Oscar Orozco, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent. (2025)

Statement of the Case

[1] Oscar Orozco appeals the denial of his petition for post-conviction relief, contending the court erred by rejecting his claim of ineffective assistance of trial counsel. Finding no error, we affirm.

Facts and Procedural History

[2] In 2017, Orozco was involved in a fight in the parking lot of a bar. Bennie Bueno was also involved in the melee, during which he pulled out a gun. As the fight continued, Bueno was hit on the head with a beer bottle. “The blow caused a huge cut in Bueno's head that bled profusely and caused a hemorrhage around his brain.” Orozco v. State, 146 N.E.3d 1038, 1040 (Ind. Ct. App. 2020), trans. denied. A third man continued to beat Bueno after he fell to the ground. At some point, Bueno was leaned up against a truck with one man holding his forearms. That is when Orozco “ran up and shot Bueno five times in the right side of his back and one time underneath his arm on the right side of his body. Bueno staggered away, bleeding profusely, and fell ․ onto the pavement, where he died.” Id.

[3] The State charged Orozco with murder. At his jury trial in 2019, Orozco raised a claim of self-defense, but the jury found him guilty. He challenged that conviction on direct appeal, arguing the State did not disprove his claim of self-defense beyond a reasonable doubt. Finding the evidence sufficient, this Court affirmed his conviction. See id. Thereafter, Orozco petitioned for post-conviction relief, alleging ineffective assistance of trial counsel. Following a hearing, the post-conviction court denied relief. Orozco appeals that denial.

Discussion and Decision

[4] To prevail in the appeal of a post-conviction proceeding, the petitioner must establish clear error by showing that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Ingalls v. State, 213 N.E.3d 544, 548 (Ind. Ct. App. 2023). In our review, we accept the post-conviction court's findings of fact unless clearly erroneous, though we do not defer to its legal conclusions. Id.

[5] Our analysis of Orozco's claim of ineffective assistance of counsel is guided by a two-part test. First, he must establish that counsel's performance was deficient. Black v. State, 7 N.E.3d 333, 338 (Ind. Ct. App. 2014). Such deficiency is established by a showing that counsel's representation fell below an objective standard of reasonableness and that counsel's errors were so serious that the defendant was denied the counsel guaranteed by the Sixth Amendment. Id. (quoting Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010)). [6] Second, Orozco must prove that counsel's deficient performance prejudiced the defense. Black, 7 N.E.3d at 338. This part of the test requires proof that counsel's errors were so serious that the defendant was deprived of a fair trial. Ingalls, 213 N.E.3d at 548.

[7] A presumption exists that counsel's performance is effective, and a defendant must present strong and convincing evidence to overcome this presumption. Id. A failure to satisfy either part of the test will cause the claim to fail, and most ineffective assistance claims can be resolved by a prejudice inquiry alone. State v. Pearson, 191 N.E.3d 892, 898 (Ind. Ct. App. 2022).

[8] We note that the judge who presided over the hearing on Orozco's post-conviction petition also presided over his trial. When the post-conviction judge is the same judge who conducted the original trial, the post-conviction findings and judgment are entitled to greater than usual deference. Reeves v. State, 174 N.E.3d 1134, 1140 (Ind. Ct. App. 2021), trans denied. The rationale underlying this principle is that the judge presiding over both proceedings is in a unique position to assess the weight and credibility of the factual evidence as well as whether the defendant was deprived of a fair trial. State v. Dye, 784 N.E.2d 469, 476 (Ind. 2003).

A. Failure to Object

[9] Orozco first asserts that the post-conviction court erred by denying his claim of ineffective assistance of trial counsel based on counsel's failure to object to the court's procedure for jury selection. The court's method prohibited counsel from questioning prospective jurors directly as to the issues, including Orozco's claim of self-defense.

[10] In Logan v. State, 729 N.E.2d 125 (Ind. 2000), our Supreme Court concluded that Trial Rule 47(D)¹ requires trial courts to permit the parties or their counsel to question jurors directly during jury selection. Nevertheless, because the rule goes on to say that the court may conduct examination itself, misunderstanding and misapplication of Rule 47(D) by both the bench and the bar persisted. See, e.g., Peppers v. State, 152 N.E.3d 678, 686 (Ind. Ct. App. 2020) (concluding that Trial Rule 47(D) permits trial courts to conduct their own examination of prospective jurors without direct questioning of jurors by counsel), abrogated by Doroszko v. State, 201 N.E.3d 1151 (Ind. 2023); see also Doroszko, 201 N.E.3d at 1156 (clarifying proper procedure under Trial Rule 47(D) but noting that benchbook for trial court judges mistakenly advised of voir dire procedure).

[11] It was not until recently, four years after Orozco's trial, that the confusion surrounding proper voir dire procedure under Rule 47(D) was resolved. In Doroszko, our Supreme Court reiterated its holding in Logan, abrogated the holding in Peppers, and clarified that Trial Rule 47(D), by its use of the word “shall,” mandates trial courts to permit the parties or their counsel to examine prospective jurors and likewise forecloses any trial court discretion to supplant the parties’ examination with its own. Doroszko, 201 N.E.3d at 1155.

