Marco A. Galindo v. State of Indiana , 2016 Ind. App. LEXIS 410 ( 2016 )

FILED
Nov 15 2016, 11:49 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Paula M. Sauer Gregory F. Zoeller
Danville, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marco A. Galindo, November 15, 2016
Appellant-Defendant, Court of Appeals Case No.
32A05-1607-CR-1541
v. Appeal from the Hendricks Circuit
Court
State of Indiana, The Honorable Daniel F. Zielinski,
Appellee-Plaintiff. Judge
Trial Court Cause No.
32C01-1509-MR-1
Najam, Judge.
Statement of the Case
[1] Marco Galindo appeals his conviction for murder, a felony, following a jury
trial. He presents a single issue for our review, namely, whether the trial court
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abused its discretion when it refused to instruct the jury on involuntary
manslaughter. We affirm.
Facts and Procedural History
[2] During the early morning hours of November 21, 2002, Galindo and Natalie
Horsley went to a vacant apartment in Hendricks County and had sexual
intercourse.1 At some point while they were in the apartment, Galindo became
angry and viciously beat and strangled Horsley for at least ninety seconds.
Galindo kicked or stomped Horsley’s face multiple times in addition to
strangling her. Galindo then left the apartment. Galindo left Horsley severely
battered on the floor without seeking medical treatment for her injuries.
[3] Later that morning, between 7:00 and 8:00 a.m., a construction crew found
Horsley’s dead body lying on the floor of the vacant apartment2 and called 9-1-
1. Horsley’s face was covered in blood, her shirt and bra were pulled up toward
her neck, exposing her bare breasts, and her underwear and pants were pulled
down to her ankles, exposing her genitals. An electrician named Dylan Vaughn
knew how to perform CPR, but he explained to the 9-1-1 operator that he was
unable to attempt CPR on Horsley “because there appeared to be not enough
face left to . . . administer it properly.” Tr. Vol. I at 236. When EMTs arrived
at the scene, they confirmed that Horsley was dead.
1
There is no evidence that Horsley had consented to sexual intercourse with Galindo.
2
The crew had been working on that same apartment the day before.
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[4] Deputies with the Hendricks County Sheriff’s Department arrived at the scene
and found: blood spatter throughout the apartment and bloody footprints;
semen on Horsley’s abdomen; footprints in the mud outside of the apartment;
and two partially-burned cigarettes. Detectives collected a DNA sample from
the semen, but they could not find a match in the DNA database. An autopsy
revealed that Horsley’s death was caused by a combination of having been
strangled and severely beaten. Detectives were unable to find a suspect. In the
meantime, approximately one month after the murder, Galindo saw a poster
about Horsley’s death in a bar, but he did not contact law enforcement to
discuss his relationship with Horsley or what had happened the night of the
murder. And in 2004 or 2005, he moved to California and assumed an alias,
Amado Trejo Saludes.
[5] In 2015, detectives “received information on a hit on a database” regarding the
Horsley murder. Id. at 155. In particular, they “learn[ed] that a possible person
with [the same DNA] profile [as matched the semen found on Horsley’s body]
had been found” in California. Id. Accordingly, detectives requested and
obtained oral swabs from the person, Galindo a/k/a Saludes. Thereafter,
Hendricks County Sheriff’s Detective Scott Larsen interviewed Galindo.
Galindo told Detective Larsen that he and Horsley had known each other and
had occasionally engaged in sexual intercourse. Galindo stated that, the night
of the murder, he and Horsley had consumed drugs and alcohol. He said that
Horsley had threatened to tell Galindo’s girlfriend about their relationship, and
he became angry. Galindo admitted that he punched her, kicked her, and “had
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her in the choke[-]type hold standing behind her with his arm around her.” Id.
at 157. Galindo denied any intent to kill Horsley, and he stated that he did not
know she was dead when he left the apartment that morning. In any event,
Galindo admitted that he left Horsley severely beaten on the floor of the vacant
apartment without seeking medical treatment for her.
[6] The State charged Galindo with murder. At trial, Galindo proffered jury
instructions on both voluntary manslaughter and involuntary manslaughter.
The trial court agreed to the voluntary manslaughter instruction, but refused to
instruct the jury on involuntary manslaughter, finding that there was no serious
evidentiary dispute on the issue of Galindo’s intent to kill Horsley. A jury
convicted Galindo of murder, as charged. The trial court entered judgment of
conviction and sentenced Galindo to sixty-five years executed. This appeal
ensued.
Discussion and Decision
[7] Galindo contends that the trial court abused its discretion when it refused his
proffered jury instruction on involuntary manslaughter. In particular, Galindo
maintains that there is a serious evidentiary dispute whether he intended to kill
Horsley when he beat and strangled her. We cannot agree.
