State of Iowa v. Benjamin Bravo Gonzalez ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1737
Filed January 25, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BENJAMIN BRAVO GONZALEZ,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, DeDra
Schroeder, Judge.
The defendant appeals from his conviction for first-degree murder, arguing
his motion for mistrial should have been granted. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Heard by Greer, P.J., Chicchelly, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
2
GREER, Presiding Judge.
Was it improper to deny a motion for new trial once an officer testified at
trial to another pending crime of assault unrelated to the crime involved here?
Under these facts, we say no.
With this question at the forefront, Benjamin Gonzalez appeals his
conviction for first-degree murder. He argues the district court abused its
discretion in denying his motion for mistrial after a police officer testified that an
eyewitness was interviewed a second time “after . . . she was assaulted.”
Gonzalez urges us to conclude the jury assumed the assault was “a retaliatory act
for talking to police” and was used as evidence of Gonzalez’s guilt in the shooting
for which he was on trial; he maintains this deprived him of a fair trial.
I. Background Facts and Proceedings.
At Gonzalez’s multiple day jury trial, three separate eyewitnesses testified
they were present when Gonzalez shot and killed Michael Creviston. Sara dated
Creviston off and on for years; she testified she was walking with Creviston when
the car Gonzalez was riding in pulled up. Sara immediately recognized Gonzalez,
whom she knew as a friend of her brother. Creviston and Gonzalez exchanged
angry words before Sara convinced Gonzalez to walk away. As they were leaving
on foot, Sara heard Gonzalez say, “I got something for you, pussy.” Sara and
Creviston both turned around, and Gonzalez was standing outside the car with his
arm straight out in front of him; Sara saw “a red flash, and it smelled like fireworks
after that.” Creviston reacted like he’d been hit, and he told Sara to call 911
because he could not breathe. At that point, Gonzalez got back in the car and left.
Police responded within just a few minutes, and Sara immediately identified
3
“Benja”—Gonzalez’s nickname—as the shooter. Creviston was struck by one
bullet, which hit his left lung and pulmonary artery; he died from the wound.1
Meredith testified she met Gonzalez only a day or two before the March 31,
2021 shooting. She was sitting in the backseat of the car getting a ride home when
Gonzalez, from the front passenger seat, told the driver to slow down near two
people who were walking. Meredith saw Gonzalez scuffle with the male walker
while Gonzalez still in the car before both Gonzalez and the two walkers moved
toward the back of the car. Meredith did not look back, but she heard “pop, pop,
pop” before Gonzalez got back in the car. As they drove away, Gonzalez laughed
and said, “Look at him now.” When she got near her home, Meredith wanted to
exit the vehicle, but Gonzalez initially tried to stop her, telling her, “Nope. You’re
going with us. The only reason you want out is so you can tell on me.” She left
anyway. She did not immediately call the police and when asked why she did not,
Meredith testified, “I was raised we don’t call police.” But when the police picked
her up on April 5 and interviewed her at the police station, she provided a written
statement identifying Gonzalez as the shooter.
Ashton testified that, prior to the day of the shooting, she had only known
Gonzalez a couple of weeks. On that night, Ashton, Meredith, and Gonzalez left
from Ashton’s apartment to take Meredith home when—with Ashton driving—they
came upon the two walkers. Ashton testified Gonzalez asked her to pull over so
she did. As the male walker approached, Ashton realized it was Creviston, who
she also knew. Creviston and Gonzalez exchanged angry words and began
1 The medical examiner who performed the autopsy provided this testimony.
4
physically fighting. Then Creviston started walking away, and Gonzalez got out of
the car and walked in the same direction. Ashton heard four gunshots, 2 and she
started to get out of the vehicle to help. Gonzalez returned, pulled her back in the
vehicle, and told her to drive. She did, first taking Meredith home and then, at
Gonzalez’s direction, driving to the river, where she saw Gonzalez make a
throwing motion (though she couldn’t tell what, if anything, he threw). Ashton
returned to her apartment but was later picked up and taken to a hotel in a nearby
town, where she used her name and identification to rent a room for Gonzalez.
