review from the Iowa Court of Appeals.
from the Iowa District Court for Muscatine County, Stuart P.
State seeks further review of a court of appeals decision
ordering a new trial because the district court overruled the
defendant's objection to a standby interpreter.
Courtney T. Wilson of Hopkins & Huebner P.C., Davenport,
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
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.
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.
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.
Background Facts and Proceedings.
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
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
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. The court
proceeded without an interpreter. Counsel for Gomez Garcia
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
. . . [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
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.
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.
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
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.
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
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.
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
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.
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?
. . . .
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.
Garcia relied on an entrapment defense. The district court
summarized the testimony ...