MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                          Mar 28 2016, 8:54 am
regarded as precedent or cited before any
                                                                    CLERK
court except for the purpose of establishing                    Indiana Supreme Court
                                                                   Court of Appeals
the defense of res judicata, collateral                              and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cynthia M. Carter                                        Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mauricio Martinez,                                       March 28, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1506-PC-547
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc T.
Appellee-Plaintiff                                       Rothenberg, Judge
                                                         The Honorable Amy J. Barbar,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G02-0810-PC-230416



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1506-PC-547 | March 28, 2016    Page 1 of 14
                                          Case Summary
[1]   Appellant-Petitioner Mauricio Martinez (“Martinez”) appeals the denial of his

      petition for post-conviction relief, following his convictions for Murder and

      Carrying a Handgun Without a License. We affirm.



                                                   Issues
[2]   Martinez presents two issues for review:

              I.      Whether he was denied the effective assistance of trial
                      counsel; and


              II.     Whether he was denied the effective assistance of appellate
                      counsel.


                            Facts and Procedural History
[3]   The relevant facts were recited by a panel of this Court on direct appeal, as

      follows:


              In the early morning hours of August 17, 2008, Luis Velez
              (“Luis”) was drinking beer in an outside stairwell of the Eagle
              Terrace Apartment Complex (“Eagle Terrace”) in Indianapolis
              with his friend, Anjel Valazques-Luis, known as “Cowboy.”
              Several other people were present in the area, including a woman
              known as “Tee,” a man named Jose, whose nickname was
              “Mechanico,” and a prostitute who was known as “Cherry.”
              Cowboy was trying to arrange to “do business,” or to have sex
              with Cherry. Cherry was not interested in doing business with
              either Cowboy or his friend from across the street because of
              Cowboy’s drunken state.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-PC-547 | March 28, 2016   Page 2 of 14
        A dark colored Mitsubishi Eclipse carrying four people pulled up
        and parked nearby. Martinez exited the passenger side of the
        vehicle and began to talk to Cherry. Martinez and Cherry had
        done business two or three times over the past eight years, with
        the most recent being approximately three weeks prior. Martinez
        and Cherry were “talking business,” and Cowboy became
        increasingly upset, interrupting their conversation several times.
        Luis tried to diffuse the situation by calling Cowboy over to the
        stairwell to give him a beer and a cigarette to calm him. Cowboy
        only stayed with Luis for a few minutes, then went back to
        Martinez and Cherry. Luis could see the body language of
        Cowboy and Martinez getting more hostile, and Cherry moved
        away. The two men were within arm’s reach of each other.
        Martinez then shot Cowboy twice, once from close range, with
        the gun touching the abdomen, and again in the shoulder as
        Cowboy tried to flee across the street. Cowboy collapsed on the
        sidewalk, and everyone fled from the area. Cowboy died as a
        result of the shooting.


        On October 8, 2008, Martinez was arrested and taken to the
        Indianapolis Metropolitan Police Department headquarters to be
        interviewed shortly after midnight. The interview was conducted
        by Detective Chris Minka and Officer Jesus Soria (“Officer
        Soria”), who acted as the interpreter, and was done almost
        entirely in Spanish. Martinez signed a waiver of rights form
        written in Spanish. Initially, Martinez denied ever being at Eagle
        Trace and denied ever seeing Cowboy. He denied having any
        friends and stated he only left his home to go to work to provide
        for his family. Eventually, Martinez claimed to have gone to
        Eagle Terrace to buy beer with his friend, Raleigh. Officer Soria
        tried to end the interview at one point, but Martinez indicated
        that he wanted to continue and told the officer that he had
        argued with Cowboy regarding where he and Raleigh parked and
        that Cowboy had pulled a gun on him. Martinez stated that,
        when he exited the apartment after purchasing the beer, Cowboy
        and others armed with machetes approached him. Martinez was

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-PC-547 | March 28, 2016   Page 3 of 14
              not entirely clear, but he told the officer that one of the men had
              a gun. He claimed that Raleigh threw him a handgun, and he
              fired two shots, hitting Cowboy from a distance of approximately
              eight feet. Martinez also stated that, although a prostitute was
              present, he and Cowboy were not fighting about her.


              The State charged Martinez with murder and carrying a handgun
              without a license as a Class A misdemeanor.


      Martinez v. State, No. 49A02-0910-CR-948, slip op. at 1-3 (Ind. Ct. App. May

      17, 2010) (record citations omitted). On September 1, 2009, a jury found

      Martinez guilty as charged. He was given an aggregate sentence of fifty years.

