Lead Opinion
A jury fоund Joaquin Enrique Arevalo guilty of two counts of malice murder, two alternative counts of felony murder, one count of armed robbery, and two counts of possession of a firearm during the commission of a felony. The jury recommended a death sentence for the murder of Marc Ratthaus after finding beyond a reasonable doubt that the murder was committed while Arevalo was engaged in the capital felony of armed robbery and that it was outrageously or wantonly vile, horrible or inhuman in that it involved depravity of mind and an aggravated battery to the victim. See OCGA § 17-10-30 (b) (2), (7). The jury also recommended the death penalty for the murder of Adolfо Gonzales after finding beyond a reasonable doubt that the murder was committed while Arevalo was engaged in the capital felony of armed robbery and that it was outrageously or wantonly vile, horrible or inhuman in that it involved depravity of mind. See OCGA § 17-10-30 (b) (2), (7). Arevalo’s motion for new trial was denied and he appeals.
General Grounds
1. Construed so as to support the jury’s verdicts, the evidence presented at trial showed the following: The crimes occurred at a restaurant which had previously employed Arevalo. Approximately one week before the murders, an associate manager discharged Arevalo. Mr. Ratthaus was the managеr, but he was on vacation at the time. At least some of the restaurant’s employees were unaware that Ratthaus would return on April 6, 1998 and that the associate manager would not be working that day. Appellant’s brother, David Arevalo, was working at the restaurant on the morning of April 6 and deliberately left a back door open to facilitate the armed robbery. Appellant and Ernesto Mejia entered the restaurant through the
Jury Selection
2. Arevalo contends that the trial court erroneously excused three prospective jurors for cause. One of them stated that she would not vote for a death sentence because of the publicity and politics which follow and that she would most likely always choose life imprisonment without parole over death. Another prospective juror declared that she did not think she could ever under any circumstances vote for a death sentence, that it would be very hard to do so, and that she would probably always choose to let the defendant live. Thus, both of these prospective jurors, despite some equivocation, expressed a very high degree of reluctance ever to vote for the death penalty. They also indicated that they would hold the State to a higher standard of proof than the law requires.
Although a prospective juror gives answers which, standing alone, might indicate that his or her opposition to the death penalty is not “automatic,” this is not decisive. [Cit.]. . . . Moreover, it is immaterial that the disqualification of a prospective juror does not appear with “unmistakable clarity.” .... An appellate court should not substitute its own finding for that of the trial court, since it must pay deference to the trial court’s determination. [Cits.] This deference encompasses thе trial court’s resolution of any equivocations and conflicts in the prospective jurors’ responses on voir dire. [Cits.]
Greene v. State,
3. Arevalo further contends that the trial court erred by failing to excuse for cause six jurors who were allegedly biased in favor of the death penalty. These jurors initially expressed their personal beliefs in support of the death penalty for murder or indicated that they anticipated voting for it if the defendant were found guilty. Several jurors also expressed reservations specifically regarding life imprisonment with parоle. However, all six jurors indicated that they would follow the trial court’s instructions and fully and fairly consider all the evidence and each of the three sentencing options. Two jurors were reluctant to vote for life where there was more than one victim, but later stated that they would consider all sentencing options even if there were two or more murders.
The proper standard for determining the disqualification of a prospective juror based upon his views on capital punishment “is whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his оath.’ ” [Cit.].... There is no requirement that a prospective juror’s qualification or disqualification appear with unmistakable clarity, since the trial court often has to resolve equivocations or conflicts in the responses on voir dire. [Cits.] (Emphasis supplied.)
Heidler v. State,
4. The qualification of prospective jurors as to their views on the death penalty is not unconstitutional. DeYoung v. State,
The Guilt-Innocence Phase
5. During the guilt phase of the trial, the State introduced a copy of a letter purportedly written by David Arevalo to appellant while they were both inmates in the county jail. Appellant objected to the admission of the letter on several grounds, some of which are raised in this appeal.
One of those grounds was the alleged absence of proper authentication. The genuineness of a writing may be proved by circumstantial evidence. Johnson v. State,
Thus, the trial court was presented with a letter which was written in Spanish to “my brother” and which discussed in great detail the crimes that appellant and his Spanish-speaking brother were charged with committing. The author of the writing admitted talking with police, as David had done, and the intended recipient was identified as the driver of the vehicle, as appellant had admitted that he was. “Under all of these circumstances, it is very unlikely that anyone other than [David] had written thе letter. Accordingly, the cir
The dissent of Justice Thompson mistakenly focuses on the issue of chain of custody, which appellant did not raise below. Had the defense made such an objection in the trial court, the prosecution may well have produced the evidence which his dissent cites as missing from the record. However, the issue to be addressed on appeal is the authenticity of the writing, and not the chain of custody of that writing. Authentication “is a matter of identification, or showing that this writing is the one in question. The validity of the writing may still be attackеd after it has been sufficiently authenticated to admit it in evidence.” Rumsey, Agnor’s Ga. Evid. (3d ed.), § 12-4, p. 411.
