Palacios v. State Of Ind.

Decision Date26 January 2010
Docket NumberNo. 29A02-0908-CR-750.,29A02-0908-CR-750.
Citation926 N.E.2d 1026
PartiesLuis David PALACIOS, Appellant-Defendant,v.STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Lawrence D. Newman, Newman & Newman, P.C., Noblesville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROWN, Judge.

Luis Palacios appeals his conviction for domestic battery as a class D felony.1 Palacios raises three issues, which we revise and restate as follows:

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

II. Whether the evidence is sufficient to sustain Palacios's conviction for domestic battery.

We affirm.

The relevant facts follow. On December 28, 2007, Palacios returned to his house in Noblesville, Indiana, visibly intoxicated. When he arrived home, Palacios's wife Martina Palacios was sitting on a lawn chair in the living room of the house near the front door; Palacios's one-year-old grandson C.P. was sleeping on a bed located in the living room; and Palacios's daughter Brenda and son Luis Palacios, Jr. were in their bedrooms in the house.

Palacios entered the house and was “yelling and stuff,” which woke C.P., who began to cry and scream. Transcript at 157. Martina picked up C.P. and sat near the doorway with C.P. in her lap. Palacios struck Martina in the head, knocked her glasses off, and broke them. Martina was screaming, and C.P. started screaming. Luis, Jr. came out of his bedroom because he thought there was a physical fight between Palacios and Martina. Palacios pushed Martina backwards while she was holding C.P. in her hands. Luis, Jr. grabbed Martina to keep her from falling to the floor. Palacios then started throwing some chairs out the door, including the chair that Martina had been sitting on. Palacios and Luis, Jr. got into an argument. Luis, Jr. told Palacios to “just to go to sleep,” and Palacios “kept saying to leave him alone.” Id. at 135.

Luis, Jr. called for Brenda, who was in her bedroom, to come “calm everybody down.” Id. at 139. Brenda entered the living room and, because Palacios was yelling and arguing with Luis, Jr., she asked Palacios to “step out of the house” to “cool off.” Id. After Palacios exited the house and went outside, Brenda took C.P. from Martina and took him to her bedroom. Brenda then went outside to see if Palacios had “calmed down.” Id. at 141. Brenda asked Palacios what had happened, and Palacios said that he and Luis, Jr. had started to argue. Brenda went “right back inside” the house, and Martina asked Brenda to call the police. Id. at 142. Brenda went to her room, retrieved her phone, went back to the kitchen, and called 911.

Noblesville Police Officer Joseph Paul Keith, Jr., and Sergeant David Thoma arrived at the house in response to Brenda's call. Brenda told Officer Keith that Palacios had hit Martina and had left on a blue bicycle. In addition, Brenda told Officer Keith that she heard Palacios “out in the yard yelling,” and that Palacios had yelled for “everybody to get out of the house, or he was going to kill them all.” Id. at 158. Brenda told Officer Keith that she observed Palacios and Luis, Jr. out in the yard “going back and forth verbally.” Id. Brenda also stated that she observed Palacios throw chairs out the door.

Because Martina did not speak very good English, Brenda translated Martina's statements to Officer Keith. Brenda, translating for Martina, told Officer Keith that Palacios had struck Martina in the head, that he had knocked her glasses off and broke them, and that “it still hurt a little bit.” Id. at 150, 157. Officer Keith checked Martina's head for injuries but was unable to see any redness. Martina also told Officer Keith, with Brenda translating, that Palacios had pushed her backwards while she had C.P. in her hands, and that Luis, Jr. grabbed her to keep her from falling to the floor. Martina also told Officer Keith through Brenda that Palacios started throwing chairs out the door. Finally, Martina told police, with Brenda again providing translation, that Palacios had yelled for everyone to exit the house or that he was “going to kill [ ] all [of them].” Id. at 151.

