State v. Garcia

• Decision Date: 17 November 2017
• Docket Number: No. 15-1543,15-1543
• Parties: STATE of Iowa, Appellee, v. Carlos Ariel GOMEZ GARCIA, Appellant.
• Court: Iowa Supreme Court

904 N.W.2d 172

STATE of Iowa, Appellee,

v.Carlos Ariel GOMEZ GARCIA, Appellant.

No. 15-1543

Supreme Court of Iowa.

Filed November 17, 2017

Courtney T. Wilson of Hopkins & Huebner P.C., Davenport, for appellant.

Thomas J. Miller, Attorney General, and Kevin R. Cmelik and Louis S. Sloven, Assistant Attorneys General, Alan Ostergren, County Attorney, and Korie Shippee, Assistant County Attorney, for appellee.

WATERMAN, Justice.

In this appeal, we must decide whether the defendant is entitled to an automatic new trial after the district court, over his objection, required a standby interpreter for his jury trial. The defendant had requested an interpreter for his initial bond hearing, and one was provided for all pretrial hearings. On the morning of the scheduled jury trial, however, the defendant sought to waive the interpreter, arguing that he did not need one and would be distracted by the translation and that jurors would be prejudiced. The district court nevertheless ordered a standby interpreter to sit in the gallery translating through a wireless earpiece the defendant could remove at his option. The defendant waived the jury and was convicted of selling cocaine in a bench trial.

The defendant appealed, contending the district court erred by requiring the standby interpreter, which forced him to waive the jury. He also contended on appeal through new counsel that his trial counsel was ineffective for waiving the jury without a proper colloquy. We transferred the case to the court of appeals, which reversed and ordered a new trial without any showing of prejudice. We granted the State's application for further review.

On our review, we hold that the defendant had a right to waive the interpreter, but we conclude under this record that the district court did not abuse its discretion by ordering a standby interpreter over his objection. We decline to decide the defendant's claim his counsel was ineffective in waiving the jury because the record is inadequate. The defendant may pursue that claim in a postconviction action. We vacate the decision of the court of appeals and affirm the district court judgment.

I. Background Facts and Proceedings.

According to the trial court's factual findings and verdict, Carlos Ariel Gomez Garcia, then age twenty-two, sold K.M. cocaine for $150 in the parking lot of West Liberty Foods on June 27, 2013. K.M. was a confidential informant working with Muscatine County Sheriff Detective Courtney Kelley. An undercover special agent, Jessie Whitmer, accompanied K.M. to the drug buy, which was photographed by Detective Kelley from a nearby vehicle. At the time, Kelley and Whitmer were unaware K.M. had been Gomez Garcia's girlfriend in a sexual relationship.

On December 31, 2014, Gomez Garcia was charged with delivery of a controlled substance (cocaine) in violation of Iowa Code section 124.401(1)(c) (2)(b) (2013). Gomez Garcia filed a written arraignment and plea of not guilty, in which he acknowledged he could "read the English language" and had a tenth-grade education. He is a native of Honduras who has lived in the United States for approximately ten years. The court continued Gomez Garcia's bond review hearing, initially scheduled for January 9, 2015, to January 23 because Gomez Garcia asserted he needed an interpreter. The district court entered an order appointing an interpreter for the bond review hearing "and the duration of th [e] case." An interpreter was made available to Gomez Garcia for the January 23 bond review hearing as well as for all other pretrial court appearances, specifically, a February 13 continuance hearing, an April 23 motion hearing, another continuance hearing June 12, a June 16 meeting at the jail, and the July 2 final pretrial conference.

On the morning of trial on July 13, however, Gomez Garcia's counsel requested in chambers that Gomez Garcia be allowed to waive his right to have an interpreter present during the jury trial. The two interpreters present at the time were duly sworn, then excused from the chambers.¹ The court proceeded without an interpreter.

Counsel for Gomez Garcia stated,

Carlos would like to waive the use of the presence of the interpreters. He doesn't need one. He speaks English and understands it perfectly. I've met with him numerous times, and we've never had an interpreter.

An interpreter happened sort of spur of the moment during an initial bond review hearing, but we never had a hearing for whether that was actually needed, and Carlos has a real concern as to the danger of prejudice from having an interpreter present and interpreting everything for him.

It's also confusing for him because he understands English, and so he's listening to the English and then interrupted by someone speaking in his ear. He doesn't want that.

