MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 25 2016, 6:25 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Russell W. Brown, Jr. Gregory F. Zoeller Merrillville, Indiana Attorney General of Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ralph Martinez, October 25, 2016 Appellant-Defendant, Court of Appeals Case No. 45A03-1602-CR-292 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Diane Ross Appellee-Plaintiff. Boswell, Judge Trial Court Cause No. 45G03-1304-MR-4
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016 Page 1 of 16 STATEMENT OF THE CASE
[1] Appellant-Defendant, Ralph Martinez (Martinez), appeals his conviction for
murder, a felony, Ind. Code § 35-42-1-1, and robbery, a Class C felony, I.C. §
35-42-5-1, following a jury trial.
[2] We affirm.
ISSUES
[3] Martinez raises three issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion by admitting Martinez’ cell
phone, which was seized during a search of the residence;
(2) Whether the trial court abused its discretion by admitting surveillance
video pursuant to the silent witness theory; and
(3) Whether the trial court acted within its discretion by issuing a blanket
order that no re-cross examination would be allowed.
FACTS AND PROCEDURAL HISTORY
[4] In 2013, Mary Austgen (Austgen) and her adult children owned and operated
several businesses in Griffith, Indiana, with the main office located at 801 East
Main Street in Griffith. Austgen herself operated several rental storage units in
Griffith, Highland, and Lowell. In 2009, Austgen had rented a storage unit in
Griffith to Martinez. However, by 2012, Martinez had become delinquent in
his rent payments and Austgen sent him two eviction notices, respectively in
February 2012 and in September 2012.
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016 Page 2 of 16 [5] On March 28, 2013, Martinez received a ride from his friend, Antonio
Rodriguez (Rodriguez), from his residence in Alsip, Illinois, to Austgen’s
business in Griffith. Surveillance video taken inside the business shows that
Martinez entered the building at approximately 2:45 p.m. that afternoon and
walked up a short flight of stairs into the small reception area that included a
public restroom. By 5:00 p.m. that day, Austgen was the last person in the
building. Shortly after 5:00 p.m., Austgen prepared to leave. As she was
leaving via the front stairwell, she was attacked from behind and pushed to the
floor by Martinez. Martinez pointed a handgun at her head. After a short
period of time during which he appeared to be talking to Austgen, Martinez
helped Austgen up, picked up her purse and contents, and ordered her to move
back up the stairs toward the offices. Inside, Martinez and Austgen walked into
Austgen’s personal office. Approximately twenty minutes later, they exited the
building via the front stairwell. Once outside, Austgen entered the driver’s seat
of her GMC Yukon with Martinez entering the rear passenger’s seat behind
her.
[6] At 6:06 p.m., the Yukon entered the parking lot of the Majestic Star Casino in
Gary, Indiana, and parked on the second level. About ten minutes later,
Martinez exited the parking garage alone and on foot. He entered the casino
and walked to the front valet area. Once there, Martinez called his friend, Jose
Del Rio (Del Rio), asking for a ride back to his residence in Alsip. Del Rio
picked Martinez up around 6:30 p.m.
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016 Page 3 of 16 [7] By 10:00 p.m. that night, Austgen’s family realized that Austgen was missing.
They met at the main office in an attempt to locate her. Being unsuccessful, the
family contacted the Griffith Police Department to file a missing person report
and OnStar was called upon to locate Austgen’s Yukon. OnStar reported that
the Yukon could be found at the Majestic Star Casino. While police officers
and family members drove to the Casino, Michael Austgen (Michael),
Austgen’s son, remained in the office to access and view the surveillance video.
After locating the Yukon in the parking lot, the search party found Austgen
dead in the passenger’s seat, having died from a single gunshot wound to the
abdomen. Although she was still wearing her watch, necklace, and earrings,
she was missing her pinkie rings—one of which was gold with diamonds and
the other silver with diamonds.
[8] Police officers took custody of the internal and external surveillance videos.
After accessing the interior surveillance video, officers observed Martinez’ entry
in the stairwell, his attack on Austgen, and the twenty-minute period inside
Austgen’s office. The officers also noticed a glow from Martinez’ hand in the
dark stairwell, which would be indicative of a cell phone. The officers created
still photos from the surveillance video which they showed to Austgen Electric
employee, Susan Johnson (Johnson). Although Johnson was unable to
immediately identify Martinez, she quickly found his name after sorting
through Austgen’s renter card system. Johnson notified Griffith Police
detective James Sibley (Detective Sibley). Detective Sibley located Martinez’
driver’s license and an address, but was unable to find him. However, the
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016 Page 4 of 16 Detective obtained Martinez’ cell phone number from the person residing at the
address on the driver’s license.
