At а joint trial in Gwinnett County Superior Court, Jonathan Deleon-Alvarez, Francisco Palacios-Baras, Tito Hernandez and a fourth co-defendant (who is not an appellant in the instant cases) were found guilty by the jury of kidnapping for ransom
Evidence adduced at trial showed that in early 2009, the Atlanta High Intensity Drug Trafficking Area (HIDTA) task force began a drug trafficking investigation. As part of that investigation, the
That evening, several law enforcement officers set up surveillance of the Floyd County residence, which by then had been determined by police to be that of Palacios-Baras. Starting at about 10:45 p.m., officers observed individuals exiting the house and leaving in several vehicles — a white Ford Expedition, a tan Toyota Camry, and a white GMC Yukon Denali — that had been parked at the residence. Concerned that one of the vehicles was carrying a hostage, officers pursued the departing vehicles and quickly effected traffic stops upon two of them.
Having stopped the Expedition, police extracted its three occupants: (i) Tejada, who was seated in the back seat and who immediately exclaimed thаt his life had been threatened; (ii) Deleon-Alvarez, who was seated in the back seat beside Tejada; and (iii) the driver, the fourth co-defendant (who is not an appellant). When the Camry was stopped, Hernandez, the driver, was the vehicle’s lone occupant.
That night, officers lost sight of the Denali, and also were unable to locate Palacios-Baras. Based on ping data obtained in connection with one of the targeted cell phones that Palacios-Baras was still carrying, however, officers located him the next day. He was a passenger in a vehicle traveling in tandem with the Denali observed at his residence the night before. During a traffic stop of both vehicles, Palacios-Baras was arrested.
The state presented numerous witnesses who testified about Tejada’s abduction, confinement, and rescue, as well as the arrests of the three appellants.
Four or five men were already at that house, including the four co-defendants. Deleon-Alvarez and Hernandez used duct tape to bind Tejada’s hands and legs, and told Tejada that they needed to solve something. Palacios-Baras and the fourth co-defendant were “leaning around, waiting until [Tejada] got bonded with the tape.” About a half-hour after Tejada was brought to that house, he was lifted and placed in a tan Toyota Camry that was parked in the garage. Hernandez and Deleon-Alvarez also got into the Camry, and Tejada was again blindfolded. While Hernandez drove the Camry away, Deleon-Alvarez pressed what felt to Tejada like the tip of a handgun against Tejada’s back. After leaving that house, Tejada did not see again the two men who had nabbed him from the parking lot.
After about two hours of riding, they arrived at another residence, determined later to be located in Floyd County. Tejada was pulled out of the Camry and taken into the house. When the blindfold was removed, Tejada was in a room with all four co-defendants, each of whom held a firearm. Tejada testified that Palacios-Baras “came up to me, telling me that the drugs were stolen and that he was there to clean up the mess.” As Tejada summarized at trial, “They told me that a [drug deal] had gone wrong and that that was the reason why they had kidnapped me.”
Tejada elaborated at trial that, a few days before he was abducted, he had set up a drug deal between two of his store patrons, as a seller and a buyer. The deal involved three kilograms of cocaine. For brokering that deal, Tejada was to be paid $500. But, as Tejada testified, “[T]he drugs had been ripped off.”
Thus, Tejada recalled at trial that when he was in that room with the four armed co-defendants and Palacios-Baras said to him that he (Palacios-Baras) was there to “clean up,” Tejada discerned that they would “basically make sure that either I pay up, or they were going to kill me.” According to Tejada, “They thought I stole the drugs,” and they demanded from him $84,000, which Tejada explained at trial “was the total amount that was owed for the drugs that was stolen.” Tejada recalled that it was Palacios-Baras who “approached me, telling me that I needed to pay up over some drugs that got knocked off from them. And that they didn’t care who knocked them up, they just wanted the money.” Because Palacios-Baras continually pressed
Shortly thereafter, Tejada testified, one of numerous cell phones at the house rang and, when answered, he overheard the caller warning them to leave the house. Palacios-Baras and Hernandez left the residence first. Deleon-Alvarez and the fourth co-defendant stayed in the house with Tejada and removed the duct tape from Tejada’s hands and legs to enable him to move more quickly. The two threatened to kill Tejada if he made any suspicious movement. They forced Tejada into the back seat of a white Ford Expedition; Deleon-Alvarez sat beside him, aiming a gun at him; and the fourth co-defendant drove the Expedition away.
