MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Oct 25 2016, 6:25 am
regarded as precedent or cited before any
court except for the purpose of establishing                              CLERK
                                                                      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
Russell W. Brown, Jr.                                    Gregory F. Zoeller
Merrillville, Indiana                                    Attorney General of Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ralph Martinez,                                          October 25, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1602-CR-292
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Diane Ross
Appellee-Plaintiff.                                      Boswell, Judge
                                                         Trial Court Cause No.
                                                         45G03-1304-MR-4



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016        Page 1 of 16
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Ralph Martinez (Martinez), appeals his conviction for

      murder, a felony, Ind. Code § 35-42-1-1, and robbery, a Class C felony, I.C. §

      35-42-5-1, following a jury trial.


[2]   We affirm.


                                                    ISSUES

[3]   Martinez raises three issues on appeal, which we restate as:


          (1) Whether the trial court abused its discretion by admitting Martinez’ cell

              phone, which was seized during a search of the residence;

          (2) Whether the trial court abused its discretion by admitting surveillance

              video pursuant to the silent witness theory; and

          (3) Whether the trial court acted within its discretion by issuing a blanket

              order that no re-cross examination would be allowed.


                           FACTS AND PROCEDURAL HISTORY

[4]   In 2013, Mary Austgen (Austgen) and her adult children owned and operated

      several businesses in Griffith, Indiana, with the main office located at 801 East

      Main Street in Griffith. Austgen herself operated several rental storage units in

      Griffith, Highland, and Lowell. In 2009, Austgen had rented a storage unit in

      Griffith to Martinez. However, by 2012, Martinez had become delinquent in

      his rent payments and Austgen sent him two eviction notices, respectively in

      February 2012 and in September 2012.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016   Page 2 of 16
[5]   On March 28, 2013, Martinez received a ride from his friend, Antonio

      Rodriguez (Rodriguez), from his residence in Alsip, Illinois, to Austgen’s

      business in Griffith. Surveillance video taken inside the business shows that

      Martinez entered the building at approximately 2:45 p.m. that afternoon and

      walked up a short flight of stairs into the small reception area that included a

      public restroom. By 5:00 p.m. that day, Austgen was the last person in the

      building. Shortly after 5:00 p.m., Austgen prepared to leave. As she was

      leaving via the front stairwell, she was attacked from behind and pushed to the

      floor by Martinez. Martinez pointed a handgun at her head. After a short

      period of time during which he appeared to be talking to Austgen, Martinez

      helped Austgen up, picked up her purse and contents, and ordered her to move

      back up the stairs toward the offices. Inside, Martinez and Austgen walked into

      Austgen’s personal office. Approximately twenty minutes later, they exited the

      building via the front stairwell. Once outside, Austgen entered the driver’s seat

      of her GMC Yukon with Martinez entering the rear passenger’s seat behind

      her.


[6]   At 6:06 p.m., the Yukon entered the parking lot of the Majestic Star Casino in

      Gary, Indiana, and parked on the second level. About ten minutes later,

      Martinez exited the parking garage alone and on foot. He entered the casino

      and walked to the front valet area. Once there, Martinez called his friend, Jose

      Del Rio (Del Rio), asking for a ride back to his residence in Alsip. Del Rio

      picked Martinez up around 6:30 p.m.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016   Page 3 of 16
[7]   By 10:00 p.m. that night, Austgen’s family realized that Austgen was missing.

      They met at the main office in an attempt to locate her. Being unsuccessful, the

      family contacted the Griffith Police Department to file a missing person report

      and OnStar was called upon to locate Austgen’s Yukon. OnStar reported that

      the Yukon could be found at the Majestic Star Casino. While police officers

      and family members drove to the Casino, Michael Austgen (Michael),

      Austgen’s son, remained in the office to access and view the surveillance video.

      After locating the Yukon in the parking lot, the search party found Austgen

      dead in the passenger’s seat, having died from a single gunshot wound to the

      abdomen. Although she was still wearing her watch, necklace, and earrings,

      she was missing her pinkie rings—one of which was gold with diamonds and

      the other silver with diamonds.


[8]   Police officers took custody of the internal and external surveillance videos.

      After accessing the interior surveillance video, officers observed Martinez’ entry

      in the stairwell, his attack on Austgen, and the twenty-minute period inside

      Austgen’s office. The officers also noticed a glow from Martinez’ hand in the

      dark stairwell, which would be indicative of a cell phone. The officers created

      still photos from the surveillance video which they showed to Austgen Electric

      employee, Susan Johnson (Johnson). Although Johnson was unable to

      immediately identify Martinez, she quickly found his name after sorting

      through Austgen’s renter card system. Johnson notified Griffith Police

      detective James Sibley (Detective Sibley). Detective Sibley located Martinez’

      driver’s license and an address, but was unable to find him. However, the


      Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016   Page 4 of 16
      Detective obtained Martinez’ cell phone number from the person residing at the

      address on the driver’s license.


