This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Juan Arturo Chavez,
Filed August 29, 2006
Concurring specially, Randall, Judge
File No. KX-04-1179
Mike Hatch, Attorney General, Thomas R. Ragatz, Maggie Skelton, Assistant Attorneys General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101; and
Craig S. Nelson, Freeborn County
Attorney, 411 South Broadway,
John M. Stuart, State Public
Defender, Sharon E. Jacks, Assistant Public Defender,
Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Randall, Judge.
U N P U B L I S H E D O P I N I O N
Appellant argues that his conviction of second-degree assault should be reversed because (1) he was denied effective assistance of counsel and (2) law enforcement and the district court failed to follow “long-standing law” regarding the proper use of interpreters. We affirm.
On October 1, 2004, Rodolfo Lara, and his wife, Diane Hernandez, drove past appellant Juan Arturo Chavez, as Chavez was walking in Albert Lea. Lara testified that as they were driving by, Chavez called out to Hernandez and made a comment about one of Hernandez’s sons; Chavez had been friendly with Hernandez’s two sons until a recent falling-out. Lara testified that he stopped his vehicle, stepped out, and approached Chavez, asking him what he wanted with Hernandez’s son. Lara testified that Chavez then pulled out a knife, cut Lara on the stomach, and ran away.
Chavez was charged with second-degree assault, in violation of Minn. Stat. § 609.222, subd. 1 (2004) (describing second-degree assault as assault with a dangerous weapon). Chavez was convicted following a jury trial. This appeal follows.
argues that he was denied effective assistance because his trial counsel
offered evidence that rebutted Chavez’s defense and failed to raise a claim of
self-defense. To prove that he received ineffective assistance of
counsel, an appellant must affirmatively show that his “counsel’s
representation ‘fell below an objective standard of reasonableness’ and ‘that
there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’” Gates
v. State, 398 N.W.2d 558, 561 (
Generally, a claim of ineffective assistance of counsel should be raised in a postconviction petition for relief, rather
than on direct appeal. See Robinson v. State, 567 N.W.2d 491,
495 n.3 (
To prove second-degree assault, in violation of Minn. Stat. § 609.222, subd. 1 (2004), the state must show that, using a dangerous weapon, the defendant acted “with intent to cause fear in another of immediate bodily harm or death” or intentionally inflicted or attempted to inflict bodily harm on another. See Minn. Stat. § 609.02, subd. 10(1), (2) (2004) (defining “assault”). Chavez asserts that it was the defense’s theory that Hernandez’s and Lara’s accounts were not credible and that Chavez did not cut Lara with his knife. Thus, Chavez argues, it was objectively unreasonable for his trial counsel to introduce evidence that contradicted this defense.
record shows that Chavez’s trial counsel asked to play for the jury a recording
of Chavez’s statement to the police; in that statement, Chavez says that he
opened the knife in front of Lara.
Chavez further maintains that because “defense counsel offered into
evidence Chavez’s statement that he opened the knife in Lara’s presence after
Lara aggressively approached and tried to punch Chavez,” his trial counsel’s
failure to raise a self-defense argument was also objectively unreasonable. But because we
determine that there could have been a reasonable explanation for trial
counsel’s actions and additional facts are needed to explain counsel’s decisions,
we decline to reach the merits of the claim. See
State v. Barnes, 713 N.W.2d 325, 335 (
that this court should exercise its “supervisory power” and reverse his
conviction because of law enforcement’s and the district court’s failure to
follow “long-standing law” regarding the proper use of interpreters. The Minnesota Supreme Court has recognized
that there are some cases that, without a determination of prejudice, require reversal
under the supreme court’s supervisory power to serve the “interests of justice.” See,
e.g., State v. Salitros, 499
N.W.2d 815, 820 (
As an initial matter, we note that Chavez did not argue in the
district court that either law enforcement’s failure to use a qualified
interpreter or the district court’s use of an interpreter was error. This court will generally not consider
matters not argued and considered in the district court. Roby v.
State, 547 N.W.2d 354, 357 (
Chavez argues that there are four incidents in which law enforcement and the district court failed to follow the law regarding the proper use of interpreters and that together, these incidents require the reversal of Chavez’s conviction.