[9] On April 23, 2013, the police, for a second time, released still photographs from
the Austgen business surveillance video to the public. This time, they also
included a photograph of Austgen and her two missing pinkie rings. Martinez
and Catalina Noriega (Noriega) saw the photographs on the evening news.
Martinez and Noriega were previously married and have three children
together; in April 2013, they were living together in the residence in Alsip,
Illinois. After Noriega stated that the person on the news looked like Martinez,
Martinez denied the resemblance, replying that the person in the broadcast was
“fat” and “bigger.” (Transcript p. 573). Hearing Austgen’s name, Noriega
exclaimed, “Oh, my God. That’s that lady that you rent from.” (Tr. p. 575).
Martinez confirmed this, and he very calmly responded, “Rich people get killed
all the time.” (Tr. p. 575). After seeing Austgen’s rings displayed on the
screen, Noriega recalled seeing the gold pinkie ring on her bedroom dresser a
few weeks earlier. When Martinez had retired to bed, Noriega called her three
adult daughters. Noriega’s three daughters confirmed that the person pictured
in the Austgen building’s stairwell was their father. All four contacted the
Griffith Police Department the following morning, identifying Martinez as the
suspect in the news broadcast the previous evening. Noriega also confirmed
that Martinez owned a small silver gun, which he usually kept in a bag in the
closet.
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016 Page 5 of 16 [10] Detective Jacob Schoon (Detective Schoon) obtained a search warrant for
Martinez’ cell phone records from US Cellular and Google, which indicated
that Martinez had made calls to Rodriguez and Del Rio on March 28, 2013.
Although Noriega consented to a search of her residence in writing, officers
also obtained a search warrant for the residence, as well as Martinez’ car. The
search warrant specifically provided for the seizure of jewelry, firearms,
Martinez’ clothing and “any biological material contained therein,” and “any
indicia thereof which have been used in the commission of or which constitutes
evidence of the offense of First Degree Murder.” (Exh. Vol. 3, State’s Exh. 3,
p. 3). During the execution of the warrant, officers seized three .45 caliber live
rounds, Martinez’ cell phone that was sitting on a coffee table in the living
room, one pair of jeans, and a pair of sunglasses.
[11] A subsequent search warrant was obtained for the contents of Martinez’ cell
phone. The location history derived from the cell phone showed that on March
28, 2013, Martinez travelled from his residence in Alsip to Austgen’s business
in Griffith and from there to the Majestic Star Casino in Gary and was back in
Alsip by 7:30 p.m. Both Rodriguez and Del Rio were listed as contacts in
Martinez’ cell phone. Cell phone tower location evidence corroborated
Martinez’ route on March 28, 2013.
[12] On April 25, 2013, the State filed an Information, charging Martinez with
murder, felony murder, Class A felony robbery, and Class B felony criminal
confinement. While he was incarcerated and awaiting trial, Martinez placed a
video call to one of his daughters. In the call, Martinez affirmed that she had
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016 Page 6 of 16 done the right thing and that he was the person on the surveillance video, “no
question.” (State’s Exh. 7). By June of 2015, Noriega’s home in Alsip, Illinois,
was under foreclosure proceedings. Noriega offered her sister the opportunity
to remove any fixtures that she wanted from the residence. While removing the
ceiling fan from the bedroom, Austgen’s two pinkie rings fell to the floor.
Noriega identified the gold ring as the one she had noticed on her bedroom
dresser two years earlier.
[13] Prior to trial, Martinez moved to suppress the evidence derived from a search of
his cell phone. After a hearing, the trial court denied the motion. The trial
court conducted a jury trial beginning August 11, 2015, which spanned eight
days. At the close of the evidence, the jury found Martinez guilty as charged.
During the sentencing hearing on January 7, 2016, the trial court vacated the
jury’s guilty verdict for felony murder and criminal confinement on double
jeopardy grounds and reduced Martinez’ robbery conviction to a Class C
felony. The trial court imposed a sixty-year sentence for murder and a
consecutive seven-year term for the Class C felony robbery conviction.