[9]   On April 23, 2013, the police, for a second time, released still photographs from

      the Austgen business surveillance video to the public. This time, they also

      included a photograph of Austgen and her two missing pinkie rings. Martinez

      and Catalina Noriega (Noriega) saw the photographs on the evening news.

      Martinez and Noriega were previously married and have three children

      together; in April 2013, they were living together in the residence in Alsip,

      Illinois. After Noriega stated that the person on the news looked like Martinez,

      Martinez denied the resemblance, replying that the person in the broadcast was

      “fat” and “bigger.” (Transcript p. 573). Hearing Austgen’s name, Noriega

      exclaimed, “Oh, my God. That’s that lady that you rent from.” (Tr. p. 575).

      Martinez confirmed this, and he very calmly responded, “Rich people get killed

      all the time.” (Tr. p. 575). After seeing Austgen’s rings displayed on the

      screen, Noriega recalled seeing the gold pinkie ring on her bedroom dresser a

      few weeks earlier. When Martinez had retired to bed, Noriega called her three

      adult daughters. Noriega’s three daughters confirmed that the person pictured

      in the Austgen building’s stairwell was their father. All four contacted the

      Griffith Police Department the following morning, identifying Martinez as the

      suspect in the news broadcast the previous evening. Noriega also confirmed

      that Martinez owned a small silver gun, which he usually kept in a bag in the

      closet.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016   Page 5 of 16
[10]   Detective Jacob Schoon (Detective Schoon) obtained a search warrant for

       Martinez’ cell phone records from US Cellular and Google, which indicated

       that Martinez had made calls to Rodriguez and Del Rio on March 28, 2013.

       Although Noriega consented to a search of her residence in writing, officers

       also obtained a search warrant for the residence, as well as Martinez’ car. The

       search warrant specifically provided for the seizure of jewelry, firearms,

       Martinez’ clothing and “any biological material contained therein,” and “any

       indicia thereof which have been used in the commission of or which constitutes

       evidence of the offense of First Degree Murder.” (Exh. Vol. 3, State’s Exh. 3,

       p. 3). During the execution of the warrant, officers seized three .45 caliber live

       rounds, Martinez’ cell phone that was sitting on a coffee table in the living

       room, one pair of jeans, and a pair of sunglasses.


[11]   A subsequent search warrant was obtained for the contents of Martinez’ cell

       phone. The location history derived from the cell phone showed that on March

       28, 2013, Martinez travelled from his residence in Alsip to Austgen’s business

       in Griffith and from there to the Majestic Star Casino in Gary and was back in

       Alsip by 7:30 p.m. Both Rodriguez and Del Rio were listed as contacts in

       Martinez’ cell phone. Cell phone tower location evidence corroborated

       Martinez’ route on March 28, 2013.


[12]   On April 25, 2013, the State filed an Information, charging Martinez with

       murder, felony murder, Class A felony robbery, and Class B felony criminal

       confinement. While he was incarcerated and awaiting trial, Martinez placed a

       video call to one of his daughters. In the call, Martinez affirmed that she had

       Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016   Page 6 of 16
       done the right thing and that he was the person on the surveillance video, “no

       question.” (State’s Exh. 7). By June of 2015, Noriega’s home in Alsip, Illinois,

       was under foreclosure proceedings. Noriega offered her sister the opportunity

       to remove any fixtures that she wanted from the residence. While removing the

       ceiling fan from the bedroom, Austgen’s two pinkie rings fell to the floor.

       Noriega identified the gold ring as the one she had noticed on her bedroom

       dresser two years earlier.


[13]   Prior to trial, Martinez moved to suppress the evidence derived from a search of

       his cell phone. After a hearing, the trial court denied the motion. The trial

       court conducted a jury trial beginning August 11, 2015, which spanned eight

       days. At the close of the evidence, the jury found Martinez guilty as charged.

       During the sentencing hearing on January 7, 2016, the trial court vacated the

       jury’s guilty verdict for felony murder and criminal confinement on double

       jeopardy grounds and reduced Martinez’ robbery conviction to a Class C

       felony. The trial court imposed a sixty-year sentence for murder and a

       consecutive seven-year term for the Class C felony robbery conviction.


