GRULLON v. THE STATE
S21G0485
In the Supreme Court of Georgia
Decided: December 14, 2021
LAGRUA, Justice.
In September 2017, a jury found Victor Grullon guilty of trafficking heroin, and the trial court sentenced him to serve 30 years in prison. Grullon appealed, challenging the sufficiency of the evidence and arguing that the trial court gave an erroneous jury charge on deliberate ignorance. The Court of Appeals affirmed Grullon‘s conviction, concluding that the evidence was constitutionally sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), and that Grullon did not show “reversible error because he affirmatively stated to the trial court that he had no objection after the jury was charged.” Grullon v. State, 357 Ga. App. 695, 695 (849 SE2d 291) (2020). We granted certiorari to decide whether the Court of Appeals correctly held that
1. Pertinent Facts and Procedural History
(a) Factual Background
The underlying facts, as summarized by the Court of Appeals, see Grullon, 357 Ga. App. at 696-697 (1), show that in early 2016, the federal Drug Enforcement Administration, together with various local law enforcement agencies, conducted an investigation into Marcelo Enciso-Rodriguez. Law enforcement officers believed Enciso-Rodriguez was acting as a middleman in a heroin trafficking operation that involved a supplier in Mexico, known as “Mariachi,” and buyers from New York and Philadelphia. The buyers would drive to the metro Atlanta area and meet Enciso-Rodriguez at a QuikTrip convenience store, where he would give them a car battery in which heroin was concealed. As part of their investigation, officers conducted surveillance on Enciso-Rodriguez through
In January 2016, officers observed a transaction between Enciso-Rodriguez and a man later determined to be Tomas Hernandez, in which Enciso-Rodriguez gave Hernandez a car battery. Before and after the meeting with Hernandez, Enciso-Rodriguez spoke with Mariachi, using coded phrases referring to Hernandez and to the amount of money involved in the transaction.
On February 5, 2016, Mariachi and Enciso-Rodriguez spoke on the phone about another transaction. Apparently referring to a new buyer, Mariachi told Enciso-Rodriguez that “he left today” and would arrive to meet with Enciso-Rodriguez at some point the following day, possibly in the morning.
On the morning of February 6, Enciso-Rodriguez had a series of telephone conversations with a man, later identified as Grullon, who asked for directions to the QuikTrip. Grullon and Hernandez, the buyer from the January transaction, arrived at the QuikTrip in
(b) Trial court proceedings
In January 2017, Grullon was indicted by a Gwinnett County grand jury, together with Encisco-Rodriguez and Hernandez,1 on
The element of knowledge, intent, may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what would otherwise have been obvious to him. A finding beyond a reasonable doubt of conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant‘s knowledge of a fact may be inferred from willful blindness to the existence of the fact. Again, whether or not you draw such an inference is a matter
Grullon objected to the State‘s requested charge, asserting that this charge should not be given in circumstances where the evidence “points to either actual knowledge or no knowledge on the part of the defendant,” and the State had argued that Grullon had a basis for actual knowledge in this case. The trial court overruled Grullon‘s objection and gave the State‘s requested charge on deliberate ignorance.
When the trial court completed the final instructions to the jury, the trial court asked the parties whether there were any exceptions, and Grullon‘s trial counsel replied, “No, sir, Judge.” Grullon was convicted by the jury of trafficking in 28 or more grams of a mixture containing heroin under
Grullon subsequently filed a motion for new trial, asserting that there was insufficient evidence for the jury to find he was in constructive possession of the drugs and that the trial court gave an erroneous jury charge on the issue of deliberate ignorance. With
(c) Grullon‘s appeal to the Court of Appeals
On appeal, Grullon challenged the sufficiency of the evidence and asserted that the trial court erred in giving the deliberate ignorance charge “because the charge equated intent with knowledge.” Grullon, 357 Ga. App. at 700 (2). The State conceded on appeal that this charge was erroneous, but argued that the error was harmless. See id. See also Matos-Bautista v. State, 353 Ga. App. 773, 778 (1) (839 SE2d 260) (2020) (“[A] charge on deliberate ignorance that equates intent with knowledge, or which tends to confuse those concepts, is erroneous.“). Without addressing whether the trial court committed an obvious error in giving this charge or if
Grullon did not preserve this claim of error for regular appellate review. Although he objected to the charge at the charge conference (albeit on different grounds), Grullon did not object to the charge at the time it was given. For that reason, his claim that the trial court erred by giving the charge is subject to review only for plain error.