[14] Martinez now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Martinez’ Cell Phone
[15] Martinez now contends that the trial court abused its discretion by admitting
his cell phone into evidence. Specifically, Martinez alleges that the search
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016 Page 7 of 16 warrant obtained by law enforcement prior to searching Noriega’s residence did
not specifically include the seizure of his cell phone. As such, he maintains that
his cell phone was seized in violation of the Fourth Amendment to the United
States Constitution and Article 1, Section 11 of the Indiana Constitution. 1
[16] Rulings on the admissibility of evidence fall within the sound discretion of the
trial court. Wise v. State, 26 N.E.3d 137, 140-41 (Ind. Ct. App. 2015), trans.
denied. We review such rulings for an abuse of that discretion, which occurs
when the trial court’s decision is clearly against the logic and effect of the facts
and circumstances before it. Id.
[17] The Fourth Amendment to the United States Constitution protects “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures. . .” The Fourth Amendment generally
prohibits warrantless searches. Edwards v. State, 762 N.E.2d 128, 132 (Ind. Ct.
App. 2002). If a warrantless search is conducted, the burden is on the State to
prove that, at the time of the search, an exception to the warrant requirement
existed. Peel v. State, 868 N.E.2d 569, 575 (Ind. Ct. App. 2007). That is,
searches conducted without a warrant are per se unreasonable, subject to a few
well-delineated exceptions. Although Martinez focuses on the search warrant
obtained by the officers to search the residence to support his claim that the cell
1 Even though Martinez alludes to a violation of his Indiana Constitutional rights, he makes no separate analysis pertaining thereto. Because he did not present any authority or independent argument supporting a separate standard under the state constitution, his claim is waived. Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002).
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016 Page 8 of 16 phone was not included in the list of items permitted to be seized pursuant to
the warrant, 2 Martinez fails to question Noriega’s signed consent to search the
residence.
[18] “The Fourth Amendment recognizes a valid warrantless entry and search of the
premises when police obtain the voluntary consent of an occupant who shares,
or is reasonably believed to share, authority over the area in common with a co-
occupant who later objects to the use of evidence so obtained. Gado v. State, 882
N.E.2d 827, 832 (Ind. Ct. App. 2008) (citing Georgia v. Randolph, 547 U.S. 103,
106, 126 S.Ct. 1515, 1518, 164 L.Ed.2d 208 (2006)), trans. denied. Authority to
consent to a search can be either apparent or actual. Actual authority requires a
sufficient relationship to or mutual use of the property by persons generally
having joint access to or control of the property for most purposes. Halsema v.
State, 823 N.E.2d 668, 677 (Ind. 2005). A consenting party with actual
authority over property may permit the search in his or her own right. Lee v.
State, 849 N.E.2d 602, 606 (Ind. 2006), cert. denied 549 U.S. 1211 (2007).
[19] Noriega testified that she resided in the house in Alsip prior to Martinez
moving in with her “roughly” two years before the murder took place. (Tr. p.
566). She characterized Martinez’ living arrangement as a “roommate.”
(Motion to Supp. Tr. p. 8). In her consent that she willingly signed, Noriega
authorized police officers to “search [her] residence located at [Alsip, Illinois,]
2 Because we affirm based on consent, we do not need to address the State’s claim that the search warrant’s language was broad enough to encompass the seizure of the cell phone.
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016 Page 9 of 16 and search any contents found there in[.] I further authorize said Officers to
remove from my residence, real property and/or motor vehicle, whatever
documents or other items of property whatsoever, which they deem pertinent to
their investigation[.]” (Exh. Vol. 3, State’s Exh. 2). During the motion to
suppress hearing, Detective Sibley stated that from his review of the
surveillance video of Austgen’s business, “there was a glow in one of
[Martinez’] hands that appeared to me to be a cellular phone.” (Motion to
Supp. Tr. pp. 28-29). Accordingly, as the cell phone was in plain view in the
living room and Noriega, having actual authority over the residence, had given
permission to seize all property that would be pertinent to the officers’
investigation, the seizure of Martinez’ cell phone did not violate his Fourth
Amendment rights.
II. Silent Witness
[20] Next, Martinez contends that the trial court abused its discretion when it
admitted the surveillance video under the silent witness theory. He maintains
that the State failed to establish the authenticity of the scene depicted and the
accuracy of the video equipment as mandated by the foundational requirements
under the silent witness theory.
