State of Iowa v. Alex Cosmo Marcelino

IN THE COURT OF APPEALS OF IOWA

No. 18-0374
Filed February 5, 2020

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ALEX COSMO MARCELINO,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.

A defendant appeals his conviction for first-degree murder. AFFIRMED.

Nathan A. Mundy of Mundy Law Office, P.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.

Heard by Tabor, P.J., and Mullins and Schumacher, JJ.
2

TABOR, Presiding Judge.

A jury convicted Alex Marcelino of murder in the first degree after hearing

evidence he shot Phillip Gomez in the chest. Marcelino appeals his conviction,

challenging (1) the district court’s ruling on the State’s motion in limine, (2) the

court’s exclusion of four out-of-court statements asserting another person was the

shooter as inadmissible hearsay, and (3) its ruling on his motion for new trial. He

also raises numerous contentions in a supplemental pro se brief.1

We decline to address his first and third issues, because he did not preserve

error. We find the court’s hearsay rulings were correct, or alternatively, exclusion

of the statements was harmless. In addition, we find no grounds for reversal in the

pro se complaints.

I. Facts and Prior Proceedings

It was mid-August 2016, and Katy Markham had plans to go to the Iowa

State Fair with her new boyfriend, Alex Marcelino. She went to the house where

he was staying on the east side of Des Moines. Several other acquaintances were

there, including Amber Easley, Saleumphone Phetpriyavanh, Carlos Salaises, and

Phillip Gomez. The couple never made it to the fair.

Instead, an argument broke out when Easley accused Gomez of “being a

cop.” Markham saw Marcelino charge out of his bedroom into the living room with

1Our supreme court transferred the case to us with instructions to decide—as part
of our opinion—a pending motion to strike Marcelino’s February 2019
supplemental pro se brief. Recent legislation prohibits consideration of
supplemental pro se filings when the party is represented. See 2019 Iowa Acts
ch. 140, § 31. In State v. Macke, our supreme court held other provisions in that
act were prospective only and did not apply to cases pending July 1, 2019. 933
N.W.2d 226, 235 (Iowa 2019). By extension, because this appeal and Marcelino’s
pro se brief were pending on July 1, 2019, we consider his pro se arguments.
3

a small, black gun. Marcelino asked Gomez twice “out of anger” if he was a “cop.”

Then Marcelino shot Gomez, according to Markham. After the first shot, Markham,

Easley, and Phetpriyavanh fled the house. As they were leaving, they heard

another gunshot. Easley also saw Marcelino with a small, black handgun. She

only heard the shots but was “almost a hundred percent sure” Marcelino shot

Gomez.2

Markham, Easley, and Phetpriyavanh waited outside the residence until

Marcelino drove away in his Ford Bronco. But Markham had forgotten her car keys

inside the home. When Easley went back inside to retrieve them, she saw Gomez

lying face down on the floor, a pool of blood forming around him. Those three

witnesses left in Markham’s car. While driving, Marcelino called Easley’s

cellphone and arranged to meet at a nearby Walgreens parking lot. Once there,

Marcelino left his Bronco and entered Markham’s car, still holding the gun. The

group discussed where to hide the gun and eventually arrived at Easley’s

apartment. After that, Markham parted ways with Marcelino and she did not know

what happened to the gun.

But the cast is not complete. Also on hand for the shooting were at least

two other people—Carlos Salaises, and his girlfriend, Wanda Anderson. They left

the residence after the shooting but returned about twenty minutes later and called

911. Police officers interviewed all the witnesses and charged Marcelino with first-

degree murder, in violation of Iowa Code section 707.1 and 707.2 (2016).

2 Easley, though subpoenaed, refused to testify and was held in contempt. The
jury considered her deposition testimony.
4

Four months after the shooting, during an unrelated drug raid on the home

of Marcelino’s friend, Michael Baker, police recovered a handgun hidden under his

mattress. Using bullet fragment identifications, state criminalists concluded that

gun was used to kill Gomez.

Before trial, the State moved to block Baker and Anderson from offering

“inadmissible hearsay” statements that Salaises allegedly confessed to the

murder. The district court granted that motion in limine.3 At trial, the main defense

strategy was to convince the jury that Salaises, not Marcelino, was the shooter.

Salaises exercised his right under the Fifth Amendment not to incriminate himself

and, therefore, was not available to testify. After the State rested, the defense

renewed its objection to the State’s motion in limine and presented offers of proof

from Baker and Anderson. The court reaffirmed its pretrial ruling. The jury

returned a verdict finding Marcelino guilty as charged. Marcelino appeals.

