Zavala v. State

• Decision Date: 31 October 2000
• Docket Number: No. 29A02-0003-CR-190.,29A02-0003-CR-190.
• Citation: 739 N.E.2d 135
• Parties: Israel ZAVALA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

739 N.E.2d 135

Israel ZAVALA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 29A02-0003-CR-190.

Court of Appeals of Indiana.

October 31, 2000.

Transfer Denied January 17, 2001.

Rafael Ramirez, Indianapolis, Indiana, Attorney for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Adam M. Dulik, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

RILEY, Judge

STATEMENT OF THE CASE

Appellant-Defendant Israel Zavala (Zavala) appeals his convictions of dealing in cocaine, a Class A felony, Ind.Code § 35-48-4-1, and conspiracy to deal cocaine, a Class A felony, Ind.Code § 35-41-5-2. After the sentence and convictions, Zavala's appellate counsel filed a Motion to Correct Errors, requesting that the trial court vacate Zavala's sentence and convictions for the State's failure to comply with Article 36 of the Vienna Convention on Consular Relations. The trial court denied Zavala's motion.

We affirm.

ISSUES

Zavala raises two issues for our review, which we restate as follows:

1. Whether the State's failure to inform Zavala of his rights under Article 36 of the Vienna Convention on Consular Relations, and the State's failure to notify the Mexican Consulate of Zavala's arrest prejudiced Zavala's fundamental rights of due process, and therefore his convictions and sentence should be vacated.

2. Whether Zavala was denied effective assistance of trial counsel for his counsel's failure to notify him of his rights under Article 36 of the Vienna Convention on Consular Relations.

FACTS AND PROCEDURAL HISTORY

On October 21, 1998, police officers from the Hamilton County Drug Task Force initiated an investigation into reported criminal activity at 132 Dena Drive, Apartment D, Westfield, Indiana. The officers, together with a confidential informant, arranged for and made two purchases of cocaine from an individual at the residence. Shortly after the second controlled buy, the police officers executed a search warrant and entered the residence to search for drugs. Upon searching the residence, the police officers discovered Zavala in a bedroom. In the bedroom the police officers found approximately 17.53 grams of cocaine, 147.73 grams of marijuana, and a scale. The officers also found Zavala's Indiana driver's license, documents belonging to Zavala, and $300 of the $500 in marked bills that the confidential informant had used to make the second controlled buy. As the police arrested Zavala, they discovered evidence that established Zavala as a Mexican national.

On October 23, 1998, the State charged Zavala in a three count information as follows: Count I: dealing in cocaine, Ind. Code § 35-48-4-1, a Class A felony; Count II: conspiracy to deal cocaine, Ind. Code § 35-48-4-1 and Ind.Code § 35-41-5-2, a Class A felony; and Count III: dealing cocaine, Ind.Code § 35-48-4-1, a Class A felony. The jury could not reach a verdict on Count III and therefore the trial court declared a mistrial with respect to Count III. Zavala was found guilty of Count I and II and was sentenced to twenty (20) years in the Department of Correction on Count I, and twenty (20) years for Count II, the sentences to run concurrently.

During the sentencing phase of the trial, Zavala's trial counsel withdrew from the case, and Zavala's new counsel filed a Motion to Correct Errors. In the Motion to Correct Errors, Zavala raised the issue of the State's violation of Article 36 of the Vienna Convention on Consular Relations by failing to notify Zavala of his right to contact the Mexican Consulate to assist him in his case. Until Zavala filed his Motion to Correct Errors, the Record was totally barren of any theory regarding Zavala's consular notification right. In his Motion to Correct Errors, Zavala requested that the trial vacate his convictions and sentence, asserting that the State's failure to grant him his right under the Vienna Convention amounted to fundamental error. Zavala attached to his Motion to Correct Errors an Affidavit of the Mexican Consul as well as an Affidavit of his former trial counsel. On February 3, 2000, the trial court denied Zavala's motion. Zavala now appeals.

