Nаrcisco Pascacio Pineda appeals his convictions for malice murder and possession of a firearm during the commission of felonies, in connection with the deaths of Mario Molina, Leonel Lara Vazquez (“Vazquez”), Prisca Rosales Vazquez (“Prisca”), and the unborn child of Prisca Rosales Vazquez. For the reasons that follow, *613 we affirm in part and vacate in part. 1
Construed to support the verdicts, the evidence showed that Pineda and Vazquez had a history of disagreements. On Thanksgiving evening, there was an outdoor social gathering at Vazquez’s home in a mobile home park. Pineda and Molina argued, and Vazquez asked Pineda if he had come to start new arguments or settle old ones. Pinеda said “I’m going to kill you” and that he would “finish” them; he produced a pistol, and shot Molina once. He then began to shoot at Vazquez, striking him nine times; he attempted to shoot a bystander, and shot Prisca once; she was pregnаnt. Molina, Vazquez, and Prisca died as a result of their wounds, and Prisca’s unborn child died as a result of Prisca’s death. Pineda’s son was also shot in the leg.
1. Pineda contends that the evidence was insufficient to support his conviction аnd sentence for the crime of malice murder in causing the death of Prisca’s unborn child. He is correct. Under OCGA § 16-5-1 (a), “[a] person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.” The only evidence was that the unborn child was alive solely in the mother’s uterus, died due to the death of the mother, and never had an independent circulation or other еvidence of independent existence. See
Shedd v. State,
The evidence was sufficient to enable a rational trier of fact to find Pineda guilty beyond a reasonable doubt of all of the other crimes of which he was convicted.
Jackson v. Virginia,
2. Prior to trial, the State provided nоtice pursuant to Uniform Superior Court Rules (“USCR”) 31.1 and 31.3 that it intended to introduce evidence that, in August 1998, Pineda and his son went to the mobile home park where the killings took place, and Pineda threatened Crispin Mendez by pointing a рistol at him. At trial, Mendez testified that Pineda asked to buy a beer, Mendez said that he did not operate a store, Pineda pointed a pistol at him, and said he was going to kill him. The State then asked, over objection, whether there was “another occasion” during which Pineda threatened him, and Mendez testified that Pineda sought him out, displayed a pistol under his shirt, and asked if Mendez was “still brave.”
Pineda asserts that his motion for mistrial should have been granted beсause the testimony regarding Pineda’s query whether Mendez was “still brave” was beyond the scope of the pre-trial notice. First, it is not clear from Mendez’s testimony whether Pineda’s display of his pistol and his query whether Mendez was “still brave” was so closely tied to Pineda’s act of pointing his pistol at Mendez that the notice provided sufficient particulars of the incident such that Pineda’s defense could not have been harmed by the failure to providе more specific information. See
Fitzpatrick v. State,
3. Pineda filed his motion for new trial on November 16, 1999; the order denying that motion was filed on May 5, 2009. Pineda argues that this delay in his post-conviction review violated his rights to due proсess.
This Court has addressed the proper resolution of claims asserting due process violations based on inordinate appellate delay, and determined that the appropriate analysis is appliсation of the four speedy trial factors set forth in Barker v. Wingo,407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), which are the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to *615 the defendant. Chatman v. Mancill,280 Ga. 253 , 256 (2) (a) (626 SE2d 102 ) (2006).
Browning v. State,
4. Finally, Pineda claims that he was not afforded the effective assistance of counsel becаuse his attorneys did not secure an interpreter who was able to keep him apprised of what was occurring at trial; it is uncontroverted that Pineda speaks only Spanish. In order to prevail on this claim, he must show both thаt counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense.
Smith v. Francis,
At the commencement of the trial, Kosar was sworn as an interpreter and instructed by the court to relate aсcurately and correctly to Pineda all that transpired in the courtroom; Pineda stated that he had no problem understanding Kosar, and that he understood what was transpiring. A second interpreter (“second interpreter”) 3 was sworn to provide translations for witnesses who *616 testified in Spanish. On the morning after the State rested its case, interpreter Kosar did not appear in the courtroom. Thomas then testified on behalf of Pineda, in English, to the effect that a witness who had testified for the Statе had related to Thomas a version of events different from that to which she had testified earlier, namely that Molina had fired the first shot, striking Pineda’s son. During Thomas’s testimony, the second interpreter assisted Pineda. After Thomas’s testimony, Hаwk, who grew up in a home in which Spanish was spoken, was married to one of Pineda’s attorneys, and had been involved in trial preparation as an interpreter, was sworn as an interpreter and assisted Pineda. 4 At each change of interpreter, Pineda told the court that he was satisfied with the procedure; at no time did he tell the court, or his attorneys, that he did not, or could not, understand what was transpiring; 5 on several occasions hе told the court that he was satisfied with the performance of his attorneys. During the hearing on the motion for new trial, Pineda testified that he did not understand “at all” what was going on at trial and could not hear the Spanish-speaking witnеsses, but did not know who to inform of these facts, and that he affirmatively answered the trial court’s queries as to his satisfaction with his attorneys because he “didn’t know if I should say anything except I agree.”
Unlike defense counsel in
Ling v. State,
Judgments affirmed in part and vacated in part.
Notes
The crimes occurred on November 26, 1998. On December 8, 1998, a Columbia County grand jury indicted Pineda for: Count 1 - malice murder of Mario Molina; Count 2 - felony murder of Mario Molina during the commission of aggravated assault; Count 3 - malice murder of Leonel Lara Vazquez; Count 4 - felony murder of Leonel Lara Vazquez during the commission of aggravated assault; Count 5 - malice murder of Prisca Rosales Vazquez; Count 6 - felony murder of Prisca Rosales Vazquez during the commission of aggravated assault; Count 7 - malice murder of the unborn child of Prisca Rosales Vazquez; Count 8 - felony murder of the unborn child of Prisca Rosales Vazquez during the commission of aggravated assault; and Count 9 - possession of a firearm during the commission of thе crimes of murder. On December 10, 1998, the State filed a notice of its intent to seek the death penalty. Pineda was tried before a jury September 7-18, 1999, and found guilty of all charges. On October 21, 1999, the trial court sentenced Pineda to consecutive terms of life in prison without the possibility of parole for the malice murders of Mario Molina, Leonel Lara Vazquez, and Prisca Rosales Vazquez, a consecutive term of life in prison for the malice murder of the unborn child of Prisca Rosales Vazquez, and a consecutive term of five years in prison for possession of a firearm during the commission of the crimes of murder; the verdicts of guilty for the crimes of felony murder stоod vacated by operation of law.
Malcolm v. State,
Pineda was not charged with the crime of feticide. See OCGA § 16-5-80. See also Ranger, supra.
This interpreter also had the last name of Pineda.
Although Pineda asserts that the interpreters used should have been certified and were not, this Court’s rules on Use оf Interpreters for Non-English Speaking Persons became effective on October 10, 2001, after the date of Pineda’s trial. Compare
Ramos v.
Terry,
One of Pineda’s attorneys spoke “a little Spanish.”
The trial court’s order denying the motion for new trial noted that Pineda “claimed he worked in construction while in the United States despite not understanding English.” At trial, Pineda testified that he had been working in the United States for over 20 years.
Of course, “failure to interpose a timely objection to an interpreter’s qualifications constitutes a waiver of the issue on appeal. [Cit.]” Ramos, supra.