Robert L. Albores, Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Sep 08 2016, 8:45 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
Victoria Christ Eric P. Babbs
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert L. Albores, Jr., September 8, 2016
Appellant-Petitioner, Court of Appeals Case No.
45A03-1511-PC-2020
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Diane Ross
Appellee-Respondent. Boswell, Judge
The Honorable Daniel J. Molter,
Special Judge
Trial Court Cause No.
45G03-1405-PC-5
Altice, Judge.
Case Summary
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[1] Robert L. Albores, Jr., appeals from the denial of his petition for post-
conviction relief. He asserts that the post-conviction court erred in rejecting his
claims of ineffective assistance of trial and appellate counsel.
[2] We affirm.
Facts & Procedural History
[3] The facts underlying Albores’s conviction for murder were set forth by this
court on direct appeal as follows:
Albores and the victim in this case, Michael Miranda, got along
with no problems for several years. However, in 2008, Albores’s
cousin[, Ruben Mercado,] was shot and killed. Albores believed
Miranda was involved in the shooting. On July 22, 2010, Albores
and Miranda found themselves stopped at an intersection at the
same time. Albores fired [seven] shots at Miranda and drove
away. Miranda died five days later.
Albores was charged with murder and criminal gang activity.
During the jury trial, the State presented evidence that Albores
and Miranda were members of rival street gangs and argued that
Albores shot Miranda in retaliation for his cousin’s death in
2008. Albores testified at trial and denied being part of a gang.
He did not deny he shot Miranda, but claimed he did so out of
fear for his life. He described a turbulent relationship between the
parties and a history of shootings that had allegedly occurred
during the two years prior to the shooting that led to Miranda’s
death. The jury was instructed on both self-defense and the lesser
included offense of reckless homicide. The jury returned a verdict
of guilty on the murder charge and not guilty on the criminal
gang activity charge. The trial court sentenced Albores to a fifty-
five year term of imprisonment.
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Albores v. State, 987 N.E.2d 98, 99 (Ind. Ct. App. 2013), trans. denied.
[4] Albores raised one issue on direct appeal: whether the trial court abused its
discretion by refusing to give his proposed jury instruction regarding the
presumption of innocence. This court found no abuse of discretion and
affirmed the murder conviction. Thereafter, our Supreme Court denied transfer
by a vote of three to two on October 25, 2013.
[5] Shortly thereafter, Albores filed for post-conviction relief (PCR). His amended
PCR petition was filed November 12, 2014, alleging ineffective assistance of
trial and appellate counsel. An evidentiary hearing took place on March 19,
2015, at which trial counsel, Samuel Cappas, and appellate counsel, Thomas
Vanes, testified. The post-conviction court issued a lengthy written order on
October 30, 2015, denying the PCR petition. Albores now appeals. Additional
facts will be provided below as needed.
Discussion & Decision
Standard of Review
[6] In a post-conviction proceeding, the petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. Bethea v. State, 983
N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction
relief, the petitioner stands in the position of one appealing from a negative
judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In
order to prevail, the petitioner must demonstrate that the evidence as a whole
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leads unerringly and unmistakably to a conclusion opposite the post-conviction
court’s conclusion. Id. Although we do not defer to a post-conviction court’s
legal conclusions, we will reverse its findings and judgment only upon a
showing of clear error, i.e., “that which leaves us with a definite and firm
conviction that a mistake has been made.” Id. (quoting Ben–Yisrayl v. State, 729
N.E.2d 102, 106 (Ind. 2000)).
[7] A petitioner will prevail on a claim of ineffective assistance of counsel only
upon a showing that counsel’s performance fell below an objective standard of
reasonableness and that the deficient performance prejudiced the petitioner.
Bethea, 983 N.E.2d at 1138. To satisfy the first element, the petitioner must
demonstrate deficient performance, which is “representation that fell below an
objective standard of reasonableness, committing errors so serious that the
defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id.
(quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the
second element, the petitioner must show prejudice, which is “a reasonable
probability that, but for counsel’s errors, the result of the proceeding would
have been different.” Id. at 1139. “A reasonable probability is one that is
sufficient to undermine confidence in the outcome.” Kubsch v. State, 934
N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668,
694 (1984)). Because a petitioner must prove both deficient performance and
prejudice in order to prevail on a claim of ineffective assistance of counsel, the
failure to prove either element defeats such a claim. See Young v. State, 746
N.E.2d 920, 927 (Ind. 2001) (holding that because the two elements of
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Strickland are separate and independent inquiries, the court may dispose of the
claim on the ground of lack of sufficient prejudice if it is easier). This standard
applies to both ineffective assistance of trial counsel and appellate counsel
claims. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.
denied.
Ineffective Assistance of Appellate Counsel
[8] Our Supreme Court has recognized three types of ineffective assistance of
appellate counsel: (1) denial of access to appeal; (2) failure to raise issues that
should have been raised; and (3) failure to present issues well. Wrinkles v. State,
749 N.E.2d 1179, 1203 (Ind. 2001), cert. denied. Albores’s claim falls into the
second category. This category will lead to a finding of deficient performance
only if we determine that the omitted issues were significant, obvious, and
clearly stronger than those presented. Id. Ineffectiveness is “very rarely found
in these cases” because “the decision of what issues to raise is one of the most
important strategic decisions to be made by appellate counsel.” Bieghler v. State,
690 N.E.2d 188, 193 (Ind. 1997), cert. denied. On review, therefore, we are
“particularly deferential to counsel’s strategic decision to exclude certain issues
in favor of others, unless such a decision was unquestionably unreasonable.”
Id. at 194.
[9] Albores claims that appellate counsel was ineffective for failing to challenge the
admission of certain evidence, which he and his trial counsel believed violated
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Ind. Evidence Rule 404(b). Trial counsel fully preserved the issue and alerted
appellate counsel to it.
[10] The evidence challenged at trial and admitted through the testimony of several
witnesses related to a February 2004 incident that occurred when Albores was
seventeen years old. On the afternoon in question, Albores waited in a vehicle
while his cousin, Ruben Mercado, went into a convenience store. On the way
inside, Mercado encountered Lee Hernandez, who appeared to be in a rival
gang. The two exchanged words and a brief physical altercation ensued, ending
with Mercado being shot in the head. As Hernandez ran from the scene with
his handgun, Albores jumped into the driver seat and pursued him. Albores
eventually drove onto the sidewalk and ran Hernandez down at a high rate of
speed.1 Hernandez went airborne. Albores then drove back to pick up
Mercado, where a witness heard him tell Mercado that he had run over the
shooter and they had to go. Shortly thereafter, a responding officer pulled over
the vehicle being driven by Albores, with Mercado injured inside. Albores
falsely informed the officer that Mercado had been driving when Hernandez
was run down. The jury heard all of this evidence, but did not learn that
Albores was charged with attempted murder and pled guilty to a reduced
charge of criminal recklessness for hitting Hernandez.
1
At the instant trial, Albores claimed he pursued Hernandez in an attempt to apprehend him. Albores
testified further that he “bumped” Hernandez with the car out of fear only after Hernandez turned and pulled
his handgun again. Trial Transcript at 787.
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[11] In response to Albores’s 404(b) objections, the State argued that evidence of the
2004 incident was relevant to rebut his current self-defense claim and went to
establish motive and intent. In other words, the State wanted to show that if
you mess with Mercado, Albores is going to get you. The trial court took the
issue under advisement and on the third day of trial ruled the evidence
admissible under the “motive” exception of Rule 404(b). 2
[12] Appellate counsel testified at the PCR hearing that he seriously considered
raising the 404(b) issue on direct appeal. After reviewing the trial transcript and
case law, however, he ultimately decided not to raise the issue because he
believed it would not be a “winner on appeal, not likely to produce a reversal.”