The next day, Gonzalez asked Ashton to find him someplace else to go, and two
of her friends picked up Gonzalez and allowed him to stay with them in a different
town. Ashton was first interviewed by police on April 2; she did not tell them about
the shooting “[b]ecause [she] was told not to.” She was interviewed again on
April 5, and she reported Gonzalez was the shooter and told them where to find
him at her friends’ home. Gonzalez was taken into police custody that same day.
Investigator Terrance Prochaska works for the local police department; he
was the State’s tenth witness. During cross-examination, the following exchange
took place between Gonzalez’s attorney and Investigator Prochaska:
Q. Officer Prochaska, [Ashton] was interviewed twice; is that
correct? A. Yes.
Q. The statements were not the same from both interviews; is
that correct? A. I didn’t interview her the first time, so I’m not fully
aware of what she stated.
Q. Did you bring up the first interview when you spoke to her
on the 5th? A. I may have. You’d have to show me that.
....
2 Sara and Meredith testified there were three shots, while Ashton testified as to
four. The police recovered four 9 mm cartridges, and a criminalist from the Iowa
Division of Criminal Investigation opined they were probably all fired from the same
firearm.
5
Q. Officer Prochaska, you interviewed [Meredith] twice; is that
correct? A. I interviewed her once. You have to refresh me if I
interviewed her a second time. I—we—there was some—there was
a follow-up interview after—after we were made aware that she was
assaulted. Is that what you’re referring to?
Defense counsel immediately requested a recess and, outside the
presence of the jury, moved for mistrial, arguing “a prior bad act allegation” was
“brought in” and asserting the jury was tainted by the officer’s statement. The court
noted “the jury doesn’t know that [Meredith] has been potentially harmed by
[Gonzalez]” and asked counsel if there was “a way to fix this to let the jury know
that the assault interview is wholly unrelated to this case.” Defense counsel
responded that Ashton’s testimony she “didn’t say anything on the 2nd because
[she] was told not to” make statements and “then that discussion of a subsequent
assault of Meredith . . . after talking to law enforcement, could be seen as
retaliation that is unsubstantiated and unrelated to this matter.” The prosecutor
explained the assault that the officer referenced took place after Gonzalez was
already in jail; he stated, “Yeah, it’s not connected to [Gonzalez]. [Meredith]—she
reported an assault, is my understanding. We had no idea it was—he was in jail,
so we knew it wasn’t him. And she didn’t want to press charges. That’s all I was
told.” The State resisted the motion for mistrial, arguing any issue could be cleared
up by giving the investigator a chance to testify in front of the jury that the
referenced assault was not connected to Gonzalez or the murder case. Gonzalez
responded that “clean[ing] it up” would not help because “it’s going to be prevalent
in the jury’s mind”; “[T]his has tainted the jury to the point we cannot get rendered
a fair verdict.”
6
The court denied Gonzalez’s motion, ruling the jury would be brought back
in, the court reporter would read the question back, and the investigator would be
given the chance to make clear the assault of Meredith had “nothing to do with this
case, nothing to do with this defendant, wholly unrelated matter, and then we move
forward.” In the presence of the jury, the question was read back and the
investigator testified, “I remember one time interviewing her and a second time on
an unrelated case.”
After the investigator, five more witnesses testified for the State before it
rested. And then Gonzalez rested without presenting a defense. The jury returned
a guilty verdict, which the district court accepted. Gonzalez appeals.
II. Discussion.
We review the district court’s denial of a motion for mistrial for an abuse of
discretion. State v. Newell, 710 N.W.2d 6, 32 (Iowa 2006). “A mistrial is
appropriate when ‘an impartial verdict cannot be reached’ or the verdict ‘would
have to be reversed on appeal due to an obvious procedural error in the trial.’” Id.(citations omitted). “The pertinent question here is whether the trial court was
clearly unreasonable in concluding an impartial verdict could be reached
notwithstanding the [officer’s testimony that an eyewitness was assaulted].” Id.Here on appeal, Gonzalez’s claim the court should have declared a mistrial
is premised on the assumption the jury linked the assault of Meredith—as
referenced by the investigator—to “a retaliatory act for talking to police.” Gonzalez
raised this concern with the district court, which decided that ensuring the jury was
explicitly told there was no connection between the assault and Gonzalez’s case
could “clear up the mess.” We cannot say that decision was clearly unreasonable.
