STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1387

State of Minnesota,
Respondent,

vs.

Horacio Martinez Zavala,
Appellant.

Filed October 3, 2006

Affirmed

Wright, Judge

Otter Tail County District Court

File No. K3-04-246

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

David J. Hauser, Otter Tail County Attorney, Otter Tail County Courthouse, 121 Junius Avenue, Fergus Falls, MN 56537 (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Wright, Judge.

U N P U B L I S H E D O P I N I O N

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.

FACTS

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 United States should learn to communicate in English.

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.

Now he is in the ambulance, and he is heading to Fargo and we have Mr. Zavala alone with the baby. . . . And we have Dr. Lystad starting to ask more questions. Because now the baby is in the emergency room. We need to find out what’s wrong with this baby, because nothing is making sense. . . .

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 (Minn. 2000). We review unobjected-to error under the plain-error standard and may correct such error if it implicates the fairness and the integrity of the judicial proceedings. Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). The plain-error standard is met only when the error is plain and affects a defendant’s substantial rights by affecting the outcome of the case. Griller, 583 N.W.2d at 740-41. The failure to object may imply that the defendant found nothing improper in the closing argument. State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983).

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 (Minn. 1980). And we are mindful of the care with which a defendant’s language proficiency should be addressed, so as not to inject bias into the proceedings. But discussion of a defendant’s ability to speak and understand English may be relevant to the determination of guilt in a particular case. Here, the prosecutor’s argument was in response to Zavala’s counsel’s questions to Dr. Lystad, which suggested that Zavala’s vague responses were the result of an inability to communicate in English. Because Zavala’s counsel raised the issue of Zavala’s language proficiency and because Trane, Dr. Lystad, and Zavala himself testified as to Zavala’s demeanor and ability to communicate, the prosecutor’s argument was legitimate. See State v. DeWald, 463 N.W.2d 741, 744-45 (Minn. 1990) (“A prosecutor’s closing argument should be based on the evidence presented at trial and inferences reasonably drawn from that evidence.”).

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 (Minn. 2005). But the comments in Clifton impermissibly focused on race and class differences between the jurors and the witnesses, rather than addressing a legitimate fact issue before the jury. Id. at 799-800. Zavala’s suggestion that otherwise inculpatory evidence is not inculpatory because of his difficulty communicating in English may legitimately be rebutted in closing argument. The prosecutor’s comments, therefore, do not constitute misconduct.

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 (Minn. 1998). Because Zavala fails to establish that the prosecutor committed misconduct, Zavala is not entitled to reversal of his conviction on that ground.

II.

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 (Minn. App. 1986).

Zavala 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 evidence. Id. We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

The 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 Minnesota Practice, CRIMJIG 13.01, 13.04 (1999). The evidence that J.G. suffered a nonaccidental trauma was overwhelming. Five physicians stated that their examinations pointed to a diagnosis of shaken-baby syndrome. Dr. Miller also testified that J.G. had a high likelihood of permanent, long-term neurological damage and might not have survived if he were shaken a few more times. Moreover, evidence of the timing of the assault excludes any conclusion other than that it was Zavala who shook J.G. Gunderson testified that she left for work as usual on the morning of September 15 and did not see J.G. again until she arrived at the hospital. Boese testified that she cared for J.G. from noon until approximately 1:00 p.m. and that J.G. was a “normal [ ] little baby” when she left him in Zavala’s care. Zavala himself confirmed Boese’s testimony and stated that he alone cared for J.G. all afternoon. Dr. Miller, testified that

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. Moore, 438 N.W.2d 101, 108 (Minn. 1989). In light of the testimony of the treating physicians, in particular Dr. Miller, and Zavala’s admission that he was alone with J.G. from the time Boese left until J.G. began showing physical signs of illness, the evidence is sufficient to support the jury’s conclusion that Zavala assaulted J.G. by shaking him.

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 (Minn. 1998). A strong presumption exists that counsel’s performance fell within a wide range of reasonable assistance. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). Which witnesses to call at trial and what information to present to the jury are within the discretion of trial counsel and will not be reviewed on appeal. Id.; Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004). Thus, Zavala is not entitled to relief on this issue.

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 (Minn. 1994), and we have held that defendants do not have a “due process right to admission of polygraph test results,” State v. Sullivan, 360 N.W.2d 418, 422-23 (Minn. App. 1985), review denied (Minn. Apr. 12, 1985). Zavala’s argument, therefore, is without merit.

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.

Affirmed.