Chavez v. StateChavez v. State
Juan Rabadan Chavez appeals his convictions for malice murder, participation in criminal street gang activity, possession of a firearm during the commission of a felony, and possession of a firearm by a first-offender probationer all stemming from the shooting death of Ricardo Hernandez Ovalle.1 Chavez challenges the sufficiency of the evidence as to his conviction for participation in
The trial evidence in the light most favorable to the verdicts showed the following. On July 23, 2015, Ovalle asked fellow
Duartes claimed that he did not see the shooter‘s face, but he considered the shooting to be gang-related because the name “Joker” was from a rival gang, Sox Los. Duartes also testified that Ovalle had been shot previously by a member of Sox Los. Police determined that Lionel Marron of Sandy Springs, who was in the Sox Los gang with Chavez, went by “Joker.” But witnesses failed to pick Marron
Several sources, including Ovalle‘s girlfriend, Dakota Parmelle, identified “Chucky” as a possible culprit. Chavez went by the name “Chucky.” An Azalea Parks resident who knew Chavez testified that he saw Chavez shoot Ovalle. Other witnesses picked Chavez out of a photo array with “50% certainty,” although one said that the man he identified, whom he saw walking up a hill immediately after he heard gunshots, could not have fired the shots.
Cell phone data showed that Chavez and Marron had many phone conversations on the day of the shooting, both before and after. Chavez called Marron at the same time as the initial 911 call reporting the shooting, at which point Chavez was in the vicinity of Azalea Parks and Marron was more than 15 miles away.
No ballistics evidence was found at the scene of the shooting. Three Remington brand .38-caliber bullets were recovered from Ovalle‘s body during his autopsy; they all came from the same firearm. Three spent shell casings and one live round found in Chavez‘s room were all .38 caliber, but none was a Remington brand.
A few days after the shooting, Chavez left his apartment in a hurry with only a backpack, telling his roommate he was going out of state. He did not return to the apartment. On March 2, 2016, more than seven months after the shooting, he was arrested reentering the United States at the Mexican border.
Because Chavez was charged with possession of a firearm by a first-offender probationer, the trial court admitted evidence that Chavez had been sentenced to two years of probation under the First Offender Act in July 2013. The jury was presented evidence that Chavez received that disposition after he pleaded guilty to possession of cocaine, possession of a firearm during the commission of a felony, driving without a license, and failure to maintain lane.
1. Chavez first argues that the evidence was insufficient to convict him of criminal street gang activity, as well as the felony murder count predicated on that felony. We conclude that the evidence was sufficient to convict him of criminal street gang activity, as well as malice murder and possession of a firearm during
When evaluating the sufficiency of evidence, the proper standard of review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). We do not resolve conflicts in the evidence or determine the credibility of witnesses; instead, we view the evidence in the “light most favorable to the verdict, with deference to the jury‘s assessment of the weight and credibility of the evidence.” Hayes v. State, 292 Ga. 506, 506 (739 SE2d 313) (2013) (citation and punctuation omitted). The jury‘s resolution of these issues “adversely to the defendant does not render the evidence insufficient.” Graham v. State, 301 Ga. 675, 677 (1) (804 SE2d 113) (2017) (citation and punctuation omitted).
(a) Chavez was charged with violating the Street Gang Act on the basis that, while associated with a criminal street gang, he participated in criminal gang activity through the commission of at least one of several crimes: murder, felony murder, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony. To convict Chavez, the State had to prove beyond a reasonable doubt the existence of a “criminal street gang,” that Chavez was associated with the gang, that he committed one of the offenses listed in
The State‘s gang expert testified that he was familiar with the presence of the Sox Los gang in Georgia, saying that it was a “subset” of the Sureños 13 gang. He said he had “seen a few” members of the “Sureños Sox Los gang” migrate from the west coast to the South, but acknowledged he had not “seen many” and could not “say [that he had seen] more than three.” He then testified that the Sox Los gang “absolutely” has more than three members. Police testified that Chavez was associated with the Sox Los gang, and the State admitted multiple photos of Chavez displaying gang signs and symbols and having tattoos representing the Sox Los gang.
