Delgiudice v. State
308 Ga. App. 397
| Ga. Ct. App. | 2011Background
- Delgiudice was convicted by jury of kidnapping with bodily injury (Count 1), four counts of aggravated assault (Counts 2–4, 6), and false imprisonment as lesser included on a kidnapping (Count 5).
- Sentences: life for Count 1, 20 years each on Counts 2–4 and 6, and 10 years on Count 5, all to run concurrent with Count 1.
- The events occurred June 20, 2006 at a Norcross apartment complex; Cardoza, Carcamo, and Romero were assaulted; cocaine was found in the apartment.
- Cardoza identified Delgiudice in a pretrial photo array and again at trial; Romero testified against Delgiudice at trial.
- Delgiudice argued ineffective assistance of counsel and suppression issues; the State conceded sentencing error regarding merging Counts 2–4 with Count 1.
- The Court of Appeals affirmed some issues, reversed on others, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence | Delgiudice asserts the verdict is against the weight and the evidence fails Jackson v. Virginia. | Delgiudice contends the State failed to prove guilt beyond a reasonable doubt. | Evidence legally sufficient to support convictions. |
| Pretrial identification suppression | Cardoza's identification from a photo array was tainted by unduly suggestive procedure. | The photo array was unduly suggestive and identification should have been suppressed. | Array not impermissibly suggestive; refusal to suppress affirmed. |
| Ineffective assistance of counsel (triad of subissues) | Counsel erred in eliciting other identifications, failing to object to tainted in-court identification, and not moving to suppress the array. | Counsel's performance was deficient and prejudicial in multiple respects. | Multiple claims rejected; no reversible deficient performance established. |
| Merging and sentencing | Trial court properly sentenced Counts 2–4 separately from Count 1. | Counts 2–4 should merge with Count 1 for sentencing purposes. | Counts 2–4 should merge with Count 1; remand for resentencing. |
| Newly discovered evidence | Dismissal of charges against Romero after trial constitutes new evidence that could alter verdict. | The evidence is material to credibility and should warrant new trial. | Motion denied; six-factor test not satisfied. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (sufficiency standard for criminal convicting evidence)
- Buruca v. State, 278 Ga. App. 650 (2006) (standard for reviewing sufficiency of evidence)
- Humphrey v. State, 281 Ga. 596 (2007) (identification procedures and reliability)
- Whatley v. State, 266 Ga. 568 (1996) (identification and credibility factors)
- Davis v. State, 286 Ga. 74 (2009) (procedural considerations in identification issues)
- Timberlake v. State, 246 Ga. 488 (1980) (new trial on grounds of newly discovered evidence)
- Chisholm v. State, 231 Ga. App. 835 (1998) (evaluation of eyewitness identification credibility factors)
- Green v. State, 279 Ga. 455 (2005) (tainted in-court identification analysis)
- Brown v. Baskin, 286 Ga. 681 (2010) (credible attack on witness testimony and motive)
- Powell v. State, 272 Ga. App. 628 (2005) (ineffective-assistance standards)