[14]   Martinez now appeals. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION


                                            I. Martinez’ Cell Phone


[15]   Martinez now contends that the trial court abused its discretion by admitting

       his cell phone into evidence. Specifically, Martinez alleges that the search


       Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016   Page 7 of 16
       warrant obtained by law enforcement prior to searching Noriega’s residence did

       not specifically include the seizure of his cell phone. As such, he maintains that

       his cell phone was seized in violation of the Fourth Amendment to the United

       States Constitution and Article 1, Section 11 of the Indiana Constitution. 1


[16]   Rulings on the admissibility of evidence fall within the sound discretion of the

       trial court. Wise v. State, 26 N.E.3d 137, 140-41 (Ind. Ct. App. 2015), trans.

       denied. We review such rulings for an abuse of that discretion, which occurs

       when the trial court’s decision is clearly against the logic and effect of the facts

       and circumstances before it. Id.


[17]   The Fourth Amendment to the United States Constitution protects “[t]he right

       of the people to be secure in their persons, houses, papers, and effects, against

       unreasonable searches and seizures. . .” The Fourth Amendment generally

       prohibits warrantless searches. Edwards v. State, 762 N.E.2d 128, 132 (Ind. Ct.

       App. 2002). If a warrantless search is conducted, the burden is on the State to

       prove that, at the time of the search, an exception to the warrant requirement

       existed. Peel v. State, 868 N.E.2d 569, 575 (Ind. Ct. App. 2007). That is,

       searches conducted without a warrant are per se unreasonable, subject to a few

       well-delineated exceptions. Although Martinez focuses on the search warrant

       obtained by the officers to search the residence to support his claim that the cell




       1
         Even though Martinez alludes to a violation of his Indiana Constitutional rights, he makes no separate
       analysis pertaining thereto. Because he did not present any authority or independent argument supporting a
       separate standard under the state constitution, his claim is waived. Abel v. State, 773 N.E.2d 276, 278 n.1
       (Ind. 2002).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016          Page 8 of 16
       phone was not included in the list of items permitted to be seized pursuant to

       the warrant, 2 Martinez fails to question Noriega’s signed consent to search the

       residence.


[18]   “The Fourth Amendment recognizes a valid warrantless entry and search of the

       premises when police obtain the voluntary consent of an occupant who shares,

       or is reasonably believed to share, authority over the area in common with a co-

       occupant who later objects to the use of evidence so obtained. Gado v. State, 882

       N.E.2d 827, 832 (Ind. Ct. App. 2008) (citing Georgia v. Randolph, 547 U.S. 103,

       106, 126 S.Ct. 1515, 1518, 164 L.Ed.2d 208 (2006)), trans. denied. Authority to

       consent to a search can be either apparent or actual. Actual authority requires a

       sufficient relationship to or mutual use of the property by persons generally

       having joint access to or control of the property for most purposes. Halsema v.

       State, 823 N.E.2d 668, 677 (Ind. 2005). A consenting party with actual

       authority over property may permit the search in his or her own right. Lee v.

       State, 849 N.E.2d 602, 606 (Ind. 2006), cert. denied 549 U.S. 1211 (2007).


[19]   Noriega testified that she resided in the house in Alsip prior to Martinez

       moving in with her “roughly” two years before the murder took place. (Tr. p.

       566). She characterized Martinez’ living arrangement as a “roommate.”

       (Motion to Supp. Tr. p. 8). In her consent that she willingly signed, Noriega

       authorized police officers to “search [her] residence located at [Alsip, Illinois,]



       2
         Because we affirm based on consent, we do not need to address the State’s claim that the search warrant’s
       language was broad enough to encompass the seizure of the cell phone.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016           Page 9 of 16
       and search any contents found there in[.] I further authorize said Officers to

       remove from my residence, real property and/or motor vehicle, whatever

       documents or other items of property whatsoever, which they deem pertinent to

       their investigation[.]” (Exh. Vol. 3, State’s Exh. 2). During the motion to

       suppress hearing, Detective Sibley stated that from his review of the

       surveillance video of Austgen’s business, “there was a glow in one of

       [Martinez’] hands that appeared to me to be a cellular phone.” (Motion to

       Supp. Tr. pp. 28-29). Accordingly, as the cell phone was in plain view in the

       living room and Noriega, having actual authority over the residence, had given

       permission to seize all property that would be pertinent to the officers’

       investigation, the seizure of Martinez’ cell phone did not violate his Fourth

       Amendment rights.


                                                II. Silent Witness


[20]   Next, Martinez contends that the trial court abused its discretion when it

       admitted the surveillance video under the silent witness theory. He maintains

       that the State failed to establish the authenticity of the scene depicted and the

       accuracy of the video equipment as mandated by the foundational requirements

       under the silent witness theory.


