Solis v. State, 45A03-1008-CR-419

• Decision Date: 12 October 2011
• Docket Number: No. 45A03-1008-CR-419,45A03-1008-CR-419
• Court: Indiana Appellate Court
• Parties: JULIUS A. SOLIS, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.

JULIUS A. SOLIS, Appellant-Defendant,

v.STATE OF INDIANA, Appellee-Plaintiff.

No. 45A03-1008-CR-419

COURT OF APPEALS OF INDIANA

October 12, 2011

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,

collateral estoppel, or the law of the

case.

ATTORNEY FOR APPELLANT:

MARK A. BATES

Office of the Lake County Public Defender

Crown Point, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

NICOLE M. SCHUSTER

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE LAKE SUPERIOR COURT

The Honorable Salvador Vasquez, Judge

Cause No. 45G01-0905-MR-3

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge Julius Solis appeals his conviction and sentence for voluntary manslaughter as a class A felony.¹ Solis raises several issues, which we revise and restate as follows:

I. Whether the trial court committed fundamental error when it did not sua sponte declare a mistrial;

II. Whether the court abused its discretion in admitting certain photographs;

III. Whether the court abused its discretion in excluding certain testimony;

IV. Whether the court abused its discretion when it declined to give Solis's proposed instruction on self-defense to the jury;

V. Whether the court abused its discretion in sentencing Solis; and

VI. Whether Solis's sentence is inappropriate.

We affirm.

The relevant facts follow. On May 3, 2009, Manuel Martinez, Jr. had a gathering with several of his family members and friends at his house in East Chicago, Indiana. Around 3:30 p.m., a group of people, which included among others Martinez, Martinez's son Alonzo Cavazos, his brother Tomas Zapata, his niece Christina Zapata, and his friend Rolando Leal, were congregated outside of Martinez's house. Martinez heard gunshots coming from an area between two houses and "hit the floor." Transcript at 71. Martinez saw two people run toward an alley, and he ran to the alley and observed Solis and his younger brother Elijah running away from the house. Martinez then ran back toward the front of his house and saw his son Cavazos on the ground. Leal and another man chasedafter Solis and Elijah and shot at them. Martinez ran back toward the alley and, as he was running, heard additional gunshots from the direction of the alley.

East Chicago Police Officer Alejandro Campos was on patrol in the area when he heard four to five gunshots. Officer Campos immediately started to drive toward the direction of the shots and, approximately twenty to thirty seconds later, heard two to three additional gunshots. Officer Campos observed Solis and Elijah enter a house where Melvin Tucker resided and where Solis and Elijah had visited to get some marijuana earlier in the day. Tucker approached Officer Campos, told him that two males had gone inside his house and that his children were inside. Officer Campos called for backup. At that point, Tucker's sons and a couple of their friends ran out of the house through the front door.

After backup arrived at the scene, Officer Campos and other police officers entered Tucker's house, discovered Solis and Elijah in a bedroom, placed them under arrest, and located two firearms with live rounds remaining in them hidden in the room. Eleven bullet casings recovered in the area were linked to the guns and another eight casings were determined to not have been fired from the guns. Martinez identified Solis and Elijah as the two people who "had done the shooting over at his house." Id. at 269. Cavazos had been struck by a bullet in the back of his neck and died as a result of the injury.

In a police statement, Solis stated that the discovered firearms were his guns. Solis further stated that he and Elijah saw the men in the yard, that one or two of them pulled guns out, and that he pulled out his guns because he knew they were going to tryto kill him. Solis stated that he shot first, that then the men ran after him shooting, and that if he had not shot first then he and Elijah would have been killed.