[12] In this case, the trial court conducted its own examination of the prospective jurors, which was supplemented by questions that had been submitted by the parties. See Trial Tr. Vol. 2, p. 46.² During the examination, the court asked a question concerning self-defense. Id. at 86. Later, the court permitted the parties to address the jury with a brief opening statement concerning the nature of the case, during which defense counsel mentioned self-defense. Id. at 94.

[13] It has long been established that “ ‘[t]o prevail on a claim of ineffective assistance due to the failure to object, the defendant must show an objection would have been sustained if made.’ ” Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011) (quoting Overstreet v. State, 877 N.E.2d 144, 155 (Ind. 2007)). “In determining whether an objection would have been sustained, we presume that the trial judge will act according to the law.” Saylor v. State, 55 N.E.3d 354, 359 (Ind. Ct. App. 2016), trans. denied.

[14] Orozco's trial was held in 2019 amid the misapprehension and inconsistent application of Trial Rule 47(D) and several years before the Supreme Court issued its opinion in Doroszko. Given these circumstances, the presumption that the trial judge will act according to the law meant in this case it was more likely that the judge would have denied counsel's objection than it was that he would have sustained it because the method for selecting juries he employed had not yet been definitively declared to run afoul of Trial Rule 47(D). Indeed, as Orozco points out in his brief, the same trial judge that presided at his trial also presided over the trials of Peppers one year later and Doroszko two years later and used the same voir dire procedure. Thus, it appears this was the routine procedure of this judge for selecting a jury, hence making it more likely that the judge would have overruled an objection by Orozco's counsel. Consequently, Orozco has not met his burden of establishing that the trial court would have sustained an objection lodged by defense counsel.³ The post-conviction court properly denied Orozco's petition for post-conviction relief on this issue.

B. Failure to Call Witness/Investigate

[15] Orozco also contends that his trial counsel was ineffective for failing to call Noe Acosta, one of the individuals involved in the brawl, to testify at trial. Orozco claims that Acosta should have been called as a witness to support Orozco's self-defense claim.

[16] In the context of an ineffective assistance of counsel claim, the decision of what witnesses to call is a matter of trial strategy that appellate courts do not second-guess. McCullough v. State, 973 N.E.2d 62, 83 (Ind. Ct. App. 2012) (quoting Curtis v. State, 905 N.E.2d 410, 415 (Ind. Ct. App. 2009), trans. denied), trans. denied; see also Wrinkles v. State, 749 N.E.2d 1179, 1200 (Ind. 2001) (“Which witnesses to call is the epitome of a strategic decision.” (citation and quotation marks omitted)). “We ‘will not declare counsel ineffective for failure to call a particular witness absent a clear showing of prejudice.’ ” Malloch v. State, 223 N.E.3d 683, 698 (Ind. Ct. App. 2023) (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 108 (Ind. 2000)), trans. denied.

[17] Orozco bases his claim of error in this regard on his claim that counsel failed to properly investigate prior to deciding not to call Acosta. When deciding a claim of ineffective assistance of counsel for failure to investigate, we apply a great deal of deference to counsel's judgments. McKnight v. State, 1 N.E.3d 193, 201 (Ind. Ct. App. 2013). Establishing failure to investigate as a ground for ineffective assistance requires going beyond the trial record to show what an investigation, if undertaken, would have produced. Id. Such a showing is necessary because success on the prejudice component of an ineffectiveness claim requires demonstration of a reasonable probability of affecting the result. Id. (quoting Woods v. State, 701 N.E.2d 1208, 1214 (Ind. 1998)).

[18] At the post-conviction hearing, trial counsel testified that he had no memory of whether he did or did not try to interview Acosta or call him as a witness at trial. PCR Tr. Vol. 2, p. 21. However, counsel testified that he reviewed Acosta's deposition and it seemed that Acosta “would have likely been a double-edged sword there. There were some things that I probably won't [sic] have wanted the jury to hear from him in something and some things on that self-defense matter.” Id. at 22. Counsel further testified that

there were a number of witnesses, and most all of them, I think, agreed to the fact that the victim was the one who initiated the incident. And that [Orozco] got into it later after Mr. Bueno had already been chasing somebody else around with the gun. And so another witness to something that I thought was already pretty well established through other evidence and he would then support the testimony of Mr. Rosales, which I wouldn't have wanted him -- was something I wasn't trying to do. Weighing those two issues, it sounds like I decided that maybe he was not a witness.

Id.

[19] In his brief, Orozco does not acknowledge trial counsel's explanation. And, other than a general statement that Acosta's deposition testimony supported his claim of self-defense, Orozco fails to offer any information as to what Acosta's testimony might have been or how it could have been useful. Orozco also has not enlightened us with what additional information may have been gained from further investigation, nor has he demonstrated how the absence of such information impaired his case. In sum, Orozco has neither demonstrated a clear showing of prejudice resulting from counsel's failure to call Acosta as a witness, nor identified any information further investigation would have produced, nor demonstrated a reasonable probability that such information would have affected the result of his trial. The post-conviction court properly denied Orozco's petition for relief on this issue.