      Martinez appealed, raising a single issue challenging the evidentiary admission

      of his statement to police. His convictions were affirmed. Slip op. at 4.


[4]   On April 26, 2011, Martinez filed a pro-se motion for post-conviction relief,

      alleging that he had received ineffective assistance from his trial and appellate

      counsel. With the assistance of counsel, Martinez filed an amended petition.

      An evidentiary hearing was conducted on December 17, 2014. On May 11,

      2015, the post-conviction court issued findings of fact and conclusions of law

      and an order denying Martinez post-conviction relief. He now appeals.



                                 Discussion and Decision
                                         Standard of Review
[5]   The petitioner in a post-conviction proceeding bears the burden of establishing

      the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-PC-547 | March 28, 2016   Page 4 of 14
      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. Id. On review, we will not reverse

      the judgment of the post-conviction court unless the evidence as a whole

      unerringly and unmistakably leads to a conclusion opposite that reached by the

      post-conviction court. Id. 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. In this review,

      findings of fact are accepted unless they are clearly erroneous and no deference

      is accorded to conclusions of law. Id. The post-conviction court is the sole

      judge of the weight of the evidence and the credibility of witnesses. Id.


                                                Self-Defense
                                  Effectiveness of Trial Counsel
[6]   Martinez contends he was denied the effective assistance of trial counsel in four

      respects: trial counsel (1) failed to tender an instruction on a lesser-included

      offense; (2) failed to conduct an adequate independent investigation; (3) failed

      to offer into evidence a toxicology report concerning the victim; and (4)

      proffered a discovery deposition in violation of Martinez’s Sixth Amendment

      right of confrontation.


[7]   Effectiveness of counsel is a mixed question of law and fact. Strickland v.

      Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims

      of ineffective assistance under the two-part test announced in Strickland. Id. To

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-PC-547 | March 28, 2016   Page 5 of 14
      prevail on an ineffective assistance of counsel claim, a defendant must

      demonstrate both deficient performance and resulting prejudice. Dobbins v.

      State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).

      Deficient performance is that which falls below an objective standard of

      reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d

      1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that

      “there is a reasonable probability that, but for counsel’s unprofessional errors,

      the result of the proceeding would have been different. A reasonable

      probability is a probability sufficient to undermine confidence in the outcome.”

      Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.

      1996). The two prongs of the Strickland test are separate and independent

      inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an

      ineffectiveness claim on the ground of lack of sufficient prejudice … that course

      should be followed.” Id.


[8]   We “strongly presume” that counsel provided adequate assistance and

      exercised reasonable professional judgment in all significant decisions. McCary

      v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded

      considerable discretion in the choice of strategy and tactics. Timberlake v. State,

      753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based upon the

      facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d

      1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring

      reasonable professional judgment even if the strategy in hindsight did not serve

      the defendant’s interests. Id. In sum, trial strategy is not subject to attack

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-PC-547 | March 28, 2016   Page 6 of 14
      through an ineffective assistance of counsel claim, unless the strategy is so

      deficient or unreasonable as to fall outside the objective standard of

      reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).


[9]   Initially, Martinez complains that his trial counsel did not tender an instruction

      on a lesser-included offense such as voluntary manslaughter.1 At the post-

      conviction hearing, trial counsel conceded that he did not offer any such

      instruction. He further explained:


              If my memory is correct, because of [Martinez’s] statement, I
              think we were somewhat confined as to what our defenses were.
              So I don’t recall that we had any theories other than self defense.


      (P.C.R. Tr. at 33.) According to Martinez, although an “all or nothing

      defense” of self-defense2 is reasonable in some circumstances, his statement to




      1
       Although he includes a reference to reckless homicide in his summary of the argument, Martinez does not
      address the propriety of a reckless homicide instruction in his actual argument.
      2
[1]     Defense of self or others as an affirmative defense is established by Indiana Code Section 35-
      41-3-2(c): “A person is justified in using reasonable force against any other person to protect
      the person or a third person from what the person reasonably believes to be the imminent use
      of unlawful force.”

              To support a claim of self-defense, a defendant must have acted without
              fault, been in a place where he had a right to be, and been in reasonable fear
              or apprehension of bodily harm. Brewer v. State, 646 N.E.2d 1382, 1386 (Ind.
              1995). The defendant’s belief … must be reasonable and in good faith, and
              his “reaction to that belief must be reasonable based upon the surrounding
              circumstances under which the events have occurred.” Geralds v. State, 647
              N.E.2d 369, 373 (Ind. Ct. App. 1995).



      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-PC-547 | March 28, 2016          Page 7 of 14
       police regarding an attack by armed men did not thus constrain trial counsel’s

       choice of tactics. (Appellant’s Br. at 10.)