Soon remarking that cops were following them, the driver increased his speed to outrun the police and tossed a handgun out the window. The patrol car activated its blue lights and siren, pursued the speeding Expedition, then engaged in a maneuver that forced the Expedition to stop. Deleon-Alvarez stashed his gun in the back seat. Additional law enforcement officers converged upon the scene, and the three occupants were extracted from the Expedition and handcuffed. Tejada testified that he told police at the scene that he had been kidnapped from Gwinnett County earlier that day.
According to one of the arresting officers, Tejada also “uttered out something like, they were going to kill me.” The officer saw “grayishwhiteish” glue around Tejada’s wrists. During a search of the Expedition, police found a gun in the glove box and a gun secreted in the back seat. Police found also a gun alongside the road traveled during their pursuit of the Expedition.
Meanwhile, other law enforcement officers effected a stop of the Camry. Hernandez was the driver and only occupant. Officers confiscated $7,100 in cash from his person. A search of the vehicle yielded a loaded “magazine from a handgun,” found near the front passenger seat.
At about 11:20 that same night, other law enforcement officers executed a warrant that had been obtained to search the Floyd County residence. Inside the house, they found, inter alia, “bunched up” duct tape in a trash can, digital scales of a type often used to measure drugs, a pistol, gun holsters, and a bulletproof vest. The next day, police located and arrested Palacios-Baras.
The state also presented the jury with a series of transcripts of (recorded) phone conversations conducted with Palacios-Baras’s targeted cell phones; many of the calls were made on the day in question,
Case No. A13A1000 — Appeal of Deleon-Alvarez
1. “The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.”
motion for new trial was filed before the judgment was entered, making it void. However, the effect of the subsequent entry of a judgment on the jury’s verdict is to render the otherwise void motion one which was only prematurely filed and this prematurity will not serve to deprive the appellate court of jurisdiction to review the merits of the appeal. Consequently, the order denying the motion, as amended, . . . was timely appealed.6
2. Deleon-Alvarez challenges his conviction on general grounds, arguing that certain evidence was incompetent.
(a) Citing the Supreme Court of Georgia’s recent decision in Luangkhot v. State,
[Suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. The exclusionary rule is to protect those whose Fourth Amendment rights have been violated.10
Moreover, “[t]he only authority for a motion to suppress is [OCGA § 17-5-30], and under the provisions of that statute a pretrial motion to suppress is available only to the person aggrieved by an unlawful search and seizure.”
Deleon-Alvarez makes no assertion that his Fourth Amendment rights were violated. Rather, he acknowledges in his appellate brief that the evidence showed that he was not a subscriber of the phones tapped and that his voice was not heard during any conversation of the phones tapped. As Deleon-Alvarez puts it, “Appellant could not move to suppress the wiretap since the phone was not his.” Because there was no evidence that Deleon-Alvarez was a subscriber of the phones tapped and no evidence that his voice was heard during the wiretapped conversations, he lacked standing to seek suppression of the conversations at issue (and thus any alleged fruit of the poisonous tree) on the ground raised here.
[A] law enforcement officer may conduct a constitutional invеstigatory stop of an individual when the officer is able to point to specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant that intrusion. That is, under the totality of the circumstances, the investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.14
Trial evidence showed that, based on telephone surveillance, the police had discerned that an abducted individual was being held against his will at a particular residence in Floyd County. A warrant had been issued to search that residence. Police had maintained direct observation of the residence and had seen persons exiting the house and leaving in vehicles, including the Expedition, which police then followed at close range prior to effecting the stop. Those circumstances provided a lawful basis for the traffic stop of the Expedition.
(c) Deleon-Alvаrez argues that the victim of the kidnapping crime, Tejada, was an accomplice in drug trafficking, and that there
In light of that Code section, “the testimony of an accomplice used to convict the [defendant] of a crime must be supported by independent corroborating evidence as to the identity and participation of the [defendant] tending to connect him to the crime.”
Pretermitting whether Tejada could have been considered an accomplice of Deleon-Alvarez for purposes of former OCGA § 24-4-8,
(d) Contrary to Deleon-Alvarez’s contention, the evidence adduced against him was sufficient to sustain his conviction of kidnapping for ransom.
3. After the time for filing a brief and enumeration of errors had passed, Deleon-Alvarez filed a supplemental brief,
Deleon-Alvarez did not contend in his enumeration of errors that the trial court so erred. Pretermitting whether this contention was timely presented to this court,
4. Deleon-Alvarez has filed a motion to remand this case for a hearing “to determine if the appellant has standing or if trial counsel was ineffective for failing to move for suppression of the wiretaps.”
