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Perez v. State

Court: Indiana Supreme Court
Date filed: 2001-05-22
Citations: 748 N.E.2d 853
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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
__________________________________________________________________


                                   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

__________________________________________________________________

                                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.