After the trial court correctly found a prima facie showing that David was the author of the letter, appellant objected on the ground of hearsay. Chief Justice Fletcher’s dissent argues that the document should have been excluded on that basis. However, the evidence clearly shows a conspiracy between the two Arevalo brothers and Ernesto Mejia to commit an armed robbery of the restaurant, during the course of which two murders occurred. See Hutchins v. State,
The extent to which a co-conspirator’s statements “are competent is largely controlled by the nature of the enterprise which is the object of the conspiracy, and what was the ultimate purpose of the conspiracy.” Rawlings v. State,
In legal contemplation the enterprise may not be at an end, so long as the concealment of the crime or the identity of all the conspirators has not been disclosed. Acts and declarations of such undisclosed conspirators, looking to the concealment of identity and the suppression of evidence, are admissible against other conspirators. (Emphasis supplied.)
Thompson v. State,
“The rule is that so long as the conspiracy to conceal. . . the identity of the perpetrators of the offense continues, the parties to such conspiracy are to be considered so much a unit that the declarations of either are admissible agаinst the other.”
Crowder v. State, supra at 152.
Contrary to the dissent written by Chief Justice Fletcher, the admissibility of the letter is not dependent upon the State’s showing of a separate and independent agreement to conceal appellant’s identity as the shooter. To render an out-of-court statement admissible under OCGA § 24-3-5, the prosecution need only show that it was made by a co-conspirator during an ongoing conspiracy with the defendant and that it bears sufficient indicia of reliability. Quintanilla v. State,
The writing bears sufficient indicia of reliability. Quintanilla v.
6. Arevalo complains about the prosecutor’s reference, during the guilt-innocence phase closing argument, to the letter to appellant from his brother “that was desperately attempted to be kept from you, that at every attempt at the presentation of the case there was an interruption, but yet you heard it.” A prosecutor’s comment during closing argument on the numerous objections made by the defendant’s attorney during the trial is not error, as counsel has “ ‘ample latitude to argue what has transpired in a case from its inception to its conclusion, and the conduct of the party or his counsel. . .’ [Cit.]” Ferrell v. State,
7. Arevalo enumerates as error the admission of victim-impact evidence, but argues only that such evidence is unconstitutional and should be entirely prohibited. To the contrary, proper victim-impact evidence in the sentencing phase of a death penalty trial is constitutional and admissible. Turner v. State,
8. The Unified Appeal Procedure is not unconstitutional. Jackson v. State,
9. Georgia’s death penalty statutes are not unconstitutional. Brannan v. State,
10. The death sentences were not imposed under the influence of passion, prejudice, or any other arbitrary factor. OCGA § 17-10-35 (c)
(1) . The evidence was sufficient to authorize the jury to find beyond a reasonable doubt the statutory aggravating circumstances which supported the death sentences for the murders. OCGA § 17-10-35 (c)
(2) ; Jackson v. Virginia, supra. Considering both the crimes and the defendant, the death sentences are not disproportionate to the penalty imposed in similar cases. OCGA § 17-10-35 (c) (3). The similar cases listed in the Appendix support the imposition of the death penalty in this case, in that all involve a deliberate killing during the commission of an armed robbery, as well as other similarities, such as the OCGA § 17-10-30 (b) (7) aggravating circumstance, the murder of two or more people, or shooting the victim in the back of the head.
Judgments affirmed.
Appendix.
Butts v. State,
Notes
The crimes occurred on April 6, 1998. The Gwinnett County grand jury indicted Arevalo on June 24, 1998 for two counts of malice murder, two counts of felony murder, one count of armed robbery, and two counts of possession of a firearm during the commission of a felony. The State filed its written notice of intent to seek the death penalty on September 16, 1998. The trial began on September 13, 1999, and the jury found Arevalo guilty of all counts on October 1, 1999 and recommended death sentences for both of the murders on Oсtober 6,1999. The trial court imposed two death sentences on the malice murder counts, a consecutive twenty-year term for the armed robbery, and five-year terms for each count of firearm possession. However, the trial court did not enter judgment on the felony murder verdicts, correctly treating them as surplusage. Malcolm v. State,
Dissenting Opinion
dissenting.
The majority unwisely extends the already expansive hearsay
This Court has held thаt a conspiracy ends when one conspirator incriminates the other conspirator in a statement to police.
Although the majority concedes that the conspiracy to commit armed robbery ended when the brothers admitted their involvement in that crime, it finds an ongoing conspiracy between the Arevalos to blame Ernesto Mejia solely for the crime of murder. Neither the facts nor the law support the majority’s division of one “ ‘calculated criminal enterprise consisting of conspiratorial armed robbery resulting in murder’ ” into two separаte conspiracies.
Moreover, the only evidence that suggested any conspiracy by Joaquin and David Arevalo to conceal the identity of the actual triggerman was the contested letter itself. This Court has held that the State must make a prima facie showing of a conspiracy from evidence outside the statement it seeks to introduce.
Finally, assuming the letter were prоperly authenticated and shown to fall under the exception for co-conspirators’ statements, the State failed to demonstrate sufficient indicia of reliability to have the letter admitted into evidence over objection.
