Martin Reyes v. State of Indiana ( 2013 )


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  •  Pursuant to Ind.Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before
    any court except for the purpose of
    establishing the defense of res judicata,                   Mar 11 2013, 9:55 am
    collateral estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:
    CYNTHIA M. CARTER                                    GREGORY F. ZOELLER
    Law Office of Cynthia M. Carter, LLC                 Attorney General of Indiana
    Indianapolis, Indiana
    BRIAN REITZ
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    MARTIN REYES,                                        )
    )
    Appellant-Petitioner,                         )
    )
    vs.                                   )      No. 46A03-1206-PC-261
    )
    STATE OF INDIANA,                                    )
    )
    Appellee-Respondent.                          )
    APPEAL FROM THE LAPORTE CIRCUIT COURT
    The Honorable Thomas J. Alevizos, Judge
    Cause No. 46C01-0707-PC-378
    March 11, 2013
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    VAIDIK, Judge
    Case Summary
    Martin Reyes appeals the post-conviction court’s denial of his request for post-
    conviction relief. Reyes contends that the post-conviction court erred in concluding that
    his trial counsel was not ineffective. Finding that Reyes did not receive ineffective
    assistance of trial counsel, we affirm.
    Facts and Procedural History
    The facts underlying Reyes’ convictions were adopted from this Court’s
    memorandum opinion on direct appeal:
    In 2004, Reyes and his wife, Veronica, lived next door to Silbiano Osornio
    (Silbiano), and his wife Adela Garcia (Adela) (collectively, the Osornios),
    in LaPorte County. The Osornios lived with their son, Jorge, and one of
    their daughters, Alma, and her three children. The Osornios’ other
    daughter, Delia, lived nearby with her husband, Jose.
    On Saturday, August 28, 2004, Reyes was in bed with his wife when he
    saw a man peeking through their bedroom window. When Reyes rose, the
    man ran away. Reyes went outside and saw a tire propped against the
    house, which allowed the man to see in the window. He then left to run
    some errands.
    That same morning Silbiano and Jorge left around 7 a.m. for work. They
    returned around 11 a.m. Silbiano went in the house to sleep while Jorge
    and some others stayed outside to tint car windows. When Reyes returned
    home, after Silbiano and Jorge, he walked over to the Osornios’ home and
    asked to speak with Silbiano. Reyes put his arm around Silbiano, walked
    him outside, and accused Silbiano of looking into his window that morning.
    Silbiano denied the accusation. Reyes told Silbiano, “just shut up you old
    man.” Then, Reyes started pushing Silbiano commenting he would not
    hold up because he was an old man. At that point, Jorge stepped in and a
    fight ensued between Reyes and Jorge. After approximately five minutes
    Silbiano broke up the fight. Reyes retreated into his house, all the while
    yelling, “it’s not over,” “you’re gonna pay for this,” “it’s not going to end
    like this,” and “that he was going to kill him.”
    2
    After the fight, Reyes entered and exited his house several times. At one
    point he drove away hitting Jorge’s truck when he pulled in and out of his
    parking spot. Upon returning home, Reyes remained inside until his
    brother, Ignacio, arrived.
    Later that afternoon, an argument ignited between Delia, the Osornios’
    daughter, and Veronica, Reyes’ wife; a fight ensued. Reyes and Ignacio
    came outside and separated the women. Jorge ran to Delia’s defense and a
    fight ensued between Ignacio and Jorge. As the two were fighting, Reyes
    drew a concealed knife and stabbed Jorge in the chest, puncturing his heart.
    Reyes then proceeded toward Delia when her husband, Jose, pushed him.
    Reyes and Jose grabbed each other. Then, Ignacio grabbed Jose from
    behind and Reyes stabbed Jose. After that Reyes went after Jorge’s
    unarmed cousin, Baltazar, with the knife. Baltazar unsuccessfully tried to
    disarm Reyes and was stabbed in the process. Reyes next turned to Adela
    who had picked up a shovel. He was waiving the knife around when
    Silbiano came outside and took the shovel away from his wife. Reyes said,
    “do you want [anymore] you (sic) mother fuckers?”
