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Defense win! Trial counsel should have objected to gang affiliation references and introduced other evidence

State v. Pedro R. Mendoza, III, 2018AP2325-Cr,10/6/20,  District 1 (not recommended for publication); case activity (including briefs)

A jury convicted Mendoza of 1st degree recklessly endangering safety and 1st degree endangering safety when he shot into a car occupied by H.V. and M.M.C. Mendoza claimed his trial counsel was ineffective for failing to: (1) seek exclusion of his history with the Latin Kings, (2) seek admission of evidence that H.V. and M.M.C. had previously intimidated witnesses and conspired to falsify testimony; and (3) introduce expert testimony regarding his PTSD to help show that he shot in self-defense. The circuit court ordered a Machner hearing, but denied relief. The court of appeals issued a rare reversal on all 3 ineffective assistance of counsel claims and remanded the case for a new trial.

The State began mentioning Mendoza’s former involvement with the Latin Kings during voir dire and continued right on through trial.  Supposedly this was necessary to establish Mendoza’s identity and retaliatory motive. However, Mendoza turned himself into the police and the State never tried to prove retaliatory motive at trial, so that wasn’t really true.  Trial counsel had no strategic reason for not objecting to Latin Kings references, and they implied to the jury that Mendoza was dangerous likely shot H.V. unprovoked. Thus, counsel performed deficiently and prejudiced Mendoza. Opinion, ¶¶26-28.

At trial, Mendoza planned to show that H.V. began shooting at him first, and then he shot back.  M.M.C. testified that Mendoza actually shot first.  When H.V. testified he resisted describing the shooting and claimed to be fearful of identifying the shooter by name. Both M.M.C. and H.V.  had histories of violent crimes, falsifying testimony, and intimidating witnesses. Had counsel introduced this evidence at trial, it would have rebutted their testimony that they feared Mendoza and bolstered Mendoza’s self-defense argument, which hinged on a claim that H.V. had a gun at the time of the shooting and disposed of it to avoid a felon in possession charge.

Trial counsel did not follow up on leads regarding H.V.’s and M.M.C.’s prior bad acts or attempt to introduce any evidence to impeach them. Counsel testified that he thought the evidence was inadmissible, so he did nothing. The court of appeals found this to be deficient performance. Because the case boiled down to a credibility contest between Mendoza versus H.V. and M.M.C., the failure to introduce this evidence was also prejudicial.  Opinion, ¶¶29-31.

Lastly, Mendoza was a war veteran who sufferers from PTSD. He claimed that trial counsel should have retained a psychologist to testify about how his diagnosis and symptoms could cause him to perceive an imminent threat and try to defend himself in the circumstance of his case.  Counsel testified that he made an attempt to retain an expert on this subject but then gave up. In contrast, postconviction counsel found such an expert, who submitted a detailed and helpful report on this very issue. Opinion, ¶¶34-36.

Mendoza’s state of mind was directly relevant to his self-defense claim. Expert testimony about his PTSD could have bolstered such claim. The court of appeals held that trial counsel’s failure to follow through on retaining such an expert was thus both deficient performance and prejudicial to the defense.




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