Chavez asserts that law-enforcement officers improperly used
Lara’s stepson, who is not a qualified interpreter, as an interpreter when
taking Lara’s statement. But because
Lara was not a person apprehended or arrested, there is no statutory
requirement that law enforcement use a qualified interpreter when taking his
Chavez maintains that law-enforcement officers violated Minn. Stat. § 611.32, subd. 2, when they executed a search warrant at Chavez’s residence without having a qualified interpreter available to read the search warrant to Chavez. Section 611.32, subdivision 2, provides that if the property of an arrestee who has difficulty speaking or comprehending English is seized, law-enforcement officers shall, upon request, make available to the arrestee “a qualified interpreter to assist the person in understanding the possible consequences of the seizure and the person’s right to judicial review.” But because the record does not show that Chavez requested an interpreter, we conclude that Minn. Stat. § 611.32, subd. 2, was not violated.
Chavez asserts that the “most egregious” incident occurred when Officer Kohl failed to request an interpreter while taking Chavez’s statement “after it became clear that they were having difficulty communicating.” But Officer Kohl testified that, although he and Chavez “were having some difficulty communicating with each other,” he believed that Chavez understood him. Thus, we conclude that Officer Kohl determined that Chavez was not “handicapped in communication” and did not require a qualified interpreter.
The record shows that when Officer Kohl asked Chavez whether he spoke English, Chavez replied that he spoke a “little bit” of English. The record further shows that when Officer Kohl gave Chavez his Miranda rights, Chavez told him that he did not understand the right to remain silent and that he did not know what a lawyer was. Officer Kohl testified that he then provided explanations to Chavez, and it appeared that Chavez understood his rights. A review of the transcript shows that Chavez answered most of Officer Kohl’s questions appropriately. Although it is clear that English is not Chavez’s first language, we conclude that Chavez understood that he was being interrogated and what he was being asked and, thus, was not “handicapped in communication” and did not require a qualified interpreter.
At Chavez’s rule 5 hearing, at Chavez’s request, the district court obtained an interpreter for him. The district court then determined that Chavez qualified for a public defender and issued an order appointing one. The record shows that the following exchange then took place at the hearing:
Court: Señor Alvear, did you get a chance to visit with Mr. Chavez before you came into court today?
Interpreter: Yes, I did, Your Honor.
Court: Are you satisfied he understands his rights in regard to a trial and so forth?
Interpreter: I think he does, but I think I will ask him.
Chavez (through interpreter): Yes.
Chavez asserts that the district court “misused the interpreter” at Chavez’s rule 5 hearing because the interpreter, who was not an attorney, “in effect, represented Chavez” and had the “responsibility” of explaining to Chavez his various trial rights. Chavez asserts that there is no record of what the interpreter told Chavez in Spanish and that it is possible that Chavez was not advised of all his rights. But because Chavez cannot point to any misstatement or omission by the interpreter and the record shows that Chavez was thereafter at all times represented by counsel, we determine that any “misuse” of the interpreter by the district court does not warrant reversal.
Because we find no plain error, we affirm Chavez’s conviction.
RANDALL, Judge (concurring specially).
I concur in the result. I do not find that Chavez’s trial was subject to a substantial error, and, thus, I conclude, like the majority, he is not entitled to a new trial. I disagree somewhat with the majority’s reasoning concerning Chavez’s argument requesting a reversal of his conviction because of a claimed denigration of his right to interpretative services. I am not sure where the unicorn of “supervisory power” got started and I am not sure why we pretend to perpetuate the myth, but it is time to put it to bed and put the unicorn out to a well-deserved pasture.
The problem is the mislabeling. The idea sprung, like Topsy, that we cannot
hear “that issue” because it is somehow reserved for the Minnesota Supreme
Court. I conclude the issue of
“supervisory power” is for the district court, the Minnesota Court of Appeals,
and the Minnesota Supreme Court. In State v. Salitros, No. C9-92-1105, 1993
WL 19693 at *2 (Minn. App. Jan. 25, 1993), rev’d,
499 N.W.2d 815 (
court judges, under the rules, can sanction parties. The sanctions can include, without limitation, limiting discovery, striking with prejudice certain offered evidence, denying the right to call particular experts, monetary fines, etc. An aggrieved party can appeal those sanctions to our court and we hear them on the merits. Those sanctions are classic examples of “supervisory powers.” Anything a district court can do, a higher court, such as an intermediate appellate court, can review. It is a fallacy to argue that the district courts can do things, and the supreme court can do things, but an intermediate court of appeals cannot do the same thing.
