ATTORNEY FOR APPELLANT
Donald E. Currie
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Priscilla J. Fossum
Deputy Attorney General
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
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 Perezs 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, didnt
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 counsels performance was deficient. Strickland, 466
U.S. at 687. This requires a showing that counsels 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 counsels 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 States 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 counsels 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 chargei.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 Perezs 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.
The judgment of the trial court is reversed and this case is remanded
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.