State Of Louisiana VS Danis E. Caballero
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT K11111 CW N TIA11 STATE OF LOUISIANA VERSUS DANIS E CABALLERO rn i Judgment Rendered December 22 2010 APPEALED FROM THE TWENTY SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST TAMMANY STATE OF LOUISIANA DOCKET NUMBER 472 DIVISION r1 558 TLIE HONORABLE ALLISON H PENZATO JUDGE Walter P Reed Attorneys for District Attorney Covington Louisiana State of Louisiana and Kathryn W Landry Special Appeals Counsel Baton Rouge Louisiana Frank Sloan Attorney for DefendantAppellant Louisiana Appellate Project Danis E Caballero Mandeville Louisiana BEFORE WHIPPLE McDONALD AND McCLENDON JJ MCDONALD J The defendant Danis E Caballero was charged by grand jury indictment with aggravated rape a violation of La R 14 The defendant entered a plea S 42 of not guilty After a trial by jury the defendant was found guilty as charged The defendant was sentenced to life imprisonment at hard labor without the benefit of parole probation or suspension of sentence The defendant now appeals arguing in a sole assignment of error that the trial court should have declared a mistrial herein For the forthcoming reasons we affirm the conviction and sentence FACTS On November 5 2005 two female teenage associates of K the victim H took her to a trailer park and lured her to the bedroom of one of the trailers stating that someone had left a gift for her in the room Several men entered the room and raped the victim K unsuccessfully attempted to fight off the men Specifically H according to the victim each male perpetrator vaginally penetrated her with his penis K identified two of the perpetrators as the defendant who was dating one H of the female associates at the time and the co defendant K did not know the H names of the other individuals One of the unknown males hit the victim in the face and busted her lip warning her to be quiet as someone approached and began knocking on the bedroom door He dropped his cellular telephone before running out of the bedroom and K used it to contact her mother who in turn reported H the incident K was sixteen years of age at the time of the offense H Codefendant Dago Mencias was charged in the same indictment with aggravated rape tried with the defendant and found not guilty The sentencing minute entry does not include the parole restriction imposed by the court as reflected in the sentencing hearing transcript It is well settled that the transcript prevails over the minute entry where there is a discrepancy State v Lynch 441 So 732 734 La 1983 2d Moreover the statutory requirement that the defendant be sentenced without benefit of parole S 301 1 probation or suspension of sentence is self activating La R 15 State v Williams 2000 1725 p 10 La 11 28 800 So 790 799 01 2d z The victim is referenced herein only by her initials See La R 46 S 1844W N ASSIGNMENT OF ERROR In his sole assignment of error the defendant argues that the trial court erred by failing to declare a mistrial when a witness testified that the defendant chose not to be interviewed in jail after his arrest The defendant argues that the testimony consisted of a comment on his Fifth Amendment constitutional right to remain silent and resulted in a deprivation of his fundamental right to a fair trial The defendant alternatively argues in the event that this court determines that the defense counsel waived this issue by failing to object or move for a mistrial he received ineffective assistance of counsel The defendant contends the failure of the defense counsel to object or move for a mistrial on this ground was not strategic During the defense cross examination of State witness Sergeant Charlie s Craddock of the St Tammany Parish Sheriff Office the following colloquy took s place in connection with the contested statement Q Okay At what point in your investigation Sergeant did you actually interview Danis Caballero regarding the events of that night A At the jail when he was arrested Q Did you speak to him in Spanish A No sir Q How were you able to communicate with him A Very difficult I asked him if he could speak English he said a I explained what was going on gave him his rights He stated he did not want to speak so the conversation ended little Q Is that your report Sergeant A Yes sir it is That was the time that he was arrested Q So did you actually write the sentence that contained in this s report that says Caballero did agree to be interviewed but requested a translator 3 A Yes sir Q Did you ever return with a translator to interrogate Danis Caballero A No no sir 1 don believe so t Under La C art 771 where the prosecutor or a witness makes a P Cr reference to a defendant postarrest silence the trial court is required upon the s request of the defendant or the State to promptly admonish the jury In such cases where the court is satisfied that an admonition is not sufficient to assure the defendant a fair trial upon motion of the defendant the court may grant a mistrial State v 406 So 555 560 La 1981 Kersey 2d Herein no objection request for admonition or motion for mistrial was lodged as the witness gave the testimony elicited by the defense attorney preserve an issue for appellate review a party must state an To objection contemporaneously with the occurrence of the alleged error as well as the grounds P Cr for the objection La C art 841 See also La C Evid art 103A 1 The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem and to prevent the defendant