Tried together in a jury trial, Jesus Maria Lopez and Ruben Vega Medrano were both convicted on two counts of kidnapping and on two counts of aggravated assault. Lopez was also convicted of possessing a firearm during the commission of a felony. Lopez appeals in Case No. A03A0470, contending the court erred in failing to give his requested charge on false imprisonment, in denying his two motions for mistrial, and in denying his special demurrer to the indictment. In Case No. A03A0471, Medrano raises a single enumeration of error, arguing that the court erred in denying his motion for new trial that asserted ineffective assistance of counsel. We hold that neither appeal has merit and therefore affirm in both cases.
Construed in favor of the verdict, the evidence showed that Lopez, Medrano, and a compatriot drove to the residence of Cristobal Maciel to determine the whereabouts of a man who allegedly owed them money. The three men forced Maciel into their vehicle at gunpoint. They then approached a woman (Martha Rodriguez) about the whereabouts of the alleged debtor. When she replied she did not know his whereabouts, the three men used guns and physical violence to force her also into their vehicle. The woman’s daughter saw the incident and called police.
Holding guns on the victims, the three men then drove around for three hours in search of the alleged debtor, repeatedly threatening to kill the victims if they did not lead the men to the debtor. To save their lives, Maciel offered to give the three men two cars to pay the alleged debt. Maciel used a cell phone to arrange to have two .cars dropped off at a local gas station. Alerted to the arrangement, police rescued the hostages and arrested the three men when the men picked up one of the cars.
The three men were indicted on two counts of kidnapping, two counts of aggravated assault, one count of burglary, and one count of
The court granted a directed verdict on the burglary count. The court instructed the jury on the remaining counts but refused to give Lopez’s requested charge on false imprisonment, reasoning that no evidence supported such a charge. The jury found the three defendants guilty on all counts with the exception that Medrano was acquitted of the possession of firearm offense. Lopez and Medrano moved for a new trial, which the court after an evidentiary hearing denied. Lopez appeals in Case No. A03A0470, and Medrano appeals in Case No. A03A0471.
Case No. A03A0470
1. Lopez first claims that the court erred in not giving his requested jury charge on the lesser offense of false imprisonment. He argues that if the jury believed his testimony that the two victims went with the three men voluntarily, “this would negate the element of holding them against their will [required for a kidnapping offense] and justify a charge on the lesser charge of false imprisonment.”
This argument is nonsensical. Absent the element of holding the victims against their will, there is no crime of false imprisonment either. Lucas v. State,
Moreover, the evidence here showed that any detention of the victims was accompanied by the element of asportation. Accordingly, Lopez was either guilty of the offense of kidnapping or not guilty of any detention-related offense. See Brown v. State,
For these reasons, the court did not err in refusing to give the charge on false imprisonment.
2. Lopez contends that the trial court erred in denying his two motions for mistrial triggered by police testimony that possibly referenced interviews with the defendants. He claims that such references shifted the burden of proof to require the defendants to testify in their own defense. We hold that the trial court did not abuse its discretion in denying the motions for mistrial.
“Whether to grant a motion for mistrial is within the sound discretion of the trial judge, and a decision based on that discretion will not be disturbed on appeal unless abuse of discretion is shown. [Cit.]” James v. State,
We hold that no prejudicial matter was presented to the jury and that the trial court did not abuse its discretion in finding that Lopez’s right to a fair trial was preserved. The first reference to an interview was during the State’s direct examination of an officer, who was asked if he could identify in the courtroom a suspicious pedestrian he saw the night of the crime. The officer replied, “It’s been a long time. The only time I ever saw him was later on that night at the interview — ,” at which time Medrano’s attorney objected and moved for a mistrial. Lopez’s counsel joined in the motion. Finding no harm in the statement, the court denied the motion, and the officer later testified that Lopez was not this man but was apprehended at another location.
Even assuming that a reference to a police interview of a defendant would prejudice that defendant, the reference to the interview here does not identify who was being interviewed or why. To the extent it implies that the interview was with the pedestrian, the officer clarified that that person was not Lopez. We fail to discern any possible prejudice to Lopez. The court did not err in denying Lopez’s motion for mistrial.
The second “prejudicial” reference to an interview came during an officer’s discussion of a videotaped interview he conducted with the male victim Maciel. The officer testified that the interview was confusing because of Maciel’s inability to speak fluent English. He explained that the police officer fluent in Spanish “was busy interviewing another — ,” at which time Medrano’s attorney objected and moved for a mistrial. Lopez’s attorney joined in the motion. The court found no harm and denied the motion.
3. Lopez specially demurred to the two aggravated assault counts, arguing that the phrasing of the counts allowed the jury to find Lopez guilty if either of two aggravating circumstances was shown under OCGA § 16-5-21 (a). Both counts charged Lopez with making an assault upon Maciel (Count 4) and Rodriguez (Count 5) “with a handgun, a deadly weapon, by pointing the handgun at [the victim] and threatening to kill [him or her], thereby placing said person in reasonable apprehension of immediately receiving a violent injury. . . .” OCGA § 16-5-21 (a) provides in pertinent part that a person commits aggravated assault when he assaults with intent to murder or with a deadly weapon.
Lopez misapprehends the law. The wording of the indictment would have allowed the State to seek a conviction under either sub-paragraph (1) or (2) of subsection (a) of OCGA § 16-5-21, as both methods were sufficiently alleged and proven. Cf. Cannon v. State,
Case No. A03A0471
4. Medrano claims that his counsel was ineffective in failing to challenge the jury array. He argues that contrary to OCGA § 15-12-23 (a), the Clerk of the Superior Court of Gwinnett County did not serve as the clerk of the board of jury commissioners, and that the person (the court administrator) fulfilling the duties of the jury commissioner clerk failed to take the oath required by OCGA § 15-12-23 (a). Medrano contends that he accordingly was not furnished with proper jurors as required by law, and that his counsel rendered ineffective assistance in failing to investigate and raise this issue with
“To show ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense.” Suggs v. State,
Medrano’s challenge to the trial court’s ruling fails for three independent reasons. First, an objection to the jury array would have been futile. Since Medrano did not show at the motion for new trial hearing that as a result of the improper person serving as jury commissioner clerk or as a result of no proper oath being administered, the jury commissioners failed to properly enter their duties and to follow statutory guidelines in selecting the jury lists, there was no denial of due process nor violation of his right to trial by jury. Lawson v. State,
Second, Medrano argues that through oversight, his counsel failed to investigate and challenge the jury array in the trial court. Mere oversight in failing to challenge a jury array, however, does not warrant a finding of ineffective assistance of counsel. Durham v. State,
Third, Medrano’s counsel testified that he decided as a matter of strategy not to pursue an investigation into possible improprieties in the procedures of putting together the grand jury and trial jury array. He testified that Medrano had instructed him to proceed to trial as soon as possible (he filed a speedy trial demand as a result) and that a challenge to the grand jury or trial jury array would have delayed the trial. See Wilson v. State,
Medrano’s trial counsel further testified that the resulting reindictment may have resulted in the indictment of Medrano for the greater crime of kidnapping with bodily injury (see OCGA § 16-5-40
able trial strategy and tactics.” (Footnote omitted.) Braithwaite v. State,
The trial court did not clearly err in finding that Medrano’s counsel made strategic decisions, and we uphold the ruling that these decisions did not constitute deficient performance or ineffective assistance of counsel. The court therefore did not err in denying Medrano’s motion for new trial.
Judgments affirmed.