Juror misconduct alleged in Lozano trial

Erica D. Johnson

Wednesday, Jan. 14, 2004 | 11:07 a.m.

Court documents unsealed Tuesday detail what defense attorneys are calling juror misconduct in the trial of the man sentenced to death for killing a 9-year-old North Las Vegas girl.

In a motion asking for a new trial, Pascual Lozano's attorneys claim a juror violated court rules when she asked her husband the meaning of a Spanish word used by a witness during key trial testimony.

"It changed the outcome of the case," Deputy Special Public Defender Bret Whipple said.

The juror's name has not been released. She is referred to in court documents only as juror No. 6.

She and the other jurors convicted Lozano, 24, of first-degree murder for firing the shots that killed Genesis Gonzales in a gang shootout near Civic Center Drive and Cheyenne Avenue.

Gonzales' 8-year-old sister, Heidi, was shot in the leg during the incident but survived. The girls were playing in the courtyard of their apartment complex when they were shot.

The controversy has to do with the testimony of a woman who said in Spanish that she saw a black man flee the scene in a getaway car moments after the shooting. Lozano is Hispanic.

Veronica Dargida, a resident in the complex, said through an interpreter that she was in her apartment when she heard the sound of gunshots.

Dargida testified that she looked out of her window and noticed a man getting into a car. She said the man she saw was "moreno."

"Was he African-American?" Deputy Special Public Defender Ivette Maningo asked.

"Si," Dargida answered.

Whipple said the juror in question went home and asked her husband, who is Hispanic, what the word "moreno" meant.

During deliberations, the woman allegedly told the other jurors that her husband told her "moreno" meant dark-skinned, not black. She surmised that Dargida still could have seen a Hispanic man flee the scene.

"One word included our defendant instead of excluded him like it was intended," Whipple said.

According to court documents obtained by the Sun, District Judge John McGroarty ruled during in-chambers hearings that the juror should not have considered any information other than that presented as evidence during the trial.

Jurors in all trials are instructed not to conduct any independent investigations.

Whipple and Maningo were scheduled to ask McGroarty to grant Lozano a new trial on the grounds of juror misconduct during a hearing Tuesday, but the hearing was postponed. It was rescheduled for Jan. 28.

Chief Deputy District Attorneys Ed Kane and Vickie Monroe plan to argue against the motion.

Kane acknowledged that the juror in question should not have spoken to her husband about the case, but said the juror's actions were not deliberate.

"Our position is that the jurors did nothing wrong," he said. "There have been no allegations by anyone that there was any deliberate misconduct by any juror."

Kane added that there were at least two other Spanish-speaking jurors on the panel who determined that Lozano was the shooter.

"So it still didn't affect anything because there were at least two other jurors that knew what the word meant," he said.

But Whipple said he does not believe there is any question that his client deserves a new trial based on the juror's conduct.

"I'd go so far as to say this demands a new trial," he said.

Prosecutors say Lozano was firing shots at a rival gang member named Robert Valentine when a stray bullet struck Genesis Gonzales. Gonzales was not the intended target.

Defense attorneys maintained that a man named Robert Waddell was actually the shooter. Waddell, who admitted to being in the car with Lozano when the shooting occurred, is black.

Waddell was called to the witness stand by prosecutors during the trial and he invoked his Fifth Amendment right against self-incrimination.

Leland Page, acting coordinator for Clark County's court-appointed interpreter program, oversees about 25 Spanish-speaking interpreters who translate for defendants and witnesses during court proceedings.

The program also employs more than 300 other interpreters who speak 50 different languages, he said.

Because of tiny nuances in language, it is sometimes difficult for translators to determine the exact meaning the speaker actually intended, Page said. In those cases, the meaning is generally determined by the context of the word, he said.

In the Lozano case, Page said the Spanish word "moreno" used in the context of the witness' testimony could mean black or dark-skinned.

"In different countries it means different things," he said. "Sometimes it means dark, sometimes it means brown, sometimes it means black. ... There are some Spanish people who have dark skin."

Dargida is Mexican. However, Leland said it was still difficult to discern her interpretation of the word because of regional differences in the Spanish language in Mexico.

"Even in one country, each person can have different meanings of one word," he said.

If the interpreter is unable to ascertain the meaning of a word by the context of a sentence, the interpreter is instructed to ask the witness to clarify the meaning of the word, Page said.

"If there is any doubt, the interpreter should stop and ask the judge for a clarification in terms," Page said.

It was unclear whether the interpreter asked Dargida to clarify her meaning.

In a previous motion filed by defense attorneys, Whipple and Maningo challenged testimony revolving around what Genesis Gonzales' 14-year-old sister, Tannia, said about the gunman.

Tannia Gonzales testified during the trial that she saw a man open fire in an alley moments after the shooting, but said she was not sure of the ethnicity of the gunman.

An investigator for the district attorney's office later testified that Tannia Gonzales told him that the gunman was a Hispanic male.

But Tannia Gonzales allegedly told defense attorneys following the trial that she never told anyone the man she saw was Hispanic. Defense attorneys say the controversy regarding the teen's testimony is also grounds for a new trial.

McGroarty is set to rule on both motions during the Jan. 28 hearing.