5. As was the situation in Deleon-Alvarez’s case,
6. Palacios-Baras contends that his Sixth Amendment right to confrontation was violated when the trial court sustained objections to his cross-examination of Tejada about a deal Tejada made with the state.
The record shows that Tejada testified at the trial under a grant of testimonial immunity.
Q: Mr. Tejada, you understand that you were testifying under a grant of testimonial immunity, correct?
A: Yes.
Q: And you understand—do you understand what that means?
A: Yes.
Q: Do you understand that that means anything you say cannot be used against you? Anything you testify to cannot be used against you in a future prosecution.
A: Yes.
Hence, Palacios-Baras sought to show on cross-examination that Tejada was thereby biased:
Q: And you have never been in — and you have never been indicted for the crime of conspiracy to traffic in cocaine; is that correct?
A: Yes.
*704 Q: Did you conspire to put together a three-kilo cocaine deal...?
A: Yes.
Q: Okay. So you are here, today, to testify without having ever been charged, is basically what I’m getting at. And you have been granted a complete immunity to testify here today.
A: Yes.
Q: And you know that by testifying here today, you do not have to do one minute in prison for anything that you’ve done in the past, correct?
The prosecutor interjected, “Judge, I object. That’s a gross misstatement of what testimonial immunity is, Judge.” The trial court agreed, responding further with an instruction to the jury explaining:
Testimonial immunity means you cannot be prosecuted for what you say in court or any—directly or indirectly. In other words, the evidence that you give in court cannot turn around and then be admitted against you and used against you, should you be charged with a crime, based upon the things that you admit in court. It differs from transactional immunity, which means you cannot be prosecuted for the transaction at all, any time.35
Thereupon, Palacios-Baras’s cross-examination of Tejada resumed:
Q: And you have agreed to testify against these men with immunity and you know that you did this to avoid being prosecuted; is that correct?
A: Yes.
Q: And you know that the penalty is 25 years in prison for trafficking in cocaine and [sic] that amount, so you’ll never have to do that.
Again, the prosecutor objected, which objection the court sustained. Further, the court remarked to defense counsel, ‘You’re
On appeal, Palacios-Baras relies on State v. Vogleson
That is not to say, however, that the Confrontation Clause of the Sixth Amendment prohibits the imposition of any limits on the cross-examiner’s inquiry into the potential bias of an adverse witness. . . . [T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, cоnfusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.40
Here, the trial court was authorized to determine that, as phrased, the questions that drew objections tended to confuse issues relating to the specific type of immunity extended to Tejada.
7. Palacios-Baras contends that the trial court erred by rejecting his claim of ineffective assistance of counsel.
In order to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,[45 ] [a defendant] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. On appeal, this [c]ourt accepts the trial court’s findings of fact, unless they are clearly erroneous. However, the trial court’s legal conclusions are reviewed de novo.46
[I]n the absence of any state statute expressly granting superior courts the authority to issue wiretap warrants that apply outside their own judicial circuits, we hold that current state law vests the authority to issue wiretap warrants only in those superior courts of the judicial circuits in which the tapped phones or listening post are located.50
Palacios-Baras contends that, under that holding, the Gwinnett County Superior Court lacked the authority to issue the wiretap warrant for the interceptions at issue here,
Palacios-Baras’s contention demоnstrates no error, however, in the trial court’s rejection of his ineffectiveness claim. After Palacios-Baras was convicted, he was appointed new counsel who, as Palacios-Baras concedes on appeal, did not include on motion for new trial an allegation that trial counsel was effective for failing to challenge the propriety of the underlying warrant. “Because appellant’s allegation of ineffective assistance based on [such failure] was not raised on
Even had Palacios-Baras’s post-conviction counsel alleged that trial counsel was ineffective for failing to file a motion to suppress evidence on the ground of an unauthorized warrant, the trial court would have been bound to reject it under this court’s 2012 decision in Luangkhot v. State.
Indeed, Palacios-Baras’s claim that “[certain] evidence was plainly illegal pursuant to our Supreme Court’s holding in Luangkhot’ is, on its face, the product of hindsight, which has “no place in an assessment of the performance of trial counsel.”
Hindsight, whether by a court, the defendant, or defendant’s counsel, is a legally insufficient basis for concluding that counsel’s performance at trial was deficient. As the United States Supreme Court has explained, a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct*709 the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.57
“There is a rebuttable presumption that counsel exercised reasonable professional judgment.”