I am authorized to state that Presiding Justice Sears joins in this dissent.
See Crowder v. State,
Id.
See Martin v. State,
See Strong v. State,
See Huynh v. State,
See Perkinson v. State,
See Wilson v. State,
Brown v. State,
Copeland v. State,
Id.
Dissenting Opinion
dissenting.
As the majority discusses in Division 5 of its opinion, the State introduced a copy of a letter, written in Spanish, that was allegedly written by David Arevalo to appellant while both men were inmates in the county jail. Appellant objected on several grounds to the State’s attempt to introduce a copy of the letter, including the State’s alleged failure to properly authenticate it.
The letter аt issue was allegedly obtained by the district attorney’s office from an attorney representing an inmate named Jose Bahena. Mr. Bahena had allegedly obtained the letter from David Arevalo while serving as an unofficial jailhouse mail carrier, had somehow arranged for a photocopy of the letter to be made, and had then provided the photocopy to his attorney. David Arevalo was allegedly brought to the district attorney’s office where he acknowledged authoring the letter with appellant as the intended recipient. However, neither Mr. Bahena nor David Arevalo were called as witnesses in appellant’s trial, and the only evidence presented to support any of the foregoing allegations by the State regarding the letter’s provenance was the testimony of an investigator employed by the district attorney and the copy of the letter itself.
The investigator’s testimony relevant to the authentication of the letter consisted almost entirely of hearsay. The investigator identified the copy of the letter at issue as a document received at the district attorney’s office via facsimile machine from a person who identified himself as the attorney for Jose Bahena. The investigаtor testified that he learned, although how was never explained, that Mr. Bahena had been jailed in the same pod as either appellant or David Arevalo. When the trial court interrupted the witness’ direct examination to clarify which of the two brothers the witness was referring to, the witness admitted that he was not certain. The investigator then gave a hearsay account of a description allegedly given to him by Mr. Bahena of how Mr. Bahena had served as an unofficial mail carrier for David Arevalo, had retained the originals of several of David Arevalo’s letters, was keeping the original letter at issue in an undisclosed “secure place,” and had somehow arranged for a copy (the original letter at issue was never recovered) of the original letter
This hearsay account should not have been considered in support of the letter’s authenticity. Furthermore, the hearsay testimony actually suggested (1) that Mr. Bahena understood and possibly could write in Spanish, because it showed his ability to identify the letter as a document that would assist the State and possibly gain favorable treatment for him in his own criminal difficulties, and (2) that Mr. Bahena had been taken into David Arevalo’s confidence and, therefore, could easily have known the details addressed in the letter about the crimes and the Arevalo family.
The investigator further testified that David Arevalo, who had been given notice by the State of its intent to seek the death penalty against him and who it appears had been engaged previously in plea negotiations with the State, appeared “kind of shocked” when he was shown the letter at issue and verbally acknowledged that the letter was a correct copy of a letter he had written to appellant. However, appellant correсtly argues that the investigator’s testimony recounting the “vocal act” by which David Arevalo allegedly acknowledged the letter was hearsay. See White v. State,
As noted previously, neither Mr. Bahena nor David Arevalo were called as witnesses, and no showing of the reason for their absence was even attempted. In fact, the investigator testified that he believed Mr. Bahena was incarcerated in a state prison at the time of appellant’s trial. After initially indicating the contrary, the district attorney ultimately recognized and acknowledged before the trial court that Mr. Bahena was not even on the State’s witness list.
Discounting entirely each piece of inadmissible hearsay and considering only the admissible evidenсe presented to the trial court, I conclude that the State’s showing of the letter’s alleged authenticity was inadequate. Although the letter itself reveals that its actual author, whether David Arevalo, Jose Bahena, or some other person, possessed some knowledge of the crimes and the parties to the crimes and was able to write in Spanish, I find the totality of the admissible circumstantial evidence of the letter’s authenticity as an alleged letter written by David Arevalo to appellant to have been insufficient to authorize the letter’s introduction into evidence. See Fetty v. State,
The improperly admitted letter was heavily relied upon by the State at trial to corroborate the inculpatory aspects of appellant’s partially-inculpatory videotaped statement and to suggest to the jury that appellant was the triggerman and had intended the victims’ deaths. I would hold, in light of an examination of the other evidence properly admitted at trial, that the erroneously-admitted letter harmed appellant in both phases of his trial, and, accordingly, I would reverse his convictions and sentences.
Because an examination of the issue of the letter’s inadequate authentication would fully dispose of the question of the letter’s admissibility at trial, I decline to express any opinion regarding the remaining contentions as to the letter’s admissibility.
I am authorized to state that Chief Justice Fletcher and Presiding Justice Sears join in this dissent.
Appellant also raised a best evidence objection, and argued that the facts alleged by the State did not constitute a continuing conspiracy, that the State’s evidence of an alleged continuing conspiracy was almost entirely composed of inadmissible hearsay, and that the letter lacked sufficient indicia of reliability to be admissible even if there were a continuing conspiracy.