PCR Transcript at 33. Instead, counsel raised an instructional issue that he
believed was the best issue and supported by case law.
[13] The instructional issue raised on direct appeal, though ultimately unsuccessful,
was strong and well argued. Indeed, the rejected jury instruction was identical
to the one rejected in Lee v. State, 964 N.E.2d 859 (Ind. Ct. App. 2012), trans.
denied, which was found by this court to be an abuse of discretion and reversible
error. Further, our Supreme Court denied transfer of Albores’s direct appeal by
a narrow vote of three to two on October 25, 2013. A little over a year later, the
Court granted transfer in McCowan v. State, 27 N.E.3d 760 (Ind. 2015) to resolve
2
“Evidence of a crime, wrong, or other acts is not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with the character.” Evid. R. 404(b)(1). The
evidence, however, may be admissible for a purpose other than propensity, such as proving motive or intent.
Evid. R. 404(b)(2).
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the split of authority in our court and held that if requested by the defendant,
the court must give an instruction like the one at issue in Lee, Albores, and
several other cases.3
[14] We cannot agree with Albores that the 404(b) issue was clearly stronger than
the instructional issue raised by appellate counsel. At trial, the parties’
competing theories were fixed from the start: Albores contended that he shot
Miranda in self-defense, and the State argued that it was an act of revenge for
the 2008 killing of Mercado. Accordingly, Albores’s motive was affirmatively
placed in issue by the defense. The 2004 incident involving Albores, Mercado,
and Hernandez was relevant to a matter at issue other than Albores’s general
propensity to commit the charged act. The evidence helped establish the State’s
theory of motive and rebut Albores’s self-defense claim. Moreover, with respect
to prejudice, we observe that the jury was not made aware of the charge and
conviction related to the 2004 events.
[15] We commend Albores for his thorough 404(b) argument in the instant appeal.
On the facts of this case, however, we conclude that it was not unquestionably
unreasonable for appellate counsel to choose not to raise the 404(b) issue and
instead present only the instructional issue.
3
Specifically, the Court stated “unequivocally and prospectively that it is the absolute right of every criminal
defendant to receive the following jury instruction upon request: ‘The presumption of innocence continues in
favor of the defendant throughout the trial. You should fit the evidence to the presumption that the
defendant is innocent if you can reasonably do so.’” McCowan, 27 N.E.3d at 762.
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Ineffective Assistance of Trial Counsel
[16] Albores raises a number of alleged errors committed by trial counsel, each of
which he claims constituted ineffective assistance. We will address each in
turn.
1. Admonishment/Limiting Instruction Regarding the 2004 Incident
[17] After losing the evidentiary battle regarding the 2004 incident, trial counsel
requested a mistrial, which was denied, but did not request an admonishment
or limiting instruction. Counsel explained this decision at the PCR hearing.
He did not believe such was needed because the State’s use of the evidence was
clearly defined at trial. It was being used by the State solely to establish motive,
and the jury knew that. While Albores would have been entitled to a limiting
instruction and admonishment, counsel’s strategic decision not to request such
in this case did not amount to deficient performance or result in prejudice. See
Curtis v. State, 905 N.E.2d 410, 414 (Ind. Ct. App. 2009) (“[c]ounsel is afforded
considerable discretion in choosing strategy and tactics, and we will accord
those decisions deference), trans. denied.
2. Evidence of 2008 Shootings
[18] Miranda’s girlfriend, Nada Wills, and her mother, Nola Wills, testified about
two instances where Nola’s house was shot at soon after Mercado’s death in
2008. Neither witness could identify the shooter, but Nada testified that she
believed Albores was responsible because he and his family blamed Miranda for
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Mercado’s death. Nada testified that, out of fear, she and Miranda moved to
another state with their children after these shootings. Nola also moved out of
her longtime home to another community. Three officers offered very brief
testimony regarding the 2008 shootings.