8. Palacios-Baras has filed a motion to remand this case “for a hearing on trial counsel’s effectiveness consistent with our Supreme Court’s holding in Luangkhot.” Palacios-Baras explains that “[he] did not raise said ineffectiveness in the trial court because Luangkhot was decided after [his] motion for new trial was denied.” Given our holding in Division 7,
Case No. A13A1002 — Appeal of Hernandez
9. Hernandez contends that the trial court erred by rejecting his claim of ineffective assistance of trial counsel, asserting that his trial counsel was “ineffective for not making use of available evidence to show that the evidence supported conclusions other than that Appellant was party to the crime of kidnapping for ransom.”
In particular, Hernandez claims that the trial evidence did not “conclusively establish that only four people participated in the criminal enterprise”; that the evidence did not “foreclose someone other than [Appellant as] the driver of the Camry from Gwinnett County to Floyd County”; and that his lawyer did not “offer an explanation for Appellant’s presence at the scene of the crime.” Hernandez posits that his trial lawyer might have advanced theories that his involvement was limited to the Camry — as a prospective buyer of that vehicle, or alternatively, as one serving only to dispose of that vehicle.
Hernandez showed on motion for new trial that, prior to trial, the state provided the defense recordings of numerous intercepted telephone conversations concerning the sales of various vehicles. Hernandez thus posited on motion for new trial that his trial lawyer should have used those conversations to support a defense theory that he was at the Floyd County residence solely to purchase or otherwise dispose of the Camry. On appeal, Hernandez argues that “disposing of the Camry would make Appellant an accessory after the fact. One cannot be guilty both as a principal involved in the crime and as an accessory after the fact.”
But as Hernandez acknowledges in his appellate brief, none of the conversatiоns that he cited on motion for new trial concerned the Camry. And none of the conversations concerned a vehicle transaction involving Hernandez.
Even assuming arguendo that alternate strategies were available for Hernandez’s defense, “[i]t cannot be said that counsel was ineffective simply because another attorney might have placed more or a different emphasis on the evidence.”
We reject Hernandez’s claim that this trial “strategy was unreasonable to the extent that no competent attorney would have chosen it on Appellant’s behalf.”
While other counsel, had they represented appellant, may have exercised different judgment, the fact that the trial counsel chose to try the case in the manner in which it was tried and made certain difficult decisions regarding the defense tactics to be employed with which appellant and his present counsel now disagree, does not require a finding that the representation below was so inadequate as to amount to a denial of effective assistance of counsel.69
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.70
Because Hernandez’s trial lawyer, after reviewing the evidence and consulting with Hernandez, made a reasonable decision to pursue an all-or-nothing defense strategy, the trial court did not err in rejecting the claim of ineffective assistance of trial counsel.
10. With new counsel on appeal, Hernandez asserts that counsel who represented him on motion for new trial was ineffective for failing to allege that his trial counsel was ineffective for failing to move to suppress the evidence obtained by investigators through the wiretapрing. Hernandez cites the Supreme Court of Georgia’s decision in Luangkhot
At trial, Hernandez’s lawyer elicited testimony from prosecution witnesses that Hernandez was never identified as an owner or subscriber of the three targeted cell phones monitored, nor was he ever identified as a participant of the intercepted conversations. And on appeal, Hernandez makes no assertion that there was evidence that he had standing to pursue suppression of such evidence. We therefore conclude that Hernandez lacked standing to pursue suppression of the evidence,
11. After the time for filing a brief and enumeration of errors had passed, Hernandez filed a supplemental brief, contending that “[t]he trial court erred in admitting evidence from a void wiretap warrant and the evidence based upon the wiretap evidence.” Hernandez cites the Supreme Court of Georgia’s decision in Luangkhot.
Hernandez did not claim in his enumeration of errors that the trial court so erred. Pretermitting whether this contention was timely presented to this court,
Judgments affirmed.
Notes
OCGA §§ 16-5-40 (concerning kidnapping); 16-2-20 (concerning parties to a crime). The indictment alleged that each of the four co-defendants had committed kidnapping for ransom in Gwinnett County on or about October 11, 2009, in that said accused “did then and there unlawfully abduct Jose Wilson Tejada... and hold said person against his will for ransom.” The jury was instructed on parties to a crime.
The state adduced evidence that the location of a telephone handset equipped with global positioning system (GPS) сan he determined, oftentimes within a radius of three meters.
None of the co-defendants testified or called any witness.
Veasley v. State,
Id. (citation and punctuation omitted).
McClanahan v. State,
See generally Jordan v. State,
See Romano v. State,
Ellis v. State,
Romano, supra at 819 (1) (a) (citation omitted); see Burgeson v. State,
See Ellis, supra (determining that defendant had no standing to challenge, under Georgia statutory law, the electronic surveillance of the telephone of his co-defendant, explaining that “[w]hen the voice of an individual is not heard and the tap is not on his premises, he has no standing”); Rogers v. State,
See Division 2 (a), supra.