And Grullon cannot show plain error, which among other things requires a showing that the error has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (citation omitted). After giving the charge to the jury, the trial court asked if Grullon had any objection to it, and his trial counsel responded “no.” By affirmatively stating that he had no objection to the charge to the jury, Grullon waived any claim that the charge was improper, meaning that he cannot show plain error. See Lee v. State, 347 Ga. App. 508, 512 (2) (b) (820 SE2d 147) (2018).
Grullon, 357 Ga. App. at 700 (2) (punctuation omitted). The Court of Appeals accordingly affirmed the trial court. See id.
For the reasons that follow, we conclude that the Court of Appeals erred in identifying affirmative waiver under the facts of this case, and, thus, we reverse this division of the Court of Appeals’ decision and remand the case for reconsideration of other elements
2. Analysis
(a) Grullon did not affirmatively waive his claim that the trial court erred in giving an erroneous jury instruction.
Under
(a) Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Such objections shall be done outside of the jury‘s hearing and presence.
(b) Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court‘s attention as provided in subsection (a) of this Code section.
In accordance with subsection (a), a party who objects to any of the charges given to the jury is obligated to raise that objection before the jury retires to deliberate. See
For purposes of undertaking the plain error analysis, this Court established the following test for determining whether there is plain error in jury instructions under
First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant‘s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial
Kelly, 290 Ga. at 33 (2) (a) (citation and punctuation omitted; emphasis in original).
In this case, the Court of Appeals did not consider any other elements of the plain error test delineated in Kelly because the court concluded that the first requirement was not met: Grullon had “waived any claim that the charge was improper” by “affirmatively stating that he had no objection to the charge” after it was given to the jury. Grullon, 357 Ga. App. at 700 (2). On certiorari review, Grullon contends and the State concedes that the Court of Appeals erred in making this ruling. We agree.
The parties do not dispute that the trial court‘s jury instruction on deliberate ignorance was clearly erroneous. And, although Grullon stated no objection to the charge after it was given — thereby forfeiting ordinary appellate review — this does not necessarily establish “affirmative waiver” of the error on appeal. See Cheddersingh, 290 Ga. at 684 (2). To constitute an affirmative waiver, the appellant‘s argument that the trial court “deviat[ed]
Under the plain error analysis articulated in Kelly, an objection is intentionally relinquished or abandoned if it is “affirmatively waived.” Applying the standard articulated in United States v. Olano, 507 U. S. 725 (113 SCt 1770, 123 LE2d 508) (1993), we have contrasted such a waiver — the intentional relinquishment of a known right — with “forfeiture,” which is the mere “failure to make the timely assertion of the right.” An affirmative waiver may occur, for example, when a defendant requests a specific jury instruction but later withdraws such request; explicitly requests a jury instruction that he later argues on appeal should not have been given; or objects to a charge that he later argues on appeal should have been given. In such circumstances, the defendant has invited the alleged error, and it therefore provides no basis for reversal.
Vasquez v. State, 306 Ga. 216, 229 (2) (c) (830 SE2d 143) (2019) (citations and punctuation omitted).
Grullon objected to the deliberate ignorance charge at two points during trial before the trial court charged the jury. And, while he did not object again after the final instructions were given, that “does not show that [Grullon] intentionally relinquished” his known rights with regard to the deliberate ignorance instruction.
Moreover, we discern no tactical reason for Grullon‘s trial counsel not to object to the deliberate ignorance charge after it was given in the final instructions to the jury, particularly because he had previously objected to the instruction during trial and been informed by the trial court that the charge would be given. See Vasquez, 306 Ga. at 230 (2) (c) (“[T]he appellate court can conclude that the defendant‘s right — or objection — to a particular instruction was intentionally relinquished if the appellate court can discern a tactical reason on the part of the defense for failing to request (or object to, as the case may be) a specific jury instruction.” (Citation and punctuation omitted)).
Additionally, while the Court of Appeals relied on Lee in concluding that Grullon waived any claim that the deliberate
Because Grullon‘s claim of error was not affirmatively waived and survives the first step of plain error review, the Court of Appeals must now consider other parts of the plain error analysis, in particular whether the error that the State has conceded probably affected the outcome of the proceedings. See Kelly, 290 Ga. at 33 (2) (a) (holding that “the error must have affected the appellant‘s substantial rights, which in the ordinary case means he must
Judgment reversed in part and case remanded. All the Justices concur.