7
See id. The district court gave Gonzalez a green light to explain, through his cross-
examination, that the assault was unrelated to the claims involving Gonzalez’s jury
trial. He now complains that the “explanation” to the jury was inadequate. At oral
argument before this court, the State agreed that more could have been done,
stating:
In [some] cases, it makes sense to say I can’t explore the issue any
further without drawing the jury, or drawing the attention to the fact
that he, the client, was incarcerated—drawing attention to the fact
that is allegedly prejudicial. Here, the difference is that elaborating
and clarifying dispels the hint of prejudice.
But, as the State also recognized, it was Gonzalez who made a strategic decision
not to follow up on this with Investigator Prochaska after he testified, “I remember
one time interviewing her and a second time on an unrelated case.” Gonzalez was
the one questioning the investigator at the time of the objectionable statement and,
based on the court’s ruling on the motion for mistrial, Gonzalez would have been
well within bounds to ask additional questions of Investigator Prochaska to get
closer to the desired statement that the assault had “nothing to do with this case,
nothing to do with this defendant, wholly unrelated matter.” That Gonzalez may
not have received the full remedy the court offered—when Gonzalez was the one
in the driver’s seat—does not impact our review of whether the court’s denial of
the motion for mistrial was an abuse of discretion.3
In reviewing the court’s ruling on the motion for mistrial, as always, we start
with the premise that the district court is in the best seat to gauge the effect of the
3 We appreciate there may be strategic reasons for not wanting to go deeper with
questions when extraneous information is mentioned in front of the jury, but we
find none here where the district court offered a reasonable correction to the
record.
8
challenged testimony on the jury. See State v. Hunt, 801 N.W.2d 366, 373 (Iowa
Ct. App. 2011) (“A trial court has broad discretion in ruling on a motion for mistrial.
This is because the trial court is in a better position than this court ‘to gauge the
effect of the matter on the jury.’” (citations omitted)). The complained-of testimony
here was a single, isolated reference, which was made by the tenth of the State’s
fifteen witnesses. See State v. Anderson, 448 N.W.2d 32, 34 (Iowa 1989) (“It is of
significance that the incident was isolated.”); see also Newell, 710 N.W.2d at 32(affirming a district court’s denial of the motion for mistrial when “[t]he reference to
drug charges occurred only once, and there were no questions that elaborated on
this information”); State v. Lopez-Aguilar, No. 17-0914, 2018 WL 3913672, at *4
(Iowa Ct. App. Aug. 15, 2018) (stating “[t]he challenged evidence was insignificant
given the length of the trial and the scope of the evidence,” when the trial had
twenty witnesses and lasted five days). We find no abuse of discretion by the
district court in denying the motion for mistrial.
And, to further support the jury verdict and lack of prejudice to Gonzalez,
the evidence of Gonzalez’s guilt was exceedingly strong. See Newell, 710 N.W.2d
at 33 (considering strength of evidence against defendant when determining of
mistrial was warranted). All three eyewitnesses who were present testified
Gonzalez fought with and then shot Creviston. Within minutes of the shooting,
Sara told officers Gonzalez was the shooter. Ashton and Meredith named
Gonzalez as the shooter a few days later. And, at trial, there was no evidence to
suggest anyone else could have been the shooter. With Ashton’s help, Gonzalez
left town within a few hours of the shooting, staying in a hotel room booked under
Ashton’s name rather than his own and then, one day later, traveling to a different
9
town to stay with Ashton’s friends. When police finally located and approached
Gonzalez on April 5, he fled. See State v. Wilson, 878 N.W.2d 203, 212 (Iowa
2016) (“It is well-settled law that the act of avoiding law enforcement after a crime
has been committed may constitute circumstantial evidence of consciousness of
guilt that is probative of guilt itself.”).
Under the facts here, the district court did not abuse its discretion in denying
Gonzalez’s motion for mistrial. We affirm his conviction for first-degree murder.
AFFIRMED.