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Liz V. Fretes-Zarate v. United States

March 29, 2012

LIZ V. FRETES-ZARATE, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (DVM1909-10) (Hon. Stuart G. Nash, Trial Judge)

Per curiam.

Argued February 23, 2012

Before WASHINGTON, Chief Judge, EASTERLY, Associate Judge, and PRYOR, Senior Judge.

Appellant, Liz V. Fretes-Zarate, appeals her conviction for simple assault in violation of D.C. Code § 22-404 (2009 Supp.). She argues that she had a constitutional right to a trial by jury for this offense because a conviction subjects her to deportation under federal immigration law. She also argues that she was denied a fair trial by the prejudicial errors of a translator, and that the trial judge erred in not allowing her to impeach the complaining witness with evidence of a prior civil protection order she had obtained against him. Lastly, she contends the evidence was legally insufficient to convict. We deem her first contention to be the sole issue meriting extended discussion. Defense counsel did not request a jury trial at any point in the proceedings, therefore, we review for plain error and for the reasons set out below, we affirm.

I. Factual Background

Appellant, a citizen of Paraguay, has lived in the United States for six years. She was married for a period of two and a half years to the complaining witness before they divorced. At the time of the offense, both parties were seeking sole custody of their four-year-old son. In August 2010, the government filed an information charging appellant with a single count of simple assault, and a bench trial was conducted by the trial judge. A review of the record confirms that defense counsel did not request a jury trial at any point in the proceedings.

After the trial began, defense counsel notified the trial judge that an interpreter was needed and the trial judge suspended the proceedings so that an interpreter could be secured. Defense counsel represented to the judge that appellant spoke some English, and appellant assured the judge that she did not wish to repeat the proceedings again from the beginning. Based on his observations of appellant in dialogue with her counsel, the trial judge noted on the record that appellant appeared to have a working knowledge of the English language. On a number of occasions over the course of appellant's subsequent testimony, the interpreter asked for clarifications and interrupted proceedings to explain the translation. Defense counsel never objected to the quality of the translation.

During the trial, both appellant and complainant testified, each to a different version of events. Both testified that on August 16, 2010, appellant spent the night at complainant's house with their son. Complainant testified that the next morning appellant became upset when he left the house on an errand without letting her know he was leaving. He stated that appellant left his home in an angry state. He testified that, not long afterwards, he got into his truck with his son and drove to a store. As he drove, he noticed appellant following him in her car and then heard her blow her car horn excessively. When complainant pulled over to the side of the road, appellant pulled up behind him. Appellant then approached complainant's car. Complainant testified that appellant was argumentative and eventually reached into his car, grabbed his arm, and scratched him. He also testified that she attempted to spit on him. He stated that he tried to raise the window but that the safety override system in the car prevented him from closing the window while she was leaning inside the car. He stated that he was eventually able to drive away and that he drove directly to the police station.

Appellant testified that she went to complainant's home because she was trying to obtain his signature on a document needed to enroll their son in school. She testified that complainant refused to sign the document and that she stayed overnight in the hope that he would cooperate the next morning; she stated she became frustrated with his continued refusal to sign the next morning. Appellant testified that complainant drove away with their son and that she followed him with the intention of obtaining his signature on the school enrollment document. Appellant denied honking her horn or doing anything to force Mr. Johnson to stop his car.

The government presented a photograph of complainant's arm, which was taken at the police station and which showed several scratches. An officer of the Metropolitan Police Department testified that the complaining witness had what appeared to be "fresh scratches on his arm" when he arrived at the police station. Defense counsel presented a photograph of both of appellant's arms, which was taken at the police station and which also showed scratch marks.

During complainant's testimony, the trial judge stated, in reference to the prior relationship between the complaining witness and appellant, that "anything that's happened before is not before me." The trial judge also excluded testimony regarding allegations of prior assaultive conduct by appellant against her son.

Appellant filed a timely notice of appeal from her conviction.

II. Analysis

On appeal, appellant argues that she had a constitutional right to a jury trial because her conviction subjects her to deportation under federal immigration law. She argues that the possibility of deportation transformed her simple assault charge into a "serious" offense mandating a jury trial. She argues further that the trial judge was on notice of appellant's status as a non-citizen and should therefore have advised appellant sua sponte of her right to a jury trial. In this instance, we review for plain error, which permits this court to grant a remedy only where there is (1) an error, (2) that ...


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