ATTORNEY FOR APPELLANT
Donald E. Currie
Frankfort, Indiana
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Priscilla J. Fossum
Deputy Attorney General
Indianapolis, Indiana
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IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
SANTIAGO PEREZ, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 12S00-9910-CR-633
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE CLINTON CIRCUIT COURT
The Honorable Linley E. Pearson, Judge
Cause No. 12C01-9805-CF-181
__________________________________________________________________
ON DIRECT APPEAL
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May 22, 2001
BOEHM, Justice.
Santiago Perez was convicted of murder and sentenced to sixty years
imprisonment. He raises seven issues in this criminal direct appeal,
including trial counsel ineffectiveness. We agree that Perez’s Sixth
Amendment right to effective counsel was violated and remand for a new
trial.
Factual and Procedural Background
In the wee hours of the morning of May 9, 1998, Perez was at a bar in
Frankfort, Indiana, with Ignacio “Nacho” Soledad and several other friends.
An altercation broke out between Soledad and another patron, Derek Thomas.
After Soledad “sucker punched” Thomas, Soledad fled the bar. Thomas and
several friends pursued, tackled, and began to pummel Soledad approximately
300 feet from the bar. According to Perez, he was attempting to ward off
the attackers when he drew a knife. Perez and Thomas then squared off,
“one on one.” In this encounter, Thomas punched Perez in the head and
Perez stabbed Thomas four times. Three of these wounds were “very
superficial.” As the police arrived, the fight stopped and Thomas started
back to the bar, making no mention of his injuries. On his way to the bar,
Thomas told his friends, “We fucked them Mexicans up, didn’t we.” Shortly
thereafter, Thomas collapsed and was taken to the hospital where he died
from a knife wound to his aorta. Perez was found guilty of murder and
sentenced to sixty years imprisonment.
Ineffective Assistance of Counsel
A defendant claiming a violation of the right to effective assistance
of counsel must establish the two components set forth in Strickland v.
Washington, 466 U.S. 668, 687 (1984). Williams v. Taylor, 529 U.S. 362,
390-91 (2000). First, the defendant must show that counsel’s performance
was deficient. Strickland, 466 U.S. at 687. This requires a showing that
counsel’s representation fell below an objective standard of
reasonableness, id. at 688, and that the errors were so serious that they
resulted in a denial of the right to counsel guaranteed the defendant by
the Sixth Amendment, id. at 687. Second, the defendant must show that the
deficient performance prejudiced the defense. Id. To establish
prejudice, a defendant 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. at 694. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id.
Counsel is afforded considerable discretion in choosing strategy and
tactics, and we will accord those decisions deference. Id. at 689. A
strong presumption arises that counsel rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment. Id. at 690. The Strickland Court recognized that even the
finest, most experienced criminal defense attorneys may not agree on the
ideal strategy or the most effective way to represent a client. Id. at
689. Furthermore, isolated mistakes, poor strategy, inexperience, and
instances of bad judgment do not necessarily render representation
ineffective. Bieghler v. State, 690 N.E.2d 188, 199 (Ind. 1997); Ingram v.
State, 508 N.E.2d 805, 808 (Ind. 1987).
Perez alleges seven instances of ineffective assistance of counsel
that he claims combined to render the result of the trial unreliable.
Although many of his contentions do not rise to the level of ineffective
assistance of counsel, the failure to object to the jury instruction on
self-defense was severely deficient and resulted in prejudice to Perez.
The State’s Final Instruction No. 4 read:
The court instructs you that if any person voluntarily enters a
combat, and before entering such combat he provides himself with a
knife, or other deadly weapon, intending, if his adversary gets the
best of him, to use such deadly weapon on his adversary, and does use
it, and death results, it is murder. In other words, if the conflict
is voluntarily entered into by both parties, and one believes, for
instance, that it is and will be only a fist fight, and the other
provides himself with a weapon to use in case he is getting the worst
of it, and he does so use it, he cannot avail himself of the right of
self-defense, unless he has given up the fight, and in good faith has
attempted to withdraw from the conflict. (Emphasis added.)
This instruction was approved in Voght v. State, 145 Ind. 12, 17, 43 N.E.
1049, 1052 (1896), but more than twenty years ago, this Court stated that
“[t]his was no longer the accepted rule.” Loyd v. State, 272 Ind. 404,
408, 398 N.E.2d 1260, 1264-65 (1980). Even the State concedes that the
“instruction appears to be an incorrect statement of law.” Failure to
object to the incorrect instruction cannot be attributed to trial tactics.
Cf. Wilson v. State, 611 N.E.2d 160, 164-65 (Ind. Ct. App. 1993), trans.
denied. In effect, this instruction told the jury that intentional use of
a weapon is murder. This did away entirely with the requirement of a
“knowing or intentional killing.”
The second prong of Strickland requires a showing of prejudice. In
this case, we think it is clear that there is a reasonable probability
that, but for counsel’s error, the result of the proceeding would be
different. Perez was involved in a barroom brawl that went awry. The
given instruction clearly directed the jury to return a guilty verdict on
the murder charge if Perez voluntarily entered combat with a deadly weapon
and his use of the weapon resulted in death. Although this instruction
claims to relate only to the defense of self-defense, it precluded an
acquittal even if the jury found facts that did not support a murder
charge—i.e., that Perez had no intent to kill and did not use the knife in
a way that was likely to kill.
It is clear that Thomas participated in an attack on Perez’s friend
and was a willing participant in the fight, not an innocent bystander.
Perez and Thomas then became involved in a barroom brawl that resulted in
Thomas’ death. Thomas punched Perez several times in the face and suffered
four knife wounds. Three of these were “very superficial.” Apparently,
even Thomas assumed that all was well after the fight was over, because he
attempted to return to the bar before he collapsed. Perez testified that
he did not realize Thomas was dead until the next day. These facts present
the reasonable likelihood that the jury could find that Perez did not
knowingly or intentionally kill Thomas even if he is guilty of one of the
lesser included offenses. This is a reasonable probability of a different
result, and retrial is required.
Conclusion
The judgment of the trial court is reversed and this case is remanded
for retrial.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.