State v. Rosalia Lopez-Navor.
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Supreme Court
No. 2005-272-C.A.
(P 04-20CR)
State
:
v.
:
Rosalia Lopez-Navor.
:
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
OPINION
Justice Goldberg, for the Court. This case came before the Supreme Court on
May 13, 2008, on appeal by the defendant, Rosalia Lopez-Navor (Lopez-Navor or
defendant), from a judgment of conviction entered in the Family Court upon a jury
verdict of criminal neglect of a child, in violation of G.L. 1956 § 11-9-5. For the reasons
set forth in this opinion, we affirm the judgment of the Family Court.
Facts and Travel
This appeal is part of a trio of cases arising from horrific abuse that was inflicted
upon Lopez-Navor’s child, Alexis L. (Alexis), 1 at the hands of his father, Raul DeRosas
(Raul). In January 2001, Raul left a pregnant Lopez-Navor in Mexico and illegally
entered the United States. Soon thereafter, on August 17, 2001, Lopez-Navor gave birth
to Alexis; she came to the United States in 2003, also illegally, to reunite with Raul in
hopes of achieving her dream of having a family—a dream that Raul encouraged during
their many telephone conversations.
1
In the record on appeal, the child is referred to as Alexis as well as Yahir Alejandro.
We shall refer to him as Alexis.
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The reunion between defendant and Raul soon resulted in a second pregnancy,
and on October 29, 2003, a pregnant Lopez-Navor was hospitalized with an infection at
Women and Infant’s Hospital. When Raul brought Alexis to the hospital to visit his
mother, a certified nurse’s assistant noticed bruises on the child’s face and alerted a staff
social worker. When confronted, Raul gave the usual explanation—that the child had
suffered the ubiquitous fall. However, an examination at Hasbro Children’s Hospital
proved otherwise. Alexis had severe bruises, lacerations, and bite marks throughout his
body, including on his penis and buttocks; injuries that an examining physician deemed
to be consistent with child abuse. As a result, Alexis was placed in the custody of the
Department of Children, Youth and Families. After a police investigation and Raul’s
admission to the Providence police that he had struck the child, he was arrested.
The defendant, on the other hand, was less than truthful about the abuse and
attempted to protect Raul; she originally stated that she saw Raul spank Alexis on a
single occasion.
In February 2004, Lopez-Navor was scheduled to have a dental
impression made for a comparison with the bite marks on her son. While at the dentist’s
office, defendant began crying and agreed to provide another statement to police. In this
statement, she admitted that Raul habitually abused Alexis by hitting him, biting him, and
restraining him at their basement apartment in Providence.
Lopez-Navor explained to police that when she tried to intervene, Raul ordered
her to stay away and said that he would abuse her son even more if she did not. The
defendant stated that she failed to tell the truth at first because she was afraid that Raul
would be released from custody and continue to harm her son.
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On April 14, 2004, a criminal information was filed charging Lopez-Navor with
one count of criminal neglect of a child, in violation of § 11-9-5. A jury trial commenced
in the Family Court on March 7, 2005. The defendant testified that she was afraid to
report Raul’s violent behavior because he threatened and intimidated her and told her that
if she tried to seek help she would be deported to Mexico and lose her son. Additionally,
defendant explained that her inability to speak English prevented her from finding help.
The jury returned a guilty verdict on March 16, 2005. The trial justice denied
defendant’s motion for a new trial; he sentenced her to eighteen months probation and
ordered counseling. The defendant filed a timely appeal to this Court. She since has
been deported.
Standard of Review
When reviewing a judgment of the Family Court, “it is not [this Court’s] function
to arrive at de novo findings and conclusions of fact based on the evidence presented at
trial.” Moran v. Moran, 612 A.2d 26, 33-34 (R.I. 1992) (quoting Casey v. Casey, 494
A.2d 80, 82 (R.I. 1985)). However, when confronted with questions of law on appeal,
this Court undertakes a de novo review. State v. Jennings, 944 A.2d 171, 173 (R.I.
2008).
Analysis
On appeal, Lopez-Navor contends that her involuntary deportation to Mexico
does not render this appeal moot 2 and that the trial justice erred when he: (1) rejected
defense counsel’s request to instruct the jury on the defense of duress; (2) did not allow
2
Because the state stipulated at oral argument that the issues in this case are not moot,
we need not address the issue.
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into evidence Raul’s confession to the Providence police; and (3) permitted an uncertified
Spanish interpreter to participate in the proceedings.
A
Defense of Duress
The defendant contends that the trial justice erred when he refused to instruct the
jury on the defense of duress. Because we are satisfied that this defense has no place in
this case, we reject defendant’s argument. “A duress defense has three elements: 1) an
immediate threat of serious bodily injury or death, 2) a well-grounded belief that the
threat will be carried out, and 3) no reasonable opportunity to escape or otherwise to
frustrate the threat.” State v. Verrecchia, 766 A.2d 377, 389 (R.I. 2001) (quoting United
States v. Arthurs, 73 F.3d 444, 448 (1st Cir. 1996)). A party’s failure to establish one of
these elements is sufficient to justify denying a request to instruct the jury on this defense
theory. Id. (citing Arthurs, 73 F.3d at 448-49).
Here, defendant was not entitled to this instruction as a matter of law and may not
rely on the defense of duress to avoid the consequences of her criminal neglect of Alexis.