DISCUSSION AND DECISION

I. Article 36 of Vienna Convention on Consular Relations

Zavala argues for the first time on appeal that his sentence and convictions should be vacated due to an alleged violation of the Vienna Convention. Zavala asserts that, as a Mexican national, his rights were violated because he was not advised of his right to contact the Mexican consulate for assistance following his arrest pursuant to article 36 of the Vienna Convention on Consular Relations. Vienna Convention on Consular Relations, April 24, 1963, art. 36, 21 U.S.T. 77, 100, 596 U.N.T.S. 261.

As Zavala failed to raise this issue during trial, he attempts to escape waiver of the issue by urging us to review his contention under the fundamental error doctrine. A party may escape waiver of an issue, based upon a failure to object, if the claimed error is fundamental in nature. Charlton v. State, 702 N.E.2d 1045, 1051 (Ind.1998), reh'g denied. "Fundamental error is a substantial blatant violation of basic principles rendering the trial unfair to the defendant and, thereby depriving the defendant of fundamental due process." Id. In order to constitute fundamental error, the error must prejudice the rights of a defendant to such an extent that it makes a fair trial impossible. Wiggins v. State, 727 N.E.2d 1, 10 (Ind.Ct. App.2000), trans. denied. However, a party may not raise an issue for the first time in a motion to correct errors or on appeal. Evans v. Tuttle by Tuttle, 645 N.E.2d 1119, 1121 (Ind.Ct.App.1995). Therefore, we must determine whether article 36 of the Vienna Convention on Consular Relations creates a fundamental right. Unfortunately, neither Indiana nor the Seventh Circuit has addressed this issue.

The Vienna Convention is a 79-article, multilateral treaty to which the United States and Mexico are signatories. It was negotiated in 1963 and ratified by the United States in 1969, thereby becoming the supreme law of the United States. See U.S. Const. Art. VI, cl. 2. Its provisions cover a number of issues that require consular intervention or notification, including the death of a foreign national, the necessity of appointing a guardian or a trustee for a foreign national who is also a minor, the crash of a foreign airplane or the wreck of a foreign boat, and the arrest or detention of a consular officer. See United States v. Lombera-Camorlinga, 206 F.3d 882, 884 (9th Cir.2000). Article 36 deals with what a member state must do when a foreign national is arrested. It provides in relevant part:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

* * * * *

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.

Vienna Convention, art. 36(b), 21 U.S.T. 77, 100-01, 596 U.N.T.S. 261 (April 24, 1963).

The parties concede that Zavala was not informed at any time following his arrest of his right to request assistance from the Mexican consular post. In his Motion to Correct Errors, Zavala argued that:

The State of Indiana knew that this defendant [Zavala] was a foreign national since the time of his arrest, yet it failed to notify the defendant of his right to contact his own government as is required by Article 36 of the Vienna Convention on Consular Relations. Moreover, neither did the State of Indiana notify the United Mexican States that it had arrested its citizen. As a consequence of the State's failure, it thus denied said defendant due process rights to communicate with the consular officers of his country . . . [and therefore] the most reasonable remedy at law would be to vacate the present conviction.

(R. 312, 314). The trial court denied the motion and Zavala's convictions and sentence were upheld.

We agree that a treaty is a law of the United States to be given the same force and effect as any other law. Further, in order for a defendant to raise a violation of a treaty, he must have standing. Therefore, the first issue we must address is whether the Vienna Convention conveys rights to individuals, providing them standing to contest violations of the treaty in a criminal proceeding. We find it does.

Generally, individuals do not have standing to bring suit based on an international treaty when sovereign nations are not involved in the dispute. United States v. Esparza-Ponce, 7 F.Supp.2d 1084, 1095 (S.D.Cal.1998), aff'd, 193 F.3d 1133 (9th Cir.1999), cert. denied. However, a private action can arise under a treaty when the treaty expressly or by implication confers rights on individuals. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 442, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). Thus, the issue becomes whether the Vienna Convention explicitly or implicitly confers on individuals a private enforceable right to contest violations of the treaty.

The language of the Vienna Convention states that law enforcement officials shall inform a foreign national who has been arrested imprisoned or taken into custody of his "right" to contact the consul. However, the introductory sentence of article 36 indicates that this provision is not designed to benefit individuals, but rather seeks to "facilitat[e] the exercise of consular functions. . . ." Convention art. 36. Moreover, the preamble to the Vienna Convention on Consular...