Molina v. State

621 N.E.2d 1137, 1993 WL 380751
CourtIndiana Court of Appeals
DecidedSeptember 30, 1993
DocketNo. 17A03-9209-CR-00274
StatusPublished
Cited by1 cases

This text of 621 N.E.2d 1137 (Molina v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Molina v. State, 621 N.E.2d 1137, 1993 WL 380751 (Ind. Ct. App. 1993).

Opinion

STATON, Judge.

Ignacio Molina appeals his convictions of conspiracy to commit murder, a felony,1 and conspiracy to commit arson, a class C felony.2 He presents seven issues for our review:

I. Whether the trial court erroneously denied Molina's request for an interpreter.
II. Whether the testimony of a witness for the State was improperly buttressed.
III. Whether the trial court erroneously admitted into evidence photographs depicting damage caused by explosives.
IV. Whether the trial court erroncously denied Molina's motion for a mistrial after an outburst by the victim.
V. Whether the trial court erroncously admitted hearsay statements made by Molina.
VI. Whether the trial court improperly instructed the jury on the defense of abandonment.
VII. Whether there is sufficient evidence having probative value to support Molina's conviction of conspiracy to commit murder.
We affirm.

The evidence most favorable to the verdicts discloses the following events. In conversations with his co-workers, Molina openly spoke of his dislike for his sister-in-law, Colleen Molina (hereinafter "Colleen"). Molina apparently blamed Colleen for the loss of his inheritance and the breakup of his marriage. On one occasion, Molina asked co-worker Tim Eddingfield, a former military munitions expert, about "blowing something up." Record, p. 1338-89. A few days later, Molina inquired of Edding-field: "What would you use to blow somebody up?" and indicated that he wanted to "take somebody out." Record, p. 1342.

Subsequently, Molina asked Eddingfield whether he knew a "hit man." Molina claimed that he would pay $5,000.00 for a "hit." Eddingfield contacted the Bureau of Alcohol, Tobacco and Firearms; Agent John Massey contacted Molina posing as a "hit man" who was acquainted with Ed-dingfield.

Molina and Massey arranged a meeting at which Molina drove Massey past Colleen's residence. The pair also engaged in multiple telephone conversations, which were tape recorded. Molina disclosed his plan that Massey would burn one of Molina's buildings to permit the collection of insurance funds. From the insurance funds, Molina would pay Massey to kill Colleen. Molina provided Massey with a photograph of Colleen; he also provided information about Colleen's workplace, work schedule and vehicle.

Molina was convicted of conspiracy to commit murder and conspiracy to commit arson.

L.

Request for Interpreter

At a pre-trial competency hearing, Molina (a native of Mexico) requested the appointment of a Spanish speaking interpreter. Molina challenges the denial of this request.

An indigent defendant who cannot speak or understand English has a right to have his proceedings simultaneously translated to permit his effective participation. Martinez Chavez v. State (1989), Ind., 534 N.E.2d 731, 736, reh. denied (citing United [1140]*1140States ex rel. Negron v. State of New York (2d Cir.1970), 484 F.2d 386). An interpreter enables a non-English speaking defendant to understand the trial, provides a means of communication between the defendant and his attorney, and translates the defendant's testimony if he testifies. Id. at 737.

Here, however, the court was not confronted with a request for an interpreter made by a non-English speaking defendant. Molina demonstrated his ability to speak and comprehend English at the initial hearing and pre-trial hearing. Speak ing in English, Molina indicated that he understood the charges against him, the advisement of his rights, and the possible penalties. During testimony as to his financial condition, Molina displayed an ability to understand concepts such as "retirement plan," "mortgage" and "equity."

At the pre-trial competency hearing, Molina indicated that he had lived in the United States thirty-three years. He further indicated that he had been employed at County Line Cheese seventeen years and had received no on-thejob instruction in Spanish. He also owned and managed various rental properties in Garrett, Indiana. In sum, Molina's testimony disclosed that he was able to live and work in an English-speaking environment without interpretive assistance.

Moreover, Molina has not alleged that there were portions of the trial not understood by him or that he was unable to communicate with and assist his attorney, resulting in prejudice to him. See Valle v. State (1990), Ind., 550 N.E.2d 746, reh. denied.

IL.

Bolstering of Witness Testimony

Next, Molina contends that the State was improperly permitted to bolster the testimony of Agent Massey because Massey read verbatim from a transcript of his and Molina's recorded conversations before the tapes were admitted into evidence: Molina argues that the jury was subjected to "endless repetition" of the same evidence in contravention of Modesitt v. State (1991), Ind., 578 N.E.2d 649.

Our review of the record discloses that Massey merely used transcripts of the recorded conversations to refresh his memory. He did not read verbatim from the transcripts; rather, he responded to the direct examination questions propounded to him in reliance upon his own (refreshed) recollection. Record, pp. 1512-15. Massey's testimony was not improperly bolstered, inasmuch as use of materials to refresh a witness' recollection is permissible where the memorandum is not substituted for the memory of the witness. Wilson v. State (1987), Ind., 511 N.E.2d 1014, 1018.

Moreover, we conclude that the Modesitt decision is distinguishable from the cireum-stances of Massey's testimony. Modesitt involved the "drum-beat repetition" of witnesses relating what each witness had been told by a child molestation victim. These witnesses improperly bolstered the testimony of another witness, resulting in prejudice to the defendant. Here, Massey testified to his first-hand knowledge of the conversations that transpired between himself and Molina. His testimony was not bolstered by that of other witnesses.

IIL.

Photographs of Explosives'® Damage

At trial, the State offered into evidence (over Molina's objection) photographs of a vehicle before and after C-4 plastic explosives were detonated underneath the vehicle. Molina argues that these photographs were not probative of any issue at trial because he did not specifically direct Massey to accomplish Colleen's demise by the use of explosives.

The admission of photographs into evidence is within the trial court's discretion and will not be disturbed absent an abuse of that discretion. Evans v. State (1990), Ind., 568 N.E.2d 1251, 1263, denied. An abuse of discretion will be found only where the tendency to inflame the jury clearly outweighs the relevance of [1141]*1141the photographs. Williams v. State (1990), Ind., 555 N.E.2d 133, 138.

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621 N.E.2d 1137, 1993 WL 380751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/molina-v-state-indctapp-1993.