II. Analysis

A. Ruling on State’s Motion in Limine

Defense counsel’s brief begins with the contention the district court denied

Marcelino the right to present a defense under the Sixth Amendment by excluding

“non-hearsay testimony” from Anderson and Baker. Counsel also suggests the

3 The court stated it did not believe there was “sufficient information regarding
corroboration, regarding trustworthiness, those two things in particular, as well as
other factors that the Court needs to take into consideration when deciding whether
to allow hearsay testimony to come in under the residual exception or statements
under the exception relating to statements against interest.”
5

court’s ruling on the State’s motion in limine violated his right to due process. In

his pro se brief, Marcelino adds a confrontation clause claim.4

The defense did not raise those constitutional claims at trial. Sensibly so,

since the district court did not violate Marcelino’s rights as alleged here. On

appeal, Marcelino misreads the district court’s ruling. The district court excluded

only the hearsay statements, not the entire testimonies of Baker and Anderson.

To the extent the district court mentioned nonhearsay statements, it was in the

context of finding insufficient indicators of trustworthiness for purposes of the

hearsay exceptions urged by the defense. Trial counsel recognized the context of

the district court’s analysis and did not object. Because Marcelino is raising these

constitutional claims for the first time on appeal, they are not preserved for our

review. See Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012).

Marcelino alleges DeVoss v. State allows us to vault over error

preservation. 648 N.W.2d 56, 62 (Iowa 2002). But DeVoss allows an appellate

court to sustain an evidentiary ruling on any proper ground even if not urged in the

district court. Id. This exception to error-preservation rules serves the purposes

of “judicial economy” and “finality” because “on retrial the error could easily be

corrected.” Id. By contrast, Marcelino urges us to reverse the district court’s ruling

on a ground not raised. That outcome would be contrary to DeVoss and the norms

of error preservation.

4 In criminal prosecutions, the accused has the right to confront witnesses against
them. See U.S. Const. amend. VI; Iowa Const. art. 1, § 10; State v. Peterson, 532
N.W.2d 813, 816 (Iowa 1995) (citation omitted) (discussing right of criminal
defendant to compulsory process for obtaining witnesses “is in plain terms the right
to present a defense”).
6

In his pro se brief, Marcelino alleges trial counsel was ineffective in handling

the hearing on the State’s motion in limine.5 He argues “the hearsay exception

rule is being misapplied and counsel’s failure to argue this point is detrimental to

this case.” It is true that raising a claim as ineffective assistance may excuse the

failure to preserve error. See State v. Ambrose, 861 N.W.2d 550, 555 (Iowa 2015).

But here, the pro se brief alleges a different breach of duty by trial counsel.

Marcelino does not claim counsel was ineffective for not asserting at trial that the

district court denied him due process or the right to present a defense when it

reaffirmed its grant of the State’s motion in limine.

Even if Marcelino’s ineffective-assistance claim sweeps more broadly, we

would find no breach of duty. Nothing in the court’s ruling prevented Marcelino

from calling Anderson and Baker to deliver their nonhearsay testimony. Marcelino

did not call them to testify. Because the alleged violations did not occur, counsel

had no duty to raise the challenge, and an ineffective-assistance-of-counsel claim

would fail. See State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018) (“[C]ounsel does

not have a duty to raise a meritless issue.”).

B. Hearsay Claims

We now examine Marcelino’s four hearsay claims directly. The rules of

evidence define hearsay as an out-of-court statement offered for the truth of the

5 We review ineffective-assistance-of-counsel claims de novo. See Linn v. State,
929 N.W.2d 717, 729 (Iowa 2019). To prove this claim, Marcelino must show by
a preponderance of the evidence counsel failed in an essential duty and prejudice
resulted. See id. at 731. We usually preserve such claims for postconviction-relief
proceedings. See State v. Tompkins, 859 N.W.2d 631, 637 (Iowa 2015). But we
may address them on direct appeal when the record is adequately developed to
do so. Id.
7

matter asserted. See Iowa R. Evid. 5.801(c). Hearsay is inadmissible unless it

falls within an exception. See Iowa R. Evid. 5.802. Marcelino contends the district

court should have admitted three statements by Salaises implicating himself in the

murder. The first statement, Marcelino claims, did not fit the hearsay definition.

He alleges the second and third utterances were admissible as statements against

interest. See Iowa R. Evid. 8.504(b)(3). He claims a fourth statement was

admissible under the residual exception. See Iowa R. Evid. 8.507(a). Although

the State urges an abuse-of-discretion standard, we hew to precedent and review

hearsay determinations for correction of errors at law. See State v. Plain, 898

N.W.2d 801, 810 (Iowa 2017). We do not reverse a ruling excluding evidence

“unless a substantial right of the party is affected.” State v. Paredes, 775 N.W.2d

554, 571 (Iowa 2009). We will address all four statements in turn.

