State of Iowa v. Leandro Edwin Valdez ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 3-1245 / 13-0183
Filed April 16, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
LEANDRO EDWIN VALDEZ,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Sioux County, James D. Scott,
Judge.
Leandro Valdez appeals his convictions for first-degree robbery and first-
degree burglary. AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger and Tyler J. Buller,
Assistant Attorneys General, Adam Kenworthy, Student Legal Intern, and
Coleman McAllister, County Attorney, for appellee.
Heard by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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BOWER, J.
Leandro Valdez appeals his convictions for first-degree robbery and first-
degree burglary. He claims the State called his sister as a witness at trial solely
to introduce inadmissible hearsay evidence in the guise of impeachment. Valdez
also challenges the court’s restitution order. We affirm his convictions, vacate
the restitution order, and remand for further proceedings in accordance with this
opinion.
I. Background Facts and Proceedings
In August 2012 Valdez, age sixteen, lived with his mother Yolanda and
younger sister A.G. in Orange City, Iowa. Douglas Hamming, who lives near
Valdez, took a walk at 5:00 p.m. on August 30. Hamming saw four young males
and two young females in Valdez’s front yard. The young men were shooting at
each other with toy guns. Hamming observed a black Explorer parked in the
Valdez driveway.
Luciana Chamale, who moved to the United States from Guatemala, lived
with his brother and cousin in Orange City. Chamale was known to wear
necklaces or “chains.” Chamale was home alone on the evening of August 30.
At 10:00 p.m., Chamale locked the outside door, the door to his bedroom, and
went to sleep. Around 11:30 p.m., the noise of five male intruders woke him. All
five wore masks, and one had a gun. Two of the intruders spoke English, and
three spoke Spanish—“the three Hispanics, they had knives.”
The intruder carrying a gun kept Chamale in his bedroom while it and the
other rooms were ransacked. A bulb hanging from the ceiling was the only light
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source in Chamale’s bedroom. One intruder asked Chamale, “Hey chiquillo,
what about the chains?” When the intruder called him “chiquillo,” Chamale
believed the young man was “Yolanda’s son.” When this same intruder hit his
head on the bedroom’s light bulb, his mask slipped and revealed his face.
Yolanda called Chamale “chiquillo,” a reference to a smaller person.
Yolanda helped Chamale by translating for him, and Chamale testified he had
never heard anyone else call him “chiquillo.” Chamale also testified that on one
occasion Valdez accompanied Yolanda when she came to Chamale’s home to
borrow money.
The intruders threatened Chamale after they had gathered cash, jewelry,
his cell phone, and a television. Chamale escaped by running out the door. He
fell and “tumbled down the steps.” Three of the intruders caught up with him and
beat him, causing cuts and bruises. Chamale ran to a neighbor’s home.
At 11:54 p.m. on August 30, Hope Hancock called 911 because her
Spanish-speaking neighbor had arrived—frightened, out of breath, and saying,
“pistola.” Hancock did not speak Spanish or know the neighbor’s name but she
referred to him as “little guy.”
After the police arrived at Hancock’s home, they accompanied Chamale
back to his home. No one was there. Officers noted the damaged front door and
took pictures. Officers found Chamale’s cell phone and a flashlight nearby.
Through an interpreter, Chamale stated he recognized Yolanda’s son.
When officers arrived at Valdez’s home around 2:30 a.m., Yolanda was
just returning home from work. The officers observed folding chairs in a circle in
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the front yard. Upon questioning, Valdez stated he had been home from school
all day because he was sick. Valdez denied involvement in the incident.
Yolanda consented to a search of the home, and the officers found toy
guns under Valdez’s mattress. They also found a black Ford Explorer parked
behind the garage in a location where vehicles were not commonly parked. One
officer testified the vehicle “appeared to be hidden.” The Explorer belonged to
one of Valdez’s friends, Tom Schuck. Valdez denied knowing why the car was
there. Valdez told the officers he had no idea where Tom was and he had not
seen Tom that day. Officers found black clothing and a knife inside the Explorer.
The officers showed the toy guns, knife, and clothing to Chamale.
Chamale testified the toy guns—guns with an orange tip—were not the same as
the real gun used in the robbery. Chamale stated the knife was the same style,
but the intruders’ knives had bigger blades. Chamale said the black clothes were
not the clothes he saw, although the intruders wore black.
Seventeen-year-old Luis Guitierrez found a large television near a shed
and told his father about it. This television had been stolen from Chamale’s
home. Guitierrez testified there are only four or five young Hispanic males living
in Orange City.