We conclude that the evidence presented was sufficient for the jury to conclude that Sox Los is a criminal street gang. Evidence that Chavez displayed signs, symbols, and tattoos of the Sox Los gang was itself evidence of that gang‘s existence. See
(b) Although Chavez has not challenged the sufficiency of the evidence as to his other convictions, we have reviewed them according to our usual practice in murder cases. We conclude that the evidence was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Chavez was guilty of malice murder and possession of a firearm during the commission of a felony. But we also conclude that the evidence was not sufficient to support Chavez‘s conviction for possession of a firearm by a first-offender probationer.
At the time of Ovalle‘s shooting, the Georgia Code provided that “[a]ny person who is on probation as a felony first offender pursuant to Article 3 of Chapter 8 of Title 42 . . . and who receives, possesses, or transports any firearm commits a felony[.]”
2. Chavez next argues that his trial counsel rendered ineffective assistance in several respects related to counsel‘s failure to stipulate to his status as a first-offender probationer. We disagree.
To prevail on a claim of ineffective assistance of counsel, Chavez must show both that his trial counsel‘s performance was deficient and that this deficiency prejudiced his defense. Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). “To establish deficient performance, an appellant must
(a) Chavez argues that trial counsel performed deficiently by failing to stipulate to his status as a first-offender probationer at the time of the offense. Given that the evidence of his prior disposition was relevant only to prove his status as a first offender, Chavez
Even if trial counsel could have performed deficiently in failing to stipulate to Chavez‘s status as a first-offender probationer, however, Chavez has not shown a reasonable probability of a different outcome but for that failure to stipulate. This Court has held that prior convictions involving firearms and minor drug offenses are not likely to inflame the jury‘s passions in a murder case. Moore v. State, 306 Ga. 532, 534-535 (2) (b) (832 SE2d 384) (2019). Chavez points to language from the United States Supreme Court to the effect that the risk of unfair prejudice from a prior conviction for a gun crime is “obvious.” Old Chief v. United States, 519 U. S. 172, 185 (117 SCt 644, 136 LE2d 574) (1997). But the Supreme Court made clear in that same case that the risk of unfair prejudice “will vary from case to case” and that “a prior offense may be so far removed in time or nature from the current gun charge and any others brought with it that its potential to prejudice the
Here, the evidence against Chavez was strong. Two witnesses (including one who knew Chavez) identified him as the shooter, another witness placed him at the crime scene at the time of the murder, ammunition of the same caliber as the bullets found in the victim‘s body was located in Chavez‘s bedroom, his cell phone was in the area at the time of the murder, he initiated a flurry of phone calls to another gang member immediately after the murder, and he fled the state soon after the shooting. Although Chavez points out that the trial court did not instruct the jury that it should consider the first-offender disposition only to determine whether he was guilty of possessing a firearm while a first-offender probationer, the prior gun charge at issue was a mere possession offense, unaccompanied by any violent offenses, from which the jury was unlikely to draw an impermissible inference that Chavez had a propensity to commit the sort of violent crimes with which he was charged here. The State did not bring out details of the prior offenses through testimony, and instead only entered a copy of the prior
Trial counsel testified that the use of the disposition was at least “potentially” objectionable under
It is not clear that the prosecutor was relying on the first-offender disposition in arguing that Chavez “continuously had firearms“; it appears at least as likely that he was relying on the physical evidence found in Chavez‘s room. “Because the prosecutor‘s statements, in context, did not constitute a clear propensity argument, [Chavez] has not demonstrated that no reasonable attorney would have failed to object to those statements.” Kennedy, 304 Ga. at 289 (2).