1. Salaises’s First Statement to Anderson

Salaises was staying at the same residence as Marcelino. Salaises and his

girlfriend, Anderson, shared one bedroom. Anderson recounted the morning of

the shooting in the defense offer of proof. According to that testimony, she was

sleeping alone in her bedroom when awakened by gunshots. She then heard a

commotion and people fleeing. Salaises came into the bedroom but did not

answer when she asked what happened. So she went to the living room and saw

Gomez on the floor. She then left the residence with Salaises. They drove to the

west side of Des Moines, stopped at an address she did not know, and Salaises

dropped off a small, black bag. Afterward, they returned to the house and called

911. On that drive back to the house, Salaises discussed the shooting. The first

hearsay complaint concerns this proffered testimony.
8

Q. Okay. Prior to going back to the house, did you and Carlos
discuss what the plan was? A. Yeah. He told me, like, when we go,
you’re going to say this. And he told me to say something. You
know, like, you’re going to tell them this, this, and that.
Q. Okay. Specifically, do you recall what he told you? A. He
said, when we go, you’re going to tell them that Alex did it. That’s
what he said.
Q. Okay. Were you in agreement to do that? A. Not really,
no. I didn’t—no.
Q. Okay. So why did you do it? A. I didn’t say that he did that.

Marcelino isolates this sentence: “when we go, you’re going to tell them that Alex

did it.” He argues that declaration was not hearsay because it was an instruction

not an assertion.6 The State responds the assertion is the implied statement that

Salaises is the true shooter.

a. Is this instruction an assertion?

An “assertion” is “generally recognized to be a statement of fact or belief.”

State v. Dullard, 668 N.W.2d 585, 590 (Iowa 2003). “A great many out-of-court

utterances fall within such categories as greetings, pleasantries, expressions of

gratitude, courtesies, questions, offers, instructions, warnings, exclamations,

expressions of joy, annoyance, or other emotion, etc.” State v. Rawlings, 402

N.W.2d 406, 409 (Iowa 1987) (emphasis added). “Such utterances are not

intentionally expressions of facts or opinions” and are not, therefore, hearsay. Id.

On the other hand, a statement—even if phrased as a question or

instruction—may be hearsay if it contains “an implicit assertion of the fact.” Id.

(holding utterance “Dennis, what are you doing?” was inherent assertion that

6 Marcelino does not explain in his brief how he preserved this specific ground for
review. We see nothing in the record showing he asserted this statement was not
hearsay before appeal. But the State does not contest error preservation, and the
district court concluded it was hearsay.
9

Dennis was present). As an evidence expert explains: “Implied or implicit

assertions are those inferences that must exist for the statement to be made.” 7

Laurie Kratky Doré, Iowa Practice Series: Evidence § 5.801:5 (Nov. 2019 update).

Our supreme court elaborated on the concept of an implied assertion in

Dullard, 668 NW.2d at 595 (concluding “assertions implied from assertive speech

constitute statements under rule 5.801(a)”). In that case, police officers entered

the home of Brett Dullard in search of drug evidence. Id. at 588. They found a

handwritten note addressed to “B” stating there was “a black + white w/ the dude

out of his car facing our own direction.” Id. The court determined this statement

showed the unknown declarant’s belief that police were watching the house

because the State sought to prove “Dullard’s knowledge and possession of drug

lab materials.” Id. at 591. The question for the court was “whether this implied

belief of the declarant is a statement under our definition of hearsay.” Id.

Examining the “wealth of legal commentary” on the application of this rule,

the court adhered to the common law view “assertions that are relevant only as

implying a statement or opinion of the absent declarant on the matter at issue

constitute hearsay in the same way the actual statement or opinion of the absent

declarant would be inadmissible hearsay.” Id. Dullard reasoned: “[T]he best

approach is to evaluate the relevant assertion in the context of the purpose for

which the evidence is offered.” Id. at 595.

In other words, we must consider Marcelino’s true purpose in offering

Salaises’s instruction to Anderson to “tell [the police] that Alex did it.” Marcelino

offered the statement to exculpate himself and inculpate Salaises. Because

Anderson was not an eyewitness to the shooting, her boyfriend’s instruction to
10

point the finger at someone else carried the implication that Salaises was the

shooter. Under Dullard and Rawlings, we view Salaises’s statement to Anderson

as an implied assertion and, thus, hearsay.

b. Is it offered for the truth of the matter asserted?

Marcelino next argues, even if the statement constituted an assertion, he

was not offering it for the truth of the matter asserted. After all, why would he want

the jury to hear more evidence suggesting he was the shooter? But Marcelino’s

literal reading of Salaises’s statement ignores the implication discussed above.

Marcelino offered that statement as evidence Salaises shot Gomez and was trying

to cover his tracks by asking Anderson to lie for him. The underlying assertion that

Marcelino was not the shooter constituted impermissible hearsay.7 The district

court properly reached that conclusion.

2. Salaises’s Second Statement to Anderson

In her offer of proof, Anderson recalled another statement that Salaises

made a few days after the shooting:

Q. Did he state whether or not he had shot the decedent in
this case? A. He did, but, like, not right then and there.
Q. And when did he make that statement? A. It was a couple
of days after that.
Q. And how did he make that statement? A. He said, oh, poor
Alex is going to go to jail for what he did—or for what Carlos did.
Q. Okay. When you say “he”—. A. I’m talking about Carlos.
Carlos said that he was going to go to jail for what Carlos did.