[10]   The record of a bench conference outside the presence of the jury indicates that

       trial counsel briefly considered offering an instruction on some lesser-included

       offense. However, the trial court questioned what evidence would support the

       giving of such an instruction, and counsel ultimately did not proffer an

       instruction on a lesser-included offense.


[11]   Even now, Martinez does not identify a lesser-included offense instruction that

       would have had evidentiary support such that the trial court would have

       instructed the jury accordingly. He relies upon Wilson v. State, 697 N.E.2d 466,

       474 (Ind. 1998), to support his proposition that “an instruction on voluntary

       manslaughter is supported when there is evidence of sufficient provocation to

       induce passion that renders a reasonable person incapable of cool reflection.”

       (Appellant’s Br. at 17.) However, to the extent that Martinez develops an

       argument with regard to supporting evidence, he asserts only that the victim,

       who had undefined “body language” indicating that he was upset, “was

       instigating the argument” and Martinez was trying to ignore him. (Appellant’s

       Br. at 11, 13.) Martinez’s abbreviated argument ignores the well-settled law

       that words alone are insufficient provocation to provide evidence of sudden




       White v. State, 699 N.E.2d 630, 635 (Ind. 1998).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-PC-547 | March 28, 2016   Page 8 of 14
       heat. See Conner v. State, 829 N.E.2d 21, 24 (Ind. 2005) (“Sudden heat excludes

       malice, and neither mere words nor anger, without more, provide sufficient

       provocation.”) Martinez has not shown that a tendered instruction would have

       been given by the trial court or that it would have likely impacted the jury’s

       verdict.


[12]   Martinez also contends that his trial attorney failed to complete an appropriate

       investigation and secure appropriate witnesses. However, he fails to identify

       any witness that would have been uncovered by further investigation. Nor does

       he point to relevant evidence that would have surfaced with more diligent

       efforts on the part of trial counsel. He has not shown ineffectiveness in this

       regard. See Coleman v. State, 694 N.E.2d 269, 274 (Ind. 1998) (observing that

       the petitioner claiming inadequate consultation or investigation bears the

       burden of showing what additional information may have been garnered and

       how that additional information would have aided in the preparation of the

       case).


[13]   According to Martinez, his trial attorney was ineffective for failing to offer into

       evidence a toxicology report that indicated the victim was intoxicated and had

       metabolites from cocaine and marijuana in his urine. Although the report was

       not formally admitted, Martinez has not shown prejudice from the omission.

       This is because the forensic pathologist who conducted the victim’s autopsy

       testified in detail regarding the results of the toxicology report. Dr. Michael

       Kenny testified that the victim was “under the influence of ethyl alcohol,” and

       had metabolites for cocaine and marijuana in his urine, but “was not currently

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-PC-547 | March 28, 2016   Page 9 of 14
       under the influence” of the drugs because they had already been filtered by the

       kidneys. (Tr. at 225.) He also acknowledged that the alcohol concentrations

       were .24 in the urine and .16 in the blood.


[14]   Martinez claims that his trial counsel performed deficiently when he introduced

       into evidence the defense deposition of Cheryl Sladovnik (a/k/a “Cherry”) in

       lieu of her live testimony. According to Martinez, he had a “right to look the

       witness in the eye” and the jury should have been provided with the

       “opportunity to gauge whether or not she was being truthful.” (Appellant’s Br.

       at 23.)


[15]   Although Sladovnik had been subpoenaed and the trial court had verbally

       explained her obligation to appear in court, she failed to appear and provide in-

       court testimony at Martinez’s trial. A bench warrant was issued for her arrest,

       and she was declared an unavailable witness. Defense counsel, who had

       conducted a pre-trial deposition, requested that Sladovnik’s (redacted)

       deposition testimony be read into evidence. Although Martinez now complains

       that the procedure deprived him of the full exercise of his rights of

       confrontation, Martinez does not now identify what additional relevant

       evidence might have been elicited upon further questioning. He merely implies

       – without citation to supporting authority – that his right of confrontation could

       not be exercised by counsel but could only be satisfied by a personal face-to-face

       encounter between himself and a witness.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-PC-547 | March 28, 2016   Page 10 of 14
[16]   Nor does Martinez describe any prejudice ensuing from the admission of the

       redacted deposition testimony. In her deposition, Sladovnik testified that she

       had been conversing with Martinez prior to the shooting, but she left.