At 6:00 a.m. the next day, Yolanda called the police after talking to her
daughter, A.G. The responding officers took a statement from A.G., who wrote:
It was around 11:00 and I was going to take a shower until I saw
my brother putting strange things on his face like a bandana and a
shirt. [H]e was wearing black sweatpants . . . and black hoodie. I
asked what he was doing and he said nothing just going to chill and
they all took off. He took off with E[J] Medina, Cesar Chavez, and
To[m] Schnuck.
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The State filed a trial information, later amended, charging Valdez with
first-degree robbery and first-degree burglary. In November 2012 defense
counsel took A.G.’s deposition. A.G. said that on August 30 she ate, did her
homework, watched television, and took a shower before going to bed at 9:00
p.m. Her brother’s friends, Cesar Chavez, E.J. Medina, and Tom Schuck came
over around 7:00 p.m. to 8:00 p.m. Tom had his car. The boys, including her
brother, kept coming in and out of the house. A.G. stated her brother went to
sleep before she did. Because she was sleeping, A.G. did not know if her
brother got up later in the evening. When A.G. was getting ready for bed, she
saw the boys in her brother’s bedroom. She explained:
Q. Did you tell the police officers that they were putting
some strange things on? A. Yes.
Q. Tell me about that. A. Well, I saw them putting on, like,
sweatshirts and changing into clothes. And I saw some of them,
like wearing, like, bandannas, so . . . .
Q. Are those the strange things that you are referring to? A.
Yeah.
....
Q. Have you seen Leo or his friends with bandannas
before? A. No.
Q. So that was—that was the first time you saw them with
bandannas? A. Yes.
Q. Any other strange thing that you saw or observed that
evening? A. No.
A.G. stated she did not tell the officers that Valdez was wearing black sweatpants
and a black hoodie. She did remember asking Valdez what he was doing. Now,
she did not remember his answer.
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After A.G. read her prior written statement, she admitted it differed from
her deposition testimony and stated: “I’m just confused. I don’t . . . because like I
don’t remember hardly anything anymore.”
Q. . . . [Y]ou did say that they took off, but now you are
telling us that [Valdez] was asleep. Can you try and clear up the
inconsistency. Which one is true, the report or what you are telling
us today? A. What I’m telling you.
Q. Are you saying this report is not correct? A. Yes.
....
Q. Okay. So what has changed between then and now? A.
If my brother did go or not, and the time, and what I was doing.
A.G. again explained that her brother was already asleep at 9:00 when she went
to bed. The 11:00 time she had written earlier was not true.
The State questioned A.G. about the journal entry she brought with her to
the deposition—she stated that when she was questioned previously she felt
pressured and confused. She testified no one told her what to write on August
31. A.G. stated:
Q. The statement I saw my brother putting strange things on
his face, did the police pressure you into writing that? A. No.
Q. Did you select the language? A. Yes.
Q. And you put like a bandanna and a shirt. Is that what he
was wearing? A. Yes.
Q. That was true? A. Well, yes.
Q. And the police didn’t pressure you into saying that? A.
No.
Q. And black hoodie. How about that, was that true. A.
No.
A.G. explained her phrase, “they all took off” meant her brother, Cesar,
Tom, and E.J. kept going “in and out of the house. And sometimes it seemed
like they were gone, but they came back, so I don’t—I didn’t know what to say.”
The police did not pressure her to write “they all took off.”
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Q. And who is “they” that walked out together? A. Cesar,
Tom, E.J., and my brother, they just kept walking in and out.
Q. Okay. But somebody came back, you said at some
point. That’s your brother, right? A. Yes.
Q. And you don’t know what time it was he came back? A.
No.
Q. Could it have been after 11:00? A. I don’t think it could.
Q. Why not? A. Because I don’t go to bed that late.
....
Q. Okay. So is it, [A.G.] that you don’t remember what
happened that night or you’re changing your story? A. I don’t
remember what happened that night.
Q. And you wrote that statement a few hours after it
happened, right? A. Yes.
Q. Did you remember things better back then? A. Not
really, because I was half asleep.
Valdez filed a motion in limine claiming A.G. “totally recanted” her
statements in the deposition. He requested the State be prevented from calling
her as a witness under State v. Turecek, 456 N.W.2d 219 (Iowa 1990). The
State resisted the motion and claimed if anything, only portions of the statement
should be excluded. After a hearing, the court ruled: “State may not impeach this
witness with substantive evidence which is otherwise inadmissible.”
Trial to a jury commenced in early December 2012. Hope Hancock
testified Chamale was out of breath and very scared when he arrived at her door.
He “was trying to pull himself together.” Chamale’s brother testified “chiquillo”
means a smaller person.