Marcelino argues the court should have admitted Salaises’s alleged declaration

that “poor Alex [was] going to jail for what he [Carlos] did” as a statement against

interest.

7 Marcelino does not assert any exception applies here.
11

A statement against interest is a statement that:

(A) A reasonable person in the declarant’s position would
have made only if the person believed it to be true because, when
made, it . . . had so great a tendency . . . to expose the declarant to
. . . criminal liability; and
(B) Is supported by corroborating circumstances that clearly
indicate its trustworthiness, if it is offered in a criminal case as one
that tends to expose the declarant to criminal liability and is offered
to exculpate the defendant.

Iowa R. Evid. 5.804(b)(3).

In Paredes, our supreme court explained, to be admissible, a statement

against interest must (1) meet a threshold adversity requirement but “need not

amount to a full confession” and (2) be made under circumstances that “clearly

indicate” its trustworthiness. 775 N.W.2d at 564–66. The requirement to find

corroborating circumstances is a preliminary question for the district court under

Iowa Rule 5.104(a). See State v. DeWitt, 597 N.W.2d 809, 811 (Iowa 1999)

(clarifying court is not to weigh the quality of the evidence, a job for the jury).

Further elaborating on the trustworthiness requirement, the Paredes court

explained corroboration “require[s] something more than the inherent

trustworthiness associated with a declaration against interest.” 775 N.W.2d

at 566–67. It employed a “multifactored test in which all evidence bearing on the

trustworthiness of the underlying statement may be considered.” Id. at 567. “No

one criterion would be determinative, but the district court could consider a wide

variety of facts and circumstances.” Id.

The federal courts have championed these factors:

(1) whether there is any apparent motive for the out-of-court
declarant to misrepresent the matter, . . . (2) the general character of
the speaker, . . . (3) whether other people heard the out-of-court
statement, . . . (4) whether the statement was made
12

spontaneously, . . . (5) the timing of the declaration[, and (6)] the
relationship between the speaker and the witness.

Id. at 568 (alteration in original) (quoting United States v. Alvarez, 584 F.2d 694,

702 n.10 (5th Cir. 1978)).

As to the amount of corroboration required, the Paredes court refused to

adopt “a hard and fast rule.” Id. But it noted the standard should not be set “so

high that if a defendant can meet it, he would ‘probably never have been charged

or tried in the first place.’” Id. (citation omitted). “[T]he defendant’s own claim of

innocence cannot be sufficient corroboration” either. Id. The court emphasized

the inquiry is not whether there is “corroborating evidence of the statements

themselves” but “whether the circumstances under which the statements were

made are sufficiently trustworthy to allow a jury to make the ultimate determination

concerning their truth.” Id. at 570.

Here, the district court found Marcelino did not show the surrounding

circumstances supported the trustworthiness of Salaises’s statement to Anderson.

The details shared in the defense offer-of-proof testimony did not persuade the

district court to let Anderson relay Salaises’s out-of-court statement to the jury:

The Court agrees that her testimony here today has offered really
nothing to the Court’s analysis. If anything, it just confused the
situation more. There’s certainly no indicia or certainly no more
indicia of trustworthiness now after the Court’s entertained her
testimony than there was before, and there was little then—little, if
any, then. And, in particular, the Court is talking about corroboration,
amongst other things.
13

Marcelino challenges that finding on appeal. First, he contends Salaises

had no motive to misrepresent that he was the shooter as he had nothing to gain

by disclosing that fact to Anderson. Second, although the record reveals little

about Salaises’s reputation, admittedly asking his girlfriend to lie about the

shooting reflects poorly on his character. But Marcelino notes the declarant’s

character is not the sole determinative factor. Third, Salaises allegedly told

another friend, Baker, that he shot Gomez. That repetition, according to Marcelino,

corroborates the trustworthiness of the statement to Anderson. Fourth, it is not

clear if Salaises made the statement spontaneously. Fifth, Salaises is tied to the

time and place of the shooting as witnesses saw him there. Marcelino also points

to Anderson’s testimony she noticed blood on Salaises’s clothing after the police

interview, suggesting he was in close range of the shooting. 8 Sixth, Salaises had

an intimate relationship with Anderson and because of that would be more likely

to share sensitive information with her.