[19] On the morning of trial, counsel unsuccessfully moved in limine to exclude any
evidence related to the 2008 shootings. The trial court ruled that the evidence
would be admissible as relevant to Albores’s state of mind (that is, he believed
Miranda killed Mercado). Counsel did not reassert any objections with respect
to this evidence at trial. Albores argues that counsel was ineffective for failing
to challenge the evidence at trial as irrelevant because the shooting could not be
linked to him.4
[20] We do not agree with the trial court’s assessment that this evidence was
admissible as relevant to Albores’s state of mind. It could not be because
insufficient evidence linked him to the 2008 shootings. Cf. Camm v. State, 908
N.E.2d 215, 224 (Ind. 2009) (“The value of specific acts evidence to prove
motive rests on the strength of proof that the defendant in fact committed that
other act. With no evidence connecting the defendant to the injuries, the
inquiry lacked purpose.”); Wells v. State, 441 N.E.2d 458, 463 (Ind. 1982)
4
Albores also asserts that counsel should have moved to exclude this evidence because the State “never filed
a notice of intent to offer 404(b) evidence about the 2008 shootings.” Appellant’s Brief at 32. There is no
support for this assertion in the record. At the PCR hearing, there was a reference to a “late disclosure” but
no indication regarding a complete failure to provide notice in this regard. PCR Transcript at 14. Further, the
hearing on the morning of trial establishes that counsel had notice of the State’s potential use of evidence
from the 2008 shootings.
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(requiring evidence of probative value showing that the defendant actually
engaged in the prior acts).
[21] Nevertheless, we believe the evidence was relevant and inextricably bound up
with the charged crimes. See Pope v. State, 740 N.E.2d 1247, 1250 (Ind. Ct.
App. 2000) (“Evidence is relevant if it has any tendency to make the existence
of any fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence.”). It established that within
days of Mercado’s death, Nola’s otherwise peaceful residence5 was shot up on
two separate occasions. Although the perpetrator was never identified, it is
apparent that these shootings were in retaliation for Mercado’s death, for which
Miranda was believed responsible. Further, the shootings resulted in Miranda
and Nada fleeing the state and Nola leaving her home for a period of time. All
of this was relevant to the State’s theory that Miranda was killed in a gang-
related, retaliation shooting twenty-one months after Mercado’s death – the
delay being the result, at least in part, of Miranda’s relocation. Further,
considering the balancing test of Ind. Evidence Rule 403, any unfair prejudice
resulting from this evidence was tempered by the witnesses’ acknowledgments
that they could not identify the shooter.
[22] In sum, we cannot say that had trial counsel objected to this evidence at trial, it
would have been excluded. See Taylor v. State, 929 N.E.2d 912, 918 (Ind. Ct.
5
Nola testified that she had lived in the home for about eighteen years and had never had such problems.
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App. 2010) (“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.”),
trans. denied.6
3. Hearsay Evidence
[23] Albores argues further that counsel should have objected to certain hearsay
statements made by Miranda and admitted during the testimony of Nada and
Nola. Both witnesses testified that at some point after Mercado’s death,
Miranda told them that he was afraid Albores was going to kill him and that he
(Miranda) did not kill Mercado.
[24] Evidence of a declarant’s then-existing state of mind is a well-recognized
exception to the hearsay rule. See Ind. Evidence Rule 803(3). Such testimony is
relevant and admissible when the defendant puts the victim’s state of mind in
issue. See Hatcher v. State, 735 N.E.2d 1155, 1161 (Ind. 2000); Vehorn v. State,
717 N.E.2d 869, 873 (Ind. 1999).
[25] Both during opening statement and Albores’s trial testimony, the defense
detailed a number of threatening encounters between Miranda and Albores, all
6
We find wholly without merit the State’s repeated assertion that the trial court was unlikely to change the
ruling it made with regard to this evidence before trial. See id. (“It makes no difference whether counsel had a
reasonable expectation that the trial court would change its ruling upon objection. Instead, the proper
inquiry is whether the trial court would have had no choice but to sustain the objection; that is, whether the
evidence should have been excluded.”).