[21] As with Martinez’ cell phone argument, we review his challenge to the
admission of the surveillance video under an abuse of discretion standard.
Accordingly, an abuse of discretion occurs when the trial court’s decision is
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016 Page 10 of 16 clearly against the logic and effect of the facts and circumstances before it.
Wise, 26 N.E.3d at 140-41.
[22] The silent witness theory, as first adopted by this court, permits the admission
of photographs as substantive evidence, rather than merely as demonstrative
evidence, so long as the photographic evidence is also relevant. Bergner v. State,
397 N.E.2d 1012, 1014-15 (Ind. Ct. App. 1979). Addressing solely the question
of foundation, the Bergner court hesitated to set forth “extensive, absolute
foundation requirements,” and instead mandated a “strong showing of the
photograph’s competency and authenticity.” Id. at 1017. Thus, the Bergner
court warned against the problems of distortion of images and the possibility of
their alteration in a manner that misrepresents the image taken. Where images
were taken by automatic devices, the Bergner court stated, “there should be
evidence as to how and when the camera was loaded, how frequently the
camera was activated, when the photographs were taken, and the processing
and chain of custody of the film after its removal from the camera. Id.
[23] The silent witness theory has continued in use since its adoption by Indiana
courts in 1979, and has since been extended to the use of video recordings. See,
e.g., Mays, 907 N.E.2d 128, 131-32 (Ind. Ct. App. 2009), trans. denied. As
applied to video recordings:
[T]here must be a strong showing of authenticity and competency and . . . when automatic cameras are involved, there should be evidence as to how and when the camera was loaded, how frequently the camera was activated, when the photographs
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016 Page 11 of 16 were taken, and the processing and changing of custody of the film after its removal from the camera.
McHenry v. State, 820 N.E.2d 124, 128 (Ind. 2005) (citing Edwards v. State, 762
N.E.2d 128, 136 (Ind. Ct. App. 2002), trans. denied). This standard is applied
“where there is no one who can testify as to [the recording’s] accuracy and
authenticity because the photograph must ‘speak for itself’ and because such a
‘silent witness’ cannot be cross-examined.” Edwards, 762 N.E.2d at 136.
[24] The Indiana Supreme Court recently addressed the silent witness theory, and
observed that its “foundational requirements . . . are vastly different [than] the
foundational requirements for demonstrative evidence.” Knapp v. State, 9
N.E.3d 1274, 1282 (Ind. 2014) (internal citations and quotation marks omitted).
In cases involving the silent witness theory, a witness need not testify that the
depicted image is an accurate representation of the scene on the day on which
the image was taken, and “often could not so testify since he or she was not
necessarily there to observe the scene on that day.” Id. Rather, the witness
must provide testimony identifying the scene that appears in the image
“sufficient to persuade the trial court . . . of their competency and authenticity
to a relative certainty.” Id.
[25] Testimony at trial established that the surveillance system at the Austgen
buildings had been operational for “several years” and had been installed by
Southlake Security. (Tr. p. 331). Michael, Austgen’s son, was in charge of the
system’s maintenance and control, which consisted of “forty to fifty cameras”
throughout the property, recording both interior and exterior images on four Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016 Page 12 of 16 devices. The system was fully automatic and operated “on its own.” (Tr. p.
334). Michael testified that they “didn’t usually mess with that too much” and
reviewed the recordings “every week or two weeks.” (Tr. pp. 334, 332). He
stated that on the day of the murder, the system was fully operational and was
showing correct dates. However, he also clarified that “the actual time
showing” on the recordings was “off.” (Tr. p. 334).
[26] Testimony from Austgen’s children affirmed the authenticity of the still
photographs taken directly from the interior surveillance video unit at the front
entrance and identified the location shown in the photos. No evidence of
tampering was submitted. Detective Sibley explained that after taking
possession of the videotapes, only he and the city IT director had access to the
recordings. The city IT director burned a copy directly from the tapes onto the
police server. Although Michael had not been able to access the internal
surveillance video from his desktop at the office, this does not tarnish the
video’s authenticity. The city IT director elaborated that nothing was wrong
with the video itself, only Michael’s desktop computer was too old to access the
interior video recording. Based on the evidence presented by the State, we
agree with the trial court that the foundational requirements for the silent
witness theory were established and Martinez’ challenge to the admission of the
surveillance videos fails.