The State counters, listing possible reasons Salaises would lie about

shooting Gomez. For instance, maybe he was bragging or engaging in “idle

gossip.” The State also hammers Salaises’s less-than-stellar character. The State

reiterates Marcelino did not show the statement was spontaneous. And, in fact,

its timing did not support its reliability because Salaises waited to tell Anderson

until after Marcelino was arrested. Plus, the State questions the closeness of the

8 The prosecution argued at trial that Anderson’s alleged observation of blood
spatter on Salaises’s shirt was “entirely uncorroborated” by the record evidence.
For example, several officers testified about what Salaises was wearing and none
noticed blood evidence. In addition, the criminalist who examined the scene noted
no blood spatter around the body, making it unlikely droplets would have marked
the shooter.
14

relationship between Salaises and Anderson, noting in her recorded interview, she

called Salaises “a stupid fucking bastard” and said, “I hate him.”

The State acknowledges Salaises allegedly informed two people he was

the shooter, but contends neither of those narrators, Anderson and Baker, were

reliable sources. The State points to catch-all language in Paredes—“all evidence

bearing on the trustworthiness of the underlying statement may be considered.”9

See 775 N.W.2d at 567. The State describes Anderson as “evasive” when the

prosecutor cross examined her offer-of-proof testimony. The State contends we

must consider the truthfulness of the witness who claims to have heard the

declarant’s statement.

The State’s argument that Anderson was not a credible witness is

misplaced. After our supreme court decided Paredes in 2009, the federal rules of

evidence added this commentary:

In assessing whether corroborating circumstances exist, some
courts have focused on the credibility of the witness who relates the
hearsay statement in court. But the credibility of the witness who
relates the statement is not a proper factor for the court to consider
in assessing corroborating circumstances. To base admission or
exclusion of a hearsay statement on the witness’s credibility would
usurp the jury’s role of determining the credibility of testifying
witnesses.

Fed. R. Evid. 804(b)(3), advisory committee’s note to 2010 amendment.10

9 The Paredes court did not address the credibility of the social worker who relayed
the hearsay statement at issue there.
10 We recognize that unlike the federal drafters, Iowa has not amended its rule to

extend the corroborating circumstances requirement to inculpatory statement
offered by the State. See generally 7 Laurie Kratky Doré, Iowa Practice Series:
Evidence § 5.804:3 (Nov. 2019 update). Yet we find the 2010 commentary still
provides helpful guidance for interpreting our existing rule.
15

Iowa courts may consider the federal advisory notes as an aid in applying

our state rules of evidence.11 See State v. Harrington, 800 N.W.2d 46, 51 (Iowa

2011). Taking guidance from those notes on Federal Rule 804(b)(3), we find the

issue of Anderson’s credibility would have been best left for the jury to weigh. See

United States v. Henderson, 736 F.3d 1128, 1131 (7th Cir. 2013) (“The question

of whether the declarant made the statement implicates the testifying witness’s

credibility; making credibility determinations is a role reserved to the jury.”); see

also 2 McCormick On Evid. § 319 (8th ed. Jan. 2020 update) (“As a matter of

standard hearsay analysis, the credibility of the in-court witness regarding the fact

that the statement was made is not an appropriate inquiry.”); but see McCorkle v.

United States, 100 A.3d 116, 121 (D.C. App. 2014) (adhering to “minority view”

requiring trial court to assess credibility of in-court witness to determine

admissibility of statements against penal interest); State v. Bailey, 895 N.W.2d

753, 755 (N.D. 2017) (maintaining district court should analyze both the credibility

of the in-court witness and the reliability of the out-of-court declarant).

But even without considering Anderson’s credibility, we find Marcelino has

not satisfied rule 5.804(b)(3)’s corroboration requirement. The circumstances

surrounding Salaises’s statement to Anderson did not provide a sufficient aura of

trustworthiness to allow the jury to hear it. While Salaise had no apparent motive

to lie to Anderson about shooting Gomez, he also risked little by doing so. See

United States v. Battiste, 834 F. Supp. 995, 1006 (N.D. Ill. 1993) (quoting John W.

11The United States Supreme Court also relies on such notes as “a respected
source of scholarly commentary” and “as a useful guide in ascertaining the
meaning of the Rules.” Tome v. United States, 513 U.S. 150, 160 (1995).
16

Strong et al., McCormick on Evidence § 319 at 345 (4th ed. 1992)) (“Common

sense dictates that ‘[a] relation of trust and confidence between speaker and

listener . . . militates against awareness that the making of the statement might be

against declarant’s penal interest.’”). Police officers twice interviewed Saliaises,

placing his penal interests directly at stake, and both times Salaises said he was

in a separate room when the shooting occurred. Marcelino also fails to show the

speaker’s good character or that the statement was spontaneous. In fact,

Anderson testified (as part of the offer of proof) that despite the fact they were

together at the house where the shooting occurred, Salaises did not confess he

was the shooter until days later. And his confession only came after Marcelino

had been arrested. Nothing in Anderson’s offer of proof pointed to circumstances

that substantiated Salaises claim that he was the shooter. The district court

appropriately excluded this statement as impermissible hearsay.