from gambling on a favorable verdict then resorting to appeal on errors that might easily have been corrected by an objection Since the defendant did not lodge an objection he is precluded from raising the issue on appeal Accordingly the issue raised in this assignment of error is not properly preserved for appellate review See State v Tipton 95 2483 pp 78 La App 1st Cir 12 705 97 29 2d So 1142 11 4748 However as previously stated the defendant alternatively argues that his counsel was ineffective in not objecting or moving for a mistrial and thereby waiving the issue A defendant is entitled to effective assistance of counsel under the Sixth Amendment of the United States Constitution and Article 1 11 13 of the Louisiana Constitution An attorney owes his client a duty of loyalty a duty to avoid conflicts of interest Strickland v Washington 466 U 668 688 104 S S Ct 2052 2065 80 L 674 1984 Counsel also has a duty to conduct reasonable 2d Ed investigations or to make a reasonable decision that a particular investigation is unnecessary Strickland 466 U at 691 104 S at 2066 S Ct When a defendant seeks reversal of a conviction based on ineffective assistance of counsel he must establish two separate elements to succeed First the defendant must show that s counsel performance was deficient This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment Second the defendant must show that the deficient performance prejudiced the defense This requires showing that counsel s errors were so serious as to deprive the defendant of a fair trial a trial whose result is reliable See Strickland 466 U at 687 104 S at 2064 A failure to make S Ct the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim State v Robinson 471 So 1035 1038 39 La App 2d 1st Cir writ denied 476 So 350 La 1985 2d When a claian of ineffective assistance of counsel is raised on appeal the issue is generally referred to post conviction proceedings in which both sides can introduce evidence and the validity of the claim can be properly determined State v Wille 559 So 1321 1339 La 1990 However where the record discloses 2d evidence needed to decide the issue of ineffective assistance of counsel and that issue was raised by assignment of error on appeal the issue may be addressed in the interest ofjudicial economy State v Bourgeois 451 So 172 174 La App 2d 1st Cir writ denied 457 So 18 La 1984 Under our adversary system once 2d a defendant has the assistance of counsel the vast array of trial decisions strategic 4 The defendant would have to satisfy the requirements of La C art 924 e seq in order to P Cr receive such a hearing 5 and tactical which must be made before and during trial rest with an accused and his attorney The fact that a particular strategy is unsuccessful does not establish ineffective assistance of counsel State v Folse 623 So 59 71 La App 1st 2d Cir 1993 Decisions relating to investigation preparation and strategy cannot possibly be reviewed on appeal Only in an evidentiary hearing in the district court where the defendant could present evidence beyond that contained in this record could such allegations be sufficiently considered State v Eames 97 0767 p 8 La App 1 st Cir 5 714 So 210 216 writ denied 98 1640 98 1 2d La 1 726 So 922 98 6 2d 1n Doyle v Ohio 426 U 610 619 96 S 2240 2245 49 L 91 S Ct 2d Ed 1976 the United States Supreme Court held that the use for impeachment purposes of the defendant silence at the time of arrest and after receiving the s Miranda warnings Amendment violates the Due Process Clause of the Fourteenth See also Portuondo v Agard 529 U 61 7475 120 S 1119 S Ct 1128 146 L 47 2000 However not every mention of the defendant post 2d Ed s arrest silence is prohibited by Doyle As specified by the Louisiana Supreme Court in State v George 95 0110 p 9 La 10 661 So 975 980 95 16 2d quoting Doyle 426 U at 619 96 S at 2245 Doyle condemns only the use S Ct for impeachment purposes of the defendant silence at the time of arrest and s after receiving Miranda warnings A brief reference to post Miranda silence does not mandate a mistrial or reversal where the trial as a whole was fairly conducted the proof of guilt is strong and the State made no use of the silence for impeachment See State v Smith 336 So 867 868 70 La 1976 2d See also State v Stelly 93 1 p 7 La App l st Cir 4 635 So 725 729 writ 090 94 8 2d denied 94 121 La 9 642 So 1309 1 94 23 2d Herein the testimony at issue was elicited by the defense Specifically the s defendant trial counsel elicited testimony regarding the defendant willingness to s 6 cooperate and participate in an interview with an interpreter Seemingly the decision to elicit the testimony at issue falls within the ambit of trial strategy and would not be subject to review on appeal At any rate the defense counsel did not pursue this line of questioning for the purpose of calling the jury attention to the s s defendant post arrest silence or having the jury make an inappropriate inference See Kersey 406 So at 559 2d The defense counsel ultimately elicited the s Sergeant admission that he did not pursue an interview of the defendant with an interpreter Moreover the defendant did not testify at the trial and thus the statement in question certainly was not used for impeachment purposes Thus the defendant has failed to show that his counsel performance was deficient or that he s was prejudiced The sole assignment of error lacks merit CONVICTION AND SENTENCE AFFIRMED 7
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