... [H]e understands that he can have one if he wanted one, but he absolutely does not want one. So having one forced on him for a trial, in our view, would deprive him of a fair trial.

The court stated it was unaware of any authority on a defendant's right to waive the use of an interpreter. The court determined the right to waive an interpreter

would be akin to [the] right to waive counsel, which is complex and requires an affirmative showing on the part of the Defendant that he understands the right that he's waiving and is able to exercise his rights to fair trial having waived that right.

The court proceeded to question Gomez Garcia, who stated that his foster family spoke to him in Spanish and English. Gomez Garcia answered questions regarding his understanding of the charges against him. The court decided to grant the motion "in part": rather than having the interpreters stand or sit next to Gomez Garcia and whisper in his ear, the court ordered the interpreters to be on "standby" and provide interpretation through a wireless earpiece. The court allowed Gomez Garcia to decide whether to use the earpiece. Additionally, the court offered to give a limiting instruction to the jury to make no assumptions based on the presence of an interpreter in the courtroom.

The court next suggested that the interpreters sit in the gallery on the prosecution's side. The assistant county attorney replied, "I will tell you that I can't do that. I would find that incredibly distracting to have someone standing right behind me speaking Spanish." Gomez Garcia's counsel noted he would "have the same exact problem."

At this time, Gomez Garcia's counsel moved to continue the trial and have Gomez Garcia tested for his understanding of English. Counsel pointed out it would be "obvious" to everyone in the courtroom why the interpreters were speaking Spanish throughout the trial. The State agreed to a continuance conditioned on a waiver of speedy trial. The court, however, denied the motion to continue, noting there was "a jury ready to go." The court again suggested a limiting instruction for the jury and elaborated why a standby interpreter would be required:

I'm basing my ruling on the theory that it is the Court's duty to assure a fair trial. And in this case, I think a fair trial means I must have an interpreter available, at least on a standby basis.

Defense counsel contrasted a standby attorney, who "is silent and does nothing[,]" with a standby interpreter, who would be speaking continuously. He asked why the court denied the motion to continue. The court explained that while the parties had established that Gomez Garcia has a basic level of competency in English, the court was concerned about determining "[w]hat level of competency in English is sufficient to proceed without an interpreter [.]" The court stated, "I'm not aware of a good legal standard that answers that question. Taking a test and giving me a result simply won't be. It's not legal guidance."

The court next heard arguments on Gomez Garcia's motion in limine to exclude evidence of his prior felony conviction for unlawful reentry into the United States. The State argued that if Gomez Garcia testified, he could be impeached with that felony conviction. Gomez Garcia argued the felony conviction was unduly prejudicial. The court reserved ruling, stating that issue would become "ripe" only if Gomez Garcia opted to testify.

Gomez Garcia waived his right to the jury trial in an unreported colloquy during the recess that immediately followed the court's announcement reserving ruling on his motion in limine. No written waiver of the jury trial was filed. The trial transcript noted that the "[d]efendant waived jury trial during recess, and the Court proceeded with bench trial." The record is silent as to why Gomez Garcia waived his right to trial by jury. The order and verdict stated,

Prior to the commencement of trial, the Court engaged in a colloquy with the defendant concerning his right to a jury trial and his waiver of the same. After engaging in a full colloquy, the Court finds the defendant knowingly, intelligently and voluntarily waives his right to a jury trial in this matter and consents to having this matter tried solely by the Court.

The State called three witnesses: K.M., Detective Kelley, and Special Agent Whitmer. Gomez Garcia also testified and admitted to delivering cocaine:

Q. And so you helped [K.M.] get the cocaine; is that right? A. Yes.

....

Q. I think I heard you say that you agree that on June 27th, 2013, you were the person who gave cocaine to [K.M.]; is that correct? A. Yes.

....

Q. So you don't dispute that you actually delivered cocaine on June 27th, 2013; is that right? A. Yes.

Gomez Garcia relied on an entrapment defense. The district court summarized the testimony in its factual findings as follows:

Garcia testified that he and [K.M.] had been friends for a period of time prior to the drug buy. He said they were in a sexual relationship, a fact admitted by [K.M.] Garcia testified he only acquired cocaine for [K.M.] because she was his friend and he did not want to damage their relationship by refusing her demands for drugs. He claims he made no money on the

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