       According to Sladovnik, the victim had been holding a bottle of tequila, he was

       intoxicated, and he liked to “talk crack” or threaten to get his friends to assist

       him. (Tr. at 410.) In other words, Sladovnik offered corroboration that the

       victim was belligerent and confrontational, tending to support Martinez’s claim

       of fearfulness.


[17]   Finally, Martinez argues that he is entitled to a new trial because of cumulative

       deficiencies on the part of trial counsel. Our review of counsel’s performance

       leads to the conclusion that the jury’s rejection of the self-defense theory was

       not due to an inadequacy on the part of counsel. Trial counsel was placed in a

       very difficult position by Martinez’s admission that he remained at a distance

       from Valazques-Ruiz, but was eventually compelled to shoot him because of

       threats presented by the victim and his machete or knife-wielding friends. The

       trial witnesses and the physical evidence did not support that version of events.

       No weapon was recovered from the victim, who had endured multiple

       gunshots: one a contact shot to the abdomen and a second to the shoulder. No

       witness indicated that any person other than Martinez had been armed.


[18]   Trial counsel attempted to have Martinez’s statement excluded. When that

       strategy was unsuccessful, he elicited evidence that the victim had been

       drunken, intimidating, and aggressive. Trial counsel’s efforts and strategy,

       although they did not ultimately achieve the result desired by Martinez, were

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-PC-547 | March 28, 2016   Page 11 of 14
       not so unreasonable as to constitute ineffective assistance of counsel. See Badelle

       v. State, 754 N.E.2d 510, 539 (Ind. Ct. App. 2001) (deciding in relevant part

       that, when trial counsel’s efforts were “more than adequate” to support a

       chosen defense, counsel’s decision not to seek out additional witnesses was a

       judgment call within the wide range of reasonable assistance), trans. denied.


                               Effectiveness of Appellate Counsel
[19]   A defendant is entitled to the effective assistance of appellate counsel. Stevens v.

       State, 770 N.E.2d 739, 760 (Ind. 2002). The two-pronged standard for

       evaluating the assistance of trial counsel first enunciated in Strickland is

       applicable to appellate counsel ineffective assistance claims. Bieghler v. State,

       690 N.E.2d 188, 192 (Ind. 1997). There are three basic categories of alleged

       appellate ineffectiveness: (1) denying access to an appeal, (2) waiver of issues,

       and (3) failure to present issues well. Id. at 193-95. Here, the second category is

       implicated, as Martinez argues that appellate counsel failed to raise two obvious

       issues: Martinez’s absence at a critical stage of trial and the shortcomings of the

       discovery deposition.


[20]   The decision of what issue or issues to raise on appeal is one of the most

       important strategic decisions to be made by appellate counsel. Id. at 193.

       Ineffectiveness is rarely found when the issue is the failure to raise a claim on

       direct appeal. Id. The petitioner must show from the information available in

       the trial record or otherwise known to appellate counsel that counsel failed to




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-PC-547 | March 28, 2016   Page 12 of 14
       present a significant and obvious issue and that this failure cannot be explained

       by any reasonable strategy. Stevens v. State, 770 N.E.2d at 760.


[21]   Martinez suggests that appellate counsel should have claimed fundamental

       error occurred because Martinez was absent from the courtroom for a bathroom

       break at a critical stage of the trial. The brief discussion between counsel and

       the trial court regarding the possible proffer of a lesser-included offense

       instruction took place during the bathroom break. Then, as now, Martinez was

       lacking the evidentiary support for such an instruction. We do not agree with

       Martinez that his absence amounts to a denial of due process, much less

       fundamental error that should have been raised on appeal.3 See United States v.

       Gagnon, 470 U.S. 522, 526 (1985) (clarifying that “the presence of a defendant is

       a condition of due process to the extent that a fair and just hearing would be

       thwarted by his absence, and to that extent only.”)


[22]   Additionally, Martinez contends that his appellate counsel should have claimed

       that the admission of Sladovnik’s deposition deprived Martinez of his right of

       confrontation. As previously observed, Sladovnik was unavailable at trial, she

       had been deposed by defense counsel, and no omitted question was later

       identified. Martinez has not shown that appellate counsel omitted a significant

       and obvious issue.




       3
        Fundamental error is that which is a clear and blatant violation of basic and elementary principles that
       would deny a defendant fundamental due process if left uncorrected. Cain v. State, 955 N.E.2d 714, 721 (Ind.
       2011).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-PC-547 | March 28, 2016           Page 13 of 14
                                               Conclusion
[23]   Martinez was not denied the effective assistance of trial or appellate counsel.

       The post-conviction court properly denied the petition for post-conviction relief.


[24]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-PC-547 | March 28, 2016   Page 14 of 14