[8] At trial, Galindo proffered the following instruction:
The crime of involuntary manslaughter is defined by statute as
follows:
A person who kills another human being while committing or
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attempting a battery, commits involuntary manslaughter, a Class
C felony.
Before you may convict the accused, the State must have proved
each of the following elements:
1. Marco Galindo
2. killed Natalie Horsley
3. while committing or taking a substantial step to
commit
4. a knowing or intentional
5. touching of Natalie Horsley in a rude, insolent, or
angry manner.
If the State failed to prove each of these elements beyond a
reasonable doubt, you must find the accused not guilty of
involuntary manslaughter, a Class C felony.
Appellant’s App. at 88.
[9] As we explained in Erlewein v. State, 775 N.E.2d 712, 714 (Ind. Ct. App. 2002),
trans. denied,
[w]hen called upon by a party to instruct a jury on a lesser
included offense of the crime charged, a trial court must perform
a three-step analysis. First, it must compare the statute defining
the crime charged with the statute defining the alleged lesser
included offense to determine if the alleged lesser included
offense is inherently included in the crime charged. Wright v.
State, 658 N.E.2d 563, 566 (Ind. 1995). Second, if a trial court
determines that an alleged lesser included offense is not
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inherently included in the crime charged under step one, then it
must determine if the alleged lesser included offense is factually
included in the crime charged. Id. at 567. Third, if a trial court
has determined that an alleged lesser included offense is either
inherently or factually included in the crime charged, it must look
at the evidence presented in the case by both parties to determine
if there is a serious evidentiary dispute about the element or
elements distinguishing the greater from the lesser offense and if,
in view of this dispute, a jury could conclude that the lesser
offense was committed but not the greater. Id. It is reversible
error for a trial court not to give an instruction, when requested,
on the inherently or factually included lesser offense if there is
such an evidentiary dispute. Id. “If the evidence does not so
support the giving of a requested instruction on an inherently or
factually included lesser offense, then a trial court should not give
the requested instruction.” Id.
“Involuntary manslaughter is not an inherently included lesser
offense of murder.” Evans v. State, 727 N.E.2d 1072, 1081 (Ind.
2000). “But it is a ‘factually included’ lesser offense if the
charging instrument alleges that a battery accomplished the
killing.” Id. Here, the State does not challenge Erlewein’s
assertion that involuntary manslaughter was factually included in
the murder charge against him because the information alleged
that he killed A.E. by battering her, i.e. knowingly or
intentionally touching A.E. in a rude, insolent, or angry manner.
See Ind. Code § 35-42-2-1(a). Instead, the State focuses its
argument on whether there was a serious evidentiary dispute
regarding the element distinguishing involuntary manslaughter
from murder. “The critical element distinguishing involuntary
manslaughter from murder in this case is intent—the intent to kill
or the intent to batter.” See Evans, 727 N.E.2d at 1081.
We note that in deference to the trial court’s proximity to the
evidence, we review a decision whether to instruct the jury on
lesser included offenses for an abuse of discretion if the court
makes a finding as to the existence or lack of a “serious
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evidentiary dispute.” McEwen v. State, 695 N.E.2d 79, 84 (Ind.
1998).
[10] Here, it is undisputed that involuntary manslaughter is a factually lesser-
included offense of murder in light of the charging information, which alleged
that Galindo caused Horsley’s death by battering her. The only issue is whether
there is a serious evidentiary dispute that Galindo intended to kill Horsley.
Galindo acknowledges that, “[w]hile a verbal denial of the requisite criminal
intent does not automatically create a serious evidentiary dispute . . . , it is a
factor this Court should consider when reviewing the denial of a lesser-included
instruction.” Appellant’s Br. at 18. And Galindo contends that his “statements
denying his intent to kill, in conjunction with evidence which supported his
description of events, establishes a serious dispute concerning [his] intent.” Id.
at 18-19. In particular, Galindo maintains that the evidence shows: “the
choking incident may have occurred before the couple had sex”; “when
precisely Horsley died could not be determined by the State’s experts”; “while
Horsley was badly bloodied and bruised, her skull was not fractured and her
teeth were intact”; the apartment was dark, “making it difficult for Galindo to
know how badly Horsley was hurt”; and Galindo “heard Horsley groan and
say something to him” as he left the apartment. Id. at 16-18.
[11] This court’s opinion in Erlewein is instructive here. In that case, the defendant
had beaten his victim “with sufficient force to knock out her partial dental plate
and to leave numerous contusions on her head and body.” Erlewein, 775
N.E.2d at 713. In addition, the evidence showed that Erlewein
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got behind A.E., placed his right arm around her neck, and
choked her until she died. He made no effort to resuscitate her or
contact emergency medical personnel. [He subsequently] called
his mother-in-law, his pastor, and his own mother . . . before he
called 911 . . . to report that he had killed A.E.