3. Salaises’s Statement to Baker

The defense also called Baker to make an offer of proof on two hearsay

statements made to him. Salaises and Baker knew each other through their drug

distribution activities in Des Moines. When police raided Baker’s apartment, they

discovered the murder weapon under a mattress. Baker testified Salaises

approached him about two weeks after the shooting asking to borrow money.

Baker described that conversation in the following exchange:

Q. Did he say why he wanted to borrow money? A. He didn’t
say why he wanted to borrow money. But we get to talking and stuff
is when he told me that he had to do it because it was—the situation
was all over the news. Because I thought that they had been raided,
and he said he had to do it.
17

Q. Was there any other information that he gave you or any
more details in this discussion? A. I mean, no, not really. He doesn’t
speak very good English, so . . . .
Q. Do you remember meeting with law enforcement and
giving them a statement? A. Yes.
Q. If I showed you what they claim you said, would that help
refresh your memory? A. Sure. Oh, yeah.
Q. Did that help refresh your memory, sir? A. Yeah.
Q. Was there any comments about a law enforcement official
or anything of that nature? A. Well, yeah. He thought that the dude—
the guy that got shot was a police officer.
Q. And who told you that? A. He did.

Marcelino argues Salaises telling Baker that “he had to do it” meant Salaises had

to shoot Gomez because Salaises thought Gomez was a police officer. Marcelino

argues Salaises’s statement to Baker—like the statement to Anderson—was

admissible as a statement against interest. Again, Marcelino challenges the

district court’s conclusion the statement was not supported by corroborating

circumstances that clearly indicated its trustworthiness.

Marcelino contends Salaises had no motive to lie to Baker. On that point,

the defense asserts the relationship between Salaises and Baker was so strong

that Salaises felt comfortable asking to borrow money. So they were close enough

to share a confidence, which makes the utterance more trustworthy. Marcelino

also notes Salaises made that similar admission to Anderson.

In response, the State suggests Salaises may have been trying to impress

Baker. The State disputes the closeness of the relationship between the witness

and speaker, emphasizing they interacted through drug trafficking rather than as

personal friends. In the State’s view, the record does not show the statement was

spontaneous or that Salaises possessed good character. The State also urges us
18

to consider the ambiguous nature of the comments and Baker’s acknowledgement

Salaises did not speak English well as weighing against admission.

As with Anderson, the State insists Baker’s limited credibility weighs against

admitting the hearsay. Baker was a convicted drug trafficker who was in federal

prison at the time of trial. Police found the murder weapon at Baker’s apartment.

And Baker did not come forward with this testimony until a year after the shooting.

As discussed above, we do not believe the credibility of the witness who relates

the statement is a proper factor for us to consider in assessing corroborating

circumstances.

The district court could not find “sufficient indicia of trustworthiness” to

support admission of Salaises’s comment to Baker as a statement against interest.

We see no error in that finding. This record sheds little light on Salaises’s motive

for allegedly confessing to Baker. When we examine the factors discussed in

Paredes, we detect insufficient corroboration to ensure the trustworthiness of the

out-of-court declaration. The court did not err in refusing to admit it as a statement

against interest.

4. Linhart’s Statement to Baker

Also in its offer of proof, the defense asked Baker about an out-of-court

statement by fellow drug distributor, Christian Linhart. Linhart lived in the same

apartment as Baker and was present when police found the murder weapon.

Baker described Linhart’s statement as follows:

Q. So Christian Linhart had some information also? A. Yeah.
Q. What did Christian tell you? A. That Alex ain’t the one that
did it.
Q. And did he say how he knew that? A. From what I
gathered, I thought he was there.
19

Q. Okay. Did Christian ever admit to you he was there?
A. Kind of.
Q. Okay. A. I mean, he didn’t come out and say it, like, I was
there. But the way he explained it to me, he would, like, have to be
there.
Q. And how did Mr. Linhart know that the gun got tied back to
this homicide? A. He told me he was supposed to get rid of it.
Q. Did he say anything else, why he didn’t want to get rid of it
or why didn’t he get rid of it? A. He said it was the only gun he had,
so he didn’t want to get rid of it.

Marcelino argues Linhart’s statement—“Alex ain’t the one that did it”—was

admissible under the residual hearsay exception.12 See Iowa R. Evid. 5.807. That

exception provides:

Under the following circumstances, a hearsay statement is not
excluded by the rule against hearsay even if the statement is not
specifically covered by a hearsay exception in rule 5.803 or 5.804:
(1) The statement has equivalent circumstantial guarantees of
trustworthiness;
(2) It is offered as evidence of a material fact;
(3) It is more probative on the point for which it is offered than
any other evidence that the proponent can obtain through
reasonable efforts; and
(4) Admitting it will best serve the purposes of these rules and
the interests of justice.[13]

Id. 5.807(a).

