549 (Iowa 1973). To establish the claim, a defendant must show both misconduct and prejudice. State v. Farmer, 492 N.W.2d 239, 242 (Iowa App.1992). Trial courts have broad discretion to determine whether prejudice resulted from misconduct. State v. Anderson, 448 N.W.2d 32, 33 (Iowa 1989). As a firsthand observer to both the claimed misconduct and any reaction by the jury, the trial court is better equipped than an appellate court to determine the presence of prejudice. Id. at 34. Consequently, we will reverse a trial court ruling only upon finding an abuse of discretion. Id. This occurs when discretion is "exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable." Id.

Prejudice ordinarily results from persistent efforts to inject prejudicial matter before the jury. State v. Webb, 244 N.W.2d 332, 333 (Iowa 1976). It is also important to consider the strength of the evidence...