Michael A. Johnson
Jeffrey A. Modisett
Carol A. Nemeth
William H. Ransom
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
Michael A. Johnson
Jeffrey A. Modisett
Carol A. Nemeth
Epifanio Alvarado was found guilty of murder and sentenced to sixty years in prison. On this direct appeal, Alvarado makes the following claims: (1) insufficiency of the evidence; (2) ineffective assistance of counsel; (3) violation of his Indiana and federal constitutional right to confront witnesses; (4) inadmissibility of incriminating remarks because of an ineffective waiver of Miranda rights; and (5) a manifestly unjust sentence. We hold against Alvarado on his first four claims. Because there were two conflicting versions of the sentencing statute for murder in force at the time of the killing, we remand for new sentencing pursuant to Smith v. State, 675 N.E.2d 693 (Ind. 1996).
Rodriguez had "disrespected" him by making fun of him for not wearing socks. Alvarado
admitted to the officer that he left the bar earlier in the evening, went home to get a gun,
returned to the bar, and shot Rodriguez. However, at trial Alvarado contended, contrary to
the eyewitness accounts, that when he returned to the bar, he was accosted by Rodriguez and
three others. He claimed that he shot Rodriguez in self-defense. In addition to the two
eyewitnesses and the incriminating remarks made to the police, the only fingerprints on the
gun were Alvarado's. DNA analysis showed that blood taken from the scene was consistent
with the victim's blood but not with Alvarado's. The jury convicted Alvarado of murder and
the court sentenced him to sixty years in prison. This appeal followed.
sufficiency claim consists of an attack on the credibility of witnesses whom presumably the
jury chose to believe. That is not enough. As to Alvarado's assertion that more witnesses
should have been called to testify, this does not address whether the evidence actually
presented to the jury was sufficient to convict. Rather it is more appropriately directed to
the ineffective assistance of counsel claim that we address below.
saw a man approach the victim, saw the victim "spin" around, witnessed a struggle, and
heard gunshots. From the content of Mendoza's statement, there is no basis for concluding
that counsel's decision not to call him as a witness evidenced a lapse in professional
Second, Alvarado raises counsel's failure to object to or move to strike a police officer's testimony that a search of Alvarado uncovered a "rock like substance" inside a sealed bag -- in addition to ammunition. Alvarado makes this claim even though, on cross examination, the officer clarified that since the search, he had learned that the "substance" was in fact an actual rock. In the light of this clarification Alvarado has made no colorable claim of prejudice for this testimony.
Third, Alvarado maintains that his trial counsel was ineffective for failing to present any witnesses to testify on his behalf at sentencing. Specifically, Alvarado says his estranged wife and his children should have been called. Sentencing began on April 12, 1996. After the State presented its witnesses, Alvarado's counsel obtained a continuance until April 22 to produce his witnesses. Although Alvarado's wife attended the trial, the two were estranged and his counsel stated that Alvarado had not heard from her since the trial. Alvarado's children lived with the wife. When sentencing resumed on April 22, Alvarado himself said that he had not had any contact with his family and requested another continuance that was denied. The record does not show whether or not counsel made personal efforts to find the family. Because Alvarado has made no showing how or whether their testimony might have changed the sentencing outcome, prejudice is not established and
counsel's assistance was not ineffective. Here at best the possible effect is speculative and
not a "reasonable probability" of a different result. Wooden v. State, 657 N.E.2d 109, 111-
12 (Ind. 1995).
Finally, Alvarado contends that the failure to present the defense of mental disease or defect was ineffective assistance of counsel. The decision to plead insanity involves a choice of the best defense to present on a defendant's behalf. One can always hypothesize that if a different defense were chosen, it might have been more successful. Stephens v. State, 541 N.E.2d 280, 282 (Ind. 1989). A decision to assert a defense of insanity may as a practical matter amount to a concession that the defendant committed the acts involved in the crime. As such, assertion of the defense is a strategic decision that, at least on this sparse record, cannot support a claim of inadequate assistance of counsel. At sentencing, counsel pointed out that Alvarado had some mental problems,See footnote 1 but conceded that he thought they did not rise to the level of a defense. This conclusion was certainly reasonable given that the evidence demonstrates preparation for the crime and that Alvarado knew what he was doing. See Stephens, 541 N.E.2d at 282 (defendant not denied ineffective assistance of counsel on basis that counsel did not raise insanity defense). Accordingly, we will not second guess counsel's decision (if it was counsel's) not to opt for the insanity defense and Alvarado's final ineffective assistance of counsel claim fails.
without sufficient Miranda warnings, an objection must be made at trial when the statements
are offered into evidence. Poulton v. State, 666 N.E.2d 390, 393 (Ind. 1996); United States
v. Udey, 748 F.2d 1231 (8th Cir. 1984); United States v. Caldwell, 954 F.2d 496, 500 (8th
Cir. 1992) (citing Udey). Alvarado did not object to the admissibility of the remarks, thus
his claim is waived. Nor is it clear that any objection would have been valid. The officer
testified that Alvarado repeatedly volunteered the information and denied that he questioned
Alvarado or took his statement. If so, the incriminating remarks were not made in response
to express questioning or its functional equivalent and so did not require the protection of
Miranda. Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 64 L. Ed. 2d 297
(1980). Because there was no objection, the trial court made no finding on this point. It is
precisely for that reason, among others, that an objection is required to avoid waiver of the
a presumptive sentence of forty or fifty years, it is not clear which sentencing statute the
court applied. Thus, we remand for new sentencing in accordance with P.L. 158-1994.
SHEPARD, C.J., and DICKSON, SULLIVAN, and SELBY, JJ., concur.
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