The State does not seriously dispute the second element, but contends

Marcelino did not satisfy the other three criteria for admissibility under the residual

exception. For his part, Marcelino concentrates only on the question of

trustworthiness. He argues, “While the details and corroborating circumstances

12 The defense acknowledges the utterance was not admissible as a statement
against interest because no evidence showed Linhart was unavailable. See Iowa
R. Evid. 5.804(b).
13 Our case law also recognizes a fifth requirement of notice. See State v. Neitzel,

801 N.W.2d 612, 623 (Iowa Ct. App. 2011). The State acknowledges Marcelino
provided “some degree” of notice of his intent to offer this statement.
20

surrounding Linhart’s statement are generally lacking, there is one strong piece of

evidence that Linhart had specific knowledge of the true identity of the shooter: his

possession of the murder weapon.”

The residual rule does not grant broad license to admit hearsay statements

not covered by delineated exceptions; it is to be used “very rarely and only in

exceptional circumstances.” State v. Brown, 341 N.W.2d 10, 14 (Iowa 1983).

Although neither party cites authority on the question whether the trustworthiness

prong of rule 5.807(a) aligns with the analysis for rule 5.804(b), we believe the

same factors bear on both rules.

After considering those factors, we conclude the district court correctly

decided Linhart’s statement was not admissible under the residual exception.

Marcelino concedes corroborating circumstances were lacking. Linhart’s

possession of the murder weapon offers minimal corroboration because the record

is unclear how he obtained the gun. The record also does not verify Linhart’s

presence at the shooting. If Linhart was not there, it is unclear how he could have

known “Alex ain’t the one that did it” unless someone told him. That scenario

introduces another layer of hearsay. The circumstances surrounding Linhart’s

statement do not demonstrate sufficient trustworthiness to make it admissible

under the residual hearsay exception.

In addition, as the State argues, Marcelino did not show a necessity for

admitting Linhart’s statement. Necessity means the proponent has no proof

equally probative on the same point. See State v. Rojas, 524 N.W.2d 659, 663

(Iowa 1994) (finding evidence necessary when victim recanted). Marcelino made

no reasonable effort to call Linhart as a witness. Calling the declarant to the stand
21

was an alternative means of obtaining the same evidence and therefore the

admission of the hearsay was not necessary.

5. Harmless Error

The State argues that even if the district court wrongly excluded any of

Salaises’s out-of-court statements, Marcelino is not entitled to reversal. The State

contends it presented a “strong case” with two eyewitnesses to Marcelino shooting

Gomez. We agree the State’s evidence clearly cast Marcelino as the shooter.

Easley testified Marcelino and Gomez were having a “brief argument” when she

heard gunshots and saw Marcelino with a gun. She testified she was “almost a

hundred percent sure that he shot the gun.” Similarly, Markham testified Marcelino

had a gun, shouted at Gomez about whether he was a cop, and then shot Gomez.

Markham said she was not aware of anyone else in the living room having a gun.

The State provided corroboration for Markham’s version of events with text

messages from her phone.

We will not reverse a ruling excluding evidence unless a substantial right of

a party is affected. Iowa R. Evid. 5.103(a); Paredes, 775 N.W.2d at 571. We must

decide whether Marcelino’s rights have been injuriously affected by the exclusion

of these statements or whether he has suffered a miscarriage of justice. See

Paredes, 775 N.W.2d at 571. We presume prejudice unless the record

affirmatively shows no impact on his substantial rights. Id. After reviewing the

record as a whole, we find any error was harmless. The introduction of Salaises’s

out-of-court statements, from less than credible sources, would not have been a

significant benefit to Marcelino’s defense.
22

Given the strength of the State’s case, we find the record affirmatively establishes

a lack of prejudice. State v. Newell, 710 N.W.2d 6, 20 (Iowa 2006).

C. Motion for New Trial

Marcelino next argues the court erred when it denied his motion for new

trial. He contends the court applied an incorrect standard—evaluating the

sufficiency rather than the weight of the evidence. See State v. Ellis, 578 N.W.2d

655, 659 (Iowa 1998). A conviction rests upon insufficient evidence when, even

after viewing the evidence in the light most favorable to the State, no rational

factfinder could have found the defendant guilty beyond a reasonable doubt. State

v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003). In contrast, weight of the evidence

refers to a determination that a greater amount of credible evidence supports one

side of an issue than the other. Id.

In his motion for new trial, Marcelino mistakenly asked the court to find

“sufficien[t] . . . evidence to support the verdict . . . view[ing] the evidence in the

light most favorable to the verdict including reasonable inferences which may be

drawn from that evidence.” The court ruled, “there was sufficient evidence to

support the verdict rendered by the jury in all respects.” Marcelino did not ask for

amended findings or cite the weight-of-the-evidence standard to the district court.

Thus he has not preserved error for appeal. See Ambrose, 861 N.W.2d at 555.

D. Easley Deposition

In his pro se brief, Marcelino questions why the court allowed the State to

read Easley’s deposition into the record when she was “readily available” to testify.

