This opinion will be unpublished and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
State of Minnesota,
Horacio Martinez Zavala,
Otter Tail County District Court
File No. K3-04-246
John M. Stuart, State Public
Defender, Suzanne M. Senecal-Hill, Assistant State Public Defender,
Mike Hatch, Attorney General,
James B. Early, Assistant Attorney General, 1800
David J. Hauser, Otter Tail
County Attorney, Otter Tail County Courthouse,
Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Wright, Judge.
Appellant challenges his conviction of first-degree assault, arguing that the prosecutor committed prejudicial misconduct during closing argument by commenting on appellant’s English proficiency after two prospective jurors expressed bias against appellant for using an interpreter. In a pro se brief, appellant also contends that (1) two jurors who stated they could not be impartial should have been excused, (2) the testimony of the victim’s mother was not credible, (3) the evidence was insufficient to support the verdict, (4) appellant’s attorney provided ineffective assistance of counsel by failing to call defense experts, and (5) appellant should have been permitted to present polygraph evidence. We affirm.
On the morning of September 15, 2003, Brittany Gunderson went to work as usual, leaving her four-month-old son, J.G., in the care of appellant Horacio Zavala. Zavala, an immigrant from Mexico, is related to J.G.’s father and shared an apartment in Pelican Rapids with Gunderson. Over the lunch hour, Gunderson’s sister, Brianna Boese cared for J.G. while Zavala went to the local turkey plant to seek employment. According to Boese, when she left at approximately 1:00 p.m., J.G. was “just keeping himself content sitting there, like normal a little baby.” J.G. was solely in Zavala’s care after Boese left. According to Zavala, at about 4:00 p.m., Zavala heard J.G. make “a different kind of cry.” He took a bottle into J.G.’s room and found J.G. in his crib looking as if he were “dead.” Because he was too nervous to call 911, Zavala carried J.G. to a business below the apartment to get help. The owner of the business, Cynthia Trane, asked Zavala what happened. Zavala replied that something was wrong with the baby and he could not wake up the baby. After determining that it would be quicker than waiting for a response to a 911 call, Trane drove Zavala and J.G. to a nearby clinic.
At the clinic, J.G. was unresponsive and apneic (periodically not breathing). Dr. Julie Spina examined J.G. and determined that it was necessary to call an ambulance to transport J.G. to a hospital in Fargo. At the hospital, Dr. Jeffrey Lystad examined J.G. and developed a “suspicion of shaken baby syndrome.” Dr. Anila Jacob, the on-call pediatrician, also examined J.G. In her review of J.G.’s CT-scan results, Dr. Jacob found an old bleed and a new bleed in J.G.’s brain, which suggested non-accidental trauma. J.G. was referred to Dr. Mark Sczepanski for an eye examination. Dr. Sczepanski discovered retinal hemorrhaging and optic-nerve swelling, an indicator of shaken-baby syndrome. Dr. Nathaniel Karlins, a radiologist, reviewed J.G.’s CT-scan and MRI-test results and concluded that they were “very suggestive of . . . a shaken baby.” The director of the hospital’s child-protection team, Dr. Ronald Miller, convened the team to consult on J.G.’s case. The team determined that this was a “pretty straight forward” case of shaken-baby syndrome.
The hospital reported the suspected baby-shaking incident to police. Officer Jeffrey Stadum began an investigation in conjunction with the local social-services agency in Pelican Rapids. Officer Stadum interviewed Gunderson and Boese, but the investigation focused on Zavala because of the suspected timing of the shaking. Zavala told Officer Stadum that he did not know what happened to J.G. but maintained that he never shook J.G.
Zavala was charged with first-degree assault, a violation of Minn. Stat. § 609.221, subd. 1 (2002), and third-degree assault, a violation of Minn. Stat. § 609.223, subd. 3 (2002). The matter proceeded to a jury trial, during which Zavala used an interpreter. During voir dire, two prospective jurors stated that they could not be impartial because Zavala was an immigrant and was using an interpreter. Another prospective juror stated that she could not be impartial because she knew several of the witnesses. All three individuals were excused from serving on the jury. The jury convicted Zavala of both charges. The district court imposed a sentence of 81 months’ imprisonment for the first-degree assault conviction. This appeal followed.
D E C I S I O N
Zavala first argues that he
is entitled to a new trial because the prosecutor commented on Zavala’s English-language
proficiency during closing argument. Zavala argues that the comment was
prejudicial prosecutorial misconduct in light of two prospective jurors’
comments that they could not be impartial because of their belief that immigrants in the
We begin our analysis with a review of the prospective jurors’ comments and the context of the prosecutor’s challenged statement. During voir dire, Zavala’s counsel queried the jury pool about bias against immigrants in the local community. One prospective juror said, “[T]hey come here to work and live, and they don’t speak our language or learn [our] language. We have to spend tax payer[s’] dollars to bring people from the cities to interpret.” That prospective juror was excused for cause. Another prospective juror indicated agreement, saying, “Coming here they got to learn our language. We went there, we would have to learn their language . . . .” Zavala’s counsel challenged this prospective juror for cause, and the prosecution agreed that the individual should be dismissed. But the district court rehabilitated the prospective juror and denied the challenge. Ultimately, the prospective juror was excused with the state’s peremptory strike.
During the trial, witnesses testified as to Zavala’s ability to communicate in English and about Zavala’s demeanor when he provided information about J.G.’s condition. First, Trane testified that Zavala was “very calm” as he advised her that something was wrong with J.G. Zavala advised Trane that J.G. had awakened crying, that Zavala warmed a bottle for J.G., and that when Zavala took the bottle into J.G.’s room, J.G. would not wake up. Trane stated that Zavala was nonchalant and “not excited at all about it.” Later, Dr. Lystad testified that he found it difficult to gather information from Zavala once Zavala and J.G. were at the hospital because Zavala’s responses were “quite vague.” During cross-examination, Zavala’s counsel elicited more testimony on this issue, inquiring whether Zavala had difficulty communicating in English. Dr. Lystad replied, “I don’t believe to a great extent. I – not that I’m aware of.” Finally, Zavala testified that he does not “really speak” English but that he is able to “understand almost everything.”