There is no evidence that defendant was unable to escape from Raul or reach out for
help—her self-serving excuses notwithstanding. The evidence disclosed that Raul had
abused the child for many weeks and that, during that time, defendant was alone on
occasion with her son in their apartment or in a public place. She never told anyone that
she was in trouble or that Raul was abusing Alexis. Indeed, when she was admitted to
the hospital, defendant asked to keep the child with her, but she never explained to
anyone why she wished to do so.
By failing to report Alexis’s dire situation to anyone, whether a store clerk or a
nurse in the hospital, Lopez-Navor failed to protect her child from his father’s abuse. See
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United States v. Bakhtiari, 913 F.2d 1053, 1058 (2nd Cir. 1990) (quoting United States v.
Alicea, 837 F.2d 103, 106 (2nd Cir. 1988) (“[W]here there is reasonable opportunity to
escape the threatened harm, the defendant must take reasonable steps to avail himself [or
herself] of that opportunity, whether by flight or by seeking the intervention of the
appropriate authorities.”); see also In re Chester J., 754 A.2d 772, 778 (R.I. 2000) and In
re Nicole B., 703 A.2d 612, 617-18 (R.I. 1997) (holding that parents are held to a greater
level of responsibility and awareness for their children than other adults and that parents
who ignore abuse are as culpable as the actors, in the context of the termination of
parental rights).
Finally, the fact that defendant may have feared contacting the police because of
her status as an illegal alien is no defense—she is not relieved of her duty to protect her
child and seek help despite any personal consequences. Neither her fear of Raul nor the
threat of deportation excused her conduct, and an instruction on the defense of duress was
not warranted by the evidence.
B
Exclusion of Evidence
The defendant’s contention that the trial justice erred in refusing to allow into
evidence Raul’s statement to the police, in which he admitted that he abused his son, is
also unavailing. The trial justice excluded the statement on hearsay grounds, and found
that it was outside the reach of the hearsay exceptions counsel raised—Rules 803 and 804
of the Rhode Island Rules of Evidence. Specifically, the trial justice concluded that
Raul’s statement “on its face appears as hearsay” and that allowing it under a hearsay
exception would “be unduly prejudic[ial]” to the state.
-5-
Because we conclude that the witness statement was irrelevant to the guilt or
innocence of defendant, we need not address these evidentiary contentions. Relevant
evidence is evidence that has a “tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence.” R.I. R. Evid. 401. Although evidence may assist in
proving a certain proposition, unless it relates to a matter in issue in the case, it is
immaterial and inadmissible.
State v. Thomas, 936 A.2d 1278, 1282 (R.I. 2007).
Additionally, evidence may be excluded “if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Id. (quoting R.I. R. Evid. 403). We have declared that “the
ultimate determination of the effect of the evidence is within the trial justice’s
discretion[.]” State v. O’Brien, 774 A.2d 89, 107 (R.I. 2001) (quoting State v. Grundy,
582 A.2d 1166, 1172 (R.I. 1990)).
The record in this case is barren of any suggestion that Lopez-Navor abused her
child. Thus, defendant’s contention that Raul’s statement would eliminate any
“speculation that [Lopez-Navor] also had abused” Alexis, is misdirected; that statement is
not relevant to any issue in dispute. In this case, there was no dispute about who the
abuser was and who the enabler was. The defendant was convicted of failure to protect
her son from his father’s brutality.
Because the record reflects that Raul, and not
defendant, committed the abuse in this case, the statement properly was excluded.
-6-
C
Court-Appointed Interpreter
Finally, the trial justice’s decision to allow an interpreter who was not certified
was not error. Before trial, defense counsel objected to the qualification of the court
interpreter and questioned the certification procedure for court-employed interpreters.
The trial justice permitted voir dire examination of the interpreter’s qualifications and
defendant failed to impeach the interpreter’s qualifications. Significantly, defendant has
failed to show that she was prejudiced by the interpreter services that were provided to
her.
Court interpreters are provided pursuant to G.L. 1956 chapter 19 of title 8. This
statute was enacted:
“[T]o guarantee the rights of persons who, because of nonEnglish speaking background, are unable to readily
understand or communicate in the English language, and
who consequently need the assistance of an interpreter [to]
be fully protected in legal proceedings in criminal matters
* * *.” Section 8-19-1.
This statute furthers the state’s goal of providing meaningful access to criminal legal
proceedings for all people who come before the courts; it does not provide a basis for a
finding of reversible error absent a showing of actual, irremediable prejudice.
Although the United States Supreme Court has not recognized a constitutional
right to a court-appointed interpreter, this Court has held “that a trial justice is entrusted
with the discretion to appoint an interpreter if he or she determines that a defendant is
unable to understand the English language adequately * * *.” State v. Ibrahim, 862 A.2d
787, 797, 798 (R.I. 2004). We have long held that a trial justice is granted “large
discretion” in the “selection, appointment, and retention of an interpreter.” State v.
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Deslovers, 40 R.I. 89, 115, 100 A. 64, 73 (1917). Unless the complaining party provides
clear evidence of prejudice, we will not disturb the trial justice’s discretion. Id. Because
the defendant has failed to show that she was prejudiced in any cognizable way by the
interpreter that the court provided for her, we reject this argument.
Conclusion
For the reasons stated in this opinion, we affirm the judgment of the Family
Court. The papers in this case are remanded to the Family Court.
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