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allegedly initiated by Miranda or his fellow gang members. Albores claimed
that Miranda shot at him or his residence on multiple occasions from 2008 to
2010. He also testified that shortly before Miranda was killed, Miranda drove
past Albores’s place of employment, rolled down his window, and extended his
arm while saying “You’re snoozing.” Trial Transcript at 852. Albores claimed
to be scared for his life as a result of these encounters.
[26] In light of this evidence and argument, Albores clearly put Miranda’s state of
mind at issue and contrary evidence that Miranda was the one fearful of
Albores was relevant. While counsel could have requested a limiting
instruction, we do not find the lack of one to have prejudiced Albores.
[27] With respect to the testimony that Miranda told Nada and Nola that he did not
kill Mercado, we find that any error in its admission was harmless. Both the
State’s and the defendant’s cases were premised on the theory that Albores
believed Miranda killed Mercado. Whether he did or not was really beside the
point. Further, Nola and Nada’s testimonies were contradicted by Albores’s
testimony that Miranda admitted to Albores that he killed Mercado.
4. “Bloodhound” Evidence
[28] Albores contends that counsel should have objected to “bloodhound evidence”
admitted at trial. Appellant’s Brief at 19. Citing Brafford v. State, 516 N.E.2d 45(Ind. 1987), Albores argues that such evidence is too unreliable to be
admissible. Brafford, however, was decided prior to the adoption of the Indiana
Rules of Evidence and is no longer controlling. See Myers v. State, 33 N.E.3d
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1077 (Ind. Ct. App. 2015), trans. denied. Seemingly acknowledging this, Albores
goes on to baldly assert that counsel could have argued that the evidence was
inadmissible under Indiana Evidence Rule 702 because it was not based on
reliable scientific principles.
[29] The evidence in question involved police K9 searches (not what is commonly
understood as a bloodhound search) of Miranda’s vehicle five days after the
shooting and Albores’s apartment upon his arrest seven months after the
shooting. In each search, the K9s did not alert to the presence of a firearm.
[30] Albores wholly failed to establish at the PCR hearing that the K9 evidence
presented at trial was not based on reliable scientific principles. Further, trial
counsel testified at the PCR hearing that he did not object to evidence of the K9
search of the impounded vehicle, even though it was done five days after the
shooting, because he considered the evidence “superfluous.” PCR Transcript at
17. Indeed, other evidence at trial established that Miranda was not armed at
the time Albores shot him.7
5. Amendment Adding Criminal Gang Activity Count
[31] A week before trial, the State amended the charging information to add a
second count, criminal gang activity. Trial counsel did not object to the late
7
For example, the evidence technician who processed the scene, Officer Yon Fletcher, testified that he did
not find a gun or knife anywhere in Miranda’s vehicle.
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filing because he did not believe the amended count changed the substance of
the case. Albores claims this constituted ineffective assistance.
[32] A charging information may be amended in matters of substance any time
before the commencement of trial if the amendment “does not prejudice the
substantial rights of the defendant.” Ind. Code § 35-34-1-5. “A defendant’s
substantial rights include a right to sufficient notice and an opportunity to be
heard regarding the charge; and, if the amendment does not affect any
particular defense or change the positions of either of the parties, it does not
violate these rights.” Gomez v. State, 907 N.E.2d 607, 611 (Ind. Ct. App. 2009)
(quoting Ramon v. State, 888 N.E.2d 244, 252 (Ind. Ct. App. 2008)), trans.
denied. In the end, the question is whether the defendant had a reasonable
opportunity to prepare for and defend against the charges. Gomez, 907 N.E.2d
at 611.