The term “supervisory power” is unique to the Minnesota Supreme Court only when it is an issue of an ethical complaint being lodged against an attorney (it can be in the setting of office practice, a civil case, or a criminal case; it doesn’t matter). After the Board of Professional Responsibility hears it and makes its recommendation, it is agreed that the Minnesota Supreme Court alone reviews the decision of the Board of Professional Responsibility. Those issues are not trial court issues. Chavez’s issues, however, are trial court issues and, thus, our issues.
The correct use of the term “supervisory power,” if the term is meant to limit the jurisdiction of the Minnesota Court of Appeals, is limited to ethical complaints lodged against attorneys that are heard by the Minnesota Board of Professional Responsibility.
is raised in this case, as was raised in State
v. Porter, No. C8-93-358, (Minn. App. Dec. 28, 1993) (Randall, J.,
dissenting), rev’d, 526 N.W.2d 359 (
The majority in the Court of
Appeals’ Salitros did not state that
we do not have the power to reverse based on an issue of prosecutorial
misconduct, but simply found that the conduct in Porter did not rise to the
issue of the misconduct in Salitros. See
Porter, 1993 WL 539097 at *3 (citing Salitros,
449 N.W.2d at 820). I dissented and said
the prosecutorial misconduct in the closing argument did constitute substantial
prejudice, was egregious error, and I found that the appellant “was denied a
fair trial by virtue of prosecutorial misconduct.”
The second and even more compelling argument as to why we have to immediately abandon the myth that we do not have “supervisory power” over claimed issues of prosecutorial misconduct is that if we do not exercise our jurisdiction to hear all the issues in all criminal appeals, excluding a murder in the first degree, Minn. Stat. § 480A.06, subd. 1, we violate our own oath of office.
This court has a constitutional
mandate and the jurisdiction to hear all criminal appeals anywhere in the State
Let me explain. There is absolutely no duty on the Minnesota Supreme Court to take any case from our court. It is all on discretionary review. We have no power to force the Minnesota Supreme Court to take an issue of prosecutorial misconduct where it has been mislabeled “supervisory power” and then direct the Minnesota Supreme Court to take the case and rule on that issue because we claim we can’t. Just the laying out of the issue shows the fallacy. After a criminal conviction, a defendant has the constitutional right to raise any issue upon which he feels he might get relief. He is not guaranteed relief, but he is entitled to a hearing and the Minnesota Court of Appeals has to give him a hearing. The Minnesota Supreme Court has every right to deny a petition for discretionary review and that would mean our decision to pass on the issue of “supervisory power” means the Court of Appeals has denied a defendant in the criminal case a full and fair appeal. We do have lots of power, but that is a power we do not have.
Any intimation to that effect by any case of the Minnesota Court of Appeals is just plain wrong for the above reasons.
To straighten this mess out, it is simple. When a criminal defendant alleges an issue of prosecutorial misconduct, even if his attorney mislabels it as a “supervisory power” issue, just ignore the mislabeling and move on to examine the issue on its merits, as we have done here with Chavez.
When an ethical complaint is lodged against an attorney for misconduct during the course of a trial, it is never decided during the trial by either the district court or the jury. It is simply set on for a later review by the Minnesota Lawyers Board of Professional Responsibility and then whatever recommendation they make is reviewed only by the Minnesota Supreme Court. That review is not part of the trial or the appeal. Trial issues of claimed prosecutorial misconduct are considered by the district court, our court, and the Minnesota Supreme Court. Between trial issues and issues of unethical conduct by an attorney, there is a clear distinction.
I concur in the result because an examination of the record does not convince me that Chavez is entitled to a new trial based on the interpreter issue. I believe the majority’s reasoning when they did get into the merits of the interpreter issue was correct. The majority could have stopped there rather than go on to dig further into the mythical black hole of “supervisory power.” There can never be a conclusion that the Minnesota Court of Appeals is powerless to examine an issue in an appeal from a criminal conviction when the charge is less than murder in the first degree.
We have that power, we have to exercise that power, and we violate our own standards and the Minnesota Constitution and the U.S. Constitution when we duck an issue and leave a criminal defendant to the uncertain remedy of a petition for discretionary review.