He contends he lost his chance to impeach her based on alleged drug and alcohol

use. He raised this issue at trial, so we may address it.
23

Although Easley responded to the State’s subpoena and appeared for trial,

she refused to testify, claiming her right against self-incrimination. Although the

court told her she had no Fifth Amendment right in this case, she continued to

refuse. The court held her in contempt. Lacking Easley’s in-court testimony, the

State offered her deposition. Defense counsel acknowledged her unavailability,

but nevertheless objected.

Rule 5.804(b)(1) allows admission of a deposition when the declarant is

“unavailable” and the defendant had “an opportunity and similar motive to develop

it by direct, cross-, or redirect examination.” Here, the court followed that rule.

First, Marcelino conceded at trial Easley was unavailable, so we do not address

his contrary claim on appeal. See Lamasters, 821 N.W.2d at 862. Second,

Marcelino had adequate opportunity to cross-examine Easley during her

deposition. The court did not err in admitting it.

E. Notice of Charges

Marcelino alleges the “indictment” against him lacked sufficient detail to

inform him of the charges.14 He raises this issue as an ineffective-assistance-of-

counsel claim. See Ambrose, 861 N.W.2d at 555. We address the claim because

the record is adequate to do so. See Tompkins, 859 N.W.2d at 637.

“The purpose of an indictment or trial information is to apprise the defendant

of the crime charged so that the defendant may have the opportunity to prepare a

defense.” State v. Grice, 515 N.W.2d 20, 23 (Iowa 1994). We read the trial

14 In Iowa, the State may prosecute indictable offenses by grand jury indictment
or by trial information. See Iowa Rs. Crim. P. 2.4(1), 2.5(1). The State charged
Marcelino by trial information.
24

information and the minutes of testimony together to see if the defendant received

enough information about the State’s accusations. See State v. Dalton, 674

N.W.2d 111, 120 (Iowa 2004).

Marcelino claims the charging instrument failed to specify the type of

murder. The trial information alleged Marcelino committed murder in the first

degree by “willfully, deliberately, with premeditation and malice aforethought

killing” Gomez and cited Iowa Code sections 707.1 and 707.2. The minutes of

evidence filled in considerable detail about the allegations and the evidence to be

presented. We conclude the information and minutes sufficiently informed

Marcelino of the murder charge. Consequently, counsel was not ineffective in

failing to raise a challenge.

F. Interpreter for Plea Offer

Marcelino also criticizes counsel for failing to line up an interpreter to help

explain the State’s plea offer. Marcelino asserts he did not speak English; he

informed counsel he needed an interpreter; yet counsel failed to secure that

assistance. In Iowa, a person who is not proficient in English is entitled to an

interpreter to assist in understanding legal proceedings. See Iowa Code § 622A.2;

Thongvanh v. State, 494 N.W.2d 679, 681–82 (Iowa 1993). But the record here is

not adequately detailed about the plea offer, Marcelino’s language skills, or

counsel’s alleged conduct. Thus, we preserve this claim for possible

postconviction-relief proceedings. See State v. Harris, 919 N.W.2d 753, 754 (Iowa

2018) (“If the development of the ineffective-assistance claim in the appellate brief

was insufficient to allow its consideration, the court of appeals should not consider

the claim, but it should not outright reject it.”).
25

G. Medical Examiner Testimony

Marcelino contends trial counsel was ineffective in not objecting to the

testimony of the Polk County medical examiner that Gomez died by homicide.

Marcelino asserts the State must prove the type of death. Dr. Gregory Schmunk

discussed various manners of death and defined “homicide” as “death at the hands

of another.” The doctor opined that because the autopsy showed Gomez died of

a gunshot wound to the chest, the manner of death was homicide. When, as here,

the medical examiner bases his manner-of-death opinion primarily on the autopsy,

that opinion will likely assist the jury in comprehending the evidence and would be

admissible. See State v. Tyler, 867 N.W.2d 136, 163 (Iowa 2015). Counsel had

no duty to object to the medical examiner’s opinion.

H. Remaining Pro Se Arguments

Marcelino raises five other claims. (1) He contends the court usurped the

jury’s role in assessing the trustworthiness of the hearsay witnesses. (2) He

argues, at most, a jury could have convicted him of involuntary manslaughter

because Easley’s insinuation Gomez was a “cop” was the proximate cause of the

shooting. (3) He alleges the State did not prove the witnesses were sober at the

time of the shooting or that he acted with premeditation. (4) Marcelino claims the

State illegally searched witnesses’ cell phones without warrants. And (5) he

complains the prosecutor engaged in misconduct by misstating facts during closing

argument. Marcelino did not raise any of these claims at trial, nor does he raise

them as ineffective-assistance-of-counsel claims. Thus, they are not properly

presented for appeal. See Ambrose, 861 N.W.2d at 555.

AFFIRMED.