[21]   As with Martinez’ cell phone argument, we review his challenge to the

       admission of the surveillance video under an abuse of discretion standard.

       Accordingly, an abuse of discretion occurs when the trial court’s decision is




       Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016   Page 10 of 16
       clearly against the logic and effect of the facts and circumstances before it.

       Wise, 26 N.E.3d at 140-41.


[22]   The silent witness theory, as first adopted by this court, permits the admission

       of photographs as substantive evidence, rather than merely as demonstrative

       evidence, so long as the photographic evidence is also relevant. Bergner v. State,

       397 N.E.2d 1012, 1014-15 (Ind. Ct. App. 1979). Addressing solely the question

       of foundation, the Bergner court hesitated to set forth “extensive, absolute

       foundation requirements,” and instead mandated a “strong showing of the

       photograph’s competency and authenticity.” Id. at 1017. Thus, the Bergner

       court warned against the problems of distortion of images and the possibility of

       their alteration in a manner that misrepresents the image taken. Where images

       were taken by automatic devices, the Bergner court stated, “there should be

       evidence as to how and when the camera was loaded, how frequently the

       camera was activated, when the photographs were taken, and the processing

       and chain of custody of the film after its removal from the camera. Id.


[23]   The silent witness theory has continued in use since its adoption by Indiana

       courts in 1979, and has since been extended to the use of video recordings. See,

       e.g., Mays, 907 N.E.2d 128, 131-32 (Ind. Ct. App. 2009), trans. denied. As

       applied to video recordings:


               [T]here must be a strong showing of authenticity and
               competency and . . . when automatic cameras are involved, there
               should be evidence as to how and when the camera was loaded,
               how frequently the camera was activated, when the photographs


       Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016   Page 11 of 16
               were taken, and the processing and changing of custody of the
               film after its removal from the camera.


       McHenry v. State, 820 N.E.2d 124, 128 (Ind. 2005) (citing Edwards v. State, 762

       N.E.2d 128, 136 (Ind. Ct. App. 2002), trans. denied). This standard is applied

       “where there is no one who can testify as to [the recording’s] accuracy and

       authenticity because the photograph must ‘speak for itself’ and because such a

       ‘silent witness’ cannot be cross-examined.” Edwards, 762 N.E.2d at 136.


[24]   The Indiana Supreme Court recently addressed the silent witness theory, and

       observed that its “foundational requirements . . . are vastly different [than] the

       foundational requirements for demonstrative evidence.” Knapp v. State, 9

       N.E.3d 1274, 1282 (Ind. 2014) (internal citations and quotation marks omitted).

       In cases involving the silent witness theory, a witness need not testify that the

       depicted image is an accurate representation of the scene on the day on which

       the image was taken, and “often could not so testify since he or she was not

       necessarily there to observe the scene on that day.” Id. Rather, the witness

       must provide testimony identifying the scene that appears in the image

       “sufficient to persuade the trial court . . . of their competency and authenticity

       to a relative certainty.” Id.


[25]   Testimony at trial established that the surveillance system at the Austgen

       buildings had been operational for “several years” and had been installed by

       Southlake Security. (Tr. p. 331). Michael, Austgen’s son, was in charge of the

       system’s maintenance and control, which consisted of “forty to fifty cameras”

       throughout the property, recording both interior and exterior images on four
       Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016   Page 12 of 16
       devices. The system was fully automatic and operated “on its own.” (Tr. p.

       334). Michael testified that they “didn’t usually mess with that too much” and

       reviewed the recordings “every week or two weeks.” (Tr. pp. 334, 332). He

       stated that on the day of the murder, the system was fully operational and was

       showing correct dates. However, he also clarified that “the actual time

       showing” on the recordings was “off.” (Tr. p. 334).


[26]   Testimony from Austgen’s children affirmed the authenticity of the still

       photographs taken directly from the interior surveillance video unit at the front

       entrance and identified the location shown in the photos. No evidence of

       tampering was submitted. Detective Sibley explained that after taking

       possession of the videotapes, only he and the city IT director had access to the

       recordings. The city IT director burned a copy directly from the tapes onto the

       police server. Although Michael had not been able to access the internal

       surveillance video from his desktop at the office, this does not tarnish the

       video’s authenticity. The city IT director elaborated that nothing was wrong

       with the video itself, only Michael’s desktop computer was too old to access the

       interior video recording. Based on the evidence presented by the State, we

       agree with the trial court that the foundational requirements for the silent

       witness theory were established and Martinez’ challenge to the admission of the

       surveillance videos fails.