    Reyes fled from the yard and several people chased after him. Not far from
    the scene the police apprehended him. While being taken into custody,
    Silbiano kicked Reyes in the chin. Jorge died in the yard as a result of the
    stab wound. Jose was taken to the hospital and required surgery to save his
    life.
    Reyes v. State, No. 46A03-0512-CR-584 (Ind. Ct. App. Oct. 24, 2006) (citations
    omitted). The State charged Reyes with Count I, murder; Count II, attempted murder, a
    Class A felony; Count III, aggravated battery, a Class B felony; and Count IV, battery
    with a deadly weapon resulting in serious bodily injury, a Class C felony. After a week-
    long trial in June 2005, a jury found Reyes guilty as charged, and he was sentenced to an
    aggregate sentence of seventy-five years.       Reyes later appealed, challenging the
    admission of certain evidence at trial and his sentence. This Court affirmed Reyes’
    convictions and sentence. Id.
    3
    In 2011, Reyes sought post-conviction relief, alleging ineffective assistance of trial
    counsel.1 Reyes claimed, in part, that his trial counsel was ineffective for (1) failing to
    request an interpreter solely for the defense, (2) failing to call Reyes’ wife as a witness
    and improperly examining other witnesses, (3) failing to request a mistrial, and (4) failing
    to object to alleged prosecutorial misconduct. After a hearing, the post-conviction court
    issued findings of fact and conclusions of law denying Reyes’ request for relief.
    The post-conviction court first rejected the argument that trial counsel should have
    requested a separate defense interpreter for Reyes, who spoke Spanish and understood
    very little English. The court explained that in making this argument, Reyes relied on a
    case, Arietta v. State, 
    878 N.E.2d 1238
     (Ind. 2008), that had been decided years after
    Reyes’ trial, and therefore was inapplicable. The court concluded that when Reyes was
    on trial, a separate defense interpreter was not required, and thus trial counsel was not
    ineffective for failing to request one.       See Appellant’s App. p. 94-95.         The post-
    conviction court also found that trial counsel was not ineffective for failing to call Reyes’
    wife as a witness and in examining other witnesses; counsel made strategic decisions in
    this context, which were entitled to deference. Id. at 98-100. The court next rejected
    Reyes’ claim that trial counsel was ineffective for failing to request a mistrial following
    objectionable testimony from a number of witnesses. The court explained that counsel
    had objected to the testimony, requested admonishments, and moved for a mistrial
    appropriately. Id. at 97-98. Finally, the court found that trial counsel was not ineffective
    for failing to object to alleged prosecutorial misconduct. The court reasoned that no
    1
    Reyes also argued that his appellate counsel was ineffective. See Appellant’s App. p. 33.
    However, Reyes challenges only his trial counsel’s performance in this appeal.
    4
    prosecutorial misconduct had occurred, thus no objection made on that basis would have
    been sustained. Id. at 101-02.
    Reyes now appeals the denial of his request for post-conviction relief.
    Discussion and Decision
    The petitioner in a post-conviction proceeding bears the burden of establishing
    grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule
    1(5); Fisher v. State, 
    810 N.E.2d 674
    , 679 (Ind. 2004). When appealing from the denial
    of post-conviction relief, the petitioner stands in the position of one appealing from a
    negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse the
    judgment unless the evidence as a whole unerringly and unmistakably leads to a
    conclusion opposite that reached by the post-conviction court. Id. The post-conviction
    court in this case entered findings of fact and conclusions of law in accordance
    with Indiana Post-Conviction Rule 1(6).          A post-conviction court’s findings and
    judgment will be reversed only upon a showing of clear error—that which leaves us with
    a definite and firm conviction that a mistake has been made. Id. The post-conviction
    court is the sole judge of the weight of the evidence and the credibility of witnesses. Id.
    We accept findings of fact unless clearly erroneous, but we accord no deference to
    conclusions of law. Id.