Garmon v. State,
See id. at 677-678 (2) (determining that police were justified in conducting stop of vehicle after it left a residence at which it had been determined there was probablе cause that it was then the location of controlled substances and the site of illegal activity, the nature of some of the illegal activity made it reasonable to conclude that there would be contraband in the vehicle leaving the residence, and which stop was conducted within 20 minutes of police monitoring wiretap of telephone at residence and overhearing discussion of illegal activity).
When Deleon-Alvarez’s trial was conducted in April 2011, OCGA § 24-4-8 (2011) pertinently provided:
The testimony of a single witness is generally sufficient to establish a fact. However, in... felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness.
Ladson v. State,
Terrell v. State,
Hinely v. State,
Id.
See generally Johnson v. State,
See Jackson v. Virginia,
See Court of Appeals Rule 27.
Supra.
See Campbell a State,
See Division 2 (a), supra.
See Owens, supra; Romano, supra.
Deleon-Alvarez filed this motion through counsel obtained after he was convicted.
Supra.
Supra (holding that Deleon-Alvarez lacked standing to seek suppression on the ground that the wiretapping was unlawful).
See Chapman v. State,
See Division 1, supra.
McClanahan, supra (emphasis in original); see Fairclough, supra.
The trial court entered an order that provided:
The Court having considered the State’s motion to grant testimonial immunity to Jose Wilson Tejada, it is hereby ordered that the State’s motion is GRANTED____
[N]o evidence derived directly or indirectly from his testimony during the [underlying trial] may be used against him in any proceeding or prosecution.
See OCGA § 24-9-28 (a) (2011) (providing, in relevant part, that “no testimony or other evidence . . . may be used against the person in any proceedings or prosecution for a crime or offense concerning which he testified or produced evidence under court order”).
See Corson v. Homes,
Id. at 638 (1) (citation and punctuation omitted).
Id. at 640 (1) (citations omitted).
Id. at 639 (1) (citations omitted).
Id. (citations and punctuation omitted); see Younger v. State,
See Corson, supra; In re Long, supra.
See generally Young v. State,
Vogleson, supra at 638, n. 3, quoting Perez v. State,
See Hodo v. State,
Hill v. State,
Supra.
Id. at 424-425 (1), citing OCGA § 16-11-64 (c) (2011).
Id. at 423.
Id. at 428 (4). The Supreme Court decided Luangkhot on January 7, 2013 (denying motion for reconsideration on February 18, 2013). Thereafter, the General Assembly amended OCGA § 16-11-64 (c), effective February 13, 2013, so as to provide:
Upon written application, under oath, of the district attorney having jurisdiction over prosecution of the crime under investigation or the Attorney General made before a judge of superior court having jurisdiction over the crime under investigation, such court may issue an investigation warrant permitting the use of a device for the surveillance of a person or place to the extent the same is consistent with and subject to the terms, conditions, and procedures provided for by 18 U.S.C. Chapter 119. Such warrant shall have state-wide application and interception of communications shall be permitted in any location in this state.
(Emphasis supplied.) See Ga. L. 2013, p. 4, § 1.
See OCGA § 15-6-1 (20) (providing that Gwinnett Judicial Circuit is composed of the County of Gwinnett).
Allen v. State,
Hill, supra (citation and punctuation omitted); see Rickman v. State,
Hill, supra at 499-500 (7) (rejecting claim that trial counsel performed deficiently by failing to request a certain jury instruction, noting that at the time of trial, there was no basis for requesting it); see Chapman, supra.
Jones v. State,
Wright v. State,
Schofield v. Gulley,
Green, supra; see Brown v. State,
Brown, supra (citation and punctuation omitted).
See Jones, supra; Brown, supra; McClure v. Kemp,
Supra.
See generally Billings v. State,
Jones v. State,
See Ingram v. State,
Strickland, supra at 689 (III) (A) (citation omitted).
Van Alstine v. State,
Strickland, supra (citation omitted).
See Jones,
Supra.
See Lewis, supra (reiterating that “a defendant cannot resuscitate procedurally barred claims of ineffective assistance of trial counsel simply by bootstrapping them to a claim of ineffectiveness of appellate counsel”).
See Ellis, supra; Rogers, supra; see also Jordan, supra.
See Chapman, supra.
Supra.
See Campbell, supra; see also Potter, supra; Stokes, supra.
See Division 10, supra.
See Owens, supra; Romano, supra.