STATE OF IOWA, Plaintiff-Appellee, vs. ABOUOURABIOU AFO-ODJEBITI, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-665 / 05-1128
Filed November 30, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ABOUOURABIOU AFO-ODJEBITI,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Gary McKenrick,
Judge.
Abouourabiou Afo-odjebiti appeals from the judgment and sentence
entered upon his convictions of theft in the first degree and three counts of theft
in the second degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, William E. Davis, County Attorney, and Jerald Feuerbach, Assistant
County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Zimmer, JJ.
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ZIMMER, J.
Abouourabiou Afo-odjebiti appeals from the judgment and sentence
entered upon his convictions of theft in the first degree and three counts of theft
in the second degree in violation of Iowa Code sections 714.2(1) and 714.2(2)
(2003).
He contends:
(1) the district court erred in refusing to appoint an
interpreter and in failing to allow him access to his national consulate, (2) the
court erred in submitting a jury instruction on aiding and abetting and in failing to
give an instruction on corroboration, and (3) his trial counsel was ineffective. We
affirm the defendant’s convictions.
I.
Background Facts and Proceedings
In the fall of 2004, Afo-odjebiti opened accounts at five different credit
unions in the Davenport area with small amounts of money. He then deposited
checks into the accounts and withdrew money.
After Afo-odjebiti made the
withdrawals, the credit unions discovered the checks he had deposited were
invalid and the withdrawals exceeded the amounts available in the accounts.
Following an investigation, the State filed a trial information charging Afoodjebiti with theft in the first degree, four counts of forgery, identity theft, and two
counts of theft in the second degree. The State amended the trial information on
June 6, 2005. The amended trial information charged Afo-odjebiti with one count
of theft in the first degree and four counts of theft in the second degree. The
case proceeded to trial, and a jury found Afo-odjebiti guilty of one count of theft in
the first degree and three counts of theft in the second degree. Afo-odjebiti now
appeals.
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II.
Discussion
A.
Interpreter
Afo-odjebiti, a native of Africa, filed a motion requesting an interpreter who
speaks his native language of Ewe.
His motion stated, “He [Afo-odjebiti]
understands English but has a thick accent that makes it difficult to understand
his speech.” Initially, the State did not resist the motion, and the court granted it.
Later, the State move to withdraw the order authorizing an interpreter.
No
interpreter was present on the date set for hearing on Afo-odjebiti’s motion to
suppress, so the court continued the hearing date and ordered the court
administrator to investigate the availability of Maud Dogoe, who speaks Ewe, to
act as an interpreter.
The record reveals a hearing was held on the State’s motion to withdraw
the order authorizing an interpreter on June 6, 2005, before trial commenced. No
interpreter was present who could speak Ewe. The court heard evidence from
both parties and ruled Afo-odjebiti had sufficient English communication skills to
proceed to trial without the assistance of an interpreter.
Afo-odjebiti now
contends the court erred in refusing to appoint an interpreter. For the reasons
that follow, we reject this assignment of error.
Iowa Code section 622A.2 provides: “Every person who cannot speak or
understand the English language and who is a party to any legal proceeding or a
witness therein, shall be entitled to an interpreter to assist such person
throughout the proceeding.” We review issues of statutory interpretation and
application for the correction of errors at law. State v. McCoy, 618 N.W.2d 324,
325 (Iowa 2000). To the extent a defendant alleges a violation of a constitutional
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right, we review de novo the totality of the circumstances as shown by the entire
record. State v. Naujoks, 637 N.W.2d 101, 106 (Iowa 2001).
Upon careful review of the record, we find the district court correctly
determined Afo-odjebiti could understand and speak English.
In his motion
requesting an interpreter, the defendant conceded he understands English and
only stated his accent makes it difficult to understand his speech. Afo-odjebiti
filed several pro se documents in English. Credit union employees testified Afoodjebiti communicated with them in English when conducting financial
transactions. Afo-odjebiti also read documents in English when he interacted
with credit union personnel. On one occasion, he refused to sign a document
because he did not want to pay interest on a deficiency balance in connection
with a repossession.
A Davenport police officer interviewed Afo-odjebiti for approximately half
an hour when investigating the allegations of theft. She testified the defendant
was able to communicate in English. The officer said, “I actually noted that he
was articulate in his English, and answered appropriately with whatever question
I would address to him.” Afo-odjebiti signed a form indicating he could “read,
write and understand the English language” and understood his Miranda rights.
The videotape of the police interview indicates Afo-odjebiti was able to speak and
understand English. The defendant’s girlfriend testified she lived with him for
several months and was able to communicate with him even though she only
spoke English. The record reveals the defendant did not need an interpreter.