III. Re-Cross Examination
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016 Page 13 of 16 [27] Lastly, Martinez asserts that the trial court abused its discretion when it denied
him the opportunity to re-cross examine witnesses. Martinez argues that the
trial court’s “categorical denial” to allow re-cross examination of witnesses
violated his Constitutional rights. (Appellant’s Br. p. 14).
[28] During the trial proceedings, the trial court informed Martinez that it doesn’t
“give re-cross” because “it’s never-ending[.]” (Tr. p. 167). Martinez
responded, “Alright” and did not object. (Tr. p. 167). Later, as part of its
presentation of its case in chief, the State elicited testimony from Noriega. On
cross-examination, Martinez attempted to introduce a new line of questioning
about third parties’ access to Noriega’s residence. Specifically, Martinez
referred to Noriega’s brother, Jose Noriega (Jose), who had passed away on
April 11, 2014. He elicited testimony that Jose “had a key to [Noriega’s] house,
so that he would come and go[,]” thereby alluding to the fact that Jose could
have placed Austgen’s rings in the bedroom’s ceiling fan. (Tr. p. 610). On
redirect, the State questioned Noriega about Jose’s health and established that
Jose was critically ill in 2013, and “in his end-stage alcoholism. He was always
very tremulous, and he couldn’t walk unless he had a walker, and definitely
mentally he was not there.” (Tr. p. 619). Although he now claims not to have
been allowed to re-cross Noriega on Jose’s illness, Martinez did not even
request the trial court for an opportunity to re-cross but instead on appeal refers
to the trial court’s general mandate of no re-cross to support his argument.
[29] We find that Martinez waived his argument several times over. First, when the
trial court notified Martinez that it would not allow re-cross examinations,
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016 Page 14 of 16 Martinez did not object or otherwise challenge the trial court’s direction. See
Garrett v, State, 737 N.E.2d 388, 391 (Ind. 2000). Moreover, with respect to
Noriega’s testimony, Martinez never requested the trial court for a re-cross
opportunity, let alone asked the trial court for permission to make an offer of
proof. The purpose of an offer of proof is to convey the point of the witness’
testimony and provide the trial court the opportunity to reconsider the
evidentiary ruling. State v. Wilson, 836 N.E.2d 407, 409 (Ind. 2005). Equally
important, it preserves the issue for review by the appellate court. Id. To
accomplish these two purposes, an offer of proof must be sufficiently specific to
allow the trial court to determine whether the evidence is admissible and to
allow an appellate court to review the correctness of the trial court’s ruling and
whether any error was prejudicial. Id. Accordingly, absent an offer of proof,
Martinez waived the issue for our review.
[30] Waiver notwithstanding, we acknowledge a trial court’s discretion in managing
and controlling its proceedings. Indiana Rule of Evidence 611(a) explains that
“[t]he court shall exercise reasonable control over the mode and order of
examining witnesses and presenting evidence so as to: (1) make those
procedures effective for determining the truth; (2) avoid wasting time; and (3)
protect witnesses from harassment or undue embarrassment.” Ind. Evid. Rule
611(a) recognizes that the process of examining witnesses, while conducted by
the parties, is subject to the control of the trial court, “which has a wide
discretion therein.” Sowders v. Murray, 280 N.E.2d 630, 635 (Ind. 1972).
“Phases of the examination, such as the length and time that a witness shall be
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016 Page 15 of 16 examined, and the manner and mode of [] examination, are under the control
of, and within the discretion of, the trial court. Likewise, the scope, extent,
method and manner of cross-examination must be under the control of the trial
court and rest in its sound discretion.” Id. Here, the trial court notified the
parties that it would not allow re-cross examination to prevent needless
consumption of time. Moreover, we agree with the State’s observation that, in
light of the trial court’s prohibition and because the line of questioning about
Jose’s access to Noriega’s home was introduced by Martinez, Martinez could
have called Noriega as his own witness to elicit the testimony he now deems
missing. We conclude that the trial court did not abuse its discretion.
CONCLUSION
[31] Based on the foregoing, we hold that the trial court did not abuse its discretion
by admitting Martinez’ cell phone which was seized during a search of the
residence or by admitting surveillance video under the silent witness theory.
Additionally, we conclude that the trial court acted within its discretion by
prohibiting re-cross examination.
[32] Affirmed.
[33] Bailey, J. and Barnes, J. concur
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-CR-292 | October 25, 2016 Page 16 of 16