Id.
[12] After his conviction for murder, Erlewein appealed and argued that the trial
court abused its discretion when it did not give an involuntary manslaughter
jury instruction. There, as here, the sole issue on appeal was whether there was
a serious evidentiary dispute regarding the defendant’s intent to kill his victim.
Erlewein contended that his denial that he had intended to kill A.E., combined
with the physical evidence of the battery resulting in her death, showed a
serious evidentiary dispute to support the involuntary manslaughter instruction.
But the evidence showed that A.E. died of asphyxiation by strangulation,
which, the State’s expert testified, “would have taken a minimum of forty-five
seconds to as much as four minutes. Choking someone for a minimum of forty-five
seconds clearly evinces an intent to kill or, at the very least, an awareness of a high
probability that death would result.” Id. at 715.
Additional evidence of Erlewein’s mens rea [came] from his
failure to take any action to try to resuscitate A.E. and waiting
nearly two hours to call 911[] and his beating of A.E. before he
choked her. . . . Erlewein’s initial interviews with law
enforcement were also deceptive, as he denied having any
recollection of what occurred other than finding himself with his
arm around A.E.’s neck and her not moving, in contradiction to
Erlewein’s trial testimony. He also denied having beaten A.E.
prior to her strangulation, claiming he remembered nothing in
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between the time when he and A.E. were talking and when he
removed his arm from around her neck.
Id. (emphasis added). Given that evidence, we held that there was no serious
evidentiary dispute that Erlewein intended to kill A.E. and the trial court did
not abuse its discretion when it refused to instruct the jury on involuntary
manslaughter.
[13] The evidence here is analogous to that in Erlewein and shows that Horsley died
from a combination of being severely beaten and strangled for at least ninety
seconds. In particular, the State presented the following evidence:
Q: So, doctor, you had indicated that one of the causes of death
was strangulation. Is that correct?
A: Correct.
***
Q: Approximate[ly] how long does it take someone to strangle
another human being to death?
A: It can be as little as one and [a] half minutes.
***
Q: Okay, but it is your testimony that at least ninety seconds,
by your studies, would have to occur before someone be
strangled to death?
A: That’s correct.
***
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Q: Okay. In addition to the abrasion which you see to the neck
and to the bruising, do you look for anything else to determine
the cause of death of strangulation?
A: Yes, you do.
Q: Okay. I’m going to show you. I’ll put up both of these. I’m
going to put two photos up here of 93 and 94. Now we’re
looking at her eye, and obviously not her neck, could you explain
the significance of these two photographs?
A: Yes, these are uh magnified images of both left and right
eyes. This is the right eye here, and what we’re seeing is that
there are blood vessels that have hemorrhaged within the uh
(inaudible) or the white portion of the eye. It’s (inaudible). We
look for these signs in strangulation cases. We also see this in the
left eye, these hemorrhages. This is from small vessels under
pressure that rupture . . . from pressure.
Q: Is this very consistent in a strangulation death?
A: Yes, it is.
Q: Okay, and this is what you commonly find? Can you tell by
this, the amount of force that was used to strangle her to death?
A: Again, this is uh extensive force, and it’s prolonged to have these
blood vessels rupture to this degree.
Q: Okay. Is there anything internally you look at to, inside the
body also to look for uh strangulation?
A: Yes, you want to examine the neck.
***
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Q: Okay. Is there any damage here to the larynx?
A: There’s some bruising here. This is on the uh left side in the
back, and there’s some bruising where the (inaudible) is on top of
the uh larynx. So here’s an area of bruising there.
Q: Does this help you also determine that one of the causes of
death was strangulation?
A: Yes sir.
Q: Okay. Now I’m going to show you photos now of the brain
area of 96 and 97, and I guess I would like to start here, kind of
out of order. Could you explain 97, what we’re looking at?
A: 97 is uh the right side of the head. . . . First of all, you have
large areas of bruising here within the scalp tissue itself. The
skull has been removed. This is what we call the dura mater or
the dura lining, and just under this dura, there’s what we call sub-
dura uh hemorrhage. That means blood’s out of the vascular
space, and actually on the brain itself, and it can cause pressure
on the brain, and this picture also shows that the brain actually is
swollen, or what we call cerebral edema.
Q: But what does that mean about swollen? Can you explain
that a little more?
A: One of the brain’s reactions to any insult is to swell,
increasing its circulation, increasing blood to get oxygen. That’s
one thing that happens, and it becomes a vicious cycle, the brain
trying to get more oxygen. Uh so we see the swelling by these
areas here looking flat. Uh and then the other insult would be to
have blood out of the uh vessel that will cause direct pressure
onto the brain itself.