Chamale testified to seeing the “hooded” individuals, the pistol, and the
knives. He recognized Valdez when he banged into the light and “his mask fell,
and then he right away put it back on, and then he said to me, hey, chiquillo,
what about the chains.” Chamale explained he was wearing the three old chains
or necklaces when he and Valdez would see each other at a store. Valdez had a
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knife the evening of the robbery. “Q. Did you know it was [Valdez] because of
the words he used or because you saw his face? A. From the two things
because of the—his face and the words that he said to me.” Police officers
testified and confirmed that immediately after the incident, Chamale stated
“Yolanda’s son” was one of the intruders.
Before calling A.G. to the stand, the State made an offer of proof outside
the presence of the jury. A.G. stated E.J. Medina, Tom Schuck, and Cesar
Chavez came over after school. Her brother “was inside and outside,” not sick in
bed. She went to bed earlier than 11:00, around 9:00 or 10:00. A.G. did not
know if her brother got out of bed after she went to sleep. She stated the boys
were putting on sweatshirts but they did not put on bandannas. When confronted
with her deposition statements about bandannas and about Valdez wearing black
sweatpants, A.G. testified, “I don’t remember,” and stated reviewing the
deposition would not refresh her memory. “Q. Are you saying what you said
before was wrong, or are you just saying I don’t remember? A. I’m saying that—
I’m saying both.” A.G. also stated the 11:00 shower time was wrong, it was
“probably, like 8:00.” Also, she did not remember her brother putting strange
things on his face.
After the prosecutor’s offer of proof, defense counsel read a long portion
of A.G.’s deposition and asked, “So, I’m asking you again, was that statement
that you wrote . . . false? A. Yes.”
Before ruling, the court noted A.G. told defense counsel the written
statement was false and told the prosecutor she can’t remember: “How can I
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make a ruling on that?” The State claimed A.G.’s inadmissible, recanted
statements are the fact her brother was wearing a black hoodie, clearly recanted
in her deposition, and the fact she took a shower earlier. The court ruled the
State could call A.G. as a witness but could not question her “on the subjects of
the black hoodie and the time of the shower.”
The jury returned to the courtroom. The State followed the court’s
admonition. A.G. testified her brother had some friends over on August 30,
Cesar Chavez, E.J. Medina, and Tom Schuck—“possibly around 5” after Yolanda
had left for work. A.G. watched television and did her homework. She ate and
took a shower. As to the boys, “[s]ometimes they went outside and stood on
the—like the little step, and sometimes they’d come in and my brother would lay
in his room and they’d just watch TV.” When A.G. went to bed at 9:00, her
brother was already in bed.
When A.G. denied the boys were putting on sweatshirts, defense counsel
objected, and the court excused the jury. The court again ruled the State could
not question A.G. about whether her brother wore a hoodie sweatshirt or the time
she took a shower—“those were clearly recanted.” But “as to the other
individuals at the home and what they may or may not have been wearing, the
witness had not “truly recanted,” and the evidence was not otherwise
inadmissible.
When A.G.’s testimony resumed, she stated she did not see the boys
putting on sweatshirts but admitted, during her November deposition, she did
state that. A.G. explained she did not understand what the prosecutor was
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saying at the deposition and Valdez’s friends “didn’t put them on, but they were
wearing some” but not black ones.
A.G. testified she did not see her brother put on or wear black sweatpants.
A.G. admitted she had stated so in her deposition and in her written statement to
police but stated now she does not remember. A.G. explained her memory was
not better in her written statement because she was half asleep, “I don’t think I
would have remembered. I could have said anything.” A.G. also stated she
does not remember what she said before and she was confused—both.
A.G. admitted she told the police officers (1) about “strange things” on her
brother’s face, like a bandanna, (2) she asked her brother what he was doing, (3)
her brother replied, nothing, just going to chill; and (4) all the boys took off. For
each of these statements, A.G. testified she now does not remember if that is
what happened.
Yolanda Valdez testified she did not borrow money from Chamale.
Yolanda called Chamale “chiquillo” because others called him that—his family,
co-workers, and mutual friends.
The jury returned a guilty verdict, and this appeal followed.
II. Scope and Standards of Review
We review “all Turecek violations” for errors at law. State v. Wixom, 599
N.W.2d 481, 484 (Iowa Ct. App. 1999). Likewise, we review restitution orders for
correction of errors at law. State v. Driscoll, 839 N.W.2d 188, 190 (Iowa 2013).
We consider if the court has not properly applied the law. Id.11
III. Turecek Violation
Valdez claims the district court erred in allowing the State to call A.G. as a
witness, and the court admitted inadmissible hearsay under the guise of
impeachment. Valdez claims A.G. recanted her entire testimony and her written
statement was a statement made by her, other than her testimony at trial, which
the State offered to prove the truth of the matter asserted—inadmissible hearsay.