    To prevail on a claim of ineffective assistance of counsel, a petitioner must
    demonstrate both that his counsel’s performance was deficient and that the petitioner was
    prejudiced by the deficient performance. Strickland v. Washington, 
    466 U.S. 668
    , 687
    (1984). Failure to satisfy either prong will cause the claim to fail. French v. State, 778
    
    5 N.E.2d 816
    , 824 (Ind. 2002). Counsel’s performance is deficient if it falls below an
    objective standard of reasonableness based on prevailing professional norms. 
    Id.
    Counsel is afforded considerable discretion in choosing strategy and tactics, and we will
    accord those decisions deference. Timberlake v. State, 
    753 N.E.2d 591
    , 603 (Ind.
    2001), reh’g denied.        A strong presumption arises that counsel rendered adequate
    assistance and made all significant decisions in the exercise of reasonable professional
    judgment. 
    Id.
     To meet the appropriate test for prejudice, the petitioner must show that
    there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
    the proceeding would have been different. 
    Id.
     A reasonable probability is a probability
    sufficient to undermine confidence in the outcome. Perez v. State, 
    748 N.E.2d 853
    , 854
    (Ind. 2001).
    I. Defense Interpreter
    Reyes first claims that his trial counsel was ineffective for failing to request a
    defense interpreter for Reyes, who speaks Spanish and understands limited English.
    However, two court-appointed interpreters were present throughout Reyes’ trial. They
    functioned as “proceedings interpreters,” and alternated between sitting at the defense
    table with Reyes and translating for the court at the witness stand and near the bench.2
    One of the interpreters also accompanied trial counsel to a meeting with Reyes in jail.
    2
    In Arrieta, our Supreme Court noted the difference between proceedings interpreters and
    defense interpreters. Defense interpreters are for the benefit of non-English speaking defendants; they
    simultaneously translate English proceedings and aid attorney-client communications. Arrieta, 878
    N.E.2d at 1242. “Proceedings interpreters serve the court by translating the speech of participants at
    various junctures.” Id.
    6
    In arguing that trial counsel should have requested a separate defense interpreter,
    Reyes relies primarily on the case of Arrieta v. State.               878 N.E.2d at 1238; see
    Appellant’s Br. p. 7-10. We need not analyze the applicability of Arrieta, however,
    because that case was decided in 2008, and Reyes was tried in 2005. Reyes’ trial counsel
    cannot be ineffective for failing to anticipate a change in existing law. Reed v. State, 
    856 N.E.2d 1189
    , 1197 (Ind. 2006). Instead, Martinez Chavez v. State, 
    534 N.E.2d 731
    , 737
    (Ind. 1989) governed this issue at the time of Reyes’ trial.
    In that case, the defendant, Martinez Chavez, was on trial for murder. Like Reyes,
    he spoke Spanish and understood limited English. At his trial, the court appointed one
    proceedings interpreter. After Martinez Chavez was convicted, he argued that he should
    have had a separate defense interpreter as well. Our Supreme Court disagreed, saying
    that Martinez Chavez used the proceedings interpreter to communicate with his counsel
    during recesses and at times other than during the trial, and thus Martinez Chavez was not
    denied the right to a fair trial. 
    Id.
     In this case, Reyes had not one, but two proceedings
    interpreters, who alternated between sitting at the defense table with Reyes and
    translating for the court at the witness stand and near the bench. One of the interpreters
    also attended a meeting with Reyes and his trial counsel. Thus, under Martinez Chavez,
    which governed at the time of Reyes’ trial, Reyes received the type of interpretation to
    which he was entitled. Trial counsel was not ineffective for failing to request a defense
    interpreter for Reyes.3
    3
    Reyes says that some of his family members functioned as interpreters while he was on trial,
    and this is proof that a defense interpreter was needed. However, Reyes does not claim that they
    functioned as interpreters in lieu of the two court-appointed proceedings interpreters or that the
    proceedings interpreters were unavailable when needed. Instead, it appears that the family members
    7
    II. Witnesses and the Defense Theory
    Reyes’ next claim pertains to trial counsel’s treatment of witnesses and certain
    decisions made during Reyes’ trial. Specifically, Reyes contends that trial counsel was
    ineffective for failing to call his wife, Veronica, as a witness, failing to properly examine
    Reyes, and failing to cross-examine some of the State’s witnesses about alleged
    discrepancies between pre-trial statements and their trial testimony. According to Reyes,
    the defense theory was either self-defense or defense of others, particularly Reyes’ wife,
    and counsel’s failures hindered this theory.
