Man loses appeal in death by vehicle

Published 12:00 am Wednesday, December 2, 2009

By Shavonne Potts
A man convicted in 2007 with the drunk driving death of a Kannapolis pregnant mother has appealed his conviction. His appeal was denied.
Rigo Verto Guillen-Martinez, who went by multiple aliases, was sentenced in September of 2007 to 30 years for killing Leeanna Newman and her unborn baby girl.
Martinez appealed the judgment, which was heard by the N.C. Court of Appeals on Oct. 13. The appellate court unanimously upheld the conviction, court documents show.
At the 2007 trial, Judge John L. Holshouser Jr. sentenced Martinez to serve the maximum possible ó 28 1/2 years ó for second-degree murder by vehicle, then two years for driving while impaired and another 45 days for hit and run/ failure to stop for property damage.
Martinez had been seen driving erratically on South Main Street near Airport Road before the collision that killed Newman.
He was in two head-on collisions with two different people. He later nearly ran over Kannapolis Police Officer David Horne, who was on the roadside responding to a domestic disturbance call.
The officer and two other people moved out of the way in time as Martinez’s Jeep Cherokee barely missed hitting them.
Martinez was traveling at an estimated 75 mph in a 35 mph zone on Main Street in Landis.
His Jeep Cherokee hit Newman’s Saturn head-on and overran the smaller vehicle.
Martinez had a blood alcohol level of .27, more than three times the legal .08 limit. A paramedic testified Martinez admitted after the crash to drinking 20 beers before driving that day.
Salisbury attorney Carlyle Sherrill represented Martinez during his September trial.
Martinez, a native of El Salvador, had been arrested previously under at least half a dozen aliases and had been deported from the United States twice.
The following are reasons Martinez appealed:
– Defendant cites Kannapolis Police Officer Eddie Ashworth’s “limited experience and his lack of affiliation with any accrediting organizations” and contends that officer Ashworth was not properly qualified as an expert in the field of accident reconstruction.
The review panel disagreed. Court documents said the determination of whether a witness may be accepted as an expert is within the discretion of the trial court.
“In order to qualify as an expert, a witness need only be found ‘better qualified than the jury as to the subject at hand, with the testimony being ‘helpful’ to the jury,’ ” the document said.
Ashworth testified during the trial that he had been employed with the Kannapolis Police Department for nearly 18 years. His primary duty was as a member of the accident reconstruction team.
He also testified that he had taken 80 hour courses in traffic scene investigation, traffic crash reconstruction and advanced traffic crash reconstruction.
He had also investigated more than 1,000 traffic collisions since joining the department in 1989.
The appellate court concluded the Rowan court did nothing wrong in offering Ashworth as an expert witness.
– Defendant argues he received ineffective assistance of counsel because his attorney failed to request the formal filing of the jury selection process, where an attorney questions potential jurors or “voir dire” and closing arguments. He contends the failure of his attorney “deprived him of full appellate review and effective assistance of appellate counsel.”
The appellate panel was not convinced.
The opinion of the appellate court said that to successfully assert ineffective counsel, the defendant has to show the attorney made errors so serious the attorney was not functioning as the counsel guaranteed by the Sixth Amendment. Martinez also had to show the deficient performance prejudiced the defense. This requires showing the counsel’s errors were so “serious as to deprive the defendant of a fair trial.”
Martinez did not cite any errors that occurred during any unrecorded portions of the trial.
The court found the trial attorney’s failure to request the formal filing did not constitute ineffective assistance of counsel.
– Defendant argues the trial court abused its discretion by failing to “sua sponte” the jury “voir dire” and closing arguments, which deprived him of meaningful appellate review and the effective assistance of appellate counsel.
Sua sponte refers to a court taking an action in a case without being asked to do so by either side. The appeals court found no error and overruled this.