During closing argument, the prosecutor argued that
Mr. Zavala didn’t have any difficulty telling Ms. Trane what had happened to that child. He hasn’t had difficulty telling anybody those facts about what happened to this child. There wasn’t a communication problem with that. It’s been clear, this baby looked dead. This baby was blue. The baby was limp. The baby had a high-pitched cry. The baby was yelling and screaming. That came from, Mr. Zavala. Nobody else. He again, said that same information, was able to give those specific details to Dr. Spina, the individuals at the Pelican Rapids Clinic.
he is in the ambulance, and he is heading to
As Dr. Lystad talks about, he is getting vague details. He is not getting the information. And Dr. Lystad talked about, it didn’t appear to be any language barrier.
Zavala’s counsel did not object to this argument. But Zavala now claims that this comment was prejudicial misconduct.
When assessing allegations
of prosecutorial misconduct during closing argument, we consider the argument
as a whole. State v. Johnson, 616 N.W.2d 720, 728 (
Closing arguments should not be calculated to inflame the
passions of the jury or prejudice the jury against the defendant. State v. Clark, 296 N.W.2d 359, 371 (
Zavala relies on State
v. Clifton, in which the Minnesota Supreme Court noted that demeaning
references to racial groups compromise the right to a fair trial. 701 N.W.2d 793, 800 (
Moreover, Zavala fails to establish that the impact of
the closing argument combined with the prospective jurors’ remarks in the
presence of jurors who served was unfairly prejudicial. Zavala points to no evidence of bias on the
part of the remaining jurors, and our review of the record reveals none. In addition, before deliberations, the jurors
were instructed to decide the case based on the evidence presented, not bias or
prejudice. We presume that the jurors
followed those instructions. State v.
Miller, 573 N.W.2d 661, 675
Zavala raises several pro se arguments, none of which entitle him to relief.
First, Zavala argues that he was denied the right to a trial by a fair and impartial jury because “there were members who were kept to serve who obviously should have been excused.” Due process of law requires a person accused of a crime to be tried in front of a fair and impartial jury. U.S. Const. amends. VI, XIV; Minn. Const. art. I, § 6; State v. Bowles, 530 N.W.2d 521, 536 (Minn. 1995). Zavala names two individuals, one who stated that she knew several of the witnesses and would be predisposed to believe them and the other who expressed bias because of Zavala’s use of an interpreter, as described above. But the two individuals whom Zavala identifies were excused from jury service. Because the two individuals named by Zavala were not jurors, we can only assume that Zavala is mistaken about which prospective jurors ultimately were seated. And in the absence of any evidence of bias on the part of the actual jurors, Zavala’s argument fails.
Zavala also invites us to reevaluate
Gunderson’s credibility. Zavala argues
that the veracity of Gunderson’s description of J.G.’s injuries cannot be
properly evaluated without observing J.G. in person. But the jurors observed Gunderson and the
other witnesses at
trial, an opportunity that we do not have on appeal. For this reason, the jury is the best judge
of credibility, and we will not disturb the jury’s credibility determinations
on appeal. State v. Pedersen, 382 N.W.2d 559, 560 (
maintains that the evidence was insufficient to prove beyond a reasonable doubt
that he assaulted J.G. When reviewing a
challenge to the sufficiency of the evidence, we conduct a painstaking analysis
of the record to determine whether the jury could reasonably find the defendant
guilty of the offense based on the facts in the record and the legitimate
inferences that can be drawn from those facts.
State v. Chambers, 589 N.W.2d
466, 477 (Minn. 1999). In doing so, we
view the evidence in the light most favorable to the verdict and assume that
the jury believed the evidence supporting the verdict and disbelieved any contrary
essential elements of first-degree assault include (1) an assault, (2) that is
intentional, and (3) that caused great bodily harm. Minn. Stat. § 609.221, subd. 1 (2002); 10
when children are shaken and have a severe injury like this, where they develop apnea, seizures, coma; the shaking would have occurred in the – in a very short time frame prior to that being found. . . . [T]he child wasn’t shaken the day before, and then became apneic that afternoon.
On cross-examination, Dr. Miller reiterated that
if the baby is looked upon as being normal by multiple observers at some time [zero], and some time later, the child then has these abnormalities of brain injury, these signs and symptoms, the child was [shaken] somewhere between those two times. I can’t tell you exactly when the child was shaken, but it was after the child appeared to be normal. You’re not going to look normal, if you’ve been shaken as severely as this baby was.
We assume that the jury believed the evidence supporting
the verdict and disbelieved any evidence to the contrary. State v.
Zavala also claims that his attorney
provided ineffective assistance of counsel by failing to present defense
experts to counter the medical testimony at trial. To prevail on an
ineffective-assistance-of-counsel claim, a defendant must demonstrate that
counsel’s performance “fell below an objective standard of reasonableness, and
that a reasonable probability exists that the outcome would have been different
but for counsel’s errors.” State v.
Lahue, 585 N.W.2d 785, 789
Finally, Zavala argues that
he should have been permitted to present polygraph evidence at trial. Polygraph-testing evidence is not admissible
in criminal trials, State v. Opsahl, 513 N.W.2d 249, 253 (
Because Zavala fails to establish that the prosecutor’s comments about his language proficiency were error and because Zavala’s pro se arguments do not entitle him to relief, we affirm his conviction.