    Reyes first argues that trial counsel should have called Veronica to testify. “A
    decision regarding what witnesses to call is a matter of trial strategy which an appellate
    court will not second-guess.” Smith v. State, 
    822 N.E.2d 193
    , 204 (Ind. Ct. App. 2005)
    (citation omitted), trans. denied. Deciding which witnesses to call at trial is the epitome
    of a strategic decision. Wrinkles v. State, 
    749 N.E.2d 1179
    , 1200 (Ind. 2001) (citing
    Wisehart v. State, 
    693 N.E.2d 23
    , 48 n.26 (Ind. 1998)). At the hearing on Reyes’ PCR
    petition, trial counsel testified that while he could not recall the precise reason he had not
    called Veronica as a witness, the decision was strategic. Tr. p. 40-41. Reyes takes issue
    with trial counsel’s failure to articulate the precise strategic reason for not calling
    Veronica. But the hearing on Reyes’ PCR petition came approximately six years after
    Reyes’ murder trial. Counsel is afforded considerable discretion in choosing strategy and
    conveyed additional information to trial counsel or acted as “spokespersons” for the family. See
    Appellant’s Br. p. 11.
    Reyes also argues that the proceedings interpreters made interpretation mistakes at his trial. See
    id. at 12-14. Even if mistakes were made, Reyes does not show how this supports a claim of ineffective
    assistance; it is not clear any mistakes would have been prevented if trial counsel had requested a separate
    defense interpreter. And Reyes does not claim that trial counsel knew of these mistakes. We find no
    basis for ineffective assistance with respect to either of these arguments.
    8
    tactics, and we will accord those decisions deference. Timberlake, 753 N.E.2d at 603.
    Here, counsel testified that he made a strategic decision, and Reyes has not shown
    otherwise. Nor has he shown that the outcome of the proceeding would have been
    different had Veronica testified.4
    Reyes also argues that trial counsel did not refer to certain exhibits and confused
    the timeline of events leading up to the stabbing during Reyes’ direct examination.
    However, Reyes testified on his own behalf and explained the sequence of events. And
    the exhibits in question were in evidence and available to the jury even if trial counsel did
    not reference them during Reyes’ testimony.                Reyes also claims that counsel was
    ineffective for failing to cross-examine some of the State’s witnesses regarding
    discrepancies in their pre-trial statements and trial testimony. But this is a matter of
    strategy. See Kubsch v. State, 
    934 N.E.2d 1138
    , 1151 (Ind. 2010) (“[T]he method of
    impeaching witnesses is a tactical decision and as a matter of trial strategy that does not
    amount to ineffective assistance.”).           Reyes has not shown that these trial decisions
    constituted deficient performance, nor has he established that there is a reasonable
    probability that, but for these alleged errors, the result of the proceeding would have been
    different. The post-conviction court properly denied Reyes relief on this ground.
    III.    Mistrial Motion
    Reyes next contends that trial counsel was ineffective for failing to request a
    mistrial after four witnesses testified improperly about threats made by Reyes’ brother,
    4
    Within his argument that trial counsel should have called Veronica to testify, Reyes makes an
    additional, brief argument that Veronica was pregnant at the time of the killing and that trial counsel
    should have verified this fact. See Appellant’s Br. p. 16. However, Reyes established this fact himself—
    he testified that his wife was pregnant both on direct and cross-examination. See Tr. p. 672, 696, 702.
    9
    Ignacio, to the victim.        The record shows that trial counsel objected and requested
    admonishments after the improper statements. See Tr. p. 73-74, 144-45, 183-83, 293.
    And trial counsel moved for a mistrial after one instance of improper testimony, which
    the trial court denied.5 Id. at 183-84. After the last instance of improper testimony, the
    trial court asked counsel to approach the bench and said it would entertain another
    mistrial motion if the improper testimony continued. Id. at 316-17. Reyes claims that
    trial counsel should have moved for a mistrial after the sidebar.
    When addressing this argument, the post-conviction court found that there was no
    basis to request a mistrial after the trial court’s final statement on the matter; in other
    words, there was no improper testimony after that point. See Appellant’s App. p. 98
    (“[Reyes] cites no further instances as to inappropriate testimony . . . after the side-bar
    conference . . . .”) (emphasis added). Reyes contends that a witness made another
    improper statement after the sidebar. Specifically, Reyes points to the testimony of the
    victim’s father that Reyes, not Ignacio, had made a threatening statement about the
    victim. But this was not improper testimony—this statement would have been admissible
    under Indiana Evidence Rule 801(d)(2) as a statement of a party-opponent. Thus any
    objection, much less a mistrial motion, would have been unfounded. The post-conviction
    court properly concluded that trial counsel was not ineffective in this respect.
    IV. Prosecutorial Misconduct
    5
    Reyes maintains that trial counsel never actually made a mistrial motion because counsel made
    the motion orally and using informal language. See Appellant’s Reply Br. p. 7. We disagree. The record
    shows that trial counsel made an oral motion for a mistrial, a request the trial court rejected in favor of a
    jury admonishment. Tr. p. 184-85. There is no requirement that a mistrial motion be made in writing or
    that any specific language be used, so long as counsel clearly identifies the motion being made.
    10
    Reyes’ final challenge is based on the improper testimony discussed above and
    also what he claims is exculpatory evidence. Reyes argues that trial counsel should have
    made a prosecutorial-misconduct objection to the improper testimony cited above. To
    establish ineffective assistance for counsel’s failure to object, a petitioner must show that
    the trial court would have sustained the objection had it been made and that the petitioner
    was prejudiced by the failure to object. Jones v. State, 
    847 N.E.2d 190
    , 197-98 (Ind. Ct.
    App. 2006) (citing Wrinkles, 749 N.E.2d at 1192)), reh’g denied, trans. denied. Stated
    another way, the petitioner must demonstrate that had the objection been made, the trial
    court would have had no choice but to sustain it. Oglesby v. State, 
    515 N.E.2d 1082
    ,
    1084 (Ind. 1987).
    The record shows that although a number of witnesses gave improper testimony,
    the prosecutor was not eliciting this testimony or otherwise encouraging it. In fact, the
    trial court acknowledged that the prosecutors were trying to prevent witnesses from
    making any improper statements. See Tr. p. 317 (“[T]he prosecutors are doing nothing
    wrong. They are doing everything they can do to keep it from happening, but it just
    keeps happening. End of story.”).          Therefore, it seems highly unlikely that a
    prosecutorial-misconduct objection, if made, would have been sustained. Reyes has not
    shown ineffective assistance here.
    Reyes also claims that the State failed to reveal exculpatory evidence—a razor that
    the victim had used the day of the killing to cut window-tint paper. But Reyes has not
    shown that this razor was ever in the State’s possession, and trial counsel testified that he
    would have objected if he thought the State had failed to reveal evidence to the defense.
    11
    There is also no reason to believe this evidence would be exculpatory. At Reyes’ trial,
    the testimony about the razor was that the victim had been using it to cut window-tint
    paper and had set it aside before his altercation with Reyes; there was no suggestion that
    it was involved in the altercation. The post-conviction court properly denied Reyes relief
    on this ground.
    Affirmed.
    BAILEY, J., and BROWN, J., concur.
    12
    

Document Info

Docket Number: 46A03-1206-PC-261

Filed Date: 3/11/2013

Precedential Status: Non-Precedential

Modified Date: 10/30/2014