Valdez argues: “During the offer of proof, [A.G.] said she was both recanting and
could not remember and that her statement to the police was false. [A.G.]
thereby recanted her statement.”
Citing State v. Sowder, 394 N.W.2d 368, 371 (Iowa 1986), Valdez
correctly notes a reviewing court “looks to the real purpose for the offered
testimony, not just the purpose urged by the prosecution.” Valdez claims A.G.
was called simply to introduce her otherwise inadmissible, recanted written
statement.
Any party can attack the credibility of a witness, no matter who called the
witness to testify. Iowa R. Evid. 5.607. In Turecek, 456 N.W.2d at 225, the court
qualified the State’s right to impeach its own witnesses:
The right given to the State to impeach its own witnesses . . . is to
be used as a shield and not as a sword. The State is not entitled
under rule [5.607] to place a witness on the stand who is expected
to give unfavorable testimony and then, in the guise of
impeachment, offer evidence which is otherwise inadmissible. To
permit such bootstrapping frustrates the intended application of the
exclusionary rules which rendered such evidence inadmissible on
the State’s case in chief.
In a later sexual abuse case, the court recognized the Turecek court
condemned “prosecutorial maneuvering in which the State places a witness on
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the stand who it expects to give unfavorable testimony solely for the purpose of
introducing otherwise inadmissible evidence.” State v. Tracy, 482 N.W.2d 675,
679 (Iowa 1992). Therefore:
Given that the record clearly reveals that the State knew K.A.
intended to retract the allegations of sexual abuse she had formerly
made, we must assume the State orchestrated this series of events
merely to place before the [jury] various items of evidence that
would otherwise be inadmissible. As we concluded in Turecek, this
sort of maneuvering constitutes reversible error.
Id.Under the circumstances of this case, we conclude the district court did
not err in allowing the State to question A.G. with specifically-identified
limitations. A.G. was not called for the primary reason of impeaching her with
prior inconsistent statements; she was called to provide testimony favorable to
the State that no other witness could offer. A.G. testified she and her brother
were home alone while their mother was working on the evening of August 30.
She testified her brother’s friends came to their home that day. Only A.G. could
specifically identify the friends, and she testified they kept going in and out of the
house. While Hamming testified to seeing Valdez in the yard with other young
men, Hamming could only identify Valdez. Only A.G. could provide the names of
the young men present in the Valdez home on the evening of August 30. Only
A.G. could connect Valdez with Tom Schuch, the driver of the Explorer parked
behind the Valdez home when the police arrived at 2:30 a.m.1
1
Officer Van Voorst testified he knew Tom Schuck “typically drives that vehicle” and also
knew Schuck hung out with Valdez. When Van Voorst “ran the plates,” he learned the
vehicle was registered to Tom Schuck’s mother.
13
On this record, we do not conclude the prosecutor “orchestrated this
series of events” primarily for an improper purpose. The prosecutor’s “real
purpose” for calling A.G. was for her to complete the story of the events of the
evening as a fact witness. See Sowder, 394 N.W.2d at 371. The trial court
allowed only limited testimony, and the State followed those limitations. Valdez
is not entitled to a new trial.
IV. Sentencing—Restitution
Restitution is authorized by statute and is a mandatory part of sentencing
in Iowa. State v. Mai, 572 N.W.2d 168, 171 (Iowa Ct. App. 1997). The
sentencing court is “expected to make a prompt resolution of sentencing issues.”
Id.; see State v. Blakley, 534 N.W.2d 645, 648 (Iowa 1995) (stating Iowa Code
section 910.3 (1993) is the “legislature’s way of ensuring that restitution is
determined properly”).
The State requested restitution for the costs of prosecution under Iowa
Code section 815.13 (2011). The district court ordered Valdez to pay restitution
for those costs under section 815.13. Valdez claims section 815.13 only
provides for the recovery of prosecution costs for criminal actions under county
or city ordinances. Thus, there is no statutory authorization for the district court’s
order. The State concedes the court erred in ordering the recovery of the costs
of prosecution under section 815.13 and requests we remand to the district court.
We so rule.
Valdez also points out Iowa Code section 356.7 allows the sheriff to
recover the cost of housing a defendant if the defendant is eighteen or older.
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The State concedes, under this section and because Valdez was not eighteen at
the time of his detention, the court erred in ordering Valdez to pay detention
costs as a part of the restitution order. We so rule.
We affirm Valdez’s convictions, vacate the restitution order, and remand
for further proceedings in accordance with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.