                                          III. Re-Cross Examination




       Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016   Page 13 of 16
[27]   Lastly, Martinez asserts that the trial court abused its discretion when it denied

       him the opportunity to re-cross examine witnesses. Martinez argues that the

       trial court’s “categorical denial” to allow re-cross examination of witnesses

       violated his Constitutional rights. (Appellant’s Br. p. 14).


[28]   During the trial proceedings, the trial court informed Martinez that it doesn’t

       “give re-cross” because “it’s never-ending[.]” (Tr. p. 167). Martinez

       responded, “Alright” and did not object. (Tr. p. 167). Later, as part of its

       presentation of its case in chief, the State elicited testimony from Noriega. On

       cross-examination, Martinez attempted to introduce a new line of questioning

       about third parties’ access to Noriega’s residence. Specifically, Martinez

       referred to Noriega’s brother, Jose Noriega (Jose), who had passed away on

       April 11, 2014. He elicited testimony that Jose “had a key to [Noriega’s] house,

       so that he would come and go[,]” thereby alluding to the fact that Jose could

       have placed Austgen’s rings in the bedroom’s ceiling fan. (Tr. p. 610). On

       redirect, the State questioned Noriega about Jose’s health and established that

       Jose was critically ill in 2013, and “in his end-stage alcoholism. He was always

       very tremulous, and he couldn’t walk unless he had a walker, and definitely

       mentally he was not there.” (Tr. p. 619). Although he now claims not to have

       been allowed to re-cross Noriega on Jose’s illness, Martinez did not even

       request the trial court for an opportunity to re-cross but instead on appeal refers

       to the trial court’s general mandate of no re-cross to support his argument.


[29]   We find that Martinez waived his argument several times over. First, when the

       trial court notified Martinez that it would not allow re-cross examinations,

       Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016   Page 14 of 16
       Martinez did not object or otherwise challenge the trial court’s direction. See

       Garrett v, State, 737 N.E.2d 388, 391 (Ind. 2000). Moreover, with respect to

       Noriega’s testimony, Martinez never requested the trial court for a re-cross

       opportunity, let alone asked the trial court for permission to make an offer of

       proof. The purpose of an offer of proof is to convey the point of the witness’

       testimony and provide the trial court the opportunity to reconsider the

       evidentiary ruling. State v. Wilson, 836 N.E.2d 407, 409 (Ind. 2005). Equally

       important, it preserves the issue for review by the appellate court. Id. To

       accomplish these two purposes, an offer of proof must be sufficiently specific to

       allow the trial court to determine whether the evidence is admissible and to

       allow an appellate court to review the correctness of the trial court’s ruling and

       whether any error was prejudicial. Id. Accordingly, absent an offer of proof,

       Martinez waived the issue for our review.


[30]   Waiver notwithstanding, we acknowledge a trial court’s discretion in managing

       and controlling its proceedings. Indiana Rule of Evidence 611(a) explains that

       “[t]he court shall exercise reasonable control over the mode and order of

       examining witnesses and presenting evidence so as to: (1) make those

       procedures effective for determining the truth; (2) avoid wasting time; and (3)

       protect witnesses from harassment or undue embarrassment.” Ind. Evid. Rule

       611(a) recognizes that the process of examining witnesses, while conducted by

       the parties, is subject to the control of the trial court, “which has a wide

       discretion therein.” Sowders v. Murray, 280 N.E.2d 630, 635 (Ind. 1972).

       “Phases of the examination, such as the length and time that a witness shall be


       Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016   Page 15 of 16
       examined, and the manner and mode of [] examination, are under the control

       of, and within the discretion of, the trial court. Likewise, the scope, extent,

       method and manner of cross-examination must be under the control of the trial

       court and rest in its sound discretion.” Id. Here, the trial court notified the

       parties that it would not allow re-cross examination to prevent needless

       consumption of time. Moreover, we agree with the State’s observation that, in

       light of the trial court’s prohibition and because the line of questioning about

       Jose’s access to Noriega’s home was introduced by Martinez, Martinez could

       have called Noriega as his own witness to elicit the testimony he now deems

       missing. We conclude that the trial court did not abuse its discretion.


                                               CONCLUSION

[31]   Based on the foregoing, we hold that the trial court did not abuse its discretion

       by admitting Martinez’ cell phone which was seized during a search of the

       residence or by admitting surveillance video under the silent witness theory.

       Additionally, we conclude that the trial court acted within its discretion by

       prohibiting re-cross examination.


[32]   Affirmed.


[33]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016   Page 16 of 16