Chavez also argues on appeal that trial counsel should have objected to the prosecutor characterizing his first-offender disposition as a “conviction,” given that he was not resentenced or adjudicated guilty. It is true that we have said that “[f]irst offender pleas are not a ‘conviction’ as understood in the Criminal Code” because the defendant is discharged without an adjudication of
(c) Chavez also argues that trial counsel performed deficiently by making an inflammatory closing argument in his defense. Specifically, the defense stated in closing argument as follows:
You heard all kinds of things about him being in a gang. You see the tattoos. You see him as a little boy him and Joker sitting there with gang signs. They were little menaces. Throw on top of that running back and forth across the border. They are everything, everything that is deemed undesirable in our society right now. He has got a conviction for possession of cocaine and he had a gun. Bad person.
Defense counsel then explained that, despite these bad things the jury had heard, Chavez had a constitutional right to hold the State to a burden of proof of beyond a reasonable doubt, even if the jury did not like him or “what he represents.” Chavez argues that this argument exacerbated the harm caused by counsel‘s failure to stipulate to his first-offender status by focusing the jury on
Defense counsel testified that he made the referenced argument to “shock” and “embarrass” the jury about the prospect of convicting someone who is a “scapegoat” for society‘s ills and to suggest that the State‘s case was merely “character assassination, basically trying to accuse him of one thing because he looks and resembles someone you are told every day is a bad person.”
Defense counsel is given wide latitude in making . . . closing arguments. This Court will not, with benefit of hindsight, second-guess defense trial strategies therein. Absent a strong showing that counsel‘s actions were not reasonable, we will presume that these strategies were not deficient.
Muller v. State, 284 Ga. 70, 73 (3) (663 SE2d 206) (2008) (citations and punctuation omitted). Again, the inquiry into the reasonableness of counsel‘s strategic decisions is an objective one. We cannot say it was objectively unreasonable to address in closing the prejudicial information the jury had heard about Chavez, reminding the jury that it could not convict him of murder simply
3. Finally, Chavez argues that the trial court erred in denying his motion for a mistrial after the State failed to disclose a prior inconsistent statement by Duartes in violation of Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963). We disagree.
During Duartes‘s testimony at trial, he maintained that Ovalle used the name “Joker” as he emerged from the car, and Duartes denied telling Parmelle that the shooter went by the name “Chucky.” But Parmelle subsequently testified that Duartes told her that the shooter‘s name was “Chucky.” The defense later moved for a mistrial on the basis of a Brady violation in the State‘s failure to disclose Duartes‘s alleged statement to Parmelle. The trial court denied the motion.
“[T]he suppression by the prosecution of evidence favorable to
Chavez argues that the State should have disclosed Duartes‘s alleged statement to Parmelle because it impeached Duartes‘s trial testimony to the contrary. To the extent that the statement had some impeachment value, Chavez cannot show a reasonable probability that the result of the trial would have been different had the State disclosed it to him. The jury actually heard the evidence of the statement. Parmelle testified as to the statement in question, and Chavez cross-examined her about that statement, including whether she had ever told the police about it. And the jury was free to credit or reject her assertions about what Duartes told her. See Cain v. State, 306 Ga. 434, 440 (3) (831 SE2d 788) (2019) (no showing
But Chavez‘s argument as to the materiality of the alleged statement is not that he actually would have used it to impeach Duartes‘s testimony. Obviously, Chavez does not suggest that, had the prosecution disclosed the alleged statement to him in advance of trial, he would have impeached Duartes‘s trial testimony — that Duartes did not see the shooter‘s face, and that Ovalle had identified someone other than Chavez as the shooter — with his alleged statement to Parmelle indicating that Chavez was the shooter. Rather, Chavez argues that the alleged statement was material given its inculpatory nature, arguing that the result of the proceedings might have been different because the statement was so harmful to him that he might have pleaded guilty instead of going to trial. But he points to no authority for the proposition that an impeaching statement may be material due to its inculpatory
Judgment affirmed in part and reversed in part. All the Justices concur.
Notes
Any person sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42 or sentenced pursuant to subsection (a) or (c) of Code Section 16-13-2 and subsequently discharged without court adjudication of guilt as a matter of law pursuant to Code Section 42-8-60 or 16-13-2, as applicable, shall, upon such discharge, be relieved from the disabilities imposed by this Code section.