 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                 MEMORANDUM DECISION - NOT FOR PUBLICATION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