Q: Is this representative of blunt force trauma, or strangulation,
or of both?
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A: This is a combination of both. You have blunt force trauma
with the bleeding, and the injury to the scalp. You also have
uh swelling as a reaction to lack of oxygen.
Q: Okay. And on this particular injury right here, could you
please explain this on State’s 96?
A: Uh this is representative of bl[unt] force trauma. This is the
left side of the head. Again, you see the scalp tissue, multiple
areas of bruising, and then you actually have bruising on the uh
tissue that’s right on the uh skull itself. So you have multiple
impact sites where trauma has been received, uh, impact to the
skull itself.
Q: Would this be consistent if someone was being injured to
their face, and they were on a hard surface of the (inaudible)
of the back of the head hitting the hard surface?
A: Uh that could be, yes.
***
Q: Okay, and regardless of the injury of the blunt force to the
face, there’s a total second cause of death of strangulation? Is that
correct?
A: Yes.
Q: Did you look at different graphs here, and I’m going to show
you now 99. I’m going to show you 99 and 100, and ask you to
explain these images to the jury.
A: These are diagrams normally used, as [the] pathologist take[s]
notes while they’re doing examinations. Uh this one is of the
head. We have on the right side . . . notes as to multiple uh
contusions, this is uh a drawing of what we’ve seen earlier from
the photographs. This is also drawing the injury to the lip. This
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area is encompassing the nose and both eyes. On the left side,
there’s a contusion that we’re actually seeing on the skull itself,
or that bruising there, and then the back of the uh skull on the left
side is a very large area that we just saw on the photograph of
that uh deep contusion to the uh back of the left side of the head,
the skull.
Q: And Dr. Carter, if I understand correctly, you are talking
about multiple injuries. Is that fair to say?
A: Multiple impact sites.
Q: Can you uh make a total determination of how many?
A: There are more than five impact sites to the head region.
Q: Okay. Any idea the amount of force that was used?
A: Again, this is tremendous force. Many of these injuries are
overlapping. You see some patterns of dark discoloration in the
photographs, and uh you can see that the injuries are bilateral
and at the back of the head as well.
***
Q: Okay. Now doctor you had indicated there’s two causes of
death, blunt force trauma and strangulation. Are you able to
determine which came first?
A: No.
Q: And why is that?
A: Uh we have to be practical in what we see. It’s difficult to
say which one came first. They are at the same time, due to the
coloration of the injuries on the skin, and so they are rightfully
combined as uh strangulation and blunt force trauma to the head.
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Q: Could either one of them by themselves have been a source of
the cause of her death?
A: Yes.
Q: Okay, but in this case you determined that as a combination.
Is that correct?
A: That is correct.
Tr. Vol. II at 181-89 (emphases added). That evidence shows more than an
intent to merely batter Horsley. That evidence shows Galindo’s intent to kill
her both through battery and by strangulation. In addition, the undisputed
evidence shows that Galindo did not seek medical treatment for Horsley after
he beat and strangled her, and he did not contact the police after he heard about
Horsley’s death.
[14] Horsley died as a result of both the “tremendous force” of the beating and being
strangled for at least ninety seconds. Id. at 187. As we held in Erlewein,
“[c]hoking someone for a minimum of forty-five seconds clearly evinces an
intent to kill or, at the very least, an awareness of a high probability that death
would result.” Erlewein, 775 N.E.2d at 715. The evidence here clearly supports
the trial court’s determination that there is no evidentiary dispute regarding
Galindo’s intent to kill Horsley.
[15] We reject Galindo’s attempt to distinguish these facts from those in Erlewein
because, as he alleges, the evidence does not show “whether Horsley died from
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strangulation or beating.” Reply Br. at 5. In essence, Galindo argues that, if
Horsley died from the beating, that evidence is consistent with his version of
events leading up to her death, and, as he stated in his interview with Detective
Larsen, he did not intend to kill her. But the evidence shows that Horsley died
from a combination of the strangulation and the beating, and the evidence
showed further that Galindo used “extensive” and “prolonged” force in
strangling Horsley. Tr. Vol. II at 183. The undisputed evidence also shows that
either the blunt force trauma or the strangulation would have been sufficient to
kill Horsley.
[16] Galindo kicked or stomped Horsley in the head multiple times and strangled
her with extensive and prolonged force. All of the evidence in this case
contradicts Galindo’s general denial that he did not knowingly or intentionally
kill Horsley. See Erlewein, 775 N.E.2d at 716. Galindo’s contentions on appeal
amount to a request that we reweigh the evidence, which we will not do. The
trial court did not abuse its discretion when it refused to instruct the jury on
involuntary manslaughter.
[17] Affirmed.
Vaidik, C.J., and Baker, J., concur.
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