Sergeant Thoma searched the area looking for Palacios and found him in the backyard of a nearby house knocking on a window. Sergeant Thoma asked Palacios what he was doing back there, and Palacios stated that he “was trying to get the Mendoza boys out of bed” so that they could go beat up [Luis, Jr.].” Id. at 159. Palacios was placed under arrest. Palacios then stated that he “was having problems with his son” and that he was “real stressed out about it.” Id.

On January 22, 2008, the State ultimately charged Palacios with: (1) Count I, domestic battery against Martina as a class D felony based upon Palacios striking Martina causing pain in the presence of a child less than sixteen years old; (2) Count II, battery against Martina Palacios as a class B misdemeanor; and (3) Count III, domestic battery against Martina Palacios as a class D felony based upon Palacios pushing Martina. Prior to trial, the trial court granted the State's motion to dismiss Count III.

At the jury trial, Officer Keith testified regarding the statements made to him by Martina, which were translated to him by Brenda, and Palacios did not object. Following the presentation of evidence, Palacios's counsel moved for a directed verdict. Palacios's counsel argued that “the only direct evidence ... shows that the contact was accidental. And, so, [Martina] reiterated multiple times, on the record today, that ... the contact was accidental.” Id. at 188. The trial court denied Palacios's request for a directed verdict. The jury found Palacios guilty as charged of domestic battery as a class D felony and battery as a class B misdemeanor. Palacios's counsel moved for judgment notwithstanding the verdict, and the trial court denied the motion. The trial court vacated the class B misdemeanor. The trial court sentenced Palacios to three years to be executed in the Indiana Department of Correction for domestic battery as a class D felony.

I.

The first issue is whether Palacios was denied the effective assistance of trial counsel. To prevail on a claim of ineffective assistance of counsel, an appellant must demonstrate both that his counsel's performance was deficient and that the appellant was prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) reh'g denied ) reh'g denied, cert. denied, 534 U.S. 830, 122 S.Ct. 74, 151 L.Ed.2d 39 (2001). A counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind.2002). To meet the appropriate test for prejudice, the appellant 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.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Failure to satisfy either prong will cause the claim to fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006).

There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Stevens v. State, 770 N.E.2d 739, 746 (Ind.2002) reh'g denied, cert. denied, 540 U.S. 830, 124 S.Ct. 69, 157 L.Ed.2d 56 (2003). Counsel is afforded considerable discretion in choosing strategy and tactics, and these decisions are entitled to deferential review. Id. at 746-747. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Id. at 747. A defense counsel's poor trial strategy or bad tactics do not necessarily amount to ineffective assistance of counsel. Crain v. State, 736 N.E.2d 1223, 1239 (Ind.2000). An unsuccessful defense strategy does not always indicate that the strategy was a poor one, nor does it indicate ineffectiveness of counsel. Fugate v. State, 608 N.E.2d 1370, 1373 (Ind.1993).

Palacios argues that he was denied the effective assistance of his trial counsel because: (A) his trial counsel failed to object to hearsay evidence presented by the State; and (B) his trial counsel failed to request that the jury be instructed on the definitions of “knowingly” and “intentionally.” We will address each argument separately.

A. Trial Counsel's Decision Not to Object on Hearsay Grounds

Palacios argues that his trial counsel was ineffective based upon his failure to object to hearsay evidence presented by the State. Specifically, Palacios argues that Officer Keith's testimony regarding Martina's statements on the night of the incident constituted hearsay, that Palacios's trial counsel was deficient in failing to object to the hearsay, and that Palacios was prejudiced by his trial counsel's performance because the hearsay was the State's sole evidence in support of domestic battery as a class D felony. The State argues that Officer Keith's testimony was admissible “under several exceptions to the general prohibition on hearsay evidence,” including as a present sense impression, an excited utterance, and a statement of existing mental, emotional, or physical condition. Appellee's Brief at 4.

In order to prove ineffective assistance due to the failure to object, a defendant must prove that an objection would have been sustained and that he was prejudiced by the failure. Timberlake v. State, 690 N.E.2d 243, 259 (Ind.1997), reh'g denied, cert. denied, 525 U.S. 1073, 119 S.Ct. 808, 142 L.Ed.2d 668 (1999).

Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the...

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