C. Trial Counsel's Health

[20] As his final issue, Orozco asserts that his trial counsel's medical condition substantially interfered with counsel's ability to make important decisions, thereby representing a breakdown in the adversarial process. We review his claim under our well-established standard:

In assessing whether counsel's performance was deficient, we note that counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord that decision deference. Indeed, there is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. A defendant must offer strong and convincing evidence to overcome this presumption. Isolated poor strategy, inexperience, or bad tactics does not necessarily constitute ineffective assistance.

Absher v. State, 162 N.E.3d 1141, 1148 (Ind. Ct. App. 2021) (internal quotations and citations omitted).

[21] Orozco points to no evidence, in the trial transcript or otherwise, to demonstrate that counsel's health affected his performance at trial. Orozco's entire argument on this issue consists of two sentences: “[Counsel]’s serious medical condition effectuated a breakdown of the adversarial system. By his own admissions he was seriously impaired, and what makes matters worse, he has no idea whether he ever informed Orozco of the seriousness of the situation.” Appellant's Br. p. 20.

[22] The record shows that on the second day of Orozco's four-day trial, defense counsel requested a break because he was not feeling well. Trial Tr. Vol. 3, p. 155. During the ten minute recess, it was decided the court would stand in recess for the remainder of the afternoon and resume the trial the following morning. See id. at 156-59. Counsel explained at the post-conviction hearing that he had a kidney stone that began moving during trial that made it difficult for him to concentrate in court and caused him chills, fever, and sleeplessness. PCR Tr. Vol. 2, pp. 9-11. While he described his decision-making at the time the court adjourned on the second day as “impaired” and “questionable,” he went on to say that “the other side of the ․ thing is that once something like this passes, it's kind of having a baby. You forget about it and the pain.” Id. at 10. Counsel testified he felt better the next morning and “could come in and adequately do my job,” and the trial resumed with no mention of counsel feeling ill for the remaining two days of the trial. Id. at 11.

[23] The record further shows that first thing the next morning, counsel participated in questioning members of the jury about being approached by someone who made comments about the trial, and counsel moved to exclude that individual from the courtroom. See Trial Tr. Vol. 4, pp. 4-22. Throughout the remainder of the third day of trial, counsel extensively cross examined several witnesses; lodged objections; engaged in detailed discussion with the court and the State over his prior motion in limine; physically demonstrated the position of the victim in relation to a witness during cross examination of the witness; presented and examined defense witnesses; moved for a directed verdict; and argued final instructions. See id. at 33-192. On the final day of trial, counsel presented his final argument to the jury. See Trial Tr. Vol. 5, pp. 21-36.

[24] Orozco has failed to satisfy his burden of showing that counsel's representation fell below an objective standard of reasonableness and that counsel's errors were so serious that he was deprived a fair trial. He identifies no circumstance in which counsel's health affected his performance at trial, and speculation is insufficient to establish an ineffective assistance claim. The post-conviction court properly denied the petition for post-conviction relief on this issue.

Conclusion

[25] Orozco has not overcome the rigorous standard of review for evaluating post-conviction determinations by showing the evidence leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Finding no clear error, we affirm.

[26] Affirmed.

FOOTNOTES

1.   Trial Rule 47(D) provides, in pertinent part: “The court shall permit the parties or their attorneys to conduct the examination of prospective jurors, and may conduct examination itself. The court's examination may include questions, if any, submitted in writing by any party or attorney. If the court conducts the examination, it shall permit the parties or their attorneys to supplement the examination by further inquiry.”

2.   In order to properly address Orozco's claims of ineffective assistance of counsel, we needed to review the record from his direct appeal, specifically the transcript of his trial. Accordingly, the Chief Judge issued an order in this case on March 12, 2025 directing the Clerk to transfer the record of proceedings from Orozco's direct appeal to this case to be included as part of the record for this appeal.

3.   Orozco also claims that the circumstances here fall within one of the narrow exceptions delineated in U.S. v Cronic, 466 U.S. 648 (1984), such that a presumption of ineffectiveness applies without inquiry into counsel's actual performance. However, this contention was neither set forth in Orozco's petition for post-conviction relief or his amended petition nor presented to the post-conviction court and is thus waived. See Ind. Post-Conviction Rule 1(8) (“All grounds for relief available to a petitioner under this rule must be raised in his original petition.”); Jones v. State, 151 N.E.3d 790, 805 (Ind. Ct. App. 2020) (stating that issues not raised in petition for post-conviction relief may not be raised for first time on post-conviction appeal (quoting Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001))), trans. denied. Likewise, Orozco's equal protection challenge under Doroszko was not raised in his original petition and is therefore waived. See id.

Crone, Senior Judge.

Judges Mathias and Foley concur. Mathias, J., and Foley, J., concur.