On May 5, 2009, the State charged Solis with murder. On September 1, 2009, the State filed an amended information which included additional counts for voluntary manslaughter as a class A felony and reckless homicide as a class C felony. Prior to trial, the parties filed motions in limine related to the exclusion of certain anticipated evidence at trial, and the parties resolved the issues by agreement. The State's evidence at trial included several autopsy photographs and the testimony of Martinez. Evidence was presented that Leal had been a suspect in the October 2008 murder of Solis's older brother. While on the stand, Martinez made an unsolicited statement suggesting that Solis or Elijah had previously shot at his house, and the trial court admonished the jury not to consider the statement. Solis desired to elicit certain testimony from Elijah regarding a previous encounter with Leal, and over Solis's objection the court limited Elijah's testimony. Solis proposed a jury instruction regarding self-defense which the trial court rejected. A jury found Solis guilty of voluntary manslaughter as a class A felony and reckless homicide as a class C felony and not guilty of murder. The trial court entered judgment on voluntary manslaughter as a class A felony only. The court found Solis's juvenile and adult criminal history, including his failures on probation, the fact that Solis was under court supervision at the time of the crime, and the fact that prior leniency had had no deterrent effect to be aggravating circumstances. The court found Solis's age, the fact that he had no prior felony convictions or significant period of incarceration, and that he had no history of violent behavior to be mitigatingcircumstances. The court also noted that the history of violence in the life of Solis and his family suggested that there was some provocation leading to Solis's possession of a weapon. The court found the mitigating factors to be equal to the aggravating factors and sentenced Solis to thirty years in the Department of Correction.

I.

The first issue is whether the court committed fundamental error in not declaring a mistrial. At trial, Martinez was asked "[a]t this point, what is everybody doing[?]" and Martinez stated: "Just more or less standing around talking and then I was trying to tell my son and them to come inside because I had seen Javier Solis ride by a couple times and his son had shot at my house before."² Transcript at 66. Solis's defense counsel objected on the basis of Ind. Evidence Rule 404(b) and the court's grant of a motion in limine, and the court stated that it could give an admonishment to disregard the statement. The court admonished the jury to disregard Martinez's comment.

Solis acknowledges that "[t]he trial court did admonish the jury to disregard the testimony and that the information was not solicited by the [S]tate." Appellant's Brief at 9. Solis argues "[y]et, due to the extremely prejudicial nature of Martinez's testimony, i.e., that Solis had previously shot at his house, this statement affected the jury's verdict" and that "[t]he trial court should have also declared a mistrial despite the failure of defense counsel to request the same." Id. Solis asserts that Martinez's comment informed the jury "about 'bad blood' between the families, that Solis had deliberately fired a gun at Martinez's house in the past, that Martinez feared he would do so again orworse" and that "this evidence had to have contributed to the jury finding that Solis committed manslaughter or, at the least, reckless homicide." Id. at 10. Solis contends that a mistrial should have been granted and that the failure of the trial court to do so was fundamental error. Solis asserts that admonishment to the jury "could not cure the prejudicial effect of Martinez's statement." Id. at 11.

The State argues that Solis's failure to request a mistrial results in waiver of the issue. The State asserts that the court instructed the jury to disregard Martinez's statement and thus that "the jury did not consider [Martinez's] statement." Appellee's Brief at 11. The State argues that "[u]ltimately, [Solis's] claim at trial was that he shot in self-defense, and the jury acquitted him of murder, finding that he acted under sudden heat and committed voluntary manslaughter," that Solis later presented evidence that he knew Leal was "involved in a 'run-in'" with Elijah and that Solis and Elijah knew that Leal was a suspect in the murder of their older brother, and that "[i]n light of these facts and the fact that the jury was immediately instructed that [Martinez's] unsolicited statement was to be disregarded, there is no fundamental error here." Id. at 12.

Initially, we note that Solis concedes that he waived review of this issue by failing to request a mistrial. See Strain v. State, 560 N.E.2d 1272, 1274 (Ind. Ct. App. 1990) (finding waiver where the defendant failed to object to challenged testimony and moved for mistrial only after a lengthy cross-examination of the witness), trans. denied. To the extent that Solis claims fundamental error, we note that the Indiana Supreme Court has held: "To qualify as fundamental error, an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. To be fundamental error, an error mustconstitute a blatant violation of basic principles, the harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process." Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002) (internal quotation marks and citations omitted).

Following Martinez's statement that Solis or Elijah had previously shot at his house, Solis's defense counsel objected, and the trial court admonished the jury and stated:

I'm informing you, jury, that the last statement by this witness really has no bearing on this case. It was unsolicited by

...