We also conclude Afo-odjebiti’s claim fails for another reason.
It is
apparent from the record that Afo-odjebiti affirmatively attempted to frustrate the
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court’s attempts to provide him with an interpreter. Two individuals who knew
Afo-odjebiti and spoke Ewe refused to act as interpreters. One of the potential
interpreters said he wanted to avoid harming Afo-odjebiti.
The other, Maud
Dogoe, refused to act as Afo-odjebiti’s interpreter because Afo-odjebiti did not
want to make it easy for the court.
Afo-odjebiti is a native of Togo, where the official language is French. The
defendant told a credit union employee he was fluent in French, and he spoke
with a district court judge during a pretrial proceeding in French. However, when
a French-speaking interpreter went to the jail to speak with Afo-odjebiti, the
defendant refused to acknowledge the interpreter and told his attorney he wanted
an interpreter who spoke Ewe.
We find Afo-odjebiti deliberately thwarted attempts to provide him with an
interpreter.
He cannot now complain his constitutional rights were violated
because he did not have an interpreter at trial. See State v. Hall, 235 N.W.2d
702, 728 (Iowa 1975) (a party cannot complain of error he or she invited).
Because Afo-odjebiti could speak and understand English and tried to
frustrate attempts to provide him with an interpreter, we conclude the district
court did not err in refusing to appoint an interpreter.
B.
Vienna Convention Claim
Afo-odjebiti also claims the court erred in failing to allow him access to his
national consulate pursuant to Article 36 of the Vienna Convention. Article 36
states:
[I]f he [national of the sending State] so requests, the competent
authorities of the receiving State shall, without delay, inform the
consular post of the sending State if, within its consular district, a
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national of that State is arrested or committed to prison or to
custody pending trial or is detained in any other manner. Any
communication addressed to the consular post by the person
arrested, in prison, custody or detention shall also be forwarded by
the said authorities without delay. The said authorities shall inform
the person concerned without delay of his rights under this subparagraph.
Vienna Convention on Consular Relations and Optional Protocol on Disputes
art. 36, Dec. 24, 1969, 21 U.S.T. 77.
In a hearing prior to the commencement of trial, the court noted Afoodjebiti had a right to access his country’s consular services and gave him an
opportunity to discuss the matter with his attorney.
Afo-odjebiti’s attorney
informed the court he had discussed consular access with his client in a cursory
fashion. Neither Afo-odjebiti nor his attorney indicated they wished to pursue the
issue of consular rights, so the court proceeded with other pretrial motions. We
find Afo-odjebiti has waived this claim of error.
C.
Jury Instructions
Afo-odjebiti next claims the court erred in submitting a jury instruction on
aiding and abetting and in failing to give an instruction on corroboration. We
review a trial court’s refusal to give a requested jury instruction for the correction
of errors at law.
State v. Martinez, 679 N.W.2d 620, 623 (Iowa 2004).
On
appeal, we determine whether the instructions correctly state the law. State v.
Predka, 555 N.W.2d 202, 204 (Iowa 1996). Any error in jury instructions must be
prejudicial to warrant reversal. State v. Holtz, 548 N.W.2d 162, 164 (Iowa Ct.
App. 1996). A jury instruction error is presumed prejudicial unless upon a review
of the entire case, we find the error resulted in no prejudice. State v. Bone, 429
N.W.2d 123, 127 (Iowa 1988).
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The State expressed reservations about the jury instruction on aiding and
abetting, contending the evidence did not indicate another person was involved
in the thefts from the credit unions. The trial court invited defense counsel to
respond to the State’s objection, but counsel indicated he had no response
regarding the jury instruction. Parties must make specific objections to preserve
issues for appeal. State v. Taylor, 310 N.W.2d 174 (Iowa 1981). We find Afoodjebiti failed to preserve error on this issue. Furthermore, Afo-odjebiti does not
claim on appeal that he even requested a jury instruction on corroboration at trial;
therefore, we find he failed to preserve error on this issue as well.
D.
Ineffective Assistance of Counsel
Afo-odjebiti claims his trial counsel was ineffective if error was not
preserved on some of the claims he has raised on appeal. We conclude the
record is inadequate to address the defendant’s claims of ineffective assistance
of counsel.
Accordingly, we preserve them for possible postconviction relief
proceedings.
III.
Conclusion
We affirm the defendant’s convictions and preserve his claims of
ineffective assistance of counsel for possible postconviction relief proceedings.
AFFIRMED.
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