[33] Prior to the amendment, Albores was already facing a murder charge with a
criminal gang enhancement. Although the new charge of criminal gang activity
was a separate count, Albores does not dispute that the evidence related to this
charge would be virtually the same as the evidence for the enhancement.
Further, Albores’s argument that the gang evidence coming in during the guilt
phase of trial (instead of the enhancement phase) affected his substantial rights
misses the mark. There is simply no indication that the amendment altered
Albores’s defense theory or resulted in him being unprepared to defend against
the charges. Accordingly, trial counsel was not ineffective in this regard.
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6. Self-Defense Instruction
[34] Finally, Albores contends that trial counsel should have objected to the court’s
instruction on self-defense. This instruction provided:
The killing of another human being may be justified on the
theory of self-defense if the perpetrator:
1) acted without fault;
2) was in a place where he had a right to be;
3) was in real danger of great bodily harm or in such
apparent danger as to cause him in good faith to fear death
or great bodily harm.
The danger of death or great bodily harm need not be actual. It
need be only apparent to a reasonable person under the
circumstances. The law protects persons who feel compelled to
act at such times, even though in retrospect it is proven they have
erred, if they acted reasonably, in view of the surrounding
circumstances under which the events took place. The law of
self-defense does not, however, protect one who kills another
human being through anger or revenge in an encounter provoked
and brought on by himself.
The State has the burden of proving beyond a reasonable doubt
that the Defendant did not act in self-defense.
If you believe from the evidence in this case that the defendant
killed the decedent in self-defense or if you have a reasonable
doubt as to whether or not the defendant killed the decedent in
self-defense, then he cannot be found guilty of the offense of
murder.
Direct Appeal Appendix at 136. Albores argues that the instruction failed to
indicate that he did not have a duty to retreat or that deadly force could be used
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to prevent a forcible felony. He also asserts that the instruction improperly
included language that unduly emphasized the State’s revenge theory.
[35] In order to establish trial counsel ineffectiveness based on failure to object to a
jury instruction, a petitioner must first prove that a proper objection would have
been sustained. Lambert v. State, 743 N.E.2d 719, 741 (Ind. 2001), cert. denied.
Additionally, a petitioner must prove that the failure to object was unreasonable
and resulted in sufficient prejudice such that there exists a reasonable
probability the outcome would have been different had counsel objected. Id.[36] It is true that, in Indiana, a person confronted with deadly force is not obliged
to retreat. See Patton v. State, 837 N.E.2d 576, 581 (Ind. Ct. App. 2005) (citing
French v. State, 403 N.E.2d 821, 825 (Ind. 1980)). This case, however, was not
about mutual combat or who was the aggressor, and the State did not argue
that Albores had a duty to retreat once he believed he was facing deadly force.
Indeed, the evidence reveals that the shooting occurred almost immediately as
the two vehicles were stopped side by side. Albores shot at an unarmed man
seven times. The jury was tasked with determining whether Albores truly
believed he saw Miranda pointing a gun at him, placing him in fear of being
shot. Retreat at this point was not an issue, and we fail to see how exclusion of
this point of law prejudiced Albores.
[37] Similarly, no prejudice resulted from omission of “fear of forcible felony” as a
justification for using deadly force. Albores’s defense at trial was that he
reasonably believed he was defending himself in a situation where he was
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confronted with deadly force. The suggested addition to the instruction –
though a correct statement of the law – would have had no effect on the
outcome of the murder trial.
[38] Albores’s final challenge to the instruction is not well-developed and not
adequately supported by relevant authority. Essentially, he baldly asserts that
“inclusion of non-statutory language that killing in revenge or anger
unnecessarily emphasized one particular evidentiary fact the prosecutor
stressed, invaded the province of the jury and was not proper language for an
instruction.” Appellant’s Brief at 50. His argument falls far short of establishing
deficient performance and resulting prejudice.
[39] Judgment affirmed.
